CHIMEREMEZE DAVID NWACHUKWU, LL.B

27th April, 2023 : 9;16am

INTRODUCTION:

Employment laws have evolved over the years and have become an important aspect of industrial and business attitudes in almost all the nations of the world. Thanks to labour unions and activists, the employer's duty to his employees continues to grow and expand in all areas concerned, especially the duty of care. In most developed countries, there exist a plethora of laws that make provision for the duty of care of an employer to the employee, down to the aspect of emotional welfare and racial abuse, with strict enforcement of such laws. In Nigeria, laws as such are present at both the state and federal levels, but questions exist as to whether the jurisprudence provided by the laws is suitable and adequate to achieve the intended goals and meet with global standards, given the idea that the nation is a developing one lacking industrial prowess and seemingly weak or corrupt labour unions. On paper, Nigeria appears to have a strong culture of workplace safety, with clear national and international rules, particularly in relation to the provision of safety infrastructure in the workplace. However, a close examination of the workers' welfare and safety raises concerns because it appears that current laws governing the employer's duty of care may not be sufficient to adequately protect employees' health, safety, and welfare. Additionally, there appears to be a gap between these laws and their implementation because many employers fail to provide their workers with safe and healthy work environments, which leads to a high incidence of work-related injuries and illnesses.

Employers have a responsibility to safeguard the health, welfare, and safety of their employees as well as any other individuals who may be impacted by their operations[1]. Employers are required to take all reasonable steps to do this. This entails successfully managing any risks to health or safety that might develop at work, protecting those employees and others from anything that could cause harm. Therefore, in Lovell v Blundells and Crompton and Co. Ltd[2], Lovell was told by the defendants who were his employers to carry out overhaul of a ship boiler tubes. He could not reach certain parts of the tube, so he procured some planks for himself and from there made up his own staging.  The planks were unsound and therefore collapsed, causing injury to Lovell. It was proved on trial that the defendants had not provided any form of staging, nor had they laid down any system of working. Delivering his judgement, Mr. Justice Tucker held that the employers were liable for negligence because they failed to supply planks in a situation where there was an obvious need for them.

Nigerian employment law is not based on the provisions of a single statute. Instead, it is scattered throughout other pieces of legislation that collectively form the framework such as the Labour Act[3], The Factories Act[4], Employee’s Compensation Act[5] etc. Even though there is debate about whether the Labour Act (LA) applies to workers other than unskilled labourers and manual labourers, it is nonetheless the supreme legislation in all labour-related concerns[6], as it highlights the most important aspects of employment relationships; the employment contract[7] and dismissal of service of employment[8]. Other laws that are significant include; the Constitution of the Federal Republic of Nigeria (CFRN) 1999 which encourages for a system of zero tolerance to abuse with the provisions of Right to the Dignity of Human Person[9], the Right to Freedom from Discrimination[10] and also the Condition of Work[11], The Factories Act[12], the Labour Act[13], Employee Compensation Act 2010, Minerals Oil (Safety) Regulation, 1962, the Industrial Training Act, 1971[14]  and the National Industrial Court of Nigeria Act 2006, which prescribes the jurisdiction of the National Industrial Court of Nigeria (NICN).[15]  The majority of these regulations, particularly the Factories Act[16]  impose duties and obligations on employers with regard to workplace safety and care. They also permit providing employees with proper compensation in cases when their rights have been violated.[17] It is also extremely interesting that many of the provisions of these laws in Nigeria reflect the original concept of duty of care under the common law, which was exclusively focused on the physical infrastructure to safety and welfare with little or no respect to operational and community infrastructure to safeguard employees from harm or abuse that is not caused by machinery as observed in modern society.[18] The obligations that require the employer to protect their employee from harm caused by emotional, racial, religious, and even physically challenging inconveniences created by corporate policy, operations, management, or personnel are covered by legislation and practice in most advanced nations.[19] This push for a more progressive practice and culture of employer duty of care, as well as ensuring that laws are updated to include connotations and phenomena of the present times, has aided in shaping the jurisprudence on the concept of employer duty of care in these countries, as well as encourage its enforceability and practice. This primarily demonstrates that where laws are made to fit the times, there is a greater participation of the agents of its enforcement, which are the employer, the employees, statutory agencies provided to ensure the laws are followed and the labour union for oversight. Whereas where such laws continue to focus on archaic phenomena with little or no improvement, the jurisprudence is seen to be weak, and most concerned parties lose interest which enforces the culture of lack of social will towards occupational safety in Nigeria. For instance, businesses that include the rules governing the duty of care in their employment contracts may not go as far as to add obligations that are important in the modern era, such as the security of employee data in cyberspace, the provision of health insurance and protection for emerging health conditions that may make a workplace unsuitable or uncomfortable for the affected individual to work in and this goes unnoticed because there is a seeming lack of awareness by those who the laws is made to protect and a general unconcerned attitude towards workplace safety as a result of weak laws and socio-cultural factors. As a result, it appears that there is a need to examine the current jurisprudence in Nigeria regarding the idea of an employer's duty of care to the employee and provide answers to the reasons why there is little to no existence of  international standards for the concept in our jurisprudence, as well as the significance that our current legal provisions attach to labour activity in relation to an employer's duty of care to the employee in Nigeria.

