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Casual Work in Nigeria: The Shortcomings of the Current Legal Framework

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Sunday, July 26, 2020 06:00PM / by Sinmiloluwa Lala, Associate, Aelex / Header Image Credit: Aelex

Introduction

Casual work arrangement (also known as Non-Standard Work Arrangement (NSWA)) is generally used to describe work arrangements which do not fall within the traditional definition of employment. The term may also refer to fixed contract, contract work, on-call work, part-time, and temporary work.¹ Generally, there are four dimensions when determining whether an employment is casual. These include:

the degree of certainty of continuing employment,
control over the labour process (which is linked to the presence or absence of trade unions and professional associations and relates to control over working conditions, wages, and the pace of work);
the degree of regulatory protection; and
income level.²

While casualisation of employment may be considered as an appropriate strategy for cost reduction, it is often temporary and characterised by uncertain wages, long hours, and a lack of job security.

Casual Employment in Nigeria

In Nigeria, a casual employee is defined as a worker engaged for a period of less than 6 months and who is paid at the end of each day.³ This is however not the practice presently as casual workers may be engaged for as long as one or two years. There is currently a Bill to amend the extant Labour Act⁴, which has been passed by the House of Representatives, to prohibit and criminalise the casualisation of workers after six months of engagement. The Bill, when assented to, would mandate the regularisation of employees after six months of employment.⁵

Employers in Nigeria are increasingly filling positions in their organisations, which ought to be permanent, with casual employees. In the past, casual work arrangement was predominantly for unskilled workers especially in the construction industry. However, at present, both skilled and unskilled persons are engaged as casual workers in the informal sector and even the organised private and public sectors of the economy. This trend has largely been attributed to the increasing attempt of employers to cut down the organisational costs of the employers. While favouring the employer, casualisation in many Nigerian organisations presents a range of problems for the employees. In fact, it is considered an affront on the employees right to form and belong to trade unions, a right which anchored on the constitutionally guaranteed right to freedom of association.⁶

Challenges of Casual Employment in Nigeria

A report⁷ by the National Bureau of Statistics in the 3^rd quarter of 2018 showed that there are about 20.9 million unemployed Nigerians. It is evident that casual work may be enabled by the widespread unemployment in Nigeria. Considering the high unemployment rate in Nigeria, some individuals are willing to work under any condition despite being deprived of certain benefits which they will ordinarily be entitled to if they were permanent workers.

Consequently, with the employees being stripped of the right to join trade unions, they may not be able to effectively negotiate with employers for better working conditions and even pay. They may also not be in a position to access or secure other rights. Furthermore, although many employees rely on their employment to get benefits like health insurance, casual workers may not enjoy any form of social protection, either from their employers or the state.

The Nigeria Labour Congress ("NLC"), the umbrella organisation for trade unions, has continued to express its aversion to casualisation of employment particularly because of the disregard for the dignity, integrity and rights of workers which are protected by the nations labour laws, constitution and International Labour Organisation's ("ILO") conventions by employers. The most prominent characteristic of this category of workers is that their employment is not permanent, hence, they can oftentimes be retrenched without prior notification.⁸

Trade unionism

The Trade Union Act⁹ defines a trade union as "any combination of workers or employers, whether temporary or permanent the purpose of which is to regulate the terms and conditions of employment of workers..."

Section 40 of the Constitution of the Federal Republic of Nigeria As Amended¹⁰ (the Constitution) guarantees the right to freedom of association to all citizens in Nigeria.

The inference drawn from the foregoing legislation is that all workers - casual or permanent - have the freedom to belong to, join and constitute any trade union of their choice in accordance with the laws. Consequently, in Patovilki Industrial Planners Limited v. National Union of Hotels and Personal Services Workers,¹¹ the National Industrial Court ("NIC") in determining the right of both permanent and temporary or casual workers to form a trade union, made reference to section 1(1) of the Trade Union Decree¹² and held that a relevant trade union can unionise workers who are casual daily paid workers.

Workplace discrimination

The Constitution¹³ prohibits discrimination in the work place and provides that the state shall direct its policy towards ensuring that all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment. Section 42 (1) and (2) of the Constitution also guarantee a right to freedom from discrimination. The ILO Equal Remuneration Convention, 1951 and the Discrimination (Employment and Occupation) Convention, 1958, which Nigeria has ratified, equally frown against any form of labour discrimination. Sadly, in comparison with other employees, the trend now is that casual workers work for many years without promotion and necessary entitlements. The casual worker in the Nigerian labour market may thus suffer a lot of discrimination, particularly as regards wages and other employment benefits.

Redundancy and casual work

The Labour Act¹⁴ provides the procedure for an employer declaring redundancy, which is an involuntary and permanent loss of employment caused by excessive manpower¹⁵. In the event of redundancy, an employer is mandated to inform the trade union or workers' representative concerned of the reasons for and the extent of the anticipated redundancy. The essence of this notification requirement is to afford the relevant party an opportunity to ascertain the authenticity of the employer's intention. This is because the law forbids the employer from hiding under a fictitious redundancy situation to unscrupulously terminate the employment of an employee.¹⁶ The employer is also expected to use all endeavours to negotiate redundancy payments to discharged workers that are not protected by regulations.

