The Labour Officers’ Right To Inspect Workplaces In Nigeria By Osita Enwe Esq.

Introduction

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:

1. such samples will be taken in duplicate in the presence of the
   employer or its duly authorized representative;
2. each sample will be clearly labelled and sealed in the presence
   of the employer or its representative and;
3. 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.

Conclusion

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

Subscribe ToNairalaw News!