Ololade Adeyanju/
Renowned human rights lawyer, Femi Aborisade, has disagreed with Senator Ali Ndume over the latter’s advice to the Federal Government to slash the salaries of non-essential staff who have not been working since the outbreak of COVID-19 in the country.
Aborishade’s position is contained in a statement made available to journalists in Ibadan, Oyo State capital, today.
He described the call by Ndume as unconstitutional, blaming it on ignorance of the relevant laws on the the part of the lawmaker.
Aborisade said: “The call by Senator Ali Ndume that salaries of public sector workers should be reduced on account of inability to continue to work during the government-imposed (that is, employer-imposed) lockdown is a position informed by ignorance of the state of the law by the lawmaker.
“In law, for as long as the employment relationship has not been determined strictly in accordance with the terms of the contract of employment, the employer has a duty to continue to pay workers who are willing to work but are under an obligation to obey the lockdown imposed by their employers – the Federal and State governments.
“For people who are ignorant of the law like Senator Ndume, public sector employment relationship, with a few exceptions, have constitutional and statutory flavour and are deemed to subsist until retirement age unless determined by strict observance of the predetermined prescribed procedure and grounds pursuant to statutory provisions or public service regulations made pursuant to the Constitution.
“Even in the private sector, unless the contract of employment makes provisions for force majeure, the employer still has a duty to continue to pay salaries in unforeseen difficult situations in which the employee desires to work but is under government-imposed lockdown involving restriction of movement and ban on inter-state travels. In the worst scenario, it is only manual workers in the private sector that lack protection under section 17(1), of the Labour Act, which permits the employer to pay for only the first day of the period the employer is unable to provide work, where the period exceeds only one week. Even in this context, the authorization of a labour officer is required.
“But the provisions of the Labour Act apply only to junior manual workers and cannot be invoked in respect of persons exercising administrative, executive, technical or professional functions. In other words, private sector employers cannot invoke the force majeure provisions of the Labour Act against administrative, senior, executive and management staff.
“I concede that though private sector employers may not be able to invoke the force majeure provisions in the Labour Act, they may seek to apply the common law doctrine of frustration.
“However,where there is an active trade union movement, the private sector employers may not be able to invoke this doctrine successfully. internationally, the labour movement has intervened to put pressure on governments to set aside economic stimulus packages, which employers can access for payment of salaries with a view to ensuring workers are not sacked. Where workers lose their jobs, or small businesses in the informal sector collapse, various schemes exist by legislation under the covid-19 pandemic situation to protect or sustain life. Such legislated programmes and schemes, in other climes, include the Temporary Disability Insurance (TDI), Unemployment Insuance (UI), Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief and Economic Security Act (CARES Act), among several others.
“Senator Ali Ndume has shown by his wicked policy advocacy that he belongs to the category of lawmakers and members of the ruling class who are strangulating Nigerians by keeping their knees on the necks of ordinary people and preventing them from breathing or living as they deserve to live decently. Such Senators deserve to be recalled. It is high time we had a constitutional provision that those elected into the legislature and the executive arms of government should earn only minimum we, if they must be paid at all.”
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