AN APPRAISAL OF THE PROTECTION OF WORKERS’ RIGHTS IN EMPLOYMENT CONTRACTS UNDER CAMEROONIAN LAW by MOUTA LESLIE MUSHILI

ABSTRACT

The reemergence of individual employment contract as a central legal concept in the labour law of Cameroon has been highly acclaimed as it gives an important position to individual contracts, irrespective of whether employment is governed either by collective agreement or unilateral action of the employer. It stands as the basic source of protection for the employee against unscrupulous employers as it creates rights and obligations between the parties.

Despite the freedom of parties to contract, the law sets minimum standards from which they may not derogate. The Labour Code and laws governing different aspects of employment have been enacted to accord additional protection to the worker. Nevertheless, social injustice, strife and abuses at the workplace are on the rise as observed by an increasing number of employment disputes recorded daily in the courts.
This work seeks to make an appraisal of the protection of workers’ rights in employment contracts by examining the extent to which workers’ rights are guaranteed in employment contracts under Cameroonian law. We adopted the analytical approach of interpreting provisions of texts and the doctrinal method of research. Our findings showed that the worker in Cameroon is accorded sufficient and desirable protection under employment contracts and additional protection by the existing laws. However, the worrisome aspect is at the level of implementation and compliance on the part of employers, and enforcement on the part of the government.

What obtains in practice is opposed to that which exist in the books. We, therefore, propose a strict implementation and enforcement of contractual terms and a general revision of the Labour Code since most of its articles are ambiguous and obsolete, and do not accord adequate protection to today’s worker.

Background to the Study

The dawn of the industrial revolution in the 19^th century, brought with it increasingly  poor employment standards¹, where employers took advantage of their workers by providing  them with little or no job security as well as no safety and health protection in the workplace, coupled with excessive exploitation of these workers². These problems led to the development  of labour and employment law, which aimed at regulating the employer/employee relationship in a bit to ensure that people work under dignified conditions and are not unduly exploited in  the course of work³. 

Labour law was developed as a way of regulating and improving the life of people at  work. It is the body of law which applies to matters such as employment, remuneration,  working conditions, trade unions and industrial relations. In its most comprehensive sense, the  term includes social security and disability insurance as well⁴.

In addition to the individual  contractual relationships growing out of the traditional employment situation, labour law deals  with the statutory requirement and collective relationships that are increasingly important in  mass-production societies, the legal relationships between organized economic interests and  the state, and the various rights and obligations related to some types of social services⁵. Against the backdrop of continuous exploitation, manipulation and mistreatment of  workers they came together to form small groups that requested various rights from employers. 

They gained more force by uniting to form trade unions⁶ which pushed for the enforcement of  such rights. Thus, the relationship between workers and employers at workplace was influenced largely by the actions of trade unions ⁷ and through the influence of binding  collective labour contracts⁸. The importance of social justice in securing peace, against the exploitation of workers  in the industrializing nations led to the creation of the International Labour Organization (ILO) in 1919⁹. The motivation behind this creation comprised security, humanitarian, political and  economic considerations, and also the increasing understanding of the world’s economic  interdependence and the need for cooperation to obtain similar working conditions in states competing for same markets ¹⁰.

Article II Paragraph (a) of the International Labour  Organization (ILO), Philadelphia Declaration 1958¹¹, provides that: “all human beings are  entitled to pursue both their material well-being and their spiritual development in conditions  of freedom and dignity, of economic security and equal opportunity”¹² These conditions are  coded in conventions and recommendation of the ILO. 

The number of individual disputes arising from day-to-day workers’ grievances or  complaints has been rising across the world¹³ . The causes are complex, and vary across  countries and regions. Common features include an increased range of individual rights  protections; a decrease in trade union density and collective bargaining coverage; higher risks  of termination of employment and unemployment; reduced job quality and security due to  greater use of various contractual arrangements for employment and other forms of work; and  increased inequality as a result of segmented labour markets¹⁴. This greater complexity and  diversity of individual disputes is reflected in the evolution of processes and mechanisms for  preventing and resolving them. 

