Employment law
Social Dialogue and Dispute Management: the Bodies, the Procedures and the Deadlines
The quarry employs three hundred and twenty people and has never held an election. One morning the crushing team stops work. Management wants to dismiss the ringleader, discovers that he presents himself as a staff delegate, that no election has ever taken place, and that it therefore knows neither who represents whom, nor whom to talk to in order to end the dispute. Social dialogue cannot be improvised on the day it becomes necessary.
1. Three bodies, three thresholds
Aïssata Bah heads human resources at Carrières de Faraba, an aggregates extraction company with three hundred and twenty employees. She has never set up a representative body, and her company owes three.
Carrières de Faraba and the people named in this article are fictitious: their names serve only as examples.
| Body | Threshold | Who sets it up |
|---|---|---|
| Union committee | Undertaking or establishment habitually employing 11 employees | Any representative union, with no formality or publicity requirement |
| Staff delegates | Every establishment with more than 10 workers | Election organised by the head of the establishment, three-year term |
| Health and safety committee | Industrial establishments habitually employing at least 50 employees; other establishments, at least 100 | Required by the Code, and possible below those thresholds on the inspector's formal notice |
For a quarry with three hundred and twenty employees, all three bodies are therefore mandatory. The number of staff delegates is set by band: from 251 to 500 workers, seven full delegates and seven substitutes. The number of union delegates follows its own scale: twenty-one for the same band.
Which headcount to use
The headcount to consider is that of the workers habitually employed in the establishment, whether or not they are entered in the employer's register. It includes apprentices, workers engaged on probation, those paid by the hour or by the day on a regular basis totalling the equivalent of six months' work in the year, and seasonal workers returning regularly or working periods reaching six months in the same year.
That is a broad definition, and it often surprises seasonal businesses: a quarry with one hundred and twenty permanent staff and two hundred regular seasonal workers is not in the one-hundred-and-twenty band.
The most common mistake
Waiting for a union to come forward before organising elections. The duty to elect staff delegates depends on no request: it arises when the threshold is crossed, and failing to meet it is a criminal offence.
Representative bodies are not created when the dispute arrives. They exist so that it does not arrive this way.
2. Electing staff delegates: the timetable, in order
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 are in the same locality or within twenty kilometres without individually reaching the minimum number of workers, their headcounts are grouped to form an electoral college.
The head of the establishment or his representative is responsible for organising and properly running the elections. The procedure follows dated steps set by the implementing order.
| Step | Deadline | What it involves |
|---|---|---|
| Notifying the trade unions | First of all | A letter announcing the intention to hold elections, copied to the labour inspectorate |
| Agreement on date, place and hours | 3 weeks before the current term expires | Failing agreement, the labour inspector conciliates then decides |
| Posted notice | At least 15 days before the ballot | At the places usually reserved for staff notices |
| Filing of candidate lists | At least 4 days before the ballot | On pain of inadmissibility; lists drawn up by the unions represented |
| Posting of the lists | At least 3 days before the ballot | At the same places as the notice |
| Minutes of the ballot | Within 3 clear days | 3 copies: 2 to the labour inspector by registered letter, 1 in the establishment's records |
Who votes and who may be elected
Electors are workers of both sexes aged eighteen or over, having worked at least six months in the undertaking and not having been subject to a conviction depriving them of civic rights. Eligible are electors aged twenty-one or over, of Malian nationality or nationals of a State bound to Mali by an agreement on equal access to salaried employment, able to express themselves in French and having worked without interruption in the undertaking for at least twelve months, excluding the head of the undertaking's ascendants, descendants, brothers and relatives by marriage of the same degree.
How the vote is held
The election is by secret ballot in envelopes, with separate votes for full members and substitutes in each college. It is a two-round list ballot with proportional representation, and splitting lists is prohibited: electors may only strike out names or change the order of presentation, and any ballot paper with an added name is void.
Workers prevented from attending, on leave or whose contract is suspended vote by post; voting by proxy is not valid. If, in the first round, the number of voters excluding blank and void papers is below half the registered electors, a second round is held within fifteen days, with no quorum, and electors then vote for lists other than union lists.
