Perils of Nigerian workers By Ibrahim Apekhade Yusuf

  Published 21/06/2009

  Business

  Unrated

SCENE ONE: Enter Citizen Elizabeth Samson

Ms. Samson, a single parent in her mid 40s is a perpetually sad woman. Two sad events which followed in quick succession literally changed the course of her life for good.

In July 2001, her husband, a security guard at Quantum Ltd, an expatriate-owned production company at 1B Gbolahan Owolabi Close, Ojodu, Lagos, with whom she lived for six years, even though they were not legally married, died in questionable circumstances while still in the service of the company.

Already pregnant with their second child, with the help of her late husbands’ ally, Nwana James, who already arranged for the corpse to be deposited in the mortuary she, met a senior member of staff of the company who promised to take care of the funeral expenses.

Days later she was given the sum of N15, 000 as part of her husbands’ entitlement, with a promise to come for the balance.

James, she recalled, later came to allegedly demand for the sum of N5, 000, to procure white clothe to bury her late husband, and that was the last she saw of him, and the company.

To make matters worse, her landlord threw her out into the cold with a few weeks old baby, her three year old daughter and a younger sister who had been put in the family way by the son of the midwife who took her in labour.

With no regular source of income and nowhere else to go, she has lived as a destitute person on the streets of Lagos these past years, with two of her kids currently under the care of the Lagos state government.

Sad as Elizabeth’s tale seems, it soon palls into insignificance when you hear the sordid experiences of a few others who have had their lives cut short, while working for one establishments or the other, even under the most dehumanizing conditions.

Even for many who don’t end up paying the supreme prize, they are scared for life and may probably not lead normal lives again.

Olalekan Razak, a once-happy-go-lucky mechanic in Ikeja, is probably one of such cases.

Razak, a native of Osun, in his early 30s, was reported to have been consulted by Mr. Jerry Ijieh, a businessman, last November to help fix the latter’s Lexus Jeep, with an instruction to take the car to the owner upon certifying it okay.

Not wanting to take chances, Razak, had told his client he may not be able to drive the car under the cover of darkness, hence he sought allowance to defer to the next day.

With no foreboding of trouble, Razak, drove the Lexus Jeep out on a date with his girlfriend only to be accosted close to his residence by the owner, who was said to be cross at his impudence that he allegedly slapped the formers’ girlfriend and also stabbed Razak on his kneecap severally.

When reality dawn on Razak’s assailant, he was said to have first taken him to the General Hospital Ikeja but was denied treatment.

He later took him to Igbobi Orthopedic, by which time gangrene has set in and they had to amputate Razak’s left leg.

With the help of his lawyer they got Ijieh to agree to a compensation package of N5million, which he was to pay in three installments, having handed over the sum of N400, 000 in cash to Razak but some of the cheques issued have allegedly been discovered to be dud cheques after all.

Ijieh is said to have traveled to Europe, by the account of his wife, Mrs. Ijieh, who in a telephone interview with The Nation assured that her husband was being expected in the country anytime next month.

When contacted, Razak, sounded pained and hurtful.

Besides industrial accidents and other occupational hazards at work places, workers around here have issues over poor condition of service, among other concerns.

Abdurraheem Buhari, a citizen of Kano State and a 1978 graduate of Ahmadu Bello University, Zaria, joined an old generation bank, in 1980 and was retired 20 years later as a principal manager.

For all those years of labour and unblemished service he received a total of N623, 736.52 retirement benefits after his staff loans and unutilized allowances were deducted from his gratuity of a little over N1.14million plus N400, 000.00 severance grant.

Buhari has been contesting this take home pay since but from the look of things the bank has chosen to turn an unwise deaf ears to his cries, not even after he had written them several times and visited their headquarters even more times and petitioned the Public Complaint Commission has the bank bothered to respond.

Out there are many Buharis who feel done in by not only such banks but also by other establishments after giving so much of their sweat and blood to generate mind-boggling profits they declare years in year out.

These many Buharis are right to feel that their sweat and blood are extracted mainly for the benefit of the bank’s fat-cat shareholders and top management.

But what role does the law plays in all these?

Barrister Gabriel Ojumah, President, Citizens’ Right Watch, an organisation in the forefront of advocacy for worker’s rights gives plausible explanation.

Review of workmen compensation Act

"I would say the workmen compensation act is one of the laws Nigeria inherited from the colonial masters and since then we have not deemed it fit to either amend or to repel so as to bring a new law to face today’s reality. You can imagine a situation where someone is injured in a place of work and you are now saying you want to compute his benefits based on salary and all that. And in most cases the man would go home even poorer.

As a lawyer, I have been exploring further legitimate options of addressing the pains and perils and to also find relief to those who have been injured in their places of work because the law as it is does not guarantee adequate compensation for now."

Alternative measures

Ojumah, whose organisation has helped many sought justice from erring employers says, one way he has been able to work around the limitation of the law is by exploring other legal means and ways without resulting to litigation.

Citing the case of Okere Cajetan, a machine operator at a printing press in Kirikiri, he said his group staged a protest march to the company concerned and subsequently sought audience with the management who agreed to an out-of -court settlement after paying the victim a substantial compensation.

"We thank God today that a result of alternative dispute resolution, the Cajetan was able to collect the sum of N3million, which is unprecedented in the history of compensation of Nigeria; no court can award you that for a loss of arm", he said, with an air of confidence.

Tony Ofoyetan, a lawyer, who also doubles as the Director General of the International Institute of Professional Security, focuses on worker’s rights.

Over the years, he has handled many cases involving Nigerians who had lost their hands and limbs.

Most foreign companies, he said, often hide under the workmen’s compensation act to deceive their victims.

The major culprits, he said are companies run by Chinese, Lebanese and Indians, where Nigerians suffer injuries the most.

He lamented that "owners of these companies are usually not remorseful because they think they are doing Nigerians a favour by employing them in the first place".

For Mr. Femi Falana, Lagos lawyer and President, West African Bar Association (WABA), whose chamber’s published a treatise on the cases of occupational hazards in the country, has agonized over what he described as the rising cases of man’s inhumanity to man, especially the unions and employers who continue to fail in their duty of care to their the workers

Incidence

No fewer than 3, 000 industrial accidents are reported to take place in Nigeria annually, with many more cases unreported.

The culture of silence

Victims of industrial accidents are often afraid of speaking out for fear of being victimized by their employers and subsequently losing their jobs. Some of the companies prone to hazards of the kind that has the potential to cause the victims debilitating ailments include cement, chemical, paint and asbestos, textile, saw, iron and steel mills, tannery industry.

Best practices

There are however some companies who do not toy with the welfare of their staff, as they consider it as a demotivating factor.

