The National Minimum Wage Act, 2019, was amended in 2024 by inserting new Sections 3(1) and 3(4), which provide for a national minimum wage of not less than N70,000 per month by establishments employing not less than 25 workers (s. 4(1)(b) of the Act) and a review of same after three years, respectively.
The amendment of the national minimum wage law was a product of tripartite collective bargaining processes involving governments (Federal and State), the private sector employers and organized labour.
By virtue of Section 254C(1)(j)(i) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, collective agreements are binding and enforceable by the National Industrial Court. Indeed, the national minimum wage of N70,000 has now become law by the exercise of assent and signing into law by the President on 29th July 2024.
According to the National President of the National Union of Local Government Employees (NULGE), about 20 States of the Federation have not been paying the national minimum wage to teachers and local government workers. This raises the question of how to legally enforce the national minimum wage.
By section 254C(1)(J)(i) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, Collective Agreements (CAs) are enforceable by the National Industrial Court (NIC). The section empowers the NIC to interpret and apply (i.e. enforce).
By the judicial authorities of Esther & 2 ors v. Skye Bank PLC (Suit No. NICN/LA/31/2010). Judgment was delivered on 22/10/2015 at pages 42-44 and ENYINNAYA AMUGO V. SKY BANK PLC (Suit No. NICN/LA/258/2016, judgment of which was delivered by Hon. Justice B. B. Kanyip, PhD, OFR, (now President, NICN) on 13/3/2018 at paragraph 25, collective agreements are binding and enforceable on the strength of constitutional provisions.
The next question is how can the new national minimum wage be enforced? Enforcement of the new minimum wage may be approached by social mobilisation, mass peaceful street protests, industrial strikes, and, as a last resort, litigation
Sections 30(6)(b) & (c) of the Trade Unions Act permit strikes where the dispute involves dispute of right or breach of contract of employment or Collective Agreement. The new national minimum wage is not only legally sanctioned, it is also a product of collective tripartite bargaining and agreement. It is thus a right under the National Minimum Wage Act and under the agreement reached before it was passed into law. Non-payment of the national minimum wage therefore qualifies as a dispute of right over which strike actions may be embarked upon legally.
The Court of Appeal in UNION BANK OF NIG. PLC V. MRS. EDET (1993) 4 NWLR (PT 287) 288 at page 298 paragraph H, has given judicial blessing to employment of strikes “whenever an employer ignores or breaches” a term of an agreement.
In the unlikely event that employers, particularly governments as employers of labour refuse to pay the national minimum wage in spite of strikes and peaceful protests, unions and their central labour organisations, the NLC and TUC, may then embark on litigation. Section 9(2)(c) of the National Minimum Wage Act makes the defaulting employer liable to pay interest at a rate not less than the CBN lending rate over the unpaid cumulative sum.
In Mr. Ojutalayo John Folayan v. Morlap Shipping Company Ltd [SUIT NO. NICN/LA/472/2012, Judgment of which was delivered on 4th December 2015 by HON. JUSTICE B. B. KANYIP (OFR), now President of the National Industrial Court, the Court awarded N750,000.00 (Seven hundred and fifty thousand Naira) general damages/compensation against the employer and in favour of the worker on the ground of unjustifiable withholding of the worker’s salary. The Court justified the order for general damages for withheld salary on the reasoning that “an employee’s salary becomes due and his right to it is vested at the end of each month. All of this no doubt justifies some sort of compensation for the claimant given the power of this Court to do so under section 19(d) of the NIC Act 2006. Accordingly I award the sum of Seven Hundred and Fifty Thousand Naira (N750,000.00) as general damages/compensation to the claimant.” (p. 15 of the judgment), relying on the Supreme Court authority of Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC.
In summary, the road to ensuring enforcement of the national minimum wage is the road of struggle, in the streets and in the labour courts. The national industrial court, per Hon. Justice B. B. Kanyip, PhD, OFR, President, NICN, in the 2020/2021 Legal year ceremony Lecture tagged “Dignity of Labour and Labour Justice Lecture” has sent a strong message to the employers that:
“We have never ceased to stress that an employer cannot treat an employee shabbily and expect a pat on the back from this court”.
Organized labour should take to peaceful street protests and litigate over the non-payment of the national minimum wage to give an opportunity to the Court to demonstrate its commitment to labour justice.
Comrade Femi Aborisade, HND, LLB, B.L, LL.M, MILR. : Managing Partner, Abope Chambers