International labour standards, as well as national legislations regulating employment  relations remain the main instruments to ensure that, in the course of employment people work with dignity and under humane conditions¹⁵. These instruments contain minimum conditions  under which workers offer their labour while also conferring on them some basic rights¹⁶ with  regards to employment contracts and also sanctions for defaulters. 

The Employment Program of the ILO recommends employment as socially beneficial  in terms of the production of goods and services which, in turn, generates income. It calls for  the establishment of specific programs in the interest of workers but the attitude of most states reflects a colonial mentality which was once expressed by Tom Mboya, the prominent Kenyan  unionist turned minister, as follows; “private wars between labour and management cannot be  permitted in poor developing countries”¹⁷.

According to this logic, the costs are unbearable for  poor states. Governments have placed restrictions on trade union freedom¹⁸. New legal  dispensations seem to have been concerned more with protecting the old regime than with the  furtherance of democracy and the strengthening of workers’ freedoms and rights. This is  however not the case in Cameroon. With the enactment of the 1990 liberty laws¹⁹ which gives  workers and employers the liberty to form or join trade unions and associations of their  choice²⁰.

The source of freedom of association and assembly in Cameroon is its Constitution  of 1972, as amended ²¹ , whose preamble provides, inter alia, that “the freedom of  communication, of expression, of the press, of association, and of trade unionism … shall be  guaranteed under the conditions fixed by law.” By virtue of Article 65 of the Constitution,  introduced by the 1996 Constitutional amendments, the preamble is part and parcel of the  Constitution. There are two systems for setting up associations²². The first is the “authorization  system” which applies to foreign and religious associations; the second is the “declaration  system” which applies to all other associations. 

The law imposes on states three obligations with regards to workers’ rights. To respect,  protect and fulfil²³. The obligation to respect these rights requires states parties to refrain from  interfering directly or indirectly with their enjoyment²⁴. The obligation to protect requires states  parties to take measures that prevent third parties from interfering with these rights²⁵ and  administering sanctions to defaulters, and the obligation to fulfil includes the obligations to  provide, facilitate and promote these rights.

This implies that states parties should adopt  appropriate legislative, administrative, budgetary, judicial and all other measures deemed  necessary to ensure full protection and enforcement²⁶ of workers’ rights. Exempted from these  systems are “de facto economic or social-cultural associations” and political parties and trade  unions, which are governed by separate laws²⁷.  

Cameroon is one of the countries that have ratified most of the ILO’s Recommendations  and Conventions²⁸, and labour relations in Cameroon today are governed by the 1992 Labour  Code. The colonial period saw the application of the French Labour Code of 1952 and English  Common Law received from Nigeria in Former French and English Cameroons respectively.  Since independence, the country has witnessed three Labour Codes (1967, 1974 and 1992)²⁹. As a result of the economic crisis in the 80s firms did not respect the 1974 Code³⁰. Owing to  its rigidity, it was often considered by employers as source of inefficiency³¹. Faced with the  privatization of state corporations and the abuses of rights of formers workers of these  corporations, the local employers and international financial institution such as the World Bank  and International Monetary Fund craved for an improved labour market³² which led to the  elaboration of Law N⁰. 92/007 of 14 August 1992 establishing the Labour Code. Cameroon has been going through a serious crisis since the early eighties with very  disturbing impacts on employment³³, evidenced by a high decline in the job offer and the level  of protection for workers. In normal times workers protection is very relative³⁴ and with poor working conditions and strikes being endemic in Cameroon, it’s a course of concern which  warrants that we make an appraisal of the protection available to workers in employment  contracts.

 Significance of the study 

We are of the opinion that this work will be commendable for the following motives: It will attempt to shed light on the importance of protection and enforcement of workers’ rights, in this era of globalization since workers are hired from all over the world. 

It will attempt to highlight the drawbacks that hinder the protection and enforcement of workers’ rights in employment contracts. 

It will influence public policy with respect to the enforcement of workers’ rights in  relation to employment and labour contracts. 

It will influence positive change in the way employers treat workers in spite of the  terms of contract thus, improving working conditions and productivity. 