Investigation by The Nation revealed that some of the telecom giants, the oil industry, among other multinational companies give staff welfare the utmost priority it deserves.

A staff of one the telecoms company who would not be named said his company is probably one of the best places to work around because of the fringe benefits and other perks on the job.

His words: "Our welfare packages are the best you can find. I know for sure that every staff is entitled to the sum of N1million health insurance per annum, with free treatment for your spouse and four kids. Besides, your wife is also entitled to a sim and gets N5, 000 free airtime every month

"There are lots of opportunities for growth as well. For instance, depending on your academic prowess, you are entitled to a study abroad at the expense of the company".

May and Baker Plc, also has a robust welfare package for its staff, as the company sponsors mid-level career officers on Masters of Business Administration programmes at the expense of the company, among others.

Government intervention

At the federal executive council meeting last month, the federal government unanimously approved the long-awaited Employees Compensation Bill, for the benefit of workers, employees and the government.

Minster of Labour and Productivity, Prince Adetokunbo Kayode (SAN), who spoke on the development, described the Employees Compensation Scheme as "revolutionary and a demonstration that the President Umar Yar’Adua, cares so much about the Nigerian worker.

Benefit of the Bill

Employees will get free monthly compensation when injured at work including rehabilitation and career guidance until they are able to return to work, unlike the existing law where they are paid a one-off lump sum compensation if they are lucky. These benefits will be funded by one per cent of payroll contribution by the employers.

Benefit to employers.

Employers’ will benefit from higher productivity by well-motivated and loyal employees

Benefits to government

Government will benefit from industrial harmony and general economic growth.

How the scheme works

Shedding light on the foregoing, the Managing Director/CEO of the Nigerian Social Insurance Trust Fund, Dr. Enurukora Joe Okoli, described the bill as a right step in the right direction, as it is going to replace the obsolete Workmen’s Compensation Act of 1942 passed by the colonial masters for themselves and later amended in 1957 to include Nigerian workers.

Okoli further explained that the old WCA is provided through commercial insurance on a "No premium. No cover basis while, while on the ECS is provided through pooling of risks with employers’ contribution.

This means that every employee is automatically covered through employers’ contributions already in the pool, while defaulting employees would be pursued to remit their own contribution.

Besides claimants working with employers who might be h liquidity (cash flow) problems will not suffer because there claims will be settled by the NISTF, which will be managing the scheme.

Other benefits of the scheme

It has a" No-fault provision, as opposed to the WCA, which requires you to prove you were not negligent.

WCA defines compensable injuries as injuries that occur by accident, leaving out other injuries that can be caused by exposure to contamination.

Under WCA, disputes are settled by court’s which can be costly while the ECS provides for settlement by arbitration in a work-friendly environment.

The ECS also provides for re-insurance with reputable insurance companies as further safeguard for the funds.

Investigation by The Nation however revealed that Nigeria, is adopting the Employment Compensation Scheme, almost 30 years after several other member countries of the ILO have adopted same.

In its bid to create more job opportunities and expand existing ones, the Federal Government is to compel banks to fund the real sector and reduce interest rate for manufacturers to five per cent.

Also, a high-powered multi- disciplinary employment mission of the International Labour Organisation (ILO) is to visit Nigeria soon to complement our efforts in the implementation of the new National Employment Policy.

Government also intends to create an employment fund to boost its job creation efforts. In addition, government is to emphasise skill training to make more Nigerians employable.

Labour Minister, Prince Adetokunbo Kayode, speaking to journalists at the just concluded 98th International Labour Conference in Geneva said, "it is time for

government to wield the big stick. Banks must fund the factories, the real sector. Manufacturers should not have to pay more than five per cent interest rate."

He added: "We need to create jobs in NIgeria. We need to keep our people working. It must be our motto — Keep Nigeria working. We have lost about 25 years of skill opportunities, about 25 years of production; we need to recreate that."

The minister said Nigeria was the first country to organise a national employment summit and this was appreciated by the ILO. "In a way, we’ve been catalytical to the outcome of this summit and of course this conference".

He disclosed that ILO is also sending a technical team to support us "on what we have to do to implement the employment plan to generate more employment."

However, he said "the most important thing is to be able to convince government to budget more money from 2010 onwards."

From the ILO, the minister said, "We expect them to support us with the Global Jobs Fund but we must show that we are able to fund our activities. Government also has a duty to establish a national employment fund". On his part, he said he would ensure that government establishes the national employment fund.

He said with Nigeria’s participation at the ILC, the Federal Government has committed itself to job creation.

It is also committed to social security to provide a social safety net which he said Nigeria has had before the global financial crisis. Such safety nets are the reform of the pension system, the national health insurance scheme etc.

 

 

 

Global efforts

Secretary-General Ban Ki-moon on Friday paid tribute to the participants of a United Nations-backed labour conference for responding to the current worldwide recession by reaching agreement on a Global Jobs Pact, which places employment and workers protection at the heart of government economic stimulus packages.

The Pact, designed to guide national and international policies aimed at stimulating economic recovery, was adopted by the 183-member International Labour Organization (ILO) at its annual conference in Geneva.

"The Global Jobs Pact responds directly to the everyday worries of working women and men," Mr. Ban told some 4,000 participants at the conference in a video message.

He said the agreement "speaks to the concerns of enterprises large and small. It addresses the hopes of young people seeking opportunity as they enter this turbulent market."

According to the ILO, the Global Jobs Pact amounts to its most urgent and wide-ranging response to an economic crisis, calling on governments and organizations which represent workers and employers to join forces in tackling the global jobs crisis through policies in line with the ILO’s Decent Work Agenda.

A recent ILO report showed that, during the 2007-2009 period, between 210 million and 239 million people would be unemployed, representing global unemployment rates of 6.5 and 7.4 per cent, respectively, or increases of between 39 and 59 million unemployed people since 2007.

ILO projections indicate that 200 million workers are at risk of joining the ranks of people living on less than $2 per day between 2007 and 2009.

With some 45 million new entrants to the global job market annually, ILO Director-General Juan Somavia said that the world economy would have to create some 300 million new jobs over the next five years to go back to pre-crisis levels of employment.

"Urgent action is required now to boost economic recovery and job creation whilst preparing for a greener, more balanced, fairer and sustainable economy," Mr. Somavia told delegates attending the conference, which met from 3 to 19 June.

"This Pact provides a path crafted together by all members of the ILO and based on tried and tested policies," said Mr. Somavia.

Among the measures called for in the Pact are steps to retain people in employment, to sustain enterprises, to accelerate employment creation and social welfare protections, to promote investment in infrastructure and to avoid protectionism.

