Prohibition Against Nightshift For Women-Employee: The True Position Of The Labour Act

Few days ago I had the opportunity of reading a piece by a writer which was published by the Women’s Advancement Deeply on the position of the labour law in restricting women from night work. The writer, like some others, took a position that the relevant section of the law discriminates against the female employees in Nigeria.

While it is a fact that there exist some provisions of law that are gender biased, such as age limits for unemployed able Nigerians and labour practices that can be best described as ‘unfair-labour practices’ such as working without employee’s contract of employment, working 6 days – a week without any day-off/work rotation, arbitrary lay-off of staff because of employers’ inability to provide work, failure to attend to employees’ health scheme on time in spite of their consistent contribution towards same and many other practices in labour relations, it is my opinion that the prohibition against night work for female employees in the industrial and agricultural undertakings and any other establishment where the female employees are subjected to manual labour is not to be seen as discriminating against the female candidates.

Having gone through the entire provisions of the Labour Act on the subject matter, it is my considered view that the no night work prohibition is specifically a blessing (protection) rather than a wrong (discrimination) to every female employee in the concerned establishment. By this provision, the law indeed seeks to protect women-employee subjected to manual labour from unnecessary labour, danger/exploitations associated with working as manual labourers at the wee hours of the day.

For better understanding, the relevant section of the law, Section 55 of the Labour Act, provides:

Section 55 (1) provides “No woman shall be employed on night work in a public or private industrial undertaking or in any branch thereof or in any agricultural undertaking or any branch thereof.”

To determine the intention of the drafters of this law, section 55(1) must not be read in isolation of other relevant subsections; recourse must be had to the entire subsections of the section, especially subsections 2 and 5. Hence, the subsections provide:

Section 55(2) provides:

“Subsection (1) of this section shall not apply to women employed as nurses in any public or private industrial undertaking or in any agricultural undertaking, nor to women holding responsible positions of management who are not ordinarily engaged in manual labour; and in any proceedings brought under or in connection with the said subsection (1) of this section, it shall be a good defence if it is shown to the satisfaction of the court trying the proceedings that–

(a) the night work in question was due to an interruption of work which it was impossible to foresee and which is not of a recurring character; or

(b) the night work in question had to do with raw material or materials in course of treatment which are subject to rapid deterioration, and it was necessary to preserve such materials from certain loss.”

Section 55(5) states:

“The Minister may by order exclude from the application of this section, those women covered by a collective agreement in force which permits night work for women, but before making such an order the Minister shall satisfy himself that adequate provision exist for the transportation and protection of such women concerned.”

By these subsections, terms such as “industrial undertaking”, “agricultural undertaking”, “manual labour”, discrimination, and the meaning of “night”, as used in the section, are very instructive in understanding the intendment of this law.

Now, let us now consider them seriatim (one after the other)

Industrial undertaking:

Industrial undertaking means an industry, establishment or other undertaking engaged in the production or processing of any goods or in the development and extraction of such mineral resources or products, or in the providing of such mineral resources or products, or in the providing of such services, as may be specified in this behalf by the government. In summary, it means an industry engaged in the production of goods.

Agricultural undertaking

This means any work in which any person is employed under a contract of service for the purposes of agriculture, horticulture or silviculture, the tending of animals or poultry or the collection of the produce of any plants or trees.

Manual labour

Physical work done “by hand” (or using basic implements) instead of by machines, usually implying it is unskilled or physically demanding.

Discrimination

This can be said to be an unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex.

Meaning of “Night” as used in the section

By virtue of section 55(3), night work/shift in relation to industrial undertaking is a period of at least eleven consecutive hours, including the interval between ten O’clock in the evening and five O’clock in the morning.

For agricultural undertakings, ‘night’ is a period of at least nine consecutive hours including the interval between nine O’clock in the evening and four O’clock in the morning.

‘Night work’ as provided by this law, therefore, can be summarized as manual labour in the industrial and agricultural establishments that are usually physically demanding and synonymous to physical work done by hand or with basic implements instead of by machines within the period of at least nine o’clock in the evening and five o’clock in the morning.

With this definition in mind, it seems not out of place to conclude that, by virtue of section 55(2), the no-night work restriction is not an unjust or prejudicial treatment against the female candidates. In fact, it does not prevent all women-employee from night-work but only those who are engaged in manual labour or physical demanding work in the industrial, agricultural or in any other establishment. The no-night work restriction was specifically put in place to prevent women-employee rather than discriminate against them.

By the same proviso, it can be submitted that female employees who are holding managerial positions other than manual labour are allowed to work nightshift. Furthermore, contrary to the misinterpretation given by some writers, it is submitted that the said section 55 envisages instances where women employees who engage in manual labour would be allowed to work nightshift; it provides that if it can be proved to the satisfaction of the court that the night work in question was due to an interruption of work which the industrial or agricultural company could not possibly foresee and which is not of a recurring character, and/or if the night work in question had to do with raw material or materials in course of treatment which are subject to rapid deterioration and it was necessary to preserve such materials from certain loss, then the woman-employee would be permitted to work in the night.

The proviso in subsection 5 also added another list of women-employee permitted to work nightshift – those under existing collective agreement to so work – provided they have adequate means of transportation and at the same time well protected.

In conclusion, while there is no doubt as to the fact that there exist workplace discriminations in Nigeria and in other countries of the world, a joint reading of the entire provision of section 55, especially subsection 5, and a good understanding of the above instructive terms would reveal the underlining intention of the drafters of the law – not to drive a wedge between male and female employees but an honest effort to protect the female employees from being subjected to ‘hard labour’ and other vices associated with working in the night.

The law also seeks to preserve and ensure their sanctity at the work place while taking into full account their unmatched roles in maintaining a peaceful home and the society. Women are the pioneers of the nation. They are the crown of their homes.  They are far more precious than jewels. The hearts of their husbands trust in them, and they will have no lack of gain. The women are like the ships of the merchant; they bring their food from afar…they are the key to sustainable development and quality of life in the family. As noted by the Secretary General of the United Nations, women constitute 50% of human resources, the greatest human resource next only to man having great potentiality. Hence, to my mind, allowing women-employee to work nightshift without restrictions as stated in section 55 above, would in no time cause a total ruin of the fiber of every family and the society at large.

While the law did not remove the liberty of women-employees to insist on working in the night even in the concerned establishments stated in the Act – industrial and agricultural, the provision of section 55 is an irrevocable ‘restraining order’ against employers of labour in such industries or in any branch thereof from compelling female employees subject to manual labour to work in the night.

Therefore, it is fallacious to conclude that the law on “no-night work” for women employees who are subject to manual labour is an outright prohibition on all women to work nightshifts. It also appears as an exercise in futility to argue that the law is discriminatory against all female candidates. Rather than discriminate against female candidates, section 55 of the Labour Act seeks to prevent and protect every woman-employee who is engaged in manual labour from the dangers associated with working at wee-hours.

Written By:

David Sholarin, LL.B, LLM, AICMC

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