Seats are allocated by electoral quotient, then by highest average for the remaining seats. Disputes on the electorate, eligibility and the regularity of the operations fall to the president of the labour court, who decides as a matter of urgency and at last instance.
What you need to do
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3. The delegate's status: resources, role and protection
Once elected, delegates have resources the Code quantifies, and a protection that conditions every decision concerning them.
| Resource | What the Code requires |
|---|---|
| Time allowance | 15 hours a month at most, save exceptional circumstances, treated and paid as working time |
| Premises and furniture | Provided by the head of the establishment so that delegates can meet |
| Notice boards | At the entrances to the workplace and on reserved spaces, in a visible place and preferably where staff pass |
| Meetings with the employer | Collectively at least once a month, and urgently on their request |
| Assistance | Delegates may, by appointment, be assisted by a representative of the union that presented the list |
Their role is defined in four points: putting to the employer individual or collective claims on working conditions, the protection of workers, and the application of collective agreements, classifications and wage rates; referring to the labour inspector any complaint on the application of statutory requirements; ensuring the application of health, safety and social welfare rules and proposing useful measures; and passing on to the employer suggestions for improving the organisation and output of the undertaking.
An important qualification follows immediately: notwithstanding those provisions, workers retain the right to put their own claims and suggestions to the employer. The existence of delegates therefore does not screen management from the workforce.
Protection, and what it covers
The labour inspector's authorisation is required before any dismissal of a staff delegate, whether a full member or a substitute (Labour Code, article L.277). Failure to reply within fifteen days of the application amounts to authorisation, unless the inspector considers an expert opinion necessary: the period then rises to thirty days, and the employer must be told in writing before the first fifteen days expire.
Any dismissal in breach of that procedure is void as of right, and the delegate is restored to his rights and reinstated in the undertaking. For gross misconduct, the employer may immediately impose a provisional lay-off pending the decision; if authorisation is refused, that lay-off is deprived of all effect. On the ordinary procedure, see our article on dismissal.
The protection reaches further than is often assumed: it covers candidates for delegate posts between the posting of the lists and the ballot, and elected delegates until the date of the next elections and for six months after their term expires. Union delegates and staff representatives on the health and safety committee enjoy the same protection.
Example. Carrières de Faraba dismisses a full delegate without seeking the inspector's authorisation. The court declares the dismissal void six months later.
- The dismissal is void as of right, and the delegate is reinstated in the undertaking
- Delegate's gross monthly salary: XOF 220,000
- Period between removal and reinstatement: 6 months
- Back pay: 220,000 × 6 = XOF 1,320,000
- To which is added a fine of XOF 100,000 to 500,000 and imprisonment of one month to one year, or one of those penalties, for interfering with the proper exercise of delegate functions
Fifteen days of silence amount to authorisation. No silence removes the need to apply.
What you need to do
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4. The union committee and the health and safety committee
Two other bodies complete the framework, and they are set up on a different logic.
The union committee
A union committee may be formed by any representative union in every undertaking or establishment habitually employing eleven employees. Its formation is subject to no formality or publicity requirement: the employer does not authorise it, he is informed of it. He must simply be notified of the names of the committee members as soon as they are designated.
The committee represents its members' occupational interests and enjoys three prerogatives: freedom to post and distribute occupational communications, a monthly meeting of the union delegates outside working hours in premises made available by the head of the undertaking, and being received by him on their request.
Union delegates represent the union before the head of the undertaking and must have belonged to it for one year. Their functions may be combined with those of staff delegate, and they enjoy the same time allowance and the same protection.
The health and safety committee
It is set up in industrial establishments habitually employing at least fifty employees, and in non-industrial establishments employing at least one hundred workers. The labour inspector may, however, require its creation in establishments below those thresholds where they carry out work presenting particular insecurity from the point of view of industrial accidents or occupational diseases; the period for complying with the formal notice is then one month.
Staff representatives on the committee enjoy the same protection and the same time allowance as staff delegates.
A union committee is not authorised. It is notified.
5. Individual disputes: conciliation before the court
Any worker or employer may ask the labour inspector, his delegate or his deputy to settle a dispute amicably (Labour Code, article L.190). That request suspends the limitation period from the date it is received, and the suspension runs until the date of the minutes closing the attempt.
