Employment law
Drafting an establishment agreement in Mali: the steps that make it applicable
Bamako Plastiques, a plastic injection plant with 200 employees, is coming out of a tense year. Management and the staff delegates have agreed on a production bonus. The text is negotiated over three meetings, signed on a Friday evening, posted on the Monday. Everyone considers the matter closed.
Bamako Plastiques is a fictitious company, as are the people named in this article: their names serve only as an example. The difficulty ahead of it is not. An establishment agreement does not take effect because it is signed, nor because it is posted. Most of those that fail are not badly drafted: they are badly prepared, signed by people without standing, written in a language that voids them, or lacking the approval that validates them.
1. What are we actually talking about?
An establishment agreement is an agreement concerning a company or one or more specified establishments, concluded between, on one side, one or more employers, and on the other, the staff delegates and the representatives of the most representative unions of the company's or establishments' personnel, who are actually employed there (Labour Code, article L.88).
Its purpose is precisely defined: to adapt to the particular conditions of the company the provisions of inter-occupational, national, regional or local collective agreements, and in particular the conditions and method of calculating output-based pay, individual and collective production bonuses and productivity bonuses.
The collective agreement sets the branch rule. The establishment agreement adapts it to your plant, and only upwards.
The Code also provides for the case where nothing exists above: absent a collective agreement or the ministerial orders provided for in article L.86, company or establishment agreements may be concluded on the same terms.
2. Who has standing to sign?
This is the most important check, and the most often skipped. An agreement signed by the wrong person is not a weak agreement: it is one whose very principle can be challenged.
Article L.88 designates the employee-side signatories cumulatively: the staff delegates and the representatives of the most representative unions of the company's personnel, on the twofold condition that they belong to the company or establishment concerned and are actually employed there.
| The question to settle before the first meeting | What must be gathered |
|---|---|
| Are the staff delegates duly elected and still in office? | The minutes of the last elections. The term of office is three years (L.265) |
| Do the union representatives actually belong to the establishment? | The list of names notified to the employer when the union committee was designated (L.258) |
| Was their designation notified to the employer? | The written notification received, and its date |
A confusion to avoid: article L.71 does not apply here
It is often said that the signatories of an establishment agreement must show statutory provisions, a special deliberation or a written mandate from their members, failing which ratification would be required. That requirement is indeed in the Code, but in article L.71, which governs union representatives negotiating a collective agreement within the meaning of article L.70.
Article L.88, however, makes only articles L.72, L.73 and L.77 applicable to establishment agreements. Article L.71 is not among them. Checking mandates remains a useful precaution; presenting it as a statutory condition of validity for an establishment agreement does not match the text.
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3. What the agreement may and may not contain
Two limits frame the drafting, and they must be kept in mind for every clause.
The first is favourability. Article L.88 allows new provisions and clauses more favourable to workers, including profit-sharing. And article L.77 (Labour Code, article L.77), made applicable to establishment agreements, provides that in every establishment within the scope, the provisions bind the relationships arising from individual contracts except where less favourable to workers.
The second is the protection of acquired advantages. The provisions of the Code may not be a ground for terminating a contract nor entail the reduction of advantages of any kind, individual or collective, acquired by workers in service (Labour Code, article L.2).
| You may write | You may not write |
|---|---|
| A new bonus, an output calculation method, profit-sharing | A reduction of an advantage set by the collective agreement |
| An advantage above that of the collective agreement | A derogation from a mandatory rule of the Labour Code |
| A rule on a subject the collective agreement does not address | A clause that would claw back a right already acquired by employees in service |
A useful reflex while drafting: for each article, ask "more favourable compared with what?". If the answer does not come immediately, the clause deserves a second look.
4. The pay clause: the payroll rule
This is the most technical provision of article L.88, and the most useful in practice. The pay clauses of an establishment agreement may set particular arrangements for applying the wage increases decided by the applicable branch or inter-occupational agreements, provided that the increase in the total payroll is at least equal to what would result from applying the increases granted by those agreements for the workers concerned.
In other words: you may distribute differently, you may not spend less.
An establishment agreement can change how the increase is distributed. It cannot change the total.
Example. Bamako Plastiques employs 200 people for a monthly payroll of XOF 24,000,000. The branch agreement decides a general increase of 5%. Management would like to concentrate the effort on production operators rather than spread it evenly.
| The calculation | The amount |
|---|---|
| Monthly payroll concerned | XOF 24,000,000 |
| Applicable branch increase | 5% |
| Increase that would result from the agreement | 24,000,000 × 5% = XOF 1,200,000 per month |
| Floor the establishment agreement must reach | At least XOF 1,200,000 per month |
The agreement may therefore grant 8% to operators and 3% to support functions, provided the monthly total reaches at least XOF 1,200,000. If it reaches only XOF 1,050,000, the pay clause fails the condition set by article L.88, and the collectively agreed increase resumes its full effect.
