Thursday, 16 March 2017

Labour law: safety at work_statutory analysis


INTRODUCTION
Chapter Eight of Labour Law in Nigeria: The law of work by O.V.C. Okene, Ph.D, (third edition) starts from page 136 to page 157. It is the end of the part 1 of the book that deals specifically with individual Labour Law.
The topic of the chapter is “Health and safety at work, considering the provisions of the Factories Act 2004 and the Employees’ Compensation Act 2010. The general provisions of these Acts is to ensure the safety, welfare, health etc of the workman while doing his work and to guarantee adequate remuneration, compensation, benefits etc duly and in the event of injury. Primarily, both Acts, provides for the health and safety of the employee. Thus, the protection of the employee is a statutory duty, it cannot be averted, neglected, boycotted etc, in such event it will amount to a breach upon which the employee can sue for damages. In enforcing the breach the employee is entitled to proof mere default by the employer to comply with the requirements of the law without recourse to injury suffered.
The acts in discussion are the Factories Act 2004 which defines what and where could be called a factory, what should be provided for the workers in a factory, and in the event of an accident how it should be reported; the second one is the Employees’ Compensation Act 2010 which mainly, as it is in the name, provide for the compensation of workers who have suffered an injury amongst other things. The summary, briefly of the whole chapter follows hereunder.

