Unhappy with the habit of unpaid salaries of workers, the House of Representatives in a novel bill proposed to criminalise the failure to pay salaries by corporate bodies and other employers of labour nationwide. The goal is noble. However, the House fails to include state governors and federal agencies that routinely owe workers salaries, pensions, and gratuities in its provisions – and therefore exposes the bill to fresh controversy, JOSEPH ONYEKWERE reports.

Strange as it is, a bill, which is aimed at punishing employers who owe salaries passed the first reading at the House of Representatives without qualms. This development, to an extent, underscores the importance that the lawmakers attach to the issue.

The bill sponsored by Wale Hammed, a member representing Agege Federal Constituency, Lagos State, is titled “The Employees Remuneration Protection Bill, 2023.

Section 7 (1) of the bill provides that it is unlawful for any employer to “refuse or neglect to pay the remuneration of his employees, as provided under this Act.”

Section 8 (1) of the bill states that if an employee’s compensation remains unpaid beyond the specified period permitted by the legislation, the employee may submit a written demand to his or her employer for the payment of entitlement, if the fellow wishes to assert the claim.

Therefore, “if an employee fails to remit payment within five business days following service of a demand under Section 9 of this bill, the employee may petition the court for redress by filing a motion on notice.”

According to the bill, employers found wanting risk three to six months of imprisonment, without the possibility of a fine. Similarly, a corporate entity that fails to adhere to a court order regarding the remuneration of its employees, risks a fine of N10, 000 daily, or “be sealed off for a period not exceeding three months, provided that the default extends beyond two months.”

This is even as the bill imposes a N10, 000 penalty on any officer or agent of the organisation, government parastatal, agency, body, or institution who deliberately or knowingly authorises, or permits the default or non-compliance with the directive until it is complied with.

With this proposed legislation, employers are obligated to provide written terms of employment to resuming employees within 14 working days of the employee’s return to work.

The employment contract, which is binding on both the employer and the employee, shall comprehensively outline the terms and conditions, remuneration, and methods of payment, in addition to the character of the employment and the procedure for terminating it by either party.

Section 27 of the bill provides that an employee’s petition to the court for payment of remuneration shall not serve as grounds for “disciplinary action, inquiry, suspension, or termination of the applicant by the employer.”

Meanwhile, Section 28 of the bill states that in the event of an employer’s bankruptcy, prioritisation shall be given to the payment of all outstanding remuneration to employees.

Curiously, the bill did not expressly include federal ministries, departments and agencies (MDAs), state governors, and state agencies who may become guilty of owing workers salaries, pensions and gratuities. Although the president and states’ chief executives enjoy constitutional immunity, they could be sanctioned on leaving office, if the bill accommodates the interest of state workers.

Alternatively, the Accountant General of the Federation (AGoF) or that of the states in default, or any prominent member of government charged with the task of paying workers salaries could be sanctioned as they do not enjoy any form of immunity if they owe workers.

In Enugu State, for instance, when Governor Peter Mbah mounted the saddle, he promised to tackle the issue of outstanding pensions owed retirees, but that has remained a promise.

However, while seeking the approval of the State House of Assembly to borrow N170 billion, he cited the payment of gratuity and pensions to retirees as one of the reasons for the loan that he sought. He subsequently set up a committee for that purpose.

Speaking on the matter, the President of the Nigerian Union of Pensioners (NUP) in the state, Mr Ikechukwu Ekere, who is also a member of the committee, said that after the committee submitted its report last September, the government cleared only two months’ pension arrears owed to core civil servants, but their gratuities remained unpaid.

“The committee on local government and primary school teachers’ pension and gratuities, which I was a member of submitted its report also in September. The last time that local government retirees received their pension was in February 2022 and despite the committee’s report nothing has been done,” Ekere said.

He disclosed that the last gratuity received by retirees of local government and primary school teachers in Enugu State was in 2005. “Since then, nobody in both local government and primary school has got anything. In fact, many have died without receiving their gratuities. Worst still, those in parastatals have not received their pension and gratuities since 2001,” he added.

Also, the Ebonyi State Government owes local government retirees pensions arrears and gratuities amounting to N9, 025,073,426.20billion. Currently, the State government does not owe state civil servants salary areas.