Overview of the Occupational Safety and Health Jurisprudence in Nigeria

Health and safety at work is essential to employees' effective, efficient, and competent performance in both private and public sector, which in turn helps governments and organizations succeed. It is in view of the foregoing that most nations of the world make provisions for same in their constitutions. The establishment of the Labour Act in 1974 marked the beginning of OSH laws and regulations in Nigeria, the Workman's Compensation Act CAP W1 2004, and the Employee's Compensation Act of 2011 (which repeals the Workman's Compensation Act) were all introduced subsequently. The Factories Act of 1987, which is a significant revision of the colonial-era Factories Act of 1958, was also introduced. There are also different regulations and guidelines, including The National Occupational Safety and Health Policy 2020.

An Appraisal of the Factories Act

         The Factories Act is the primary piece of legislation governing employee welfare, health, and safety at Factories. The Act's purpose is to ‘provide for the registration, etc., of factories; to provide for factory workers and a wider spectrum of workers and other professionals exposed to occupational hazards but for whom no adequate provision had been made; to make adequate provisions regarding the safety of the workers to which the Act applies and to impose penalties for any violation of its provisions’.[20]

After highlighting the intent of the Act, it follows that the true meaning of 'factories' must be understood for the purposes of its aims and objectives, which are to provide for the safety and protection of factory workers. A factory is defined in Section 87 (1) of the Factories Act to mean.... ‘Any premises in which or within which, or within the close or cartilage or precincts of which one person is or more persons are employed in any process for or incidentals to any of the following purposes, namely:

(a) The making of any article or part of any article.

(b) The altering, repairing, ornamenting, finishing, cleaning, or washing, or breaking up or demolishing of any article; or

(c) The adapting for sale of any article

Being premises in which, or within which the close or cartilage or precincts of which, the work is carried on by way of trade or for the purpose of gain and to or over which the employer of the person or persons employed therein has the right of access or control ...'.  

It also includes shipyards or dry docks, locomotive building, reconstruction, and repair facilities, and printing facilities with ten or more personnel. Although the preceding description appears to be comprehensive in nature, it is difficult to understand the rationale or justification for which such a facility must be for commerce or profit to qualify as a factory. Could it not be conceivable for a charitable organization such as a church or NGO to own and manage a facility that, but for the criterion, would qualify as a factory where she employs people and makes items (e.g., books, leaflets, tracks, pamphlets, etc.) for charitable purposes? Can a facility that would normally qualify as a factory be excused from the Act's safety requirements simply because it is not profit-oriented? Should such a facility not be classified as a factory in order for the Act to be applicable? Limiting a 'factory' to only business enterprises is not a sensible constraint in my opinion since it can provide an escape route for an employer who would otherwise be caught by the Act. It is important to point out also the strict definition of factory constructions sites in the interpretation section[21] does not include works of engineering construction.[22] Meanwhile the engineering construction industry possesses the highest risk factor to the worker yet, it is removed from the purview of the factory act even though section 8 of the act gives the minister power to extend the application of the Act. The researcher is of the view that an amendment to expand the coverage of the definition of the word factories is needed, even though we can then tier facilities and march them with various levels of occupational health facility requirement for effective operation.

According to the Act's requirements, the Director of Factories is required by law to keep a registry of all factories and to issue registration certificates.[23] Running a plant in contravention of the foregoing carries a N2,000 fine or a 12-month jail sentence[24]. The director may decline an application for factory registration, and the reason for the refusal must be provided to the applicant in writing upon request[25], usually the reason would be where the said factory that wants to be registered does not meet up in compliance with the provisions made in the act. This is a solid starting point because it allows for effective monitoring of factory activity. It will also allow the relevant government department to learn about the safety or prospective safety measures of each factory. This allows for adequate supervision and, if necessary, registration refusal.

