By Jeremiah E. Aneji (LLB, B.L, MDRPN)
INTRODUCTION
When considering employment, the topmost concern for any worker is whether they will be safeguarded or assured some form of protection in case of exposure to occupational hazards. Such hazards can incapacitate them or, in tragic cases, lead to their demise.
The 2016 report on Nigeria’s Occupational Safety and Health (OSH) profile by the International Labour Organization (ILO) revealed that between 2014 to 2016, Nigeria had experienced a staggering 238 fatalities due to occupational hazards across various sectors of its economy ᶦ. Furthermore, during this same period, a total of 3461 reported occupational accidents/injuries were recorded in different sectors of the country’s economy. However, as stated in the report, these figures are likely under-reported and could be much higher in reality.ᶦᶦ
It is an undeniable fact that every workplace posessome form of hazard or risk. These risks can manifest as physical safety hazards, chemical hazards, biological hazards, physical hazards or ergonomic risk factors among others.ᶦᶦᶦ The degree and nature of exposure may vary significantly depending on the industry sector involved.
For example, according to the aforementioned ILO report earlier cited above; it was noted that out of all industries represented therein; construction accounted for over 39% of work-related accidents/injuries within this time frame – making it one with highest incidence rate while ICT/telecoms contributed only a paltry fraction at just about 0.26%ᶦᵛ
Having agreed that these hazards cannot be completed eradicated, ᵛ the question now becomes, what safety measures the government and policy makers are being put in place to minimize the risk and provide for, adequate compensation in the event these incidents occur, especially for the Nigerian worker.
The International Labour Organization (ILO) Convention to which Nigeria is a signatory of, made provisions for a universal approach to workplace safety and insurance in the event of occupational incidents. The Nigerian labor laws also establishes some form of safety nets and regulations to ensure optimal workplace practices and most importantly provide insurance/guarantees for employees who may inevitably become casualties of workplace accidents.
The essence of this work is to highlight the legal framework which provides for remedies accruable to workers/employees in the event of exposure to hazards in the course of their employments. The second part of this article would address the simple ways to go about activating such a right and finally, the responsibility of employers of labour toward employees in the face of injuries or death arising from the hazards associated with the nature of their employment under the Employee Compensation Act, 2010.
To do this we would highlight the conventional framework for employees’ compensation internationally and within the framework of the Nigeria labour laws, after which we would examine the structure for compensation under the Nigerian Employee’s Compensation Act, 2010.
1. THE INTERNATIONAL CONVENTIONAL FRAMEWORK FOR WORKERS’ COMPENSATIONS.
The International Labour Organization (ILO) is a specialized agency of the United Nations with the mandate to advocate for workers’ welfare and labor issues on a global scale. Since its establishment in 1919 ᵛᶦ, it has been at the forefront of ensuring that member nations establish laws and institutional frameworks that effectively safeguard workers against occupational hazards. This objective is achieved through various conventions, including its earliest convention aimed at addressing compensation for exposure to occupational diseases or accidents resulting in injury or death, as well as more recent ones
focused on standardizing safety measures in workplaces.ᵛᶦᶦ
Below are the highlights of this conventions:
A. ILO’s Workmen’s Compensation (Occupational Diseases) Convention (Revised), 1934 (No.42) – This addresses the mechanisms to be put in place by member nations, to address compensation for injuries or death resulting from exposure to occupational diseases. Article 1 of the Convention provides as follows:
1) Each Member of the International Labour Organisation which ratifies this Convention undertakes to provide that compensation shall be payable to workmen incapacitated by occupational diseases, or, in case of death from such diseases, to their dependants, in accordance with the general principles of the national legislation relating to compensation for industrial accidents.
2) The rates of such compensation shall be not less than those prescribed by the national legislation for injury resulting from industrial accidents. Subject to this provision, each Member, in determining in its national law or regulations the conditions under which compensation for the said diseases shall be payable, and in applying to the said diseases its legislation in regard to compensation for industrial accidents, may make such modifications and adaptations as it thinks expedient.