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5. Duration, revision, denunciation
Article L.72, made applicable to establishment agreements by article L.88, sets three rules (Labour Code, article L.72).
- The agreement may be concluded for a fixed or an indefinite duration. Where it is fixed, that duration may not exceed five years.
- Absent a contrary stipulation, a fixed-term agreement that reaches expiry continues to have effect as an indefinite agreement. An agreement thought to be spent therefore keeps applying, unless it says otherwise.
- The agreement must state in what forms and at what times it may be denounced, renewed or revised, and in particular the notice period preceding denunciation.
That last clause is compulsory, and yet it is the one most often forgotten. A useful clause settles four points: who may request revision or serve a denunciation; by what means (registered letter, delivery against receipt) and to whom it is addressed; what notice period applies; and what happens during that notice, in particular whether negotiations must open.
Drafting it while relations are good is infinitely easier than negotiating one when they no longer are.
6. Form: French on pain of nullity, then the approval
Article L.73 also applies to establishment agreements, and it holds the only formal requirement sanctioned by nullity (Labour Code, article L.73).
| The requirement | The detail |
|---|---|
| French language | On pain of nullity: drafted in another language, the agreement has no effect |
| Medium | Plain paper |
| Signature | Of each contracting party |
| Approval | Submission for approval by the Minister of Labour, who will require the removal of provisions contrary to the law and regulations in force |
The approval is not a registration formality: it is a legality check, and the Minister may require clauses to be removed. An agreement from which a clause has been removed is not thereby annulled, but a company that kept applying the removed clause would be applying a text that no longer exists.
7. A closer look: what the Code makes applicable, and what it does not
This is the point that separates a solid agreement from one believed to be solid. Article L.88 ends with a short and decisive sentence: "The provisions of articles L.72, 73 and 77 apply to the agreements provided for in this article."
Three articles, and three only.
| What the Code makes applicable to an establishment agreement | What it does not |
|---|---|
| L.72: duration, five years at most where fixed, compulsory revision and denunciation clause | L.71: the mandates of union representatives negotiating a collective agreement |
| L.73: French on pain of nullity, plain paper, signature, ministerial approval | L.74: filing with the labour court registry and application from the day after filing |
| L.77: the agreement binds individual contracts, except where less favourable | L.75 and L.76: the formalities of accession, resignation and denunciation at the registry |
Many circulating guides apply to establishment agreements the registry filing procedure designed for collective agreements. The text does not provide for it. Filing a copy remains a useful precaution, but the act that conditions validity is the ministerial approval of article L.73, and that is what must be obtained before applying the agreement.
One thing, by contrast, is expressly provided: persons bound by an establishment agreement may bring an action in damages against the other persons or groups bound by it who breach towards them the commitments entered into (Labour Code, article L.89). An agreement is not a statement of intent: it is performed, and its non-performance is compensated.
See also The establishment-level agreement.
8. A drafting outline, and a checklist
The Code prescribes no standard plan. The following order has the advantage of surfacing, step by step, everything the agreement's validity depends on.
| The part | What it contains |
|---|---|
| Title and preamble | Purpose of the agreement, context, governing collective agreement |
| Signatory parties | Identity of the employer, the staff delegates and the union representatives, with their capacity |
| Scope | Establishments covered, categories of personnel concerned |
| Substantive clauses | The negotiated provisions, one per article, each tied to what it improves |
| Pay clause | Where relevant, with the payroll calculation table |
| Duration | Fixed (five years maximum) or indefinite |
| Revision and denunciation | Forms, timing, notice, addressee: a compulsory clause |
| Entry into force | The chosen date, after the approval |
| Signatures | Date, place, signature of each party |
Two drafting tips apply throughout. Quantify: a "significant" bonus cannot be applied, a bonus of XOF 25,000 per quarter can. And date the effects: a clause with no application date creates as many disputes as it settles.
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Key takeaways in 6 points
- Gather before negotiating the evidence of the signatories' standing: delegate elections, designation of union representatives.
- Write only more favourable clauses, and know each time what text they improve on.
- Quantify the payroll floor before any pay clause: you may distribute differently, not spend less.
- Cap a fixed duration at five years, and write the revision and denunciation clause, which is compulsory.
- Draft in French on pain of nullity, and obtain the approval of the Minister of Labour before applying the agreement.
- Do not confuse the regime of an establishment agreement with that of a collective agreement: the Code makes only articles L.72, L.73 and L.77 applicable to it.