The Inter-national Labour Organisation (ILO), has warned its 183 member-countries including Nigeria against pay cut for employees just as it advised them to reduce trade imbalance and be cautious with trade liberalization.

It also suggested that minimum wage should not be allowed to fall in real value.

Also, governments should put in place social protection for employees and avoid job losses.

ILO noted that whereas stimulus packages had sustained banks, people in the informal sector have not been able to access the funds available.

Speaking on the current global financial crisis and its impact on jobs at a briefing in Geneva, last weekend, ILO’s Chief Employment Trends, Economic and Labour Market Analysis Department, Mr. John Jefferson, said: "Enterprises tend to be cutting wages but this will be counter- productive.

"Neighbouring countries will be afffected and this will not improve the situation, it will deteriorate."

The ILO expert who also cautioned against devaluation said, "Minimum wage should not fall in real terms, instead, collective bargaining should be strengthened to ensure that wages grow along with productivity."

Also contributing, another expert, Mr. Raymond Torrees said, "If you reduce income, they (employees) have less to spend in the market place."

Though Jefferson said this was subject to the confirmation of the International Monetary Fund (IMF), he added that IMF officials who spoke at the ILO Global Jobs Pact promised that IMF may drop some of its conditionalities in favour of needed support for countries.

Quoting IMF, he noted that the current global financial crisis is the sixth since 1960 but that "this is the biggest."

He said whereas it could take the world one to two years to recover from the current crisis, "job recovery takes four to five years to recover."

Jefferson said from the presentations of experts invited by ILO to discuss the financial crisis and its impact on jobs, there was a consensus that "governments need to provide employment and social protection with a focus on small and medium enterprise development and skill development."

It was also suggested that efforts should be made to assist employees who lose their jobs back to the labour market.

For instance, he said, "In Germany, about one million people have kept their jobs because government and social partners agreed on some subsidy. Subsidy can avoid and limit job losses."

He said it was also agreed that "developing countries should put more emphasis on employment and social protection."

Mr. Jefferson said, "IMF at the meeting said they have dropped conditionalities tending more for support".

Although the experts urged countries like Nigeria, with one or two export items to look inwards and diversify, they cautioned against "trade protectionism" which he said "would be less effective. We want to avoid wage deflation or competitive currency devaluation which is very tempting".

  Back to News

 

Federal Government approves Employee Compensation Scheme

The Federal Government has called on the National Assembly to quickly pass into law the newly approved Employees Compensation Scheme for the benefit of all Nigerian workers, employers and the Government. The call was made by the Honourable Minister of Labour, Employment and Productivity, Prince Adetokunbo Kayode SAN, after the Federal Executive Council unanimously approved the long-awaited Employees Compensation Bill on Wednesday. The Minister described the Bill as revolutionary and a demonstration that the Government of President Umaru Musa Yar’Ádua cares so much about the Nigerian worker.

According to the Bill, employees will get free monthly compensation when injured at work including rehabilitation and career guidance until they are able to return to work; unlike the existing law where they are paid a one-off lump-sum compensation if they are lucky. These benefits will be funded by one percent of payroll contribution by the employers including the Federal, State and local Governments.

The employers will benefit from huge profits achieved from higher productivity by well motivated and loyal employees; while the government will benefit from industrial peace and harmony and general economic growth.

Similarly, the MD/CEO of the Nigeria Social Insurance Trust Fund, Dr Enukora Joe Okoli described the bill as a Win! Win! for all! He explained that the Employees Compensation Act when passed will repeal and replace the obsolete Workmen’s Compensation Act of 1942 passed by colonial masters for themselves and later amended in 1957 to include Nigerian workers.

Dr Okoli explained that the old Workmen’s Compensation Act (WCA) is provided through commercial insurance on a “No Premium No Cover basis” while the Employees Compensation Scheme (ECS) is provided through pooling of risks with employers contribution. This means that every employee is automatically covered through employer contributions already in the pool, while defaulting employees are vigorously pursued to remit their own contribution. Claimants working with employers who might be having liquidity {cash flow} problems will not suffer because their claims will be settled by the Nigeria Social Insurance Trust Fund who will be managing the scheme.

Other benefits of the new ECS include a “no-fault provision” as opposed to the WCA which requires you to prove that you were not negligent. Furthermore, the WCA defines compensable injuries as injuries that occurred by accident, leaving out other injuries that can be caused by exposure and contamination. Under the WCA disputes are settled by courts which can be costly while the ECS provides for settlement by arbitration in a worker friendly environment. The ECS also provides for re-insurance with reputable Insurance Companies as further safeguard for the funds.

In approving the scheme, Nigeria has joined the ranks of several member-countries of the International Labour Organisation (ILO) some of which replaced the Workmen Compensation Act with the Employees’ Compensation Scheme more than thirty years ago, Dr Okoli said.

Reforming The Nigerian Workmen Conpensation And Factory ActWritten by Kayode Oladele 23 June 2006

Reforming The Nigerian Workmen Compensation And Factory Act As A Social - Justice Development Plan

By Kayode Oladele

Participants at the just concluded Workshop on “Workers’ safety and compensation in Nigerian Industry” organized by the   House of Representatives’ Committee on Labor, Productivity and Employment, in collaboration with Friedrich Ebert Stiftung (FES) in Makurdi, Benue State from May 30 - 31 2006 in their communiqué stressed the need for an amendment to the current Workmen Compensation and Factory Acts which they considered as inadequate, outdated, and faulty in several respects.  Participants were particularly worried about section 3 of the Act which defines compensable injuries as injuries that occurred by accident leaving other injuries not compensable. Another area that makes the Act worrisome is the utilization of regular court system for worker’s compensation hearings. According to the communiqué, regular courts are unable to satisfactorily resolve matters relating to Compensation, Health and safety of workers and the legal processes are often cumbersome, protracted and frustrating thereby making the entire exercise futile and practically unobtainable.

 

In May this year, I was contacted by a reputable law office in Nigeria to assist the firm in filing a worker’s compensation claim in the U.S on behalf of a Nigerian lady who worked with one of the multinational corporations in Nigeria for injuries which she suffered while working as a secretary with the multinational company in Nigeria. The oil company has its corporate head office in the U.S. The lady worked as a secretary with the corporation but she was laid off due to work related injuries having suffered from carpal tunnel syndrome.

 

During my initial interview with this lady, she stated that she worked for the oil corporation for several years as a secretary.

