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Apprentice and Common Law Employees

The law of apprenticeship in Nigeria, regulated by the Labour Act 2004, mandates that contracts must be in writing and attested by an authorized Labour Officer, ensuring the apprentice's consent is genuine and that they are medically fit. There are two categories of apprentices: children aged 12-16, who require parental or guardian consent, and individuals 16 and older, who can apprentice themselves. The Act also outlines the terms of employment, including remuneration, duration, and conditions for termination, distinguishing between common law employees and those with statutory employment protections.

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88 views4 pages

Apprentice and Common Law Employees

The law of apprenticeship in Nigeria, regulated by the Labour Act 2004, mandates that contracts must be in writing and attested by an authorized Labour Officer, ensuring the apprentice's consent is genuine and that they are medically fit. There are two categories of apprentices: children aged 12-16, who require parental or guardian consent, and individuals 16 and older, who can apprentice themselves. The Act also outlines the terms of employment, including remuneration, duration, and conditions for termination, distinguishing between common law employees and those with statutory employment protections.

Uploaded by

Patrick Adetu
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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The law of contract of apprenticeship in Nigeria is regulated by the Labour

Act 2004. S. 50 (1) of the Labour Act requires that every contract of
apprenticeship must be in writing and attested to by an authorised Labour
Officer before it can be valid in law. The requirement of a written contract of
apprenticeship undoubtedly excludes customary rules and practices. To
bevalid, the contract of apprenticeship must be attested and made with the
approval of an authorised officer who must satisfy himself of the following
conditions:

First, that the consent of the apprentice has not been obtained by fraud,
coercion or

under influence or as a result of misrepresentation or mistake.

Second, that the apprentice has been medically examined and certified by a
qualified medical practitioner to be physically and mentally fit to be
employed and trained in the employment specified in the contract.

Thirdly, that the parties to the contract have fully understood the terms of
the contract

before signing it or otherwise indicating consent.

Furthermore, that the provision has been made in the contract as to the
manner in which any remuneration in cash or otherwise due to the
apprentice shall be determined and as to the scale of increase in
remuneration during the course of apprenticeship.

Finally, the provision made in the contract for adequate shelter and provision
of basic amenities for the apprentice, as well as ensuring that the contract is
in accordance with any regulations made by the minister in-charge of labour.

Under the Nigerian Labour Law, there are two categories of apprentices; first,
is the children apprentice between the ages of 12-16 years. This category of
children can only be apprenticed to a master by their parents, or in the case
of an orphan, by his guardian. The law officer shall appoint a fit and proper
person to act on his behalf as guardian. The second category of apprentices
comprise of young persons of sixteen years and above. The category of
apprentices may lawfully apprentice themselves out to a master.

From the provisions of the Labour Act, the minimum age at which a person
can enter into apprenticeship is 12 years. This requirement allows for the
child to obtain some basic formal education like primary school before
entering into a apprenticeship to acquire vocational skills.
The Labour Act also sets a limit at the maximum length of apprenticeship
which is put at five years, without any possibility for a renewal or an
extension. At the end of the five years, the contract of apprenticeship
automatically lapses irrespective of whether or not the apprentice has
finished learning the art or trade. Where a dispute arises between the
parties, a magistrate court or district court is vested with the jurisdiction to
hear and determine any question arising out of the apprenticeship.

The Labour Law (2004) confers on the Labour Minister the right to provide for
other matters concerning apprenticeship by way of subsidiary legislation,
and these includes; the form of contracts of apprenticeship, the terms and
conditions upon which such contracts may be lawfully entered into, and the
duties and obligations of apprentices and their masters. The minister may
determine the number of apprentices who may be apprenticed during a
specified trade or employment, as well as state the technical and other
qualifications of employers entitling them to train apprentices.

The labour minister can also legislate on how examinations of apprentices


are to be held at the end of the apprenticeship and determine the certificate
to be awarded based on the results. It is an offence under the Nigerian
Labour Act for a person to remove or attempt to remove an apprentice
above the age of twelve years from Nigeria without the authorisation of the
Minister in writing. Such offender shall on conviction be liable to a fine not
exceeding N500 or imprisonment for period not exceeding one year, or both.

