The Labour Act which is a 1970 legislation (the “Act”) is the main plank of labour laws in in Nigeria. Its extensive provisions relate largely to non-professional and non-administrative employees in Nigeria, whom the Act identifies as workers. – Yet it applies to all employment relations in the public and private sectors.
The Act requires Minister, Federal Ministry of Labour and Employment (the “Minister”) to appoint Labour officers whose functions include enforcement and supervision of employers’ compliance to the Act through inspection of any workplace in Nigeria.
Labour officers are authorized to visit and enter – during the day only – any workplace in Nigeria. Workplace include labour encampment or staff quarters, canteens, factories, hospitals, farm, plants, off shore facilities and, offices belonging to employers of labour whether individuals, private or public institutions.
We aim to examine the rights of the Labour officers to inspect work places in Nigeria, in addition to how the Employer or any Employee may act during any such inspections.
The Rights of the Labour Officer
The Act authorizes the Minister to designate any persons in the Ministry or any department under his watch as an authorized Labour officers (the “Labour officer”). The Labour officer who is required to be appointed in writing, may be appointed in its name or by virtue of the office in respect of any or all part of Nigeria or in respect of any provisions of the Act.
The Labour officer’s duty is of absolute confidence subject to disclosure to Court of Law or authorized law enforcement agencies in Nigeria – a Labour officer cannot publish or disclose commercial or working processes or data gained in the course of any inspection of an employer’s premises. This appears to be a far reaching powers given that competitors may take undue advantage of Labour officers by inducing a labour officer to disclose to it confidential information of competitors.
The Labour officer’s visit to any work places may or may not be predicated on a complaint and, it cannot disclose or give any indication that its visit is predicated on any complaints.
The Labour officer has powers to enter any part of a business premise if it reasonably believes that an Employee resides in it. It can examine or inspect any sanitary convenience, canteen, staff room or water supply. In addition to taking samples subject to clear procedures in the Act, for the purpose of further and detailed examination or evaluation.
The Labour officer can request for any register, certificates, notices or other documents required to be kept by the Act. In our view, these may include employment contract (and qualifying certificates); salaries; employee’s handbook, name and address of the employees, town (or other place) of origin, date of birth, name and address of next of kin, date and place of engagement, National Provident Fund number (now NSITF), evidence of PAYE or insurance, date of cessation of employment, and any other condition of employment.
Every job recruiter or recruitment company in Nigeria shall keep in the prescribed form records from which the regularity of every recruiting operation and of his own conduct can be verified and shall produce the records for inspection on demand by a labour officer.
The Act requires Employers to keep employees’ data for up to 3 (three) years from the date employment ceased – whether termination or dismissal. Some of the data the Act requires the employer to keep is now subject to the Nigerian Data Protection Regulation 2019.
For FSPOs (Floating Production Storage and Offloading Vessel) as well as other vessels, the Act requires employers to keep data of young persons who are employees together with dates of birth, and in case of vessels where there is no written employment agreement, the master shall keep a register of required data of such young persons employed in the vessel with the dates on which they became or ceased to be members of the crew. The data shall at all times be open to inspection of the labour officer.
The Labour officer may make copies of any such documents for its use in addition to capacity to make general enquiries to confirm that the employer complies with the Act. It may question any employee either alone or in the presence of any persons in respect of all matters it is authorized to act including former Employees who resigned within 3 (three) months preceding the inspection.
The Labour office must comply with the following procedures for taking any samples of liquids or food or materials from the work place:
- such samples will be taken in duplicate in the presence of the employer or its duly authorized representative;
- each sample will be clearly labelled and sealed in the presence of the employer or its representative and;
- the Labour officer will deliver to the employer or its representative one of the labelled and sealed sample for the employer’s record.
The concept of the Labour officer is a common practice among the commonwealth countries with varying degree of effectiveness. The Labour officers’ role is crucial in curtailing child labour and related issues, including all forms of abuses and non-compliance to the Act in the workplace in Nigeria.
The role of Employers and Employees
Employers of workers in Nigeria need to note that the Act requires a worker’s employment contract to be signed before a labour officer. Workers include the beneficiaries of the popular apprenticeship model in the South of Nigeria.
The compliance requirements under the Act may include an employment agreement duly signed, evidence of paid or unpaid leave, transportation, related employment qualifying certificates, Industrial Training Fund participation, salaries and salary structures, employees’ handbook, names and addresses of employees including towns (or other place) of origin, date of birth, name and address of next of kin, date and place of engagement, Nigerian Social Insurance Trust Fund (NSITF) and Pension contributions, evidence of PAYE or any other insurances, date of cessation of employment, and other conditions of employment.
Should an employee consider any questions the Labour officer puts to it to be self-incriminating, the employee has the right to remain silent.
An employer who is notified of an inspection by a labour officer – note that a notice of inspection is not required – may request for a reschedule but does not have the right to decline any such inspection. Employers and its compliance officers – whether in-house or external – should ensure appropriate adherence to compliance requirements under the Act while remaining firm, clear and, courteous to a visiting labour officer.
The powers of the Labour officer under the Act is to be exercized in the public interest. The labour officer who anticipates any opposition or violence from an employer or its agents, may request for Police protection. To obstruct the lawful duties of a labour officer as well as non-compliance to its direction is an offence liable to N1,000 fine or imprisonment not exceeding 2 (two) years or both imprisonment and fine. And lack of record keeping is sanctioned with a N200 fine.
With the consent of the Minster, the Law officer has powers to prosecute any offence arising from or relating to the foregoing subject to the powers of the Attorney-General under the 1999 Constitution (as amended). – The Labour officer has the power to issue directives aimed at remediation within a specified period – an Employer may appeal to the Minister within 14 days or within the period stated in the direction (whichever is less) issued by the labour officer and the Minister may refer any appeals to it for advise of any persons it considers suitable. The decision of the Minister’s advisor shall be final.
The finality of the Minister’s advisor – who is an agent of the Minister – in our view, may be subject to judicial review.
Any inspection of a workplace by the Labour officer calls for cooperation of compliance officers of the employer or the employers its agents.
Osita Enwe Esq., Managing Associate at SRJ Legal Practitioners