Employment law
Temporary agency work
The word "intérim" covers two different realities in Malian law, and confusing them leads to badly built contracts.
The first is a contract concluded directly between a company and a worker to replace an employee under legal suspension, see Replacement contract. The second, the subject of this article, is temporary work through a specialised agency: a three-party relationship with two distinct contracts. Law No. 2017-021, Article L.313 as amended — French.
1. The three-party arrangement
Temporary work consists, for an agency, in recruiting staff whom it pays and places at the disposal of a user company, for non-lasting tasks called assignments.
| Party | Their role |
|---|---|
| The temporary work agency | It recruits, pays and remains the legal employer |
| The user company | It hosts the worker and directs their activity during the assignment |
| The temporary worker | They carry out the assignment; they are the agency's employee |
The point to retain above all: the temporary work agency is the employer. It draws up the employment contract, pays the remuneration, files the contributions and bears the employer's obligations.
2. The two contracts
| Contract | Between whom | What it states |
|---|---|---|
| The placement contract | The user company and the agency | The ground for using a temporary worker and the term of the assignment |
| The assignment contract | The agency and the worker | It is concluded in writing |
The placement contract is drawn up for each worker, in writing, within two working days of the placement at the latest. The two contracts neither merge nor substitute for one another: a user company holding only a purchase order, with no placement contract stating the ground and the term, is in a weak position. Decree No. 96-178/P-RM of 13 June 1996, Article D.313-5.
3. Conditions to verify
- Approval: the agency must hold a ministerial authorisation. This is the first check to make before contracting.
- Financial guarantee: the agency must evidence to the labour inspectorate a guarantee covering, should it default, the payment of wages and social contributions. It takes the form of a bank or insurance bond, reviewed each year.
- No cost to the worker: the temporary worker bears no fee for their placement. A contrary practice disqualifies the provider.
- Writing: the employment contract between agency and worker is concluded in writing.
- Duration: the assignment carries an end date set at the outset, and may not exceed 24 months, renewals included.
Decree No. 96-178/P-RM of 13 June 1996, Articles D.313-3, D.313-4 and D.313-9.
4. Duration and its cap
| Element | Rule |
|---|---|
| Term | An end date set when the contract is concluded |
| Maximum duration | 24 months, renewals included |
| Nature of the tasks | Non-lasting tasks: assignments |
The twenty-four-month cap applies to the assignment, renewals included. It follows the general logic of fixed-term work: temporary work cannot permanently fill a job linked to the user company's normal activity. See Fixed-term contract.
5. Protecting the temporary worker
A temporary worker receives a precarity payment of 2.5% of their total remuneration, under the ordinary rules. It is not due where the contract is ended at the worker's initiative or through their gross misconduct.
Beyond that, they enjoy the same protections as any worker during the assignment: hygiene and safety conditions, protective equipment, medical monitoring, working time and weekly rest. The user company, which directs their activity, answers for these on the ground, even though the legal employer is the agency.
Labour Code, Article L.24 — French; Decree No. 96-178/P-RM of 13 June 1996, Article D.313-7.
6. Three practical situations
The worker is not suitable. The user company may ask the agency for a replacement. It does not dismiss them: it is not the employer. The request goes to the counterparty, on the terms of the placement contract.
The company wishes to hire them permanently. This is possible, but the end of the assignment must be awaited. Recruiting mid-assignment amounts to poaching an employee bound by a current contract, with the consequences that entails. The agency, however, cannot forbid it: any clause seeking to bar the user company from hiring the temporary worker at the end of the assignment is deemed unwritten.
The assignment has ended and the worker is still there. This is the user company's main exposure, and it is automatic: where the user company keeps a temporary worker working after the end of the assignment without having concluded an employment contract with them, and without a new placement contract, that worker is deemed bound to the user company by an open-ended contract. An overrun of a few days, not covered by an amendment, is enough. Decree No. 96-178/P-RM of 13 June 1996, Articles D.313-5 and D.313-8.
7. The user company's checklist
- Does the agency hold ministerial approval?
- Does it evidence a financial guarantee to the labour inspectorate?
- Does the placement contract exist in writing, stating the ground and the term of the assignment?
- Does the assignment correspond to a non-lasting task?
- Is the 24-month cap observed, renewals included?
- As the term approaches, is a new contract signed if the worker is to stay?
- Are hygiene and safety conditions provided at the same level as for the company's own staff?
Key takeaways
| The rule | What it implies |
|---|---|
| Three parties, two contracts | Placement and assignment contracts |
| The agency is the employer | It recruits, pays and files |
| Ministerial approval and a financial guarantee | The first two checks before contracting |
| No fee borne by the worker | A contrary practice disqualifies the provider |
| 24 months maximum, renewals included | With an end date set at the outset |
| Working past the term with no new contract | The worker is deemed bound to the user company by an open-ended contract |
| A 2.5% precarity payment | And the same protections as any worker |