EZREL TABIOWO amidst recounting the woes of workers in Nigeria, establishes a case for a law by the National Assembly seeking the protection of their rights
In Nigeria, the violation of the rights of workers through a breach of employment terms by employers, particularly on the payment of wages, is a misfortune suffered by employees mostly engaged as either temporary or permanent workers within private establishments throughout the country.
While this is fast becoming a constant feature in most privately run businesses, the fate of workers have been subject to the worst form of abandonment owing to the existent lacuna created by the absence of sufficient laws to prosecute the criminal conduct of companies and organizations living off the backs of their employees.
The trend which has left workers on their own, some going for months or even years unending without salaries, is further compounded by the escalating rate of unemployment which has left them at the mercy of their employers.
In countries such as China, the penalty for non-payment of workers wage which is deemed criminal conduct attracts no less than a 7 year jail term. Employers in China who withhold workers’ pay face up to seven years in jail, according to an amendment to the nation’s criminal code adopted at the 19th Session of the 11th National People’s Congress during late February.
According to reports by Xinhua news agency, the amendment targets employers who conceal assets or flee, and those who refuse to follow government labour department orders. For managers convicted in cases with “serious consequences” jail terms of three to seven years are in order, according to the new terms of the law. The amendment also includes provisions for fines, although the range of these fines has yet to be specified.
The amendment is particularly targeted at employers who victimise migrant workers, and thus can be looked at as part of the government’s overall push to protect the rights of workers and ensure a “harmonious” society.
The current Labour Law, which originally took effect in 1995, stipulates that local labour bureaus have the right to intervene in cases of wage default by companies, can order employers to pay wages, and can impose fines for cases of default. However, previously there was no legal stipulation to make defaulting on wage payments a crime.
Also, in November last year, Ontario’s legislature had voted unanimously in favour of a new worker protection bill after it was amended to include two key concessions to workers’ rights advocates.
Bill 18 as the worker protection bill is known will now become law pending Royal Assent — almost a year after being first introduced.
Campaigners welcomed two changes in particular to the bill, one affecting temporary workers, the other workers who want to launch a wage theft claims.
The first affects Ontario’s 133,000 temporary workers, many of whom find work through temporary employment agencies. Previously, these agencies were responsible for upholding all temporary workers’ rights under the Employment Standards Act, including hours, sick days, pay and termination.
Yet agencies often have little contact with temporary workers once they are hired by client companies, leading many temporary employees to feel unsure about whom they should turn to when there are abuses.
Campaigners argue that companies often use temporary agency hires to evade the costs and responsibilities of elements such as payroll and workplace health and safety.
Originally, Bill 18 aimed to address that situation by making both companies and temp agencies responsible for a temporary worker’s wages and overtime pay.
The second change affects all Ontario workers. Campaigners successfully lobbied to halve a proposed six-month grace period for wage theft claims of over $10,000. Workers will now be able to bring forward claims after a three-month transition period.
Under the new law, workers will be able to file claims that date back two years, and there will be no financial limit.
Defining the crime
In the case of China’s criminal law, the crucial elements of the amendment include revisions to Article 276(1) of the Criminal Code to make intentional withholding of wages a criminal offence.
The amendment defines the crime as follows: That the company has the means with which to pay the wages; The company intentionally withholds payment of wages by either refusing to pay or by transferring assets to escape liability for payment; The situation is serious or the effects are severe; and Freedom for Interpretation by Legal Authorities.
While the law targets intentional non-payment of wages, it offers zero tolerance for companies who find themselves unable to pay their staff.
Given that this amendment is being made specifically to protect worker interests, employers who do not pay wages can expect that the burden of proof for establishing that any such non-payment was unintentional will be on them.
The law therefore requires Companies to file for bankruptcy before it fails to pay wages, one that stands as the only solid defense for breaching employment terms.
For companies facing financial challenges the amendment to Article 276(1) of the Criminal Code means that, even more than was the case previously, they will need to file for bankruptcy at the first sign of severe financial problems. Cash flow problems that endanger a company’s ability to pay their staff in a timely manner are simply too great a risk for companies operating in China, and pre-emptive bankruptcy filing will need to be filed before the first wage payment is missed.
While Chinese law has always included an element of personal responsibility for the legal representative of a company, this new amendment adds a criminal law element that did not exist previously.
Replicating worker protection law in Nigeria
Given the constant abuse of worker rights in Nigeria, and which is alarmingly on the increase, the situation makes it imperative for the National Assembly to intervene by replicating legislation in other countries of the world that ensures the protection of worker rights.
The Senate and House of Representatives must as a matter of urgency propose a worker protection bill that criminalises wage default, and as well define same as criminal under Nigeria’s criminal code.
The continued reliance on intervention by Labour unions such as the Nigerian Labour Congress over non-payment of wages has clearly proved insufficient, and not yielded any positive response that benefits workers especially when it comes to wage default within private establishments.
Instead, the influence of the NLC is in most cases deployed and used to gainful advantage in situations aimed at ensuring the welfare of workers employed by either the state or federal government in Nigeria, thus alienating the interests of workers employed in the private sector.
However, with the introduction and subsequent passage into law of a worker protection bill, the overall interest of workers in the country – whether employed by government or the private sector – will be adequately taken care of, as much as there will be a sense of responsibility on the path of employers to desist from non-payment of worker wages.