B. ILO’s Workmen’s Compensation (Accidents) Convention, 1925 (No.17) – This addresses the mechanisms to be put in place by member nations, to address compensation for injuries or death resulting from workplace accidents. Article 1 of this Convention provides thus:
“Each Member of the International Labour Organisation which ratifies this Convention undertakes to ensure that workmen who suffer personal injury due to an industrial accident, or their dependants, shall be compensated on terms at least equal to those provided by this Convention.”ᵛᶦᶦᶦ
C. ILO C155 – Occupational Safety and Health Convention, 1981 (No. 155) – This was ratified by Nigeria in 1994 ᶦˣ. Article 4 of the convention provides thus:
1) Each Member shall, in the light of national conditions and practice, and in consultation with the most representative organizations of employers and
workers, formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment.
2) The aim of the policy shall be to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, by minimizing, so far as is reasonably practicable, the causes of hazards inherent in the working environment.
D. ILO’s C187 – Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187) – This mandates each member to promote continuous improvement of occupational safety and health to prevent occupational injuries, diseases and deaths, by the development, in consultation with the most representative organizations of employers and workers, of a national policy, national system and national programme.ˣ Article 2 summarized the objectives of the convention thus:
1) Each Member which ratifies this Convention shall promote continuous improvement of occupational safety and health to prevent occupational injuries, diseases and deaths, by the development, in consultation with the most representative organizations of employers and workers, of a national policy, national system and national programme.
2) Each Member shall take active steps towards achieving progressively a safe and healthy working environment through a national system and national programmes on occupational safety and health by taking into account the principles set out in instruments of the International Labour Organization (ILO) relevant to the promotional framework for occupational safety and health.
3) Each Member, in consultation with the most representative organizations of employers and workers, shall periodically consider what measures could be taken to ratify relevant occupational safety and health Conventions of the ILO.
In concluding, we must emphasis the relevance of these conventions in informing the direction of the Nigerian Labour Policies especially as Nigeria is a signatory/member of the ILO and has ratified some of these conventions.
2. THE INSTITUTIONAL FRAMEWORK FOR EMPLOYEE’S COMPENSATION IN NIGERIA
In further compliance with her obligations as a signatory of the ILO, Nigerian labour laws has provided for safety net, regulatory and otherwise to ensure best practices are obtainable in workplaces and most importantly the provision of insurance/guarantee for employees who may inevitably become victims of workplace accidents. The anchor statute for this the Factory Act, the Labour Act and but primarily the Employee Compensation Act, 2010.
While the Labour Act addresses issues that bothers on the relationship between employees and their employers, the Factory Act 1987 deals with the mandatory requirements necessary to ensure proper safety measures are incorporated in the workplace, the Occupational and Health Safety Act, 2005 the Employee’s Compensation Act deals with compensation for any worker, or the loved ones of any worker, who becomes victim of the hazards occasioned by or incidental to his job. For the purpose of this work, we would dwell on the Employee’s Compensation Act.
The Employee’s Compensation Act – The Employee’s Compensation Act(ECA, 2010) was fairly recently enacted as it repealed the previously known Workmen Compensation Act, Cap W6 LFN, 2004. It was enacted to ensure employees are adequately compensated in the event they suffer injuries or lose their lives resulting to exposure to work hazards. According to Worugi “The Employee’s Compensation Act (ECA), 2010, is one of the laws enacted to provide income security for employees who suffer from work related occupational diseases or injuries; and survivor benefits for families of victims of related fatalities (death). The Employee’s Compensation Act, 2010 repealed the Workmen’s Compensation Act (WCA), 2004.”ˣᶦᶦ
Summarily, this law which applies to all workers, save for members of the armed forces ˣᶦᶦᶦ, was set out to attain the following objectives:
a) Provide for an open and fair system of guaranteed and adequate compensation for all employees or their dependants for any death, injury, disease or disability arising out of or in the course of employment;
b) Provide rehabilitation to employees with work-related disabilities as provided in this Act;
c) Establish and maintain a solvent compensation fund managed in the interest of employees and employers;
d) Provide for fair and adequate assessments for employers;
e) Provide an appeal procedure that is simple, fair and accessible, with minimal delays; and
f) Combine efforts and resources of relevant stakeholders for the prevention of workplace disabilities, including the enforcement of occupational safety and
health standards.”ˣᶦᵛ
3. STRUCTURE FOR COMPENSATION UNDER THE NIGERIAN EMPLOYEE’S COMPENSATION ACT, 2010
The Act established the legal and institutional framework upon which the above objectives can be attained. We would go on to highlight these provisions.