However, due to repetitive hand and wrist action, she developed a carpal tunnel syndrome. In most cases, carpal tunnel syndrome is due to work-related cumulative trauma of the wrist. It is commonly caused by strain placed on the hand, for instance gripping and typing, which are usually performed repetitively in a person's occupation. The condition was first diagnosed in Australia in the 80s when musicians started to use synthesizers heavily and people using these instruments started to get hand and wrist pain. The syndrome is much more common in women than it is in men. Symptoms range from a burning, tingling numbness in the fingers (especially the thumb and the index and middle fingers) to difficulty gripping, making a fist, or dropping things. Most early sufferers mistakenly blame the tingling numbness on their sleeping position, thinking their hands have had restricted circulation and are "falling asleep". If left untreated the symptoms often progress to intense pain which restricts hand functionality. It is known as a hidden disability, because people can do some things with their hands and appear to have normal hand function, but often live with severely restricted hand activity due to the pain.

 

According to this lady, she had spent substantial sum of money visiting hospitals both in Nigeria and the U.S on her medical condition to no avail. Unfortunately, her former employers would not compensate her due to the lacuna in the Nigeria legal systems even though, similarly situated employees of the same corporation in the U.S are being compensated for the same injury.

 

This woman’s case depicts a typical example of what many workers in Nigeria are going through today due to the inadequacy of the law in this very important area of human Endeavour. It is however gratifying to note that the House Committee on Labor is showing some interest in this matter and might consider possible amendment to the Act.  This paper will therefore deal with a general overview of workers compensation law and practice in other jurisdictions such as the U.S. 

 

As a prelude, workers’ compensation hearings are not suitable for regular court system. The very nature of the hearing itself calls for prompt and efficient adjudication of cases in order to quickly rehabilitate the injured worker who may be out of work and  in dire need of a regular income. The court system is usually overcrowded, causing long delays.

 

In Michigan State for example, the body saddled with the workers’

compensation hearing is the Worker’s Compensation Board of Magistrates. The Board was created by the Legislature as an autonomous entity in the Department of Labor consisting of 30 member-magistrates appointed by the Governor with the advice and consent of the Senate. The magistrate is primarily responsible for hearing and deciding contested claims and for preparing concise written opinions containing findings of fact and conclusions of law. 

 

The members of the Board of Magistrates are appointed by, and are accountable only to, the Governor. They are not part of a bureaucratic hierarchy. In the exercise of the decisional function, they do not have a supervisor who can tell them how and what to decide. They are therefore "independent." The Board of Magistrates is created separate and apart from the appellate commission and the Bureau of Worker’s Compensation, and accordingly is a separate autonomous entity within the Department of Labor.

 

A magistrate, in hearing a claim performs the same role as a judge when the judge acts as trier of fact in an action brought to enforce a right created by statute. A magistrate, like a judge, will find the facts with a large measure of finality and apply the law to the facts, and in so doing will often find it necessary to construe the workers’ compensation act. In so construing the act, the magistrate may not have the guidance of reported appellate decisions. The function of a magistrate and of a judge and their authority and power in hearing a statutory claim are essentially indistinguishable. The findings of fact of a circuit judge are subject to reversal if clearly erroneous while a magistrate findings of fact can be reversed on appeal only if there is not substantial evidence on the whole record to support the decision.

 

The magistrates, in addition to presiding over worker's compensation contested hearings, sometimes engage in informal settlement discussions with the parties and their attorneys regarding cases assigned to other magistrates. For example, a magistrate assigned to hear a case may believe that this procedure will enhance the likelihood of a settlement. If the parties wish to engage in further negotiations, the magistrate in such a case may ask the litigants and/or their attorneys to permit another magistrate, who has no involvement with the case, to facilitate informal settlement discussions. If they agree, the unassigned magistrate may informally meet with the litigants and/or their attorneys to discuss a possible settlement. If the unassigned magistrate’s efforts are successful, the case continues before the

assigned magistrate who presides over a redemption (settlement) hearing; if the unassigned magistrate‘s   efforts do not achieve a settlement, the case proceeds to trial and adjudication before the assigned magistrate.

 

However,  where a mediation conference proves unsuccessful in resolving a case, the claim shall be submitted to the Worker's Compensation  Board of Magistrates for a contested hearing under section 847, or, if the claim is less than $2,000.00, to the Worker's  Compensation Bureau's Small Claims Division.

 

There is also a special case called the 60 day case. That is where a person was receiving workers’ compensation benefits and was cut off by the insurance company and the injured worker files their Petition within 60 days of the cut off date. This allows them a fast track trial date, although does not guarantee a trial on the first time up.

 

However, unlike in the regular court system, if an employee wins his case at trial and the insurance company/the file an appeal against the decision, the prevailing employee will start receiving seventy percent of his or her weekly compensation benefits while the case is on appeal, but any past due monies that were awarded for weekly wages or past due medical bills are held and not paid until after the appeal is over. It is the goal of workers' compensation to return the injured employee quickly and economically to the status of productive worker without unduly harming the employer's business

 

According to legal encyclopedia by Thomson Gale, Workers' compensation laws in the United States developed during the early 1900s as a result of the industrial age and growing numbers of industrial injuries. Before these laws were developed, workers injured on the job often found themselves without remedy against their employer or their fellow workers.  The law of vicarious liability was first developed in England in or about 1700 to hold the employers, liable for the acts of their employees or servants. But in 1837, the British Court in Priestly v. Fowler, 3 M. & W. 1, 150 Reprint 1030, created the fellow servant exception to the general rule of a master's vicarious liability; no longer would the master be held liable for an employee's negligence in causing injury to a coworker.

 

After Priestly, courts in the 1800s continued to develop judicial rules

and employer defenses to liability for injured workers. These included:  assumption of the risk, allowed employers to escape liability with the dubious reasoning that employees could avoid or decline dangerous work duties; contributory negligence, allowed employers to escape liability, notwithstanding the employer's negligence, where the employee also contributed to his injury due to his negligence. Workers were left with inadequate remedies against their employers for injuries resulting from work and were forced to bear the expense of injury themselves.

 

This problem was first addressed in Europe during the 1800s, and by the turn of the century the movement spread to North America.  Laws were enacted to provide workers injured on the job with prompt, equitable, and guaranteed benefits. Injured workers received medical care and disability income irrespective of fault. Employers, in turn, were protected from potentially catastrophic loss by a stated amount of specific benefits for the injuries suffered by the employee. The worker was prohibited from filing suit while the employer was obligated to pay the mandated benefits.

 

Workers’ compensation covers both cases of accidents and injury at work or in the course of employment. Injuries are deemed to be work-related and compensable under workers' compensation if they arise out of and in the course of employment. The requirement that the injury arises out of employment ensures a causal relationship between the injury and the job, and it is usually the employee's burden to prove that an increased risk of the job caused a compensable injury.