The parties must attend the inspectorate on the day and at the time set in the summons, on pain of a fine whose amount is set by order of the minister responsible for labour. Ignoring the inspector's summons is therefore not a management option.
Where the dispute is settled amicably, the enforcement formula is affixed to the conciliation minutes by order of the president of the labour court: the agreement then becomes an enforceable title. Where conciliation fails in whole or in part, the minutes of non-conciliation open the way to the court, and the inspector must transmit them within fifteen days at either party's request.
| Step | Deadline | Effect |
|---|---|---|
| Request for conciliation to the inspector | At any time | Suspends the limitation period from receipt |
| Summons of the parties by the court president | Within 2 days of receiving the claim | Appearance within a period not exceeding 12 days |
| Attempted conciliation before the court | At the hearing | Signed minutes constitute an enforceable title |
| Judgment | Drawn up immediately, unless reserved | Immediate enforcement possible up to 50% of the sums, excluding damages |
| Appeal | 15 days from delivery, or from service in a default judgment | Before the social chamber of the court of appeal, decided on the papers |
Proceedings before the labour courts are free of charge, and workers receive legal aid to enforce judgments given in their favour. Judgments are final and not open to appeal where the amount claimed does not exceed twelve times the guaranteed minimum wage; above that, appeal lies.
The most common mistake
Ignoring a summons from the labour inspector in the belief that it buys time. It exposes the company to a fine, deprives it of the only chance to settle without a judge, and suspends nothing: the file moves on towards the court, with minutes recording your absence.
Conciliation is not a formality. It is the last stage where you still decide.
6. Collective disputes: notification, conciliation, arbitration
A collective labour dispute is any conflict characterised both by the involvement of a group of workers and by the collective nature of the interest at stake. Both conditions are cumulative: ten identical individual claims do not make a collective dispute if the interest at stake remains individual.
Every collective dispute must be notified immediately by the parties to the regional labour inspector where the conflict is confined to one regional inspectorate, or to the labour director where it extends over several. The authority seised proceeds without delay to attempt conciliation, and must draw up within six clear days minutes recording the agreement or the failure.
A conciliation agreement, signed by the parties, dated and endorsed by the inspector, is immediately enforceable. Failing agreement, the conciliator draws up a report on the state of the dispute and sends it to the minister responsible for labour, a copy being given without delay to each party.
Arbitration
On receiving the report of non-conciliation, the minister responsible for labour refers the matter without delay to the Arbitration Council, at the express request of the parties. In an acute national crisis, or where the conflict concerns an essential service, any service whose interruption risks endangering the life, safety or health of all or part of the population, the minister may convene it on his own initiative.
The Council consists of a judge of the court of appeal as president and four assessors, two employer and two worker representatives. Once constituted, it has at most eight clear days to meet, and fifteen days to give its award. It decides in law on disputes about the interpretation of laws, regulations, agreements and collective accords in force, and in equity on the others, in particular where the dispute concerns wages or working conditions not set by any text.
The award may be challenged only for excess of powers, breach of the law or breach of the rules of procedure, before the social chamber of the Supreme Court, within eight clear days of its service. That challenge suspends enforcement.
What you need to do
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7. Strikes: what is guaranteed, what is regulated
The right to strike is guaranteed to all employees (Labour Code, article L.231). But it is exercised within a precise framework, and disregarding that framework has heavy consequences for both sides.
A strike must be preceded by a notice period during which the parties are required to negotiate. That notice period is fifteen calendar days. Where work stops collectively, users' basic needs, public order, the safety of persons and property and the continuous operation of installations are safeguarded by a minimum service, the list of indispensable services and jobs being set by decree adopted in the Council of Ministers. See also our article on strikes.
