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Legal Treatment of Occupational Safety and Health in Nigeria

 

Occupational Safety and Health (OSH), is commonly defined as the promotion and maintenance of the highest degree of physical, mental and social well-being of workers in all occupation. This is consistent with Nigeria’s NATIONAL POLICY ON OCCUPATIONAL SAFETY AND HEALTH’s (the “OSH Policy”) definition of “health in relation to work” as “not merely the absence of disease or infirmity but includes the physical and mental elements affecting health which are directly related to safety and hygiene at work” while “occupational health’ according to OSH Policy ‘is the promotion of the physical, mental and social wellbeing of workers and the adaptation of work to man and man to work.” <\p>

The Federal Government of Nigeria ratified International Labour Organizations’ ILO Convention No. 155 on Occupational Safety, Health and Working Environment in 1994, as an affirmation that safe and healthy working conditions are critical to attaining social justice and economic growth. Nigeria’s 1999 Constitution (as amended) (Section 17.3. c.) provides that “the State shall direct its policy towards ensuring that the health, safety and welfare of all persons in employment is safeguarded and not endangered or abused” – this becomes justiciable by the combined provisions of the OSH Policy and the National Industrial Court of Nigeria Act. <\p>

OSH includes the totality of all activities and programmes that are engaged upon, aiming to attain and maintain the highest level of health and safety for all employees in any type of work. It involves the protection of employees' health from any hazard to which they may be exposed in the work environment. <\p>

The human, social and economic costs of occupational accidents, injuries and diseases and major industrial disasters have long been a cause for concern at all levels from the individual workplace to the national and international levels. The Federal Ministry of Labour and Productively is required by the OSH Policy to establish and coordinate a National Information Management System (“NMIS”) on occupational accidents, injuries and diseases, so as to provide a data bank linked with the National Health Information System (NHIS). NMIS is aimed at providing information concerning OSH to all stakeholders for occupational safety and health services and planning in the country. <\p>

We are not aware of the existence of NMIS at the time of writing this article. Global data estimate that every 15 seconds, 153 workers have a work-related accident, which result in at least one death. In sub-Saharan Africa, the fatality rate per 100,000 workers is about 21 and the accident rate is about 16,000. This means that each year about 54,000 workers die and 42 million work-related accidents take place that cause at least three days’ absence from work. <\p>

Recent studies put – we dare say speculatively, given absence of NMIS - the annual work-related death rate in Nigeria at about 24 fatalities per 100,000 employees, which is one of the highest in the world. Fatal accidents and major hazard accidents or disaster are gory stories arising from workplaces in Nigeria. The fate of Mrs. Folashade Ogunniyi, a manual road sweeper, who was knocked into (and drowned in) the Lagos lagoon, while stationed on the 3rd Mainland bridge in the course of her employment by Highway Managers Ltd, is a testimony to lack of implementation of OSH and Regulators’ capacity to enforce OSH as well as other statutory compliances and contributions aimed at protecting Employees’ in Nigerian. <\p>

Premium Times of 30th April 2019 quotes the Minister of Labour and Productivity as pegging national annual death rate resulting from lack of or negligent OSH and related diseases in Nigeria at 2.78 million – this figure is speculative, given absence of NMIS, which is the duty of the Honourable Minister to implement and supervise. <\p>

Arguably, existing legislations and regulatory frameworks essentially provide for occupational safety and health of employees in Nigeria. Some of the legislations and Regulations include;
Factories Act
Declaration of Industrial Diseases Notice
Docks (Safety of Labour) Regulations
Docks (Sanitary Accommodation) Regulations
First Aid Boxes (Prescribed Standards Order)
Factories (Wood Working Machinery) Regulations
Factories (Notification of Dangerous Occurrences) Regulations
Factories (Sanitary Accommodation) Regulations
Public health Act 1958
Harmful Waste (Special Criminal Provision) Decree of 1998
National Environmental Protection (Pollution Abatement on Industries and Facilities Generating Waste) Regulation 1991
National environmental Protection (Management of Solid and Hazardous waste) Regulation of 1991
Petroleum Act 1977 cap 350
Mineral Oil (Safety) Regulation 1997
Drilling and Production Regulations and Oil Pipeline Act 1990 and;
Fire Services Regulation 1998

The objectives of the OSH Policy include harmonizing employees’ rights and protection with regional and international standards in a private sector-led economic growth. All competent authorities – Federal Ministry of Labour and Productivity and Federal Ministry of Health together with their State counterparts – are to focus on facilitating an enabling environment and regulating various provisions for ensuring safety, health and welfare of employees in Nigerian workplaces. The enjoyment of these standards is a basic human right that should be accessible by each and every employee in Nigeria regardless of the nature of her work <\p>

The OSH Policy delineates rights and duties of all stakeholders such as the competent authorities, the yet-to-be-established National Commission on Occupational Safety and health, Federal Ministry of Heath, Manufacturers, Transporters, Safety and Health Committees (that should be established by Employers), as well as Employers and, Employees. It further provides for the roles of the media with an articulate strategy of implementation as well as a clear mandate that OSH Policy be reviewed every 3 years. <\p>