 

The injury does not have to be caused by an accident to be covered by workers' compensation. The benefits are most commonly provided to workers who are injured by a specific accident on the job, such as the worker who gets a hand caught in factory machinery. Compensable accidental injury also include an occupational  diseases such as an employee's lung disease that resulted from his exposure to asbestos in the workplace and cumulative trauma associated with work duties, such as carpal tunnel syndrome caused by repetitive keyboard work, also are compensable. What is included in the workers' compensation definition of employee remuneration are

 

Unlike in Nigeria, in the U.S, Workers' compensation law is governed by statutes in every state. Specific laws vary with each jurisdiction, but fundamental features are consistent and never altered. In

addition to state laws, the Federal Employee's Compensation Act (FECA) provides workers' compensation benefits to Federal employees who sustain job-related injuries or illnesses.

 

An employee is automatically entitled to receive certain benefits when she suffers an occupational disease or accidental personal injury arising out of and in the course of employment. Such benefits may include cash or wage-loss benefits, medical and career rehabilitation benefits, and in the case of accidental death of an employee, benefits to dependents. The negligence and fault of either the employer or the employee usually are immaterial. Independent contractors are not entitled to workers' compensation benefits, and in some states domestic workers and agricultural workers are excluded or only partially covered.

 

A worker whose injury is covered by the workers' compensation statute loses the common-law right to sue the employer for that injury, but injured workers may still sue third parties whose negligence contributed to the work injury. For example, a truck driver injured in a rear-end collision by an unemployed third party would be entitled to collect workers' compensation and also to sue the third party for negligence. In such cases a plaintiff who recovers money from a third-party lawsuit must first repay the employer or insurer that paid workers' compensation benefits. The plaintiff may keep any remaining money. Many jurisdictions permit the employer or its insurer to sue negligent third parties on the employee's behalf to recover funds paid as workers' compensation benefits.

 

Workers' compensation is distinguishable from other personal injury laws where negligence is a factor because although the employer is liable for paying injured workers' benefits, the purpose of workers' compensation is not to punish or hurt the employer. For this reason, an integral component of workers' compensation is the requirement that employers purchase workers' compensation insurance, or provide a self-insured fund, to pay the benefits. This way, the employer can pass along the cost of insurance to the purchasers of the employer's product

 

Workers' compensation provides replacement income in the form of wage loss benefits, compensation for permanent disability and vocational rehabilitation benefits in addition to medical expenses. Wage loss disability pay is generally available either temporarily, while the worker is recuperating from his injury or permanently if he

is not able to recover from his injury.  However, the amount of the payment a worker receives will depend on the nature and extent of his injuries.

 

The insurance company will pay 100% of his “reasonable and necessary” medical bills, plus disability benefits according to the states approved formula. In most states, the worker will receive 2/3 of his average weekly wage for the period that he is unable to work due to his injury. If he is only able to work part time, his wage loss benefits will be adjusted accordingly.

 

The formula to determine wage loss benefits in Michigan is 80 percent of an employee's after-tax salary. In some cases, the wage loss benefit might be two-thirds of the worker's base salary, subject to limitations. When an employee's salary changes from week to week the benefit may be based on the 39 highest weeks of pay during the past year. Normally the 80 percent calculation is more beneficial to the worker. All necessary medical expenses incurred by an injured worker are to be paid for by worker's compensation insurance.

 

Other examples include: Alabama - for temporary or permanent total disability, an injured worker receives 66 2/3 percent of the wage with a minimum and maximum wages established by law, Arizona -disability rate is 66 2/3 percent of the wage with no minimum weekly payments but maximum payments established by law, New York-disability rate is 66 2/3 percent of wage, Massachusetts-disability rate is 60 percent of wage and Iowa-disability rate for temporary or permanent total disability is 80 percent of "spendable earnings

 

Remuneration for the purpose of the computation include Wages or salaries; Commissions; Bonuses including stock bonus plans; Extra pay for overtime work, with certain exceptions, payment by an employer of amounts otherwise required by law to be paid by employees to statutory insurance or pension plans, such as the Federal Social Security Act (employer’s contribution not to be deducted from employee’s gross wages);payments to employees on any basis other than time worked, such as piecework, profit sharing or incentive plans; the value of lodging other than an apartment or house, received by employees as part of their pay, to the extent shown in the insured's records; the value of store certificates, merchandise, credits or any other substitute for money received by employees as part of their pay with certain exceptions; payments

for salary reduction, retirement plans that are made through deductions from employee’s gross pay; expense reimbursements to employees to the extent that an employer’s records do not substantiate that the expense was incurred as a valid business expense.

 

Remuneration excludes tips and other gratuities received by employees; payments by an employer to group insurance or group pension plans for employees, the value of special rewards for individual invention or discovery; dismissal or severance payments, except for time worked or accrued vacation; employee discounts on goods purchased from the employee’s employer; expense reimbursements to employees to the extent than an employer’s records substantiate that the expense was incurred as a valid business expense; Sick pay paid to an employee by a third party such as an insured’s group insurance carrier that is paying disability income benefits to a disabled employee  etc. Overtime is not counted unless it is a regular part of the job or was required at certain occasions and it then counted at regular time wages.

 

The Act does not make provision for pain and suffering. However, there may be a lump sum payable for the percentage of permanent disability, if any, that the worker suffers. Often called “permanent partial disability,” this rating is   given by a doctor according to your state’s disability tables. The actual amount of the settlement will depend on several factors, such as the doctor’s rating, your wage at the time of the injury, etc. However as stated above, an injured worker is entitled to receive 100% of necessary and reasonable medical expenses incurred as a result of a job-related injury which also include emergency room services, hospital care, physician's fees and prescriptions. Pre-existing medical conditions are taken into consideration in determining the causal relationship of a work-related injury. But if a pre-existing medical condition becomes aggravated, accelerated or exacerbated by a work related injury the workers' compensation carrier is usually responsible for the increased disability, including medical treatment

In conclusion, while these foreign jurisdictions have effective system for ensuring the safety and security of workers, they continue to explore further and better ways of  making sure that workers are not deprived of their earnings and earning capacities through work-related injuries by removing both legal and extra legal barriers as stated above.  In order therefore, for Nigeria to flow in the stream of these current developments in the law, which started in Germany, Great Britain and the United States in the late 1800s and the early 1900s, Nigeria should amend the Act by making all work related

injuries compensable. The country should also set up agencies that would provide workers a fast track for receiving their benefits instead of saddling the regular courts with this onerous tasks.