Healthy Work Environment: The Act provides for the processes of periodic cleaning and possibly repainting of various components of the factory (ceilings, walls, and staircases).[26]. Factories cannot be overcrowded to the point where employees' health is jeopardized. A factory is said to be overcrowded if the amount of cubic space available to each employee at any given moment and in any workroom is less than 400 cubic feet[27]. In addition, when building a factory, proper thought and efforts must be made to guarantee that it is effectively ventilated to ensure a good circulation of fresh air in each work room[28]. The law also demands that adequate and proper illumination, whether artificial or natural, be maintained in all areas of the factory where people work or pass[29] in addition to proper drainage to remove trash from the factory [30] as well as a nice convenience[31]. This is a commendable provision that aids in building improvement in terms of standard and convenience.

Machines and Fencing Provisions: The standard proposed for machinery safety ranges from procurement, installation, operation, and maintenance of machinery used in factories including flywheel attached to prime movers[32]. There is a clear instruction as to the positioning of any factory machine which is contained in section 17[33] which states thus: ‘every dangerous part of any machinery, other than prime movers and transmission machinery, shall be securely fenced unless it is in such a position or of such construction as to be safe to every person employed or working on the premises as it would be if securely fenced, provided that, in so far as the safety of a dangerous part of any machinery cannot by reason of the nature of the operation be secured by means of a fixed guard, the requirements of this subsection shall be deemed to have been complied with if a device is provided which in the opinion of the Director of Factories satisfactorily protects the operator or other persons from coming into contact with this part’. There appears to be no clear definition or position that defines a harmful machine part. However, conclusion can be drawn from the case of Walker v Bletchy Fletton Ltd[34], where the clear explanation was stated as: ‘A part of machinery is dangerous if it is a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances, which may reasonably be expected to occur’. Although, the word 'machinery' appears to have a narrow meaning in the sense that it refers to machines installed as part of the equipment of a factory as a means of production which made the court to state that an ordinary truck that is not used in the actual process of production was not a machinery within the meaning of the Act and this is an issue because narrow definitions as such can have effect in removing liability from the employers for actions that are clearly as a result of employer negligence. The researcher calls for a review on such definitions.

Duty to Provide Safe Place of Employment and Safe Means of Access: The Act requires all owners intending to build a factory to submit to the Director of Factories, the building plan and other related documents for approval six months before construction commences.[35] It further states that all floors, steps, stairs, passages, gangways and other parts of the structure or building to be used as factories shall be of sound construction, be properly maintained and kept safe at all times[36]. This duty also requires the factory owner or employer to ensure that every place of work in the factory has good access[37], sufficient and unobstructed space is maintained at every machine while in motion[38], and ladders where needed are of solid construction and are properly maintained[39]. Also, openings on the floors must be protected· except if the nature of the work to be carried out renders the fencing impracticable[40]. On the area of steam boiler, every boiler and its fittings and attachments must be of good construction, sound materials, adequate strength and free from defect and shall be properly maintained[41]. Appropriate fittings like safety valves, pressure gauge, water gauge is also to be properly installed[42]. Similarly, steam receivers shall also be properly installed and maintained to ensure its safety'[43]• Every factory owner shall provide and maintain a first aid box or cupboard of prescribed standard be placed under the charge of a responsible person who will be readily available during working hours and where there are more than one hundred and fifty persons an additional box or cupboard shall be provided for every additional one hundred and fifty persons[44]. This is very commendable as this requirement forms the bedrock for preventing accidents in the internal sections of the factory.