Nigerian employer in formal or informal sector of the economy has an inclusively broad duty to:
ensure, so far as is reasonably practicable, the safety, health and welfare of all employees;
arrange the workplace to ensure safety and absence of risks to health in connection with use, handling, storage; and transportation of articles and substances;
provide at no cost to the employee, occupational health protection and personal protective clothing and equipment, which are appropriate for the nature of the job;
provide such information, instruction, training and supervision as are necessary to ensure safety and health of all employees;
prepare, implement and revise safety and health policy;
undertake studies and keep abreast of new scientific and technical knowledge necessary to comply with safety and health laws and regulations;
verify the effectiveness of applicable standards on occupational safety and health, periodically, using safety audits, environ mental monitoring and health screening of workers and keep records of such verification including records of all notifiable occupational accidents; injuries, and occupational diseases, records of authorizations and exemptions, and data concerning exposure to specialized substances, agents and work processes; and
provide compensations for work related disabilities of workers and rehabilitation of such workers as reasonably practicable.
<\p>

Employee in Nigeria owes corresponding duties, while at work, to co-operate with Regulators and its employer in the fulfillment of the obligations placed on her under the OSH Policy to adhere to occupational safety, health and welfare in the workplace as well as to comply with employer’s OSH policy, use safety and health devices or protective equipment, take reasonable care for her health and safety and other persons who may be affected by her actions or omissions and to report to her supervisor any situations that could present a hazard, and if need be to the inspector of Factories closest to her workplace. <\p>

Nigerian Government and all stakeholders should ensure that the National Commission on Occupational Safety and health is established and duly empowered to operate given the unrecorded alarmingly high occurrences of occupational accidents. The Federal Ministry of Labour and Productivity should urgently develop NMIS so that data relating to and arising from OSH occurrences and breaches in the workplace can be assembled and easily accessible to everyone, thereby, fulfilling the aim of the OSH Policy. <\p>

The Factories Act empowers the Inspectorate Department of the Federal Ministry of Labour and Productivity to enforce standard required by OSH. The enforcement processes require issuing of warning or notices to offenders, after which the lower level of enforcement, which include the sealing of defaulting factory, takes place. Correspondingly, the Nigerian Social Insurance Trust Fund Management Board implements the Employee’s Compensation Act 2010, which provides for compensation for any death, injuries, and diseases or disabilities due to employment. The provisions of the Labour Act that touch on OSH relate to the employment of women and young persons in agricultural and industrial undertakings. <\p>

OSH Policy rescues the shortfalls of the forenamed legislations by extending its application to both formal and informal workplaces in Nigeria. This cannot be left on the shelf, it calls for robust implementations. <\p>

In 2012, the National Assembly passed into law a Bill termed Labour, Safety, Health and Welfare (LSHW), which seeks to establish the National Council for Occupational Safety and Health and empowers it to: enforce and implement OSH measures in the workplace; promote protection of lives and properties; promote OSH awareness; carry out inspection of the workplaces and monitor compliance of all regulations or other OSH measures under the law. The LSHW Bill is yet the most comprehensive OSH legislation in Nigeria, even though it is yet to be signed into law by the President, hence it is not yet in force. <\p>

In the interim, the Occupational Safety and Health Department and, the Labour Department of the Federal Ministry of Labour and Productivity should promptly ensure that every Nigerian employer prepares its occupational and safety policy. Regulators should become more pro-active instead of reactionary. In as much as Government is committed to ensure business friendly environment, the dignity of Employees in Nigeria should rightly, be ranked above business profit and friendly environment. <\p>

In practice, citation contests and disputes between OSH regulatory authorities and stakeholders are not completely avoidable; hence an efficient system must be put in place to address those issues. Section 254 C (1) of the 1999 Constitution (as amended) grants exclusive jurisdiction to the National Industrial Court of Nigeria on matters relating to OSH - this is accords with the LSHW Bill. Directing OSH related cases to a single specialised court has its pros and cons. Used carefully, the approach could significantly reduce the usual litigation delays seen in regular courts, which is good for the OSH regulatory purposes. However, left with no commensurate capability in terms of staffing, funding or training, it could stand as one of the weakest links in OSH regulation process with huge negative consequence on the entire regulatory regime. <\p>

Success of OSH regulatory and enforcement framework is commonly measured in terms of its ability to reduce human vulnerability (fatalities, injuries and loss time injuries), environmental damage and commercial losses to a tolerable level and without entailing disproportionate costs. Issues of mental health, toxic work cultures, bullying amongst other are readily found in both informal and formal Nigerian workplaces. Pro-active implementation of OSH Policy and other legislations will gravely ameliorate its hardship pending when the President is convinced and demonstrate clearer commitment to protecting Employees in Nigeria by signing the LSHW Bill into law. <\p>

Government in Nigeria has demonstrated a shocking lack of commitment towards effective OSH regulation. It is more than four years since the National Assembly passed the LSHW Bill, yet it still awaits presidential assent. Every moment that the construction industry or other workplaces remain unrecognised by unenforceable OSH regulations, or penalties for violation remain insignificant, more injuries, fatalities and accidents occur, meaning that human lives are snuffed out while dignity of labour is assaulted. <\p>

This responsibility rests on the government to improve the state of OSH in Nigeria, along with active participation of the trade unions, professional bodies, non-profit or public interest groups, educational institutions, employees and, in a special way employers who should promote the dignity of its employees. Above all, proactive and collective participatory approach to enforcement of OSH regulations should be practiced at an optimum level, requiring much more than enactment of laws and regulations. <\p>

Osita Enwe Esq. & Michael Dugeri.

WRITTEN BY Osita Enwe & Michael Dugeri.

Both of them have been called to the Nigerian Bar with a widening experience in corporate/commercial and transactional practice that include handling transactions for Individual and Institutional Clients as well as Foreign Investors in Institutional investment, acquisitions and, establishment of Nigerian companies; continual interface with Federal and State Government Agencies and MDGs, among others.

Contact us : oenwe@srjlegal.com

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