Iko (Nigeria) Oil Spill (IKO Case)

 

About TED Categories and Clusters  CASE NUMBER: 326 CASE MNEMONIC: IKO CASE NAME: Iko (Nigeria) Oil Spill

A. IDENTIFICATION

1. The Issue

Iko oil spillage issue is important because of the extent ofdamage and impact, and has been in the local news, but there areother smaller cases that have not been reported upon. While theissue touches on international and domestic trade, its negativeexternality on the environment destroys the environment andproductive capacity of the people. The oil trade is importantbecause the government and the oil companies generate their revenuefrom it. On the other hand, the indigenous people living in thisarea are in poverty due to lack of social services such ashospitals, good drinking water, schools and are suffering from oilpollution. Due to weak coalition among the people, their plighthas been suppressed, but the efforts of international non-governmental institutions, media exposure and individual legalactions has helped to check the government and the oil companiesimpact on subsistence means of livelihood, and the destruction ofspecies.

2. Description

Oil spillage in Nigeria in Aguiyi-Ironsi's investigation showsthat, "between 1970 and 1983, offshore and on-shore oil spillageamounts to 1,711,354,6 barrels (Aguiyi, 13)." Oil spillage isassociated with areas where there is oil exploration or alongpipelines used for its transportation to the hinterland. Most ofthe victims are poor and have fragile coalitions, which furtherprevent them from influencing government policies as it affectsthem. Nigerian government has taken bold steps to promoteenvironmental education and awareness. According to the FederalEnvironmental Protection Agency, Lagos-Nigeria, the followingrelevant national laws and international agreements are in effect:Endangered Species Decree Cap 108 LFN 1990; Federal EnvironmentalProtection Agency Act Cap 131 LFN 1990; Harmful Waste Cap 165 LFN1990; Petroleum (Drilling and Production) Regulations 1969 Cap. 350Vol. xix P.12766; Oil in Navigable Waters Act 1968 Cap. 337 Vol.xix P.12327; Mineral Oil (Safety) Regulations 1963 Cap. 350 Vol.xix P. 12667; 1971 International Convention on the Establishment ofan International Fund for Compensation for Oil Pollution Damage;1972 Convention on the Prevention of Marine Pollution by theDumping of Wastes; 1968 African Convention on the Conservation ofNature and Natural Resources; 1971 International Convention on theEstablishment of an international Fund for Compensation for OilPollution Damage; (References to caps, volumes and pages are as inthe Laws of the Federation of Nigeria).

The oil pollution is important and controversial because someof the oil industries are not prepared to internalize the negativeexternality, even though its impact on the health of the communityis high. The oil companies in most cases attribute the oilspillage to sabotage and accident. These companies maintain thatthey are committed to contributing to the well being of the peopleliving in the affected areas, but according to Aguiyi-Ironsi, "aninvestigation by the Nigerian Environmental Society in 1985revealed that between 1970 and 1983, offshore and on-shore oilspillage amounts to 1,711,354 barrels (Aguiyi, 13)." Aguiyi wentfurther to say that,

"The riverine village of Iko, in Akwa Ibom State, saw enough of the devastations of pollution as Egbema people did. In six years from 1982, when shell oil company started flaring gas in the Iko area, the once flourishing village, known for its fish trade, was transformed into the ghost town..." (Aguiyi, 15)

Nigerian government enacted the workmen compensation act of1955 and decrees 16 and 17 of 1984, which relates to compensationof victims of pollution, however, the oil companies find ways tocircumvent these laws with the help of some unscrupulous, corruptNigerians. According to Newswatch,

The people of Iko, for example, after a series of pleas to shell oil company and petitions to successive state governments, still didn't get any relief... In 1982, the youths at Egbema barricaded roads leading to Nigerian Agip and oil company (NAOC)... (because) of non-payment of compensation for the damage done to their environment (Newswatch, 18)

Even with the companies' creation of few scholarships and fewroads (appeasement) in the 80s, the 90s witnessed a shift fromdomestic campaign to the international scene. According toEkeocha, "(on) November 24, 1992, environmental groups in londonorganized peaceful demonstration at shell premises to awaken theconsciousness of their people... (Ekeocha, 18)." In addition,Ekeocha notes that Saro-Wiwa, who is currently the president of theAssociation of Nigerian Authors internationalized the issue:

(T)heir struggle and challenging the activities of the oil companies through visitation of Human Rights Organization, environment groups in America and Europe.... (He) was later invited to the 10th working session of the United Nations Group on Indigenous Populations in Geneva. The London Rain Forest Action Group and Green Peace Environmental Movement were also contacted. (Ekeocha, 18)

3. Related Cases

NIGERIA case ECUADOR case OGONI case KOMI case BLACKSEA case MEDIT case

Keyword Clusters

(1): Forum = NIGERIA (2): Bio-geography = TROPical (3): Environmental Problem = OIL/GAS

4. Draft Author: Shehu Ibrahim (May, 1994)

B. LEGAL Cluster

5. Discourse and Status: DISagreement and INPROGress

This case in question is the oil pollution, which is adisagreement between the oil exporters and the community livingwhere oil is discovered. This case has been established, but itsresolution is not yet in sight, because some of the communities arecalling for autonomy, which is offensive to the Federal governmentthat has control over all resources within its territory. TheFederal government on May 12 promulgated the Treason andTreasonable Offenses Decree (1993) " (Anyone) who conspire withgroups within or outside the country and profess ideas thatminimize the sovereignty of Nigeria are guilty of treason,punishable with death." Therefore, I will rate it as a value of 2.

6. Forum and Scope: NIGERIA and UNILATeral

This case also appeared on the international scene at the 10thworking session of the United Nations Group on IndigenousPopulation in Geneva. Others involved in this case include theGreenpeace, Geneva-based International Atomic Energy Agency,Friends of the Earth, Nigerian Institute of Marine Research andOceanography, and British Parliamentary Human Rights Group (BHRG).

7. Decision Breath: 1

8. Legal Standing: LAW

C. GEOGRAPHIC Cluster

9. Geographic Locations

a. Geographic Domain : Africa b. Geographic Site : West Africa c. Geographic Impact : Nigeria

10. Sub-National Factors: YES

11. Type of Habitat: TROPical

D. TRADE Cluster

12. Type of Measure: Regulatory Standard [REGSTD]

In the case of Iko and Ogoni oil pollution issue, some arguethat compensation should be paid to affected victims. Laws andregulations enacted should be invoked and strictly implemented. Anescrow account should be established by the oil companies and theNigerian government, from which compensation would paid and otherssocial services and amenities would be met. Aguiyi-Ironsi notesthe laxity shown from time, "Ironically, the Oil Navigable WatersAct of 1968, which provides that no more than 100 parts of oil be

discharged 30 nautical miles off the country's coast is not beingenforced.

