Employment law
Staff Delegates: the Counterpart the Law Requires, and Who Can Spare You a Crisis
Monday morning, in front of the workshop presses, thirty workers do not resume work. The grievance concerns a night bonus withdrawn two months ago; nobody had taken it to management, because there was nobody to take it. The staff delegate is precisely that channel: without one, grievances build up in silence, then erupt. And in an establishment with more than ten employees, having none is an offence.
1. What exactly are we talking about?
Fanta Konaté is HR director of Koulikoro Emballages, a manufacturer of bags and cardboard boxes. The plant employs ninety permanent staff, plus seasonal workers every year during the campaign. It has never held an election: “we talk to each other directly”, says management.
Koulikoro Emballages and the people named in this article are fictitious: their names serve only as examples.
A staff delegate is an employee elected by colleagues to represent them before the employer. The delegate presents grievances, monitors health and safety rules, may refer matters to the labour inspector and passes on suggestions about work organisation. Each delegate is elected with a substitute, who stands in during absence or after departure.
The rule protects a simple balance: a lone employee hesitates to complain, while an elected and protected representative can do so without fear. For the employer, it also means an identified counterpart, with whom disagreements are settled in writing rather than by a work stoppage.
How it differs from other representatives
| Representative | How appointed | Whom it represents |
|---|---|---|
| Staff delegate | Elected by all employees | All staff of the establishment |
| Union delegate | Appointed by a representative union | The union before the company head |
| Health and safety committee member | Appointed to sit on the committee | Staff on safety matters |
The most common mistake
Believing that direct dialogue with employees removes the need to elect delegates. It is not an organisational option: it is a legal obligation as soon as the establishment has more than ten workers. Direct dialogue remains possible, but it comes in addition to delegates; it does not replace them.
A delegate is not an opponent to be tolerated. It is a channel you must open.
2. From when, and how many?
Staff delegates are elected in every establishment with more than ten workers, for a renewable three-year term (Labour Code, article L.265). Where several establishments located in the same town or within a 20-kilometre radius do not reach that threshold separately, their headcounts are added together to form a joint electoral college.
The number of delegates depends on headcount, according to the scale in article L.266 of the Labour Code.
| Headcount of the establishment | Full delegates | Substitutes |
|---|---|---|
| 11 to 25 workers | 1 | 1 |
| 26 to 50 workers | 2 | 2 |
| 51 to 100 workers | 3 | 3 |
| 101 to 250 workers | 5 | 5 |
| 251 to 500 workers | 7 | 7 |
| 501 to 1,000 workers | 9 | 9 |
| Above 1,000 | +1 per band of 500 | +1 per band of 500 |
Who counts in the headcount
The headcount used is that of workers habitually employed in the establishment. The implementing order treats as such, in particular, apprentices, workers on probation, workers paid by the hour or day who total the equivalent of six months' work in the year, seasonal workers who return regularly or work six months in the same year, and managers bound by an employment contract (order no. 96-1566 of 7 October 1996, article A.267.2).
Example. Koulikoro Emballages calculates its headcount for the election.
- Permanent employees: 90
- Seasonal workers returning every year for a seven-month campaign: 18
- Apprentices: 4
- Headcount to use: 90 + 18 + 4 = 112 workers
- Band of 101 to 250 workers: 5 full delegates and 5 substitutes
- Counting only permanent staff, management would have used the 51 to 100 band, i.e. 3 full delegates: two seats fewer, and an election open to challenge
The most common mistake
Counting only employees on open-ended contracts. Regular seasonal workers, apprentices and workers on probation are included in the calculation. An understated headcount distorts the number of seats and exposes the election to annulment.
What you need to do
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3. The election: the employer is in charge of organising it
The head of the establishment is responsible for organising the elections and ensuring they run properly (Labour Code, article L.268). The employer does not choose the candidates, but must launch the process, set the timetable and chair the polling station.
Who votes, who can be elected
Voters are workers of both sexes aged 18 or over, who have worked at least six months in the company and have not been deprived of their civic rights. Eligible candidates are voters aged 21 or over, who have worked at least twelve months without interruption in the company and can express themselves in French, subject to a nationality condition; close relatives and in-laws of the company head are excluded (order no. 96-1566, articles A.267.5 and A.267.6).
Delegates are elected by two separate colleges: on one side manual workers and clerical staff, on the other engineers, heads of department, technicians, supervisors and equivalent. The allocation of seats between colleges is set by agreement with the unions; failing that, the labour inspector decides.