The· essence of regulating a conduct is to prevent a foreseeable accident or injury likely to occur. Although the Factories Act creates a perception of being proactive and not merely reactive, there exist issues with the Act which doesn’t point to curtailing occupational disaster such as the non-deterrent fines and punishment. The occupation of a factory without approval is punishable by a fine of 2000 or 12months imprisonment or both.[45] False entries, false declarations and forgery are subject to a fine of 2000.[46] Where worker dies compensation is valued at 5,000. Other crimes not expressly provided in the act are punishable by a fine of 500.[47] The fine for the obstruction of an inspector is another paltry sum valued at 1,000.[48] Where accidents occur and are not reported a fine of 1000 is payable.[49] It is submitted that the monetary value of these fines do not reflect modern day realities and ought to be reviewed. These fines are too paltry and have no real deterrent effect in the 21st century. These fines can be easily paid over and again as such defeating its purpose in the first place. Secondly, it can be right to state that the requirements for the registration of a new factory lies embedded in the breast of the Minster of labour and productivity who may exercise his discretion whenever he deems fit even though the provisions of such laws are clear, the minister is not mandated to expressly follow them in registration of a new factory and this is worrisome. In another aspect under this head, the appointment of members of the factories appeal board are appointed based on the minster’s discretion.[50] Such appointment is not specified to be an expert in any of the field incidental to the issues of occupational health and safety. It is unclear what vital input members of an appeal board with no special expertise would have to offer when matters come before them. This provision appears to be a tool for the political class to compensate their loyalists. Furthermore, it is unclear how this board without the membership of a trade union will serve the interest of workers and not the minster who is their ‘employer’. We need to review these laws to allow for laws that mandate appointment of experts only into the factory appeal board, offer them a sense of independence from the minister for effective functioning as well inclusion of the trade union into advising on such matters as well.

Furthermore, by the provisions of the Act inexperienced workers are allowed to work under supervision.[51] This provision may have been rationalized by the lack of adequate skilled manpower in the days following the colonial dispensation. It may have also been justified by the need to train Nigerians to take over existing factories considering the exit of the colonialists. Today this isn’t the case as the number of skilled persons has grown considerably. Therefore, allowing inexperienced workers to work at factories places other workers at great risk. Additionally, The Act to protect to workers specifically states that, protective clothing should be worn where the work area demands so.[52] The mere protection of workers with clothes or apparatus without provisions for medical checks appears to be inadequate. Considering the severity of exposure to some radioactive toxic rays, in some factories this provision in the act can be said to be inadequate and not sufficient protection in the 21st century. The act also makes provision for first aid boxes and no provision for on-hand medical personnel.[53] One might wonder what the effectiveness of first aid boxes would be to factory workers who have no formal training on safety. It is therefore inadequate to ensure the provision of first aid boxes with no one with the required knowledge to handle emergencies because some factories are in remote areas far from civilization.[54]

   The provisions of the Act, though laudable, harbour some loopholes, especially in the area of administration and implementation. The reason for this is not farfetched while the Act itself was enacted largely as a preventive measure; it is still being applied curatively. Its provisions are only brought to bear where industrial injuries have already occurred. The administrative personnel in charge of ensuring compliance with the provisions of the Act have merely scratched the surface as far as carrying out their duties are concerned. Although a severe lack of funding may account for this, more can be done on their part in terms of frequent and timely inspections to prevent irreversible loss or injury. The absence of an efficient system or body of data collation makes it difficult if not impossible to accurately assess the impact of the Act on industrial safety in Nigeria since its enactment.

An Appraisal of Employee Compensation Act 2010

         It is impossible to ignore the provisions of the Employees Compensations Act while discussing the issue of industrial safety in Nigeria. Therefore, an analysis of the various relevant provisions will be proper. Workers' compensation hasn't always been required in Nigeria, but those who do gain greatly from it. On December 17, 2010, the Workmen's Compensation Act, 1987, was officially repealed and replaced with the Employee's Compensation Act, 2010 (ECA). The ECA, which modified the status of workers compensation, was passed by the Federal Government of Nigeria to promote the welfare of Nigerian employees. It has eleven (11) parts. The most relevant parts to health and safety are parts III (Sections 7-16 on Compensation for Death, Injury or Disease and IV (Section 17-30) on Scale of Compensation. The ECA pertain to all employers and employees of the Public and Private Sectors in the Federal Republic of Nigeria[55], and excludes Nigerian Armed Forces personnel.

The Act drew its strength from principles such as:

(a) Entitlement. to compensation on ‘No fault principle’ in conformity with section 5 of the of the ILO Recommendations. No 121 of 1964

(b) Creation of a collective liability (employer's collective liability in both private and public sectors of the economy).

Forms of Compensation: Compensation is payable from the first working day following the injury or disease or death except that a health care benefit shall be payable in respect of the day of injury. Under the Act compensation could come in various forms and includes any amount payable or service provided, and this encompasses:

(a) Financial Supports

Financial payments, which may be periodic[56] or lump sum,[57] are available for different categories of disability. Subsistence allowance is available under section 26(2) which provides that the Board may make a daily allowance for the subsistence of an injured employee where, at the direction of the Board, the employee is receiving treatment at a place other than where the employee resides.