In some instances, environmental litigation are presented tocourts for settlement. According to Adewale, "In some cases, themaxim of res ipsa loquitur (The Fact speaks for itself) has beenrelied upon to relieve plaintiff from the onerous duty of provingnegligence. Thus in Victor Flem Vs Shell B.P. (1979) oil escapedfrom the defendant's oil location to the plaintiff's propertythereby causing damage. The judge evoked the principle of res ipsaloquitur and awarded damages to the plaintiff.

13. Direct vs. Indirect Impacts: INDirect

14. Relation of Measure to Environmental Impact

a. Directly Related : YES OIL/GAS b. Indirectly Related : NO c. Not Related : NO d. Process Related : YES Pollution Land [POLL]

15. Trade Product Identification: OIL

16. Economic Data

According to African survey, Nigeria's principal means ofrevenue is the oil, and it provides 96.2% of total export earningsin 1991 (Africa, 2978). Whereas, the degree for dependence onimported petroleum for Japan, France, West Germany, Italy, and theUnited States would be placed along a continuum from high to lowrespectively.

17. Impact of Measure on Trade Competitiveness: LOW

18. Industry Sector: OIL/GAS

19. Exporter and Importer: Nigeria and MANY

E. ENVIRONMENT Cluster

20. Environmental Problem Type: Pollution Land [POLL]

The number of species destroyed cannot be determined, however,the impact on the health of humans living in Iko, Ogoni, Deltaareas, and other animals is devastating.

21. Name, Type, and Diversity of Species

Name: Many

Type: Many

Diversity: PHILippines

22. Impact and Effect: LOW and PRODuct

23. Urgency and Lifetime: MEDIUM and 100s years

24. Substitutes: Biodegradable products

VI. OTHER Factors

25. Culture: NO

Nigerian laws are derived from pre-20th century Englishstatutes, but are now modified to suit Nigeria's socio-culturalrealities. However, most of the laws and decrees enacted inrespect of the trade are in accordance to Nigeria's National Law,and International agreements. Note that references to caps,volumes and pages are as in the Laws of the Federation of Nigeria.Official Memorandums of Understanding (MOU) between Nigeria andItalian government led to a "systematic programme ofdecontamination, restoration and post-impact monitoring ( FEPA,1989)."

26. Trans-Border: NO

27. Rights: YES

28. Relevant Literature

"Nigeria" Africa South of the Sahara 1993. England ; Europa Publishing Ltd. 1993.Adewale, O. The Nigerian Institute of Advanced legal Studies, Lagos 1991.Aguiyi-Ironsi, Louisa. "The Looming Shadow: Environmental pollution is gradually changing Nigeria's landscape, destroying sources of livelihood" Newswatch. July 18,1988.Aguiyi-Ironsi, Louisa. " A World Under the Sword: Experts say global environmental pollution is increasingly becoming a major threat" Newswatch. July 18,1988.Ayadike, O. West Africa, June 20, 1988,p. 1109.Federal Environmental Protection Agency, Nigeria. "Achieving Sustainable Development in Nigeria" National Report for the United Nations Conference on Environment and Development. Rio de Janeiro, Brazil. 1-12 1992.Greenpeace Toxic Trade Update, Third and Fourth Quarter 1991.Greenpeace Toxic Trade Update, Second to Fourth Quarter 1992.Greenpeace Toxic Trade Update, First and fourth Quarter 1993.Nigerian Environmental Study/Action Team pp. 261-264. 1991.Odauran, Akpovire B. "Education Against Environmental Pollution in Nigeria" Convergence. Vol. 22 No 4, 1989 pp.55-60."Would-be waste smugglers face execution" New Scientist. Vol 136 (Nov 21, 92)p.8.Smowdem, R,J, ; Ekeazor, I.K.E. "Littoral in fauna of a West Africa estuary: an oil pollution survey" Marine Biology. V. 105 No 1 (90) p.51-7.

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What is Workmen's Compensation Act 1923?In: Workers Compensation [Edit categories]Of Personal Injury LawOf Personal Injury Law Lawyers. Visit the Law Experts.PersonalInjury.Courts.info

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Workmen's Compensation Act, 1923

1) This Act may be called the Workmen's Compensation Act, 1923.

(2) It extends to the whole of India.

(3) It shall come into force on the first day of July, 1924.

The Workmen's Compensation Act, aims to provide workmen and/or their dependents some relief in case of accidents arising out of and in the course of employment and causing either death or disablement of workmen.

This act is a central legislation which provides for payment of compensation for injuries suffered by a workman in the course of and arising out of his employment according to the nature of injuries suffered and disability incurred, where death results from the injury, the amount of compensation is payable to the dependants of the workmen.

WORKMAN

Workman means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employers trade or business) who is- a railway servant as defined in section 3 of the Indian Railways Act, 1890 not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or employed in any such capacity as is specified in Schedule II,

Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing.

The provisions of the Act have been extended to cooks employed in hotels, restaurants using power, liquefied petroleum gas or any other mechanical device in the process of cooking.

EMPLOYEES ENTITLED TO COMPENSATION

Every employee (including those employed through a contractor but excluding casual employees), who is engaged for the purposes of employers business and who suffers an injury in any accident arising out of and in the course of his employment, shall be entitled for compensation under the Act.

The employer of any establishment covered under this Act, is required to compensate an employee :

Who has suffered an accident arising out of and in the course of his employment, resulting into (i) death, (ii) permanent total disablement, (iii) permanent partial disablement, or (iv) temporary disablement whether total or partial, or

Who has contracted an occupational disease.

EMPLOYER'S LIABILITY FOR COMPENSATION. -

(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions:

Provided that the employer shall not be so liable -

(a) In respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;

(b) In respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to -

(i) The workman having been at the time thereof under the influence of drink or drugs, or

(ii) The willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

(iii) The willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen,

(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III, for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment :

Provided that if it is proved, -

(a) That a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment, and

(b) That the disease has arisen out of and in the course of the employment; the contracting of such disease shall be deemed to be an injury by accident within the meaning of this section:

Provided further that if it is proved that a workman who having served under any employer in any employment specified in Part B of Schedule III or who having served under one or more employers in any employment specified in Part C of that Schedule, for a continuous period specified under this sub-section for that employment and he has after the cessation of such service contracted any disease specified in the said Part B or the said Part C, as the case may be, as an occupational disease peculiar to the employment and that such disease arose out of the employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section.

(2A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was under more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.

(3) The Central Government or the State Government, after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III, and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub-section (2) shall apply In the case of a notification by the Central Government, within the territories to which this Act extends or, in case of a notification by the State Government, within the State as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.

(4) Save as provided by Sub-sections (2), (2A) and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.