The timetable to follow
| Step | Deadline | Who acts |
|---|---|---|
| Announcement of the election to unions, copy to the inspectorate | Before setting the date | Employer |
| Posting of the election notice (date, place, hours) | At least 15 days before the vote | Employer |
| Filing of candidate lists | At least 4 days before the vote | Unions |
| Posting of the lists | At least 3 days before the vote | Employer |
| Second round, if voters are fewer than half of those registered | Within 15 days | Employer |
| Sending the minutes to the labour inspector | 3 clear days | Employer |
In the first round, only unions represented in the establishment put forward lists. If there are none, the labour inspector records that absence and authorises independent lists. The vote is secret, by sealed envelope; postal voting is allowed for absent workers, proxy voting is not.
The minutes are signed by the employer and the list representatives and drawn up in three copies: two are sent to the labour inspector by registered letter with acknowledgement of receipt, the third is kept in the establishment's archives. Disputes go to the president of the labour court, who rules urgently and at last instance, meaning with no right of appeal (Labour Code, article L.269).
What you need to do
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4. What delegates do, and what they do not
The law gives delegates four missions (Labour Code, article L.278):
- presenting to the employer all individual or collective grievances about working conditions, worker protection, the application of collective agreements, job classifications and wage rates;
- referring to the labour inspector any complaint about the application of the laws and regulations the inspector enforces;
- monitoring the application of health, safety and social welfare rules, and proposing useful measures;
- passing on to the employer any suggestion useful to the organisation and productivity of the company.
Delegates do not hold a monopoly on speaking up. Workers keep the right to present their grievances and suggestions to the employer themselves (Labour Code, article L.279).
A warning signal, not a decision-making power
A delegate claims, proposes and warns; the delegate does not decide in the employer's place. But an ignored grievance does not vanish: it returns later as a complaint to the inspectorate or as a collective dispute. On what becomes of a dispute that escalates, see our article on strikes.
The most common mistake
Treating the delegate as a union spokesperson. The staff delegate represents all employees in the college, union members or not. The union delegate represents the union. The same person may hold both roles, but they are not the same thing.
A grievance heard costs a meeting. A grievance ignored costs a dispute.
5. The monthly meeting and the special register
Delegates are received collectively by the head of the establishment or a representative at least once a month, and also in an emergency at their request (Labour Code, article L.274). Substitutes may attend meetings with the full delegates. Delegates may also, by appointment, be assisted by a representative of the union that put forward their list.
The written note and the reply within six days
Save in exceptional circumstances, delegates hand management a written note setting out the subject of their requests two days before the meeting. The note is copied into a special register, in which the employer must enter a reply within six days at most (order no. 96-1566, article A.275.3).
The exceptional circumstances that waive the two-day notice are limited: the urgency of the request, for example a safety device to install after a workplace accident, or a tense social climate, such as the imminence of serious unrest (order no. 96-1566, article A.275.4).
Example. The delegates of Koulikoro Emballages hand in their note on the 3rd of the month, for a meeting set for the 5th. The text does not say when the six-day period starts; to be safe, Fanta Konaté counts it from the handover of the note and enters her written reply in the register by the 9th at the latest. An oral answer during the meeting, not entered in the register, does not meet the obligation.
What you need to do
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6. The resources: paid time, a room, a notice board
The head of the establishment must give delegates the time they need for their duties, up to 15 hours per month save in exceptional circumstances. This time, known as delegation hours, counts as working time and is paid as such (Labour Code, article L.271). It must be used exclusively for delegate duties.
The employer provides the room and furniture needed for them to meet (article L.272). Delegates may post information relating to their mission at the entrances to workplaces and on reserved spaces, chosen in a visible place where staff pass (article L.273).
Example. Koulikoro Emballages budgets the delegation hours of its five full delegates, based on an average hourly wage of XOF 1,200.
- Maximum monthly allowance: 5 delegates × 15 hours = 75 hours
- Monthly cost: 75 × 1,200 = XOF 90,000
- Annual cost: 90,000 × 12 = XOF 1,080,000
The most common mistake
Deducting delegation hours from pay on the grounds that they are not “productive”. These hours are working time. Deducting them means owing back pay and risking prosecution for obstructing a delegate's duties.
Example. For one year, management deducted all delegation hours of the five full delegates.
- Hours deducted: 75 hours × 12 months = 900 hours
- Back pay owed: 900 × 1,200 = XOF 1,080,000
Delegation hours are not a favour. They are working time, paid as such.
7. The decisions on which you must consult them
Beyond grievances, the Code makes delegates a mandatory step before several decisions. Skipping that step makes the decision irregular, even if it is justified on the merits.
| Decision contemplated | What the law requires | Legal basis |
|---|---|---|
| Adopting or amending the internal rules | Give the draft to delegates; their written comments within 15 days; silence counts as agreement | Article L.65 |
| Placing staff on technical or economic lay-off | Seek the delegates' opinion (or the union committee's) and inform the regional labour director beforehand | Article L.35 |
| Dismissing for economic reasons | Consult to look for solutions; provide the list and criteria in writing; meeting within 8 days | Articles L.47 and L.48 |
| Introducing part-time hours | Obtain the delegates' opinion and inform the labour inspector | Article L.133 |
| Agreeing a negotiated termination | The employee may be assisted by a delegate during the interview | Article L.50 bis |
For details of the adoption and filing procedure, see our article on internal rules. For the steps of an economic dismissal, see our article on dismissal. On temporary lay-offs, see our article on technical short-time working.