Not long ago, the State Governor, Francis Nwifuru, approved and released N4billion to offset the backlog of arrears, pensions and gratuities from 1996 to 2022, which has been paid.

According to the Executive Secretary of Local Government Staff Pension Board, Emeka Nwonu, 1,135 retired local government and Universal Basic Education Board (UBEB) workers who are dead in Ebonyi State have not been paid their benefits.

Nwonu, who noted that another 4,920 workers who are still alive have also not been paid their benefits, said he made the findings on assumption of office as secretary of the board.

A breakdown of the unpaid benefits showed that the initial pension arrears stand at N648,710,046.98, unpaid gratuity N6, 956,264,912.02, while unpaid death benefits (arrears) is N746, 948,420.76. Also, unpaid death benefits (gratuity) are N673,150,046.44. The grand total is N9, 025,073,426.20.

In Cross River State, the government is yet to pay January 2024 salaries to some of its workers, who it said have issues such as duplication of their names in the payroll, or whose names appear in more than one bank, but the governor has directed the suspension of the audit exercise to allow for immediate payment of affected workers till February.

The Guardian enquiries showed that the government is not owing pensions to the state and local government retirees, but owes a total of N24 billion in gratuities to state and local government pensioners since 2014.

Kaduna, Bauchi, Kebbi, Kano, Jigawa, and Katsina all claimed not owing workers, but there is also the possibility that payment of pensions and gratuities are not up to date.

However, if the proposed bill is passed into law, employees can demand payment from their employer by submitting a written claim. Kano-based lawyer, Abubakar Sani, thinks that the bill is dead on arrival for the simple reason that a debt is entirely civil. “The parliament should be ashamed of getting involved in such silly things, which are obviously aimed at playing to the gallery. It confuses motion with movement. We have more important things to confront than salary debts – and even then, not in that hare-brained way,” he fumed.

Ibadan-based lawyer, Yomi Alliyu (SAN) said though it is a good step in the right direction, it is a mere populist approach that at best will lead to mass unemployment. “The option left to employers would be mass termination of employees’ appointments. In any case, a contract of employment is civil and no law can give it the toga of crime,” he said.

Also, the chairman of the NBA section on Public and Development Law (NBA-SPIDEL), John Aikpokpo-Martins, agreed that the government cannot criminalise the administrative decisions of private businesses. The occurrence of owing salaries by an employer, he noted, could be due to different factors and/circumstances beyond the control of an employer.

“It may even arise from government policies and unbridled taxation. It will not, in my opinion, be a good policy to criminalise or jail employers for owing salaries. The incident of owing salaries is mostly precipitated by economic realities bedevilling a business enterprise,” he argued.

Stretching the argument further, he stressed that incorporated companies are in law regarded as “persons” with rights, adding that the constitution guarantees the right to privacy of all persons in Nigeria. According to him, the constitution guarantees the right to privacy of a company and therefore, it would be incongruous to seek to invade the privacy of a company by enacting a law to criminalising owing of salaries.

“A salary not earned is a debt against an employer and recoverable in law. Therefore, an employee has the option of approaching the court on a civil claim for the recovery of his salaries not paid. I therefore urge the National Assembly to jettison this idea forthwith,” he declared.

However, the former Second Vice President of the Nigerian Bar Association (NBA), Dr Monday Ubani disagrees. He said the 10th Assembly under the leadership of Godswill Akpabio is geared towards enacting legislation that will be tailored towards addressing the needs of Nigerians that have been starved of serious attention from those they have elected to govern them over time.

His words: “We all agree that a workman is entitled to his wages. Why will an employer refuse to pay a worker who has rendered service to the company during the month or months? If the employer is sincere he or she should not have engaged the victim and used his or her services for the month and turned around to owe. The refusal to pay cannot be acceptable or reasonable after using the service of the worker.

“Therefore, any law that will address this evil which seems entrenched in the system is a welcome development. It appears that those we elected this time around are paying attention to the needs and aspirations of their constituents.”

He argued that if the government becomes a debtor to its own employees, then the government officials should be arrested, tried and imprisoned for refusal and or failure to meet the salary obligations of their workers. The new law, he suggested, should set the terminal date when every outstanding salary should be paid, failing which the employer is charged for the criminal infraction that would carry penal consequences.