A. The Employee’s Compensation Fund ˣᵛ – This where contributions are mandatorily pooled to carter for the payment of adequate compensation for all
employees or their dependants for any injury, disease or disability arising out of or in the course of employment; and where necessary for the provision of
rehabilitation to employees with work-related disabilities; xvi The Act made provision for contributions into these pool of employment.ˣᵛᶦᶦ
B. The Nigerian Social Insurance Trust Fund Management Board (NSITF) – This is the body established by the Act to administer the Act and by extension manage issues relating to the disbursement of the funds and the implementation of the provisions of the Act.
C. The Independent Investment Committee – This body is set up to advice on the Investment of the funds of the Categories Of Injuries Covered For Under The Employee Compensation Act. The EC Act provides for the protection of workers from work related hazards resulting in the following:
a) Physical Injury or Disease resulting to disability or medical care – Where the injury or disease is caused by accident and the accident arose out of the employment, unless the contrary is shown, it shall be presumed that the injury occurred in the course of the employment.ˣᶦˣ
b) Mental Stress – if the mental stress is (a) an acute reaction to a sudden and unexpected traumatic event arising out of or in the course of the employee’s
employment; or (b) diagnosed by an accredited medical practitioner as a mental or physical condition amounting to mental stress arising out of the nature of work or the occurrence of any event in the course of the employee’s employment. ˣˣ This also includes Where the mental stress is caused as a result of the decision of the employer to change the work, the working conditions of work organization in such a way as to unfairly exceed the work ability and capacity of the employee thereby leading to mental stress.ˣˣᶦ
c) Occupational Disease – Where as a result of an occupational disease, an employee is disabled from earning full remuneration at the workplace or where the death of an employee is caused by an occupational disease;ˣˣᶦᶦ
d) Hearing Impairment – Where an employee suffers from hearing impairment of non-traumatic origin, but arising out of or in the course of employment he is entitled to compensation subject to certain conditions.ˣˣᶦᶦᶦ
e) Injuries Outside the Workplace – Where the injury to an employee occurs while the employee is working outside the normal workplace which would otherwise entitle the employee to compensation under this Act if the injury occurred in the workplace. ˣˣᶦᵛ Closely related to this, is the provision for compensations to extend to injuries remotely connected to the job in question. Some of these connections are thus:
A. Accidents sustained in between work and the employee’s principal or secondary residence; provided that the employer has prior notification of
such place.
B. Accidents sustained in between work and the place where the employee usually takes meals; provided that the employer has prior notification of
such place.
C. Accidents sustained in between work and the place where he usually receives remuneration, provided that the employer has prior notification of
such place.ˣˣᵛ
The Scale Of Compensation Available To Victims.