A strike does not terminate the employment contract, save for gross misconduct attributable to the worker. Lock-outs and strikes are, however, unlawful during the conciliation procedure and once an arbitration award has become enforceable.
| Situation | Consequence for the employer | Consequence for the workers |
|---|---|---|
| Lawful strike, after 15 days' notice | Contracts suspended, no wages paid | No termination of the contract, save individual gross misconduct |
| Strike or lock-out during conciliation or after an enforceable award | Payment of the days of wages lost, three-year ineligibility for chamber of commerce office, ban on taking part in public contracts | Termination of the contract from the day work stopped, with no rights beyond wages and accrued leave allowance |
| Refusal to comply with a duly notified requisition order | - | Possible dismissal without notice or compensation |
The most common mistake
Dismissing workers during a lawful strike. A strike suspends the contract, it does not terminate it, and only gross misconduct personally attributable to a worker allows a sanction, assessed, where applicable, by the judge. Collectively dismissing strikers is the decision that turns a few days' dispute into years of litigation.
A strike suspends contracts. It ends them only when it is unlawful.
8. What obstructing social dialogue costs
The Code reserves some of its heaviest penalties for social dialogue, and two of them carry a custodial sentence.
| Failing | Penalty |
|---|---|
| Interfering with the free designation of staff delegates or the proper exercise of their functions | Fine of XOF 100,000 to 500,000 and imprisonment of one month to one year, or one of those penalties; on repeat offence, imprisonment is always imposed |
| Taking union membership into account in hiring, promotion, pay or discipline | Fine of XOF 50,000 to 250,000 and imprisonment of one to four months; on repeat offence, fine of XOF 500,000 to 1,000,000 and eight months' imprisonment |
| Failure to hold staff delegate elections | Fine of XOF 10,000 to 18,000, raised to XOF 100,000 on repeat offence |
| Obstructing the powers of labour inspectors and controllers | Fine of XOF 20,000 to 120,000 and imprisonment of 15 days to 3 months, or one of those penalties; on repeat offence, imprisonment is mandatory |
Any measure taken by the employer on grounds of union membership is further deemed wrongful and gives rise to damages, independently of the criminal penalty. And offences concerning staff delegates may be established by the labour inspector or, failing him, by judicial police officers.
Example. Carrières de Faraba has held no election since it was founded and dismissed an employee after he called for a ballot.
- Failure to hold staff delegate elections: fine of XOF 10,000 to 18,000
- Interfering with the free designation of delegates: fine of XOF 100,000 to 500,000, and imprisonment of one month to one year
- If the worker shows his dismissal was motivated by his trade union activity, the termination is wrongful and gives rise to damages
- At the maximum of both fines, excluding damages: 18,000 + 500,000 = XOF 518,000
The Code rarely punishes with prison. It does so for staff delegates.
A closer look: two contradictions between the law and the 1996 order
Order no. 96-1566 of 7 October 1996 organises the election of staff delegates. Law no. 2017-021 of 12 June 2017 has since amended several articles of the Code. Two points of the electoral framework no longer match, and it is worth knowing which prevails.
First, the length of the term. Article A.267.8 of the order provides that delegates are elected every year, in the month preceding the normal expiry of their functions, which implies a one-year term. Article L.265 of the Code, as amended in 2017, sets the term at three years. A later law prevails over an earlier order: the term is three years, and the order's timetable applies in the month preceding the expiry of that three-year term.
Second, the deadline for transmitting the minutes. Article A.267.16 of the order provides for filing or sending three copies to the labour inspector “within a week”. Article L.268 of the Code requires the minutes to be drawn up in three copies and two of them sent to the district labour inspector within three clear days, by registered letter with acknowledgement of receipt, the third remaining in the establishment's records. It is the three clear days that must be observed, and the registered method that must be used.
In both cases the method is the same: where an earlier implementing order contradicts a provision of the Code derived from a later law, the Code applies. The order's other provisions (electorate and eligibility conditions, posting timetable, voting arrangements, allocation of seats) are not contradicted and remain fully applicable.
Key takeaways in 6 points
- Hold staff delegate elections as soon as the establishment has more than ten workers, without waiting for a union to ask.
- Follow the timetable: notice fifteen days before, lists four days before, minutes to the inspector within three clear days.
- Seek the labour inspector's authorisation before any dismissal decision concerning a delegate, a substitute, a candidate or a former delegate within six months.
- Meet the delegates at least once a month and leave them their fifteen monthly hours, paid as working time.
- Notify every collective dispute to the labour inspectorate immediately: the conciliator has six clear days to draw up his minutes.
- Never dismiss during a lawful strike: it suspends the contract and ends it only for individual gross misconduct.