(b) Health Care and Related Support

The Board provides healthcare and disability support under Section 26(1). This includes the Board's provision of any medical, surgical, hospital, nursing, or other care or treatment, transportation, medicines, crutches, and apparatus, including artificial limb members, that it deems reasonably necessary at the time of the injury or thereafter during the disability to cure and or relieve from the effects of the injury or alleviate those effects. The employer may also provide health care under the authority of the Board under section 26(4).

(c) Vocational Rehabilitation and Counselling

Vocational rehabilitation is available under section 16 which states that the Board may, in getting an injured employee back to work or in assisting to lessen or remove a resulting disability, take any measure, and make the expenditure from the fund that it considers expedient. Counselling services to dependents are available under section 16(2). It is instructive to note that the provision for counselling does not apply to an injured worker. This is a gap that should be corrected as such a worker may in fact be in more need of counselling. Disabling injury, whether partial or total, would ordinarily affect the psychological wellbeing of any person, more so a breadwinner. Another crucial omission is the failure to clearly identify a counselling unit within the administration of the scheme, a situation that may make the provision regarding counselling an exercise in futility.

The above compensations are commendable and represent a major step in the right direction in respect of labour rights and protection in Nigeria, other strengths of the Act can be seen in the following areas:

(a) Establishment of a State Managed Compensation Fund – The Act establishes a State managed Compensation Fund under which the State manages the employers’ funded contributions,[58] unlike the repealed Act under which employers were required to individually insure employees with insurance companies of their choice.[59] The establishment of the State managed Compensation Fund constitutes one of the most important positive innovations brought about in the new Act.

(b) Provision for monthly compensation payments to dependants for their lifetime – The Act provides for monthly compensation payments to dependants of the deceased employee for ‘their lifetime.’[60] Though there are some qualifications as in the case of children who are to receive compensation until they are 21 or until they complete undergraduate studies,[61] whichever comes first. Lifetime entitlement to compensation is a major positive development over the repealed Act which made provision for only 42 months earnings of the deceased.[62]

(c) Compensation in the event of accidents when employee commutes to or from work – The Act recognises that compensation is payable in the event of accidents which cause injuries or death when the employee commutes to or from work.[63]  In other words, there is a recognition that the course of employment or the time when work begins and ends is not limited to the time or place where the workman is to carry out his specific work.  In other advanced jurisdictions, these recommendations have been long adopted and upheld by their courts. In the English case of St. Helen’s Colliery v Hewistson,[64] the court stated inter alia that an employee is still deemed to be within the course of employment where he stops his work for a moment and sit down on his employer’s premises to eat food to enable him to continue his work. A similar decision was held in another English case of Moore v Manchester Liners Ltd.[65]

(d) Enhanced Compensation package – Compensation payable under the repealed Workmen Compensation Act is grossly inadequate, absurd, and ridiculously too low in the light of the present economic reality. A good example is where death results from injury, the dependants shall be entitled to the deceased 42 months earnings.

The new Act makes provision for enhanced compensation. Examples of enhanced compensation under the new Act are as (a) For fatal accident leading to death, a widow/widower who depend wholly on their spouse with 2 or more children gets 90% of the deceased employee’s remuneration on monthly basis.

(a) A widow/widower with a child gets 85% monthly.

(b) A 50-year-old or above spouse without a child or an invalid spouse receives 60% monthly.

(c) Spouse, not being invalid and having no dependent children, but under the age of 50 years receives not less than 30%.[66]

The foregoing provisions are laudable and comparable with what is obtainable in other advanced jurisdictions. For instance, in Michigan, wage loss benefit is 80% of an employee’s after-tax salary. In Alabama, compensation for permanent or temporary total disability is 66 2/3% of the wage; and in Arizona, it is 66 2/3%, in New York, it is 66 2/3% and 60% in Massachusetts and 80% in Iowa.[67] In cases of permanent total incapacity, compensation payable is 54 months earning.[68].

(d) Compensation for mental stress – This is a completely novel provision. See section 8 of the Act provides for this. Contemporary frameworks for Occupational Health and Safety (OHS) emphasize equal attention to the physical, social, and mental aspects of the workers’ health. Just like physical infirmities, mental health problems in the workplace are a global phenomenon. Statistics showed that disability on the ground of work-related mental health problems constitutes 35%, 40% and 56% of workplace disability claims in Netherlands, United Kingdom and Austria.[69] Current data from Nigeria is not available but there is no reason to expect a lesser rate and this reiterates my call for laws that makes for publication of labour related data in Nigeria and not just the activities of the Minister as seen in Section 63 of the Factories Act.