BRIEF SUMMARY    
 The summary herein shall be done separately as to the different Acts. They are:
1. The Factories Act 2004.
The act is aimed at ensuring preventive measure against industrial accidents. It objectively provides for a proper working conditions for those employed in an operation. Part I (one) of the Act provides a general introduction to the Act. It covers sections 1-6.
Part II (two) covers sections of 13. It provides for the general health in factories. Section 7 provides for cleanliness from the floor to the ceiling of every partition in the factory. The provision for cleanliness in section 7 is a laudable one. Without prejudice to the employer, the employee while carrying out his contractual duty should do so in an environment where in his health shall not be jeopardized or compromised resulting to sickness which might partially or totally incapacitate the employee.  Section 8 provides against overcrowding while work is on.   This provision totally has my agreement, if the number of persons in a workroom is not checked, not only will there be not enough air-space, but there is the possibility that some workmen might be injured either by machinery or a fellow workman unconsciously. Section 9 provides for ventilation, there is need to be adequate ventilation so as to remove contaminated air for the fresh one to enter. Section 10 provides for adequate, sufficient and suitable lighting in every workroom.  The provision of sufficient lighting in the workroom will avert possible injury on the workmen, therefore, I agree. Section 11 provides that every floor which is liable to be rendered was should have drainage to remove the water. This is to keep the floor dry; wet floors often will be slippery where on workers might slip and fall. Section 12 provides for sanitary conveniences to enable to workers whenever there is a call of nature, with ease, to quietly walk in; both sexes having separate rooms. Medical supervision is not by the Act, compulsory, however, the Minister of Labour may by regulation specify the type of medical centre to be provided in a factory, on his knowledge of certain health  compromise resultant to the nature of work done therein the factory.
Part III (three) of the Act covers general safety provisions. Under the general safety provisions machineries in the factories are demanded to be “securely fenced” or kept in such a manner that it will not, while in used or in motion, cause injury to any one worker in the factory. Sections 14 and 15 of the Act provides for fencing of every flywheel connected to a prime mover, every moving part of a prime movers, and every pair of transmission machinery. Section 17 also provides that every dangerous part of any machinery must be fenced and they apply to mobile crane and also vehicle used in a factory.
The general safety provisions of the Act guarantees the safety of every person employed or working on the premises of a factory. This ensures that while they do their work they should be free from industrial injuries.
The provisions of part 3 are salient and appreciable to common sense. Workers must be protected at work. This is a statutory duty imposed on the employer.
Part IV (four) of the Act covers general welfare provisions. It covers sections 40-44. Section 40 provides for adequate supply of which some drinking water. This is for the quenching of the thirst of worker in an interval of continuous work. Water is one of the physiological needs therefore, it ought to be provided. Section 41 provides that there should be washing facilities for workers to clean themselves each day after work before going out the premises of the factory. Section 42 provides for accommodation for clothing where every worker will have for themselves reasonably practicable arrangements for their clothes during and after work. This arrangement should be such that the clothes of a worker will not be removed unknowingly to him. In section 43 the demand for the provision first aid materials in the event of an emergence, in the factory wherein an injured worker can be attended, should be readily accessible. One set of first aid material for every 150 person; where more than 50 persons are employed they must be trained in first and whereupon the Minister may regulate such training. Also, where there is an emergency room or provision for the welfare of the workers is agreeable to the international standard of Labour and organization. The International Labour Organization (ILO) sets these standards for the welfare of the workers even while they do their work.
Part v (five) of the Act provides for the Special Health, safety and welfare of workers in a factory. Section 45 provides that in every factory wherein by nature of the work carried on there is a given off of any fume that is likely or is expressly injurious and offensive to the health of the worker practicable measures for protecting such worker must be taken. Also, where poisonous substances are emitted the rule should be that in such environment no person should take food or drink therein. Again, in such situation of the offensive fume which may be hazardous to their eyes the employers are compelled to provide protective goggles for the workers, see section 47.
The provision of part v (five) of the Act is to the effect that direct or primary hazards are averted; it is in agreement with ILO standard therefore I agree.
Part VI (six) provides for notification and investigation of accidents and industrial diseases. This part provides for the form, of such notification, those to give such notification and the means as well as the destination of the notification.  Such notification include: notification of industrial accident, death, occupational discusses. The provision of this part is wholesome and correct, through the notification the injured or if unfortunate, the dead.
THE EMPLOYEES’ COMPENSATION ACT 2010.
Owing to the provisions of the Factories Act wherein damages are entitled to workers who are injured the Employees Compensation Act is the procedural enactment to the fruition of the substantive provision in the Factories Act.
Part I (one) of this Act covers sections 1-3 it is the preliminary provisions covering the objective scope, application of the Act and exceptions.
Part II (two) provides for the procedure for making claims. It includes the employees’ notification of injury and death. Section 4(1) specifies how, who (in any particular circumstance) is to make such notification, and the format for the notification. In view of subsection 4 of section 4 it is sufficient to say that the procedure for making claims is a straight jacket provision which must be taken and followed as it is. Although, this is to give form to the procedure but in the event of death of an employee his or her dependants may be unaware of the form. This perhaps might deprive them of the benefits they were to enjoy.
Part III (three) covers sections 7-16, it provides for the compensation death, injury or disease on an employee, which occurred out of or in course of his employment. An accident arises out of the employment if it happens while the employee is doing something that forms part of or is integral to his employment, thus section (4) deem such accident to have occurred in the course of the employment. To ascertain this claimant must prove that such injury has causal connection with the employment. It was held in U.A.C. (Nig.) Ltd V. Joseph Orekyen that an employee placed in charge of an office or station is expected to main order in the office or station. In the event where he sustains any injury the employer shall be liable. This is to prove what the cause of such injury is connected to this employment.
As provided in part III (three) of the employee who has suffered an injury is entitled to a certain scale of compensation to show the relevance of his services to the business of his employer.
Part IV (four) of the Act covers sections 17 to 30. It provides for the scale of compensation in different circumstance like fatal accidents, warlike actions, disabilities any other health care benefits retirement benefits etc. in an instance, section 17 provides that in the event of the death of an employee 90% of his/her total remuneration shall be paid to the spouse with two or more children; 85% of total remuneration shall be paid to the one child; 60% of  total remuneration to an employee who was over 50 years old and without a child or a spouse; 30% of total remuneration to be paid to an employee below 50 years old without a dependent child.  Also, it further provides that monthly payment should be made to eligible children till they turn 21 or on the completion of their undergraduate programme.
In the same part the permanent partial disability which reduces the wage-earning capacity of the employee has a scale of compensation as well as the permanent total disability which removes the wage-earning ability of the employee. Containers (WA) Ltd v. Momodu Iyomifoku
Part V (five) deals with the powers and function of the Nigeria social Insurance Trust Fund (NSIFF) while part VI (six) deals with employer’s assessment and contributions to the fund.
Section 56 empowers the NSITF to manage the employee’s compensation fund; section 33 provides that an employer shall contribute at least 1% of its monthly payroll to the fund. After which the board will from time to time assess every contributors in such manner and form it deem fit to administer the Act. Also, by the risk factors the board may assess every employer under categories, as to the contributions to be made to the fund. This provision seems exhorting though, such contributions is made to the benefit of the employees.
The implementation of these Acts has met with the challenges of unwillingness to obey the law, where people flout the law with impunity. The non passage of bills on occupational health and Safety and Institute of Safety professional to determine the level or standard of safety personnel. Also, in the event that an employer has not been a contributor to the Fund the benefits that are held entitled to the employee is thereby hampered. These issues are as a matter of necessity to be address, until then the beautiful and laudable provisions of these Acts lies in waste.
DEFICIENCIES IN THE PROVISION OF THE FACTORIES ACT AND THE EMPLOYER COMPENSATION        
1) Section (8) of the factories Act that deals with the issue of overcrowding in the factory.
There is a lacuna in section (8) of the factory Act that deals with the issues of overcrowding as stated therein by this section a factory is presume to be overcrowded if at any time the number of persons employed in a four workroom is such that there is less than four hundred cubit of air space more than fourteen feet above floor level shall be taken into account. These may not be true because a factory may be overcrowded even if there is the requisite quantity of cubic space per person, such as where a large part of the floor of the workroom is taken up by machinery and other equipment. The Act did not provide penalty for those who refuse to comply with the rule of the Act.
DEFICIENCIES IN THE EMPLOYEE COMPENSATION ACT
The issue of compensating an injured or dead employee irrespective of whether the employer has complied with the employee compensation Act 2010 should be look into because there is a gap on how the employee right will be quanranteed while holding a defaulting employer accountable. This gap could be exploited to the detriment of workers.
The diseases spell out in the Act is substander when compare with international stander, up to 33 categories of international recognized occupational diseases, example behavioural and mental disorder.
Hereby recommended that aforementioned should look into and the correction should be included in further amendment.

REFERENCES
O.V.C Okene: Labour law in Nigeria the law of work (3rd Ed.) (Laxton and Derrrick Ltd (2012), Port Harcourt.

The Employee Compensation Act Cap ETALAWS OF THE LFN (2011).

The Factory Act Cap F7 LFN (2004)

The Labour  Act Cap LI LFN 2004
M. Doguri: The employee Compensation Act, 2010


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