(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury -

(a) If he has instituted a claim to compensation in respect of the injury before a Commissioner; or

(b) If an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.

ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

An accident arising out of employment implies a casual connection between the injury and the accident and the work done in the course of employment. Employment should be the distinctive and the proximate cause of the injury. The three tests for determining whether an accident arose out of employment are:

At the time of injury workman must have been engaged in the business of the employer and must not be doing something for his personal benefit;

That accident occurred at the place where he as performing his duties; and Injury must have resulted from some risk incidental to the duties of the service, or

inherent in the nature condition of employment.

The general principles that are evolved are: There must be a casual connection between the injury and the accident and the work

done in the course of employment; The onus is upon the applicant to show that it was the work and the resulting strain

which contributed to or aggravated the injury; It is not necessary that the workman must be actually working at the time of his death

or that death must occur while he was working or had just ceased to work; and Where the evidence is balanced, if the evidence shows a greater probability which

satisfies a reasonable man that the work contributed to the causing of the personal injury it would be enough for the workman to succeed. But where the accident involved a risk common to all humanity and did not involve any peculiar or exceptional danger resulting from the nature of the employment or where the accident was the result of an added peril to which the workman by his own conduct exposed himself, which peril was not involved in the normal performance of the duties of his employment, then the employer will not be liable.

AMOUNT OF COMPENSATION. -

(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely :-

(a) where death results an amount equal to fifty from the injury cent of the monthly wages of the deceased workman multiplied by the relevant factor; or an amount of fifty thousand rupees, whichever is more;

(b) Where permanent total an amount equal to disablement results from sixty the injury per cent of the monthly wages of the injured workman multiplied by the relevant factor, or an amount of sixty thousand rupees, whichever is more.

(c) where permanent partial disablement results from the injury

(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and

(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;

(d) Where temporary a half monthly payment of the sum disablement, whether equivalent to twenty-five per cent of total or partial, results monthly wages of the workman, to from the injury be paid in accordance with the provisions of sub-section (2).

(2) The half-monthly payment referred to in clause (d) of sub-section (1) shall be payable on the sixteenth day -

(i) from the date of disablement where such disablement lasts for a period of twenty-eight days or more; or

(ii) after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twenty-eight days; and thereafter half-monthly during the disablement or during a period of five years, whichever period is shorter :

Provided that -

(a) there shall be deducted from any lump sum or half-monthly payments to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half-monthly payment, as the case may be; and

(b) no half-monthly payment shall in any case exceed the amount, if any, by which half the amount of the monthly wages of the workman before the accident exceeds half the amount of such wages which he is earning after the accident.

(3) On the ceasing of the disablement before the date on which any half-monthly payment falls due, there shall be payable in respect of that half-month a sum proportionate to the duration of the disablement in that half-month.

(4) If the injury of the workman results in his death, the employer shall, in addition to the compensation under sub-section (1), deposit with the Commissioner a sum of one thousand rupees for payment of the same to the eldest surviving dependant of the workman towards the expenditure of the funeral of such workman or where the workman did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure.

METHOD OF CALCULATING WAGES

In this Act and for the purposes thereof the expression "monthly wages" means the amount of wages deemed to be payable for a month's service (whether the wages are payable by the month or by whatever other period or at piece rates), and calculated as follows, namely:-

(a) where the workman has, during a continuous period of not less than twelve months immediately preceding the accident, been in the service of the employer who is liable to pay compensation, the monthly wages of the workman shall be one-twelfth of the total wages which have fallen due for payment to him by the employer in the last twelve months of that period;

(b) where the whole of the continuous period of service immediately preceding the accident during which the workman was in the service of the employer who is liable to pay the compensation was less than one month, the monthly wages of the workman shall be the average monthly amount which, during the twelve months immediately preceding the accident, was being earned by a workman employed on the same work by the same employer, or, if there was no workman so employed, by a workman employed on similar work in the same locality;

(c) in other cases [including cases in which it is not possible for want of necessary information to calculate the monthly wages under clause (b), the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident from the employer who is liable to pay compensation, divided by the number of days comprising such period. 

Fed Govt approves Employee Compensation Scheme By Our Reporter

  Published 1/06/2009

  Labour

  Unrated

The Federal Government has called on the National Assembly to pass into law the newly approved Employees Compensation Scheme for the benefit of workers, employers and the government.

The call was made by the Minister of Labour, Employment and Productivity, Prince Adetokunbo Kayode (SAN), after the Federal Executive Council unanimously approved the long-awaited Employees Compensation Bill last Wednesday.

The Minister described the bill as "revolutionary and a demonstration that the President Umaru Musa Yar’Ádua administration cares so much about the Nigerian worker."

According to the bill, employees will get free monthly compensation when injured at work including rehabilitation and career guidance until they are able to return to work; unlike the existing law where they are paid a one-off lump-sum compensation if they are lucky. These benefits will be funded by one per cent of payroll contribution by the employers including the Federal, state and local governments.

Should the Bill be passed into law, employers will benefit from huge profits achieved from higher productivity by well motivated and loyal employees; while the government will benefit from industrial peace and harmony and general economic growth.

Similarly, the MD/CEO of Nigeria Social Insurance Trust Fund, Dr Enukora Joe Okoli, described the bill as a Win! Win! for all! He explained that the Employees Compensation Act when passed will repeal and replace the obsolete Workmen’s Compensation Act of 1942 passed by colonial masters for themselves and later amended in 1957 to include Nigerian workers.

Okoli explained that the old Workmen’s Compensation Act (WCA) is provided through commercial insurance on a "No Premium No Cover basis" while the Employees Compensation Scheme (ECS) is provided through pooling of risks with employers contribution. This means that every employee is automatically covered through employer contributions already in the pool, while defaulting employees are vigorously pursued to remit their own contribution. Claimants working with employers who might be having liquidity (cash flow) problems will not suffer because their claims will be settled by the Nigeria Social Insurance Trust Fund (NSITF) who will be managing the scheme.

Other benefits of the new ECS include a "no-fault provision" as opposed to the WCA which requires you to prove that you were not negligent. Furthermore, the WCA defines compensable injuries as injuries that occurr by accident, leaving out other injuries that can be caused by exposure and contamination. Under the WCA, disputes are settled by courts which can be costly while the ECS provides for settlement by arbitration in a worker- friendly environment. The ECS also provides for re-insurance with reputable insurance companies as further safeguard for the funds.

Said Okoli: "In approving the scheme, Nigeria has joined the ranks of several member-countries of the International Labour Organisation (ILO) some of which replaced the Workmen Compensation Act with the Employees’ Compensation Scheme more than thirty years ago".