(e) Better conflict resolution channels – Before the enactment of the Act, compensation claims and Appeals were handled by regular courts with no special expertise on labour and compensation matters. The new Act provides for a functional, simple, fair and accessible appeal procedure. Appeal against the decision of the Board lies to the National Industrial Court of Nigeria (NICN). The NICN, which is a specialised court, is conferred with exclusive jurisdiction on all matters connected and incidental to labour law, trade disputes and industrial relations.[70]

The Challenges: The Employee’s Compensation Act, 2010, though a very laudable piece of legislation, poses some challenges which we shall attempt to point out here.

(a)   List of Occupational Diseases in the Act falls short of International Standards – the First Schedule in the Act contains the List of Occupational Diseases recognized under the Act. An employee who suffers an occupational ‘disease which disables the employee from earning full remuneration’ at the workplace will be entitled to compensation and health care benefits ‘where the occupational disease is listed in the First Schedule.[71] To ascertain the occupational disease, the Board may appoint a Medical Board of Inquiry, consisting of relevant specialists to determine the entitlement of the employee to compensation.[72]

However, the First Schedule (List of Occupational Diseases) falls short of the international standard in terms of leaving out about thirty-three (33) categories of internationally recognized Occupational Diseases, such as health conditions relating to ‘mental and behavioural disorders.’ The implication of this variation is that in the event of disputes overcompensation claims relating to categories of diseases not recognized in the Act, the court may not find in favour of the employee-claimant. For a claimant to establish ‘a reasonable cause of action’ against a Defendant, he must show that the liability of the Defendant arises within the relevant statutory provision. Thus, it can be inferred that where the statute contains no provision recognising an occupational disease, no cause of action can be validly established; cause of action being all the material facts to be proved to give a right to relief in law or equity. This needs to be addressed by review of the law.

(b) Liability evading provisions: Section 9(4)(b) of the Act is an example of provisions in the Act, which seems to ensure that the Board avoids liability to pay compensation under bogus technical grounds. The section provides that neither the employee nor a dependant shall be entitled to compensation for a disability or death ‘unless the employee was free from the disease and complicating disease before being first exposed to the agent causing the disease in the workplace. It is contended that there is no justification for this provision because under sections 8 and 28 of the Labour Act, the employer has the duty to medically examine every worker, before commencement of work or as soon as possible thereafter, and at the expense of the employer. The provision of Section 9(4) should be immediately reviewed removing such contradiction and ineffective law as almost everyone has an underlying ailment, so who then will be employed? Aliens?

(d) Tax issues – There is no provision on whether the statutory deductions under the Act qualify as deductible expenses in the computation of tax liabilities. More so, the Act is an additional financial burden on the Employers of Labour.[73]

Recommendations

         Everyone has a responsibility to play in making the workplace a less dangerous place to work. It has been seen in many countries that the level of safety obtained in the workplace is a function of the level of investment employees and employers are prepared to make, and this is made enforceable through government rules that ensure everyone performs their responsibilities appropriately. The researcher believes that the following.

1.  Better Law Enforcement Regime

On the issue of enforcement, which appears to be the foundational problem of Nigerian jurisprudence, a two-pronged approach is required. On the one hand, a special task force should be established to record, investigate, analyse, and interpret safety and health accident reports from firms, then provide their results and actions to the company to respond accordingly within a time frame within which they are expected to either compensate or penalize and correct the error from reoccurring and on the other hand, the Ministry of Labour should be called to account if it fails to punish offenders when an accident occurs due to a firm's negligence or violation of the law, especially when it results in injury or death. It is recommended that there be statutory provisions which outline sanctions for labour health and safety officers who fail in doing their jobs. This will tackle the compliance and lack of will to observance of Occupational Health and Safety Laws from the source which will cause a trickle-down effect to the Employers and even down to the employees and other stakeholders.