It is hoped that, it will be a plus to existing literature in the domain of employment  and labour law, and will serve as a springboard for students, lawyers, researchers, trade  unionists and the general public as a reference tool and further research. 

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Footnotes:

¹ Halidu, F., (2016), “Echoes of Colonialism: Implications of Wrongful Dismissal Judgements in Nigeria and  Canada”, University of Northern British Columbia, p.5. 

² Funmi, A.& Adebimpe A., (, 2010), The State of Workers’ rights in Nigeria: An Examination of the Banking,  Oil and Gas and Telecommunication Sectors, Friedrich-Ebert-Stiftung, p.1. 

³Ibid. 

⁴ Chamboli, C, O., (2016), “Contracts of Employment and the Protection of Individual Rights: A Comparative  Study of the Situation in Cameroon and England”, Masters Dissertation, University of Dschang, p.1. ⁵Ibid. 

⁶ Zeitlin, J., (1987), “From Labour History to the History of Industrial Relation”, Economic History Review, 2^nd ser. XL, 2, P.159. 

⁷ibid. 

⁸ Lucassen, J., “Outlines of a History of Labour”, IISH-Research Paper 51, 213, p.29. ⁹ www.ilo.org, accessed 25/02/2019 at 18:45. 

¹⁰ Ibid. 

¹¹ Ratified by the State of Cameroon on June 7^th, 1960. 

¹² The World Summit for Social Development, 1995 adopted a commitment to promote full employment as a  basic priority for economic and social policies of states and to ensure the attainment of sustainable livelihoods  through freely chosen productive employment and work. This impacts on security of service during the period of  crisis since workers are usually under employed and inadequately employed with attendant consequences. 

¹³ Minawa, E, et al., (2016), “Resolving Individual Labour Disputes: A comparative overview”, International  Labour Office, Geneva, p.1. 

¹⁴ Ibid.

¹⁵ Funmi, A., & Adebimpe, A., op.cit, p.1. 

¹⁶ Ibid. 

¹⁷ Temngah, J. N., (2008), The Evolution of Trade Unionism and the Prospects for Alternatives to the Labour  Question, Dakar, CODESRIA, p.69. 

¹⁸ Ibid. 

¹⁹Law, No. 90/053 of 19 December, 1990, regulating the freedom of association, Law No. 90/55 of 19 December,  1990, regulation public meetings, etc. 

²⁰ Section 3 of the Labour Code. 

²¹Rutinwa, B., (2001}, “Freedom of Association and Assembly Unions, NGOs and Political Freedom in Sub Saharan Africa” ARTICLE 19 The Global Campaign for Free Expression, p.12. 

²² Ibid.  

²³ Article 6 of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 18  Adopted on 24 November 2005.

²⁴ Ibid. 

²⁵ Ibid. 

²⁶ Ibid. 

²⁷ Article 5 of Law No. 90/053. 

²⁸ Cameroon has ratified over 50 Conventions such as the Convention on Forced Labour, Freedom of Association  and Protection of the Right to Organize Convention, both on 7^th June 1970, Right to Organize and Collective  Bargain Convention, on 3^rd September, 1962, etc., www.ilo.org, accessed on 13/06/2019. ²⁹ Ngwafor, J. F., (2018), “Assessing Employee’s Awareness of Labour Law in Cameroon: A Case of ENEO  Cameroon S.A. Limbe, South West Region Cameroon”, PAID-WA, Buea, p.4. 

³⁰ Tjouen, A. F., (1996), “De la Participation du Personnels à la Gestion des Entreprises en Droit Camerounais :  La Problématique des Comités d’Entreprise”, Revue Internationale de Droit Comparé, Vol.2.  ³¹ Ibid. 

³² Pougoué, P. G., (1991), La Flexibilité du Marché du Travail et la Protection de l’Emploi au Cameroun, Mimeo,  Ed., p.1. 

³³ Pougoué, P. G., “Situation de Travail et Protection des Travailleurs”, www.ilo.org, p.1. ³⁴ Ibid.