The degree/scale of compensation available to employees under the Employee’s Compensation Act is dependent on the nature or extent of the injury or health challenge consequent to the unfortunate incident. This degree of compensation may be assessed on the following basis:
A. Permanent total disability – Whether the injury amounts to a permanent disability, rendering the employee invalid or unable to take up any other jobs. This permanent disability that would require the employee to receive constant care for the rest of his life.ˣˣᵛᶦ
B. Permanent partial disability or disfigurement – Whether the injury amounts to a partial impairment whether of a permanent or temporary nature or
disfigurement.ˣˣᵛᶦᶦ
C. Temporary total disability – Where the accident led to a total disability however temporarily.ˣˣᵛᶦᶦᶦ
D. Temporary partial disability – ˣᶦˣ
In summary, the scope and limit of liability for compensation (compensable injuries) are defined in part III of the Act, while part IV deals with scale and quantum of compensation payable in case of the injuries or liabilities.ˣˣˣ
CONCLUSION
The law adequately provides for compensation of workers in the event of injury or death, however there is need to public enlightenment on the part of the NSITF in bringing this rights to the doorstep of the Nigerian workers and the employers so they would know what steps to take and the right time to do so as provided for in the law. This is not so much at the moment.
DISCLAIMER;
This article is for information purposes, it may, or may not reflect the current position of the law and is therefore not intended to provide legal advice or guidance on litigation or provide commentary on any pending case or legislation.
REFERENCE
i The International Labour Organization Report on Nigeria OSH 2016: https://www.ilo.org/wcmsp5/groups/public/—africa/—ro-abidjan/—ilo-abuja/documents/publication/wcms_552748.pdf
ii Ibid
iii The Legal Information Institute on Occupational Hazards:
https://www.law.cornell.edu/wex/occupational_hazard#:~:text=Occupational%20hazards%20are%20risks%20associated,hazards%2C%20and%20ergonomic%20risk%20factors.
iv International Labour Organization Report on Nigeria OSH 2016: https://www.ilo.org/wcmsp5/groups/public/—africa/—ro-abidjan/—ilo-abuja/documents/publication/wcms_552748.pdf
v Article 4(2) of the ILO’s C155 – Occupational Safety and Health Convention, 1981 (No. 155)
vi History of the ILO: ILO https://www.ilo.org/global/about-the-ilo/history/lang–en/index.htm
vii C187 – Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187)
https://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO:12100:P12100_INSTRUMENT_ID:312332
viii Article 1 of the ILO C017 – Workmen’s Compensation (Accidents) Convention, 1925 (No. 17)
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C017#A4
ix ILO’s Information System on International Labour Standards: Ratifications for Nigeria.
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:103259
x C187 – Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187)
https://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO:12100:P12100_INSTRUMENT_ID:312332
xi Ibid. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C187
xii Dr. I. N. E Worugji “Work Injuries Compensation under the Employee’s Compensation Act in Nigeria: What is Next?” https://www.academia.edu/resource/work/67984110 Journal of Law, Policy and Globalization Vol. 10, 2013 www.iiste.org
xiii Section 2(1) of the Employee’s Compensation Act, 2010
xiv Section 1(a) – (f) of the Employee’s Compensation Ac, 2010.
xv Section 56 of the Employee’s Compensation Act, 2010
xvi Section 58 of the Employee’s Compensation Act, 2010.
xvii Section 34 to 41 of the Employee’s Compensation Act, 2010.
xviii Section 2 of the Employee’s Compensation Act, 2010.
xix Section 7 of the Employee’s Compensation Act. 2010.
xx Section 8(1) of the Employee’s Compensation Act. 2010.
xxi Section 8(2) of the Employee’s Compensation Act., 2010.
xxii Section 9(1) of the Employee’s Compensation Act, 2010.
xxiii Section 10 of the Employee’s Compensation Act, 2010.
xxiv Section 11 of the Employee’s Compensation Act, 2010
xxv Section 7(2) of the Employee’s Compensation Act.
xxvi Section 21 of the Employee’s Compensation Act.
xxvii Section 22 of the Employee’s Compensation Act.
xxviii Section 24 of the Employee’s Compensation Act
xxix Section 25 of the Act.
xxx Dr. I. N. E Worugji “Work Injuries Compensation under the Employee’s Compensation Act in Nigeria: What is Next?” https://www.academia.edu/resource/work/67984110 Journal of Law, Policy and Globalization Vol. 10, 2013 www.iiste.org