2.  Increase the Fines to deter Employers from breaching the provisions of the Law.

The fines present in the Factories Act as seen in Chapter 4 of this Study are too paltry to effectively discourage persons from breaching these laws for example the occupation of a factory without approval is punishable by a fine of  just 2000 naira[1] and Other crimes not expressly provided in the act are punishable by a fine of 500.[2]  It is understandable that when this act was brought into force in 1987, these amounts might have had sufficient value for compensation back then but clearly they need a review in these present times to help deter disasters in the workplace. A good example is in the United States of America where when a business owner or manager knows a hazard can result in injury or death and does not resolve it, The Occupational Safety and Health Administration (OSHA) considers this a serious violation. Fines are based on the seriousness of the violation and can reach up to $13,653 for each violation.[3]

3.  Amendment of the Interpretation of the word ‘Factories’ and ‘Machinery’ in the Factories Act

Limiting the definition of a ‘factory' to only business enterprises is not a sensible constraint in my opinion since it can provide an escape route for an employer who would otherwise be caught by the Act. It is important to point out also that the strict definition of factory constructions sites in the interpretation section[4] does not include works of engineering construction,[5] meanwhile the engineering construction industry possesses the highest risk factor. The word 'machinery' appears to have a narrow meaning in the sense that it refers to ‘machines installed as part of the equipment of a factory as a means of production’ which made the court to state that an ordinary truck that is not used in the actual process of production was not a machinery within the meaning of the Act in the case of Walker v Bletchy Fletton Ltd[6]. There is need for the expansion of meaning of various terms in the act to make them inclusive of the numerous items that should necessarily fall under their definitions to aid safety of personnel in the workplace.

4.  The appointment of members of the Factories Appeal Board should be supported with statutory benchmark requirements and inclusion of various experts especially medical doctors and trade union representatives and not left to the whims of the minister to provide for an effective regime of settlement of disputes between employers and the director of factories.

5.  It is recommended that workers should not be allowed to handle equipment that they have no experience or training for and the era of inexperienced workers handling equipment under supervision should be phased out and training and workshops should be introduced to aid the worker efficiency as well as reduce the risk of an occupational disaster because of lack of experience of an employee in handling a machine. The provision of the Factories Act which currently allows for this should be reviewed.

6.  It is recommended that there should be included in the law for occupational health and safety in Nigeria the mandatory duty for the observance of frequent medical check-ups sponsored by the employer especially in high-risk environments to aid detection of issues which might lead to critical health cases and result in the loss of life. There should be also a statutory duty for the provision of an on-ground medical personal to attend to emergency and occupational health related issues in the factories and for the issuance of first aid and first aid training to other staff.

7.  It is recommended that the employer through the human Resource Personnel should engage a program for counselling for employees periodically to monitor the stress levels of employees to avoid a mental breakdown during work which can result in an accident that can lead to danger and loss of life.

8.  It is recommended that just as observed in the United State of America, our laws need to be updated to allow for an employee to make a report to the Director of factories if he believed that there is a breach of occupational safety provisions in his workplace. To further protect and make such policy effective, the employer should have a right to not perform an operation in the workplace if he reasonably believes that such operation poses an imminent threat to his health based on the circumstance present and the employer will be estopped from letting him (the employee) go on such grounds.

9.  It is recommended that there be established a National Health and Safety Commission just as seen in the United Kingdom for the duties of planning for and encourage research and publication, training, and information in connection with workplace health and safety and as well propose regulations. This is important as a major issue in Nigeria business environment is the lack of awareness of health and safety laws in the country and minimal attention to health and safety ideals at the workplace generally.

10.  It is recommended that to address the issue of employers lazy attitude towards the observance of occupational health and safety rules in Nigeria, the level of liability should be further expanded to include the general public because where they fail to take the necessary steps to protect their workers especially in the exposure to chemicals and radiations which can cause illness and disease, these workers can potentially infect or spread these illnesses to their families and their families all because of the negligence of one lazy employer. It is predicted that such a policy will keep employers on their toes as such policy would increase their liability which would mean bad news for them if any disaster occurred.

11.  It is recommended that just as observed in South Africa, there should be a statutory mandate for the establishment of Health and Safety Committees and a designate Health and Safety professional in every workplace and especially in high-risk work environments.

12.  Occupational health and safety legislation should be revised to reflect modern realities, particularly in terms of mental and emotional health, especially with regard to defining liabilities to encompass a broader range of issues concerning mental and emotional health. The International Labour Organization list of Occupational Health Issues should be complied with and ratified totally in Nigeria.

Lastly, ‘Prevention is better than cure,’ they say, and ‘knowledge is our road to comprehending the future.’ Business owners should invest in training their employees on how to protect themselves in the workplace and decrease their exposure to hazards, as well as implementing and enforcing safety and health rules; a stitch in time saves nine.                  

Bibliography 

[1] Part II -V, Factories Act, Section 54 – 65 Labour Act

[2] (1944) 2 All ER.