The most common mistake
Informing delegates once the decision has been made. Consultation must come before the decision: for an economic dismissal, the employer must first look with them for job-saving solutions (reduced hours, rotation, technical lay-off, redeployment), and only then give them the list of employees concerned.
What you need to do
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8. A protected employee: what you cannot do alone
Dismissing a staff delegate, full or substitute, requires the prior authorisation of the labour inspector (Labour Code, article L.277). The inspector has fifteen days to reply; silence counts as authorisation. If the inspector considers an investigation necessary, that period may be extended to thirty days, provided the employer is informed in writing before the fifteen days expire.
A dismissal made without that authorisation is null and void: the delegate is restored to his rights and reinstated in the company. In case of gross misconduct, meaning misconduct so serious that the contract cannot continue, the employer may impose a provisional suspension pending the decision; if authorisation is refused, the suspension has no effect.
Protection that starts before the election and lasts after
The protection covers candidates, from the posting of lists until the vote, then elected delegates until the next elections, and for a further six months after their term ends. It also applies in an economic dismissal: the specific procedure for delegates must then be followed (article L.48).
Nor can the employer remove a delegate. Only the electoral college can, by majority and secret ballot, on a proposal from the union that put the delegate forward or, failing that, on a written petition signed by a majority of the college (article L.276).
The most common mistake
Dismissing a former delegate just after the term ends, believing he is once again an ordinary employee. For the following six months, the inspector's authorisation is still required.
For a delegate, the inspector authorises first. The employer dismisses afterwards.
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9. What having no delegates, or obstructing them, costs
Failing to hold the election in an establishment with more than ten workers is punishable by a fine of XOF 10,000 to 18,000, and XOF 100,000 for a repeat offence (Labour Code, article L.330).
Obstruction, meaning interfering or attempting to interfere with the free election of delegates or the proper exercise of their duties, is punished far more heavily: a fine of XOF 100,000 to 500,000 and imprisonment of one month to one year, or either penalty. For a repeat offence, imprisonment is always imposed (Labour Code, article L.331).
The hidden cost lies elsewhere. Without delegates, mandatory consultations cannot be properly held: internal rules, a technical lay-off or an economic dismissal decided without them remain open to challenge.
Example. Koulikoro Emballages lets its delegates' term expire without holding a new election. Prompted by the inspectorate, it finally holds the vote, but then refuses to receive the elected delegates and deducts their hours for three months.
- Fine for failing to hold the election, at most: XOF 18,000
- Back pay for deducted delegation hours: 90,000 × 3 = XOF 270,000
- Fine for obstruction, at most: XOF 500,000
- Total financial exposure: 18,000 + 270,000 + 500,000 = XOF 788,000, not counting the risk of imprisonment
An election costs a day of organisation. Obstruction can cost a criminal conviction.
A closer look: when the 1996 order contradicts the law
The election procedure is set out in order no. 96-1566 of 7 October 1996. But law no. 2017-021 of 12 June 2017 amended the Labour Code without the order being fully rewritten on these points. Two contradictions result.
The first concerns the length of the term. The order provides for an election “every year” (article A.267.8), whereas article L.265 of the Code now sets the term at three years. A law prevails over an order: the term is three years.
The second concerns the minutes. The order provides for sending three copies to the inspector “within a week” (article A.267.16), whereas article L.268 of the Code requires two copies to be sent within three clear days, by registered letter with acknowledgement of receipt, the third remaining in the archives. A period in clear days is counted excluding both the day of the vote and the last day. By meeting the statutory three clear days, you also meet the order's deadline.
Remember the principle: where the implementing order and the Code diverge, the Code applies, and the shorter deadline is the safer one.
Key takeaways in 6 points
- Hold an election of delegates as soon as the establishment exceeds ten workers, counting apprentices, workers on probation and regular seasonal workers.
- Determine the number of seats with the statutory scale and elect a substitute for each full delegate, for a three-year term.
- Receive delegates at least once a month and reply in writing, in the special register, within six days.
- Pay delegation hours, up to 15 hours per month, as working time, and provide a room and a notice board.
- Consult delegates before internal rules, technical lay-offs, economic dismissals and part-time work.
- Obtain the labour inspector's authorisation before dismissing a candidate, a delegate or a former delegate within six months.