WHETHER EMPLOYMENT OF FEMALE JUNIOR STAFFS TO WORK INCLUSIVE NIGHT SHIFTS CAN BE SAID TO BE LEGAL UNDER THE LABOUR ACT
Female employees are considered sui generis employees thereby classifying them as vulnerable due to their peculiar nature. This however is against Section 15(2) & (3), 17(3) and 42 of the 1999 Nigerian Constitution (as amended) and Protocol to the African Charter on Human and Peoples’ Right on the Right of Women in Africa, 2005 which states that females should be given equal opportunity as men in the working place. The C171- Night Work Convention, 1990 (No. 171) provides for measures that needs to be in place where there is need for night shift work, though Nigeria has not ratified same.
It is trite that Section 55(1) of the Labour Act provides that women in private or public industrial undertaking or agricultural undertaking cannot engage in manual labour overnight, exception to this are nurses and women in non-manual labour managerial position, see Section 55(2)(1) of the Labour Act.
However, the employment of female junior staffs to work night shifts can only be allowed subject to certain conditions as stated by Section 55(5) of the Labour Act.
- There must be a collective bargaining agreement between the company and its workers union which shall spell out the agreement to allow women work night shifts and the adequate provision and protection and other preparation in place for the women concerned.
- The Minister of Labour and Employment may by Order exclude the applicability of Section 55(1) of the Labour Act to a company; this power is discretionary even when the requirement above is satisfied.
THE MINISTER OF LABOUR AND EMPLOYMENT MAY BY ORDER EXCLUDE THE APPLICABILITY OF SECTION 55(1) OF THE LABOUR ACT TO A COMPANY
THE PRO AND CONS OF THIS APPROACH
Any company that adopts this approach is going to become one of the few companies bridging the gender gap, encouraging diversity within the industry, which is in agreement with Section 42 of the 1999 Nigerian Constitution (as amended). However, even if a company is desirous of taking this approach, the order of the Minister of Labour and Employment is required to exempt the company from liability in taking this approach as allowed under the Labour Act. The penalty of not complying with Section 55(5) of the Labour Act in breach of Section 55(1) of same Act is contained in Section 58(2) of the same Act which is a fine not exceeding N100 or imprisonment for a term not exceeding one month or both.
However, taking this approach could open the door to negative occurrences in the workplace, given the vulnerable nature of women. Unless strict measures are put in place, sexual harassment cases and associated vices could be witnessed. Thus, the need to put in place adequate measures regarding the safety of the female workers on night shifts.
The point to bear in mind also is that the Minister’s approval being a discretionary one can be revoked upon breach of the terms and conditions set by the Minister, thus, the necessity to insert a dispute resolution clause in the collective bargaining agreement which can curtail any case from escalating to warrant the Minister revoking his approval.
WHETHER THERE ARE ANY LARGE COMPANIES ADOPTING THIS APPROACH
Instructive is the approval dated 21st January, 2019 granted by the Minister of Labour and Employment conveyed through Director of Trade Union Services and Industrial Relations of same ministry to APM Terminals, Apapa, Lagos. The approach APM Terminals took was to file the permit application accompanied with the collective bargaining agreement which contained sufficient physical provisions and maternity policy.
A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE COMPANY AND ITS WORKERS UNION WHICH SHALL SPELL OUT THE AGREEMENT TO ALLOW WOMEN WORK NIGHT SHIFTS AND THE ADEQUATE PROVISION AND PROTECTION AND OTHER PREPARATION IN PLACE FOR THE WOMEN CONCERNED
THE COLLECTIVE BARGAINING AGREEMENT APPROACH
Pursuant to the Labour Act, normal working hours shall be fixed under any employment contract even though the Labour Act is silent as to working days. Thus, working hours can be agreed on through collective bargaining within the organization or industry. Thus, the only real available option to allow women work night shift as provided under Section 55(5) of the Labour Act is through collective bargaining agreement which is a condition precedent for the grant of Order by the Minister of Labour and Employment.
This approach involves a written contract between a company and the union representing the company’s employees. Extensive discussion on wages, employment conditions, working hours and conditions, employee benefits, the union rights and responsibilities, management rights and responsibilities, grievances procedures and so on. See A.C.B PLC V. Nbisike (1995) 8 NWLR (pt.416) 725, Nwajagwu V. British American Insurance Company Ltd. (2000) LPELR- 107766 (CA)
The agreement shall contain provisions allowing the company’s female junior staffs work night shifts, measures in place for their transportation to work, protection against harassment and abuses, maternity policy, number of hours per shift and number of shifts per week and room for amendment of the agreement. Daily or weekly hours of work may be increased or decreased after consulting with the union if business conditions require or in cases of emergencies. Daily work starting time and quitting time, overtime, rest period, rest period for females, relief period for female employees personal needs, the rest and relief period should be in such a way as not to disrupt productivity; consequences for violation of rest and relief period, notification of union in the event of discontinuance of rest and relief period.