It is also an offence if a person has employed an apprentice for more than six
months on a contract which has not been attested or attempts to induce any
apprentice to quite the service of his employer. Such offender shall be guilty
of an offence and on conviction shall be liable to a fine not exceeding N200
or to imprisonment for a period not exceeding six months, or both.

2.1.1.2 Common Law Employees

Workers who are employed in the private sector or even in government


establishment but whose terms of employment are governed or regulated by
contract alone and not by statute are common law employees. The
relationship is also described as one of master-servant relationship. It must
be noted however that a public officer whose employment is not governed by
statute is also strictly speaking a common law employee. It is therefore more
accurate to categorise workers into those who are common law employees
and employees whose employment have statutory flavour. 15
The employment of common law employees can be determined by either the
employee or the employer upon notice or upon payment of salary in lieu of
notice. The length of the notice is contained in the contract of employment.
16 The dominant view in the Nigerian jurisprudence regrettably is that an
employer can terminate the contract of employment of a common law
employee for good or bad reason or for no reason at all once the employer
has given the required or reasonable notice as the case may be; so long it is
within the terms of the contract. 17

In Idoniboye-Obu v. NNPC, 18 the court held that the only remedy an


aggrieved employee has lies in damages calculated on the basis of what he
would have earned for the period of notice agreed for ending the
employment. While the reason for this basis as stated by the court in
Isievwore v. NEPA 19 is that the court will not force or impose a willing
employee on an unwilling employer by giving an order of specific
performance.

2.1.2 Employment with Statutory Flavour

Employments that are governed by statutes which regulate mode of


employment, rights, privileges and duties of the employee and how the
employment can be determined or terminated are said to enjoy statutory
flavour. In order to put an end to this kind of employment the statutes must
be strictly complied with; failure to comply strictly with the statute in cases
of employment with statutory flavour renders the dismissal of the employee
null and void. In such a case, the courts will readily order re-instatement of
the dismissed or sacked employee, and if it is otherwise, thecourts will
uphold such termination. 20 However, the courts have held in some cases
that the fact that an establishment is a creature of statute does not
necessarily convert the contact of employment of the workers into one with
statutory flavour 21 . The employee must be able to show that there is a
statute that protects his or her employment, in other words an employment
is said to have statutory flavour if the employment is directly governed or
regulated by statute or a section of the statute delegates power to an
authority or body to make the regulations or conditions of service as the case
may be. 22

In the most basic situations, an employee is a person whose mode and


method of work is controlled by the employer, especially when and where
the job is done. The degree of control exercised by an employer over the way
and manner a person’s job is to be done in precise term usually determines
the status of the person- employee or independent contractor. It is good to
note that in certain circumstances, control solely will not be the determining
factor.

An independent contractor is one who exercises control over the way and
manner he does his job. Thus, while an employer is liable for the torts of the
former he is not liable for the torts of the latter.

Employers should also note that while an employee is employed under a


contract of service, the independent contractor is employed under a contract
for service. 23

The test was explained by Lord Denning in the case of Stevenson, Jordan and
Harrison v. MacDonald and Evans Limited 24 thus:

“Under a contract of service, a man is employed as part of a business and his


work is done as an integral part of the business, whereas under a contract
for services, his work, although done for the business is not integrated into it
but is only an accessory to it.” In the Supreme Court case of SSCO Ltd v
Afropak Nig. Ltd 25 , the court held that in determining what kind of contract
of employment that parties have entered into, the following has to be
considered-

a) If payments are made by way of wage or salary, then it is an indication


that it is a contract of service. If it is a contract for service the independent
contractor receives his payment by way of fees.

b) Where the employer supplies the tools and other capital equipment, then
there is a strong likelihood that the contract is one of service and not for
service. An independent contractor has to invest and provide capital for the
work in progress.

c) In a contract for service/employment, it is inconsistent for the employee to


delegate his duties under the contract. Thus where the contract allows a
person to delegate then it is a contract for service.

d) Where the hours of work are not fixed then it is a contract for service.

e) Where an office accommodation and a secretary are provided by the


employer, it is a contract of service.

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