In essence, where employees are to be declared redundant, the employer must take all measures to ensure that under the guise of redundancy, employers do not terminate the employment of their employers for any flimsy reason. However, casual workers, who ordinarily should be able to unionise if they were permanent workers, are not allowed to belong to unions and have no collective body to advocate for their rights. The implication is that they can be retrenched on the basis of redundancy at any time without being notified of the reason or the extent of the intended redundancy. The workers are sometimes not even given any redundancy payments before they are laid off. This bizarre practice continues to characterise casual work in Nigeria.

Recommendation

With the increasing demand for decent work¹⁷ in organisations in Nigeria, the manner in which NSWA operates in Nigeria especially in the area of unskilled labour proves as a threat to ensuring decent work to all employees in Nigeria. Other than the Employee Compensation Act¹⁸, no other legislation envisions a casual employee as a worker within the Act. The legal status a casual worker and the extent of the right of such worker must be clearly defined. The degradation of work and the unfair restriction of activities of casual workers ought to be stopped to promote healthy working environment for all employees.

Conclusion

Although casualisation of employment is supposed to be a flexible work arrangement for the benefit of those who cannot engage in full time employment, it has been reduced to slave-like labour with all kinds of ugly practices. It is recommended that casual work be clearly defined in the labour laws and guidance for engaging in an NSWA be provided in the laws.

Footnotes

1. Francoise J. Carre, 'Temporary and Contracted Work in the United States: Policy Issues and Innovative Responses in Changing Labour Market and Gender Equality: The Role of Policy' (High level Conference organised jointly by the Organisation for Economic Co-operation and Development (OECD), the Ministry of Children and Family Affairs and the Ministry of Labour and Government Administration, Oslo, Norway, 12 and 13 October 1998) p. 3

2. Susan Durbin and Jennifer Tomlinson 'Female part-time managers and career mobility. Work, Employment and Society' (2010) 24(4) Sage Journal < https://doi.org/10.1177%2F0950017010380631 > accessed 25 April 2020. See also: Michael Gebel 'Early Career consequences of temporary employment in Germany and UK' (2010) 24(4) < https://doi.org/10.1177%2F0950017010380645 > accessed 25 April 2020

Sandra Richardson and Jan Allen 'Casualisation of the nursing workforce: A New

Zealand perspective on an international phenomenon' (2001) 7(2) IJNP < https://doi.org/10.1046/j.1440-172X.2001.00266.x > accessed 27 April 2020

3. Owena Mass Transportation Co. Ltd v. Okonogbo (2018) LPELR-45221 (CA)

4. Cap L1, Laws of the Federation of Nigeria 2004. The provisions of the Labour Act primarily applies to the employment of 'workers', defined as unskilled persons who perform non-administrative, non-executive or non-technical work (in many cases, manual labour or clerical work)

5. Leke Baiyewu 'Reps to criminalise workers' casualisation' Punch (Abuja, 18 February 2020) <https://punchng.com/reps-to-criminalise-workers-casualisation/> accessed 25 April 2020

6. Section 40, Constitution of the Federal Republic of Nigeria 1999 (as amended)

7. Labour Force Statistics - Volume I: Unemployment and Underemployment Report' National Bureau of Statistics, 2018. p. 1 <https://nigerianstat.gov.ng/download/856>

8. Emeka E. Okafor and Bamidele Rasak 'Casual Employment-A Nostrum to Unemployment in Nigeria'(2015) 4(2) FJMSS < https://pdfs.semanticscholar.org/5030/d0013cc31e1f03b14db0e1bf5637381487fe.pdf > accessed 27 April 2020

9. Cap T14, Laws of the Federation of Nigeria 2004

10. Constitution of the Federal Republic of Nigeria 1999 (as amended)

11. Suit No. NIC/12/89

12. Decree No.22 of the Federal Republic of Nigeria 1978

13. Section 17 (3) (a).

14. Labour Act, Section 20

15. Union Bank v. Salaudeen (2017) LPELR-43415 (CA)

16. David T. Eyongndi 'Casual Employees under Nigerian Law: Matters Arising' Academia (2017) < https://www.academia.edu/33313972/CASUAL_EMPLOYEES_UNDER_NIGERIAN_LAW_MATTERS_ARISING_2_0_F_0> accessed 27 April 2020

17. Decent work involves opportunities for work that is productive and delivers a fair income, security in the workplace and social protection for families, better prospects for personal development and social integration, freedom for people to express their concerns, organise and participate in the decisions that affect their lives and equality of opportunity. Decent Work. Available at (International Labour Organisation) < https://www.ilo.org/global/topics/decent-work/lang--en/index.html > accessed 12 July 2020

18. Section 73

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