[3] CAP. L1 L.F.N 2004

[4] CAP. F1 L.F.N 2004

[5] Employee Compensation Act, 2010

[6] E.E, Uvieghara, Labour law in Nigeria (Lagos: Malthouse Press Limited, 2001)

[7] Section 7, Labour Act CAP L1 L.F.N 2004

[8] Section 11, Labour Act CAP L1 L.F.N 2004

[9] Section 34, CFRN 1999

[10] Section 42, CFRN 1999

[11] Section 17(3)b, c

[12] CAP. F1 L.F.N 2004

[13] CAP. L1 L.F.N 2004

[14] Cap I9, L.F.N. 2004 

[15] Section 245C (1) (f) of the CFRN 1999(as amended)

[16] Section 11 – 48 - Factories Act 2004

[17] Section 7 -11 - Employee Compensation Act 2010

[18] The U.S. Equal Employment Opportunity Commission (EEOC) is a federal agency responsible for enforcing and administering civil rights laws that prohibit workplace discrimination. Federal laws enforced by this agency prohibit discriminatory practices towards job applicants or employees based on his or her color, race, religion, sex (including gender identity, pregnancy, and sexual orientation), age, disability, or genetic information.

[19] Ibid 

[20] The preamble to the Factories Act CAP F1 2004

[21] Section 88

[22] Section 57

[23] Factories Act CAP F9 2004, ss. 1, 2 and 3

[24] S. 3 (4)

[25] S. 3

[26] S. 7

[27] S. 8 (1) (2) of the Act, s. 8 (1) (2)

[28] S. 9 (1) of the Act, s. 9 (1)

[290]S. 10 (1) Ac~ s. 10(1)

[30]S. 11 Act, s. 11

[31]S. 88 of the Act

[32]S. 14 of the Act

[33] Section 17 of the Factories Act

[34] (1937) 1 ALL ER 170 (@) 174.

[35] Section 28 (1)

[36]  Ibid

[37] S. 37 (6)

[38] S. 37 (4)

[39] S. 39

[40] S. 28 (2)

[41] S. 29

[42] S.  31

[43] S. 32 and 33

[44] s. 43

[45] Section 3(4) (a) (b)

[46] Section 72

[47] Section 70

[48] Section 65 (5)

[49] Section 51

[50] Section 5

[51] Section 23.

[52] Section 47

[53] Section 43

[54] Section 53

[55] Section 2(1) – Employee Compensation Act, 2010

[56] Section 17 – ECA 2010

[57] Section 22(8), 22(1) and 25(1) – ECA 2010

[58] Section 56 (2) and 57. – Employee Compensation Act, 2010

[59] Workmen’s Compensation Act, s. 40.

[60] Employee’s Compensation Act, ss. 17 and 19. 

[61] S. 17 (1) (c) – Employee Compensation Act, 2010

[62] See section 4 (a), Workmen’s Compensation Act. 

[63] Section 7 (2) 

[64] (1924) AC 59 

[65] (1910) AC 498 at 500. 

[66] See generally, Part IV of the Act. 

[67] A.A. Adeogun, ‘Thirty Years of Workmen’s Compensation Act in Nigeria’ (1971) 5 Nig. L.J. 57, cited by G. G. Otuturu, Legal Aspects of Employment in Nigeria, (Port Harcourt: Pearl Publishers, 2006) pg. 134. 

[68] ibid, s. 5. 

[69] O P Atilola, B C Atilola, ‘Compensation for Mental Stress under the New Employee’s Compensation Act: Implications for Human Resources Management’ in Labour Law Review’ (2010) Vol. 5, No. 3,p. 59. 

[70] See Section 254 (c) 1, 2 of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010. 

[71] Employee’s Compensation Act, section 9(1) 

[72] ibid, section 9(8) 

[73] Nigerian employers’ existing statutory liabilities include companies’ income tax, petroleum profit tax (for oil and gas exploration companies), education tax, value added tax, contribution under the Industrial Training Fund (ITF) Act, contribution under the Pension Reform Act and a host of states and local governments taxes and levies. 

[74] ibid

[75] ibid

[76] Safety by Design, ‘OSHA Violations, Citations, and Fines List for 2023’ (SafetybyDesignInc.com ,2023), https://www.safetybydesigninc.com/osha-violation-types-osha-fines-list/, Accessed 10 April 2023

[77] Section 88

[78] Section 57

[79] ibid