Employment law
Provision of staff: who is the employer, and on what conditions?
In January, bags of shea kernels are stacked to the ceiling of the Karitex SA warehouse in Ségou. To get through the season, management brings in twenty handlers through Renfort Plus Intérim. Three months later, a team leader wants to discipline one of them, and the accountant discovers that the provider has never shown its approval. The arrangement, so convenient at first, is starting to expose the company.
The companies and people named in this article are fictitious. Their names are used for illustration only.
1. What exactly are we talking about?
Karitex, with 140 employees, needs extra hands for a few months without wanting to hire. It turns to a temporary work agency, meaning a company whose business is to hire and pay workers in order to place them temporarily with clients, called users (Decree No. 96-178/P-RM of 13 June 1996, article D.313-1).
A user may use temporary staff only for a non-permanent task, which the decree calls an "assignment" (article D.313-2). Provision of staff is meant to absorb a passing need, not to fill a permanent post.
The arrangement brings together three parties and rests on two separate contracts (Labour Code, article L.313).
| Contract | Between whom? | What it covers |
|---|---|---|
| The staff provision contract | The user and the agency | The assignment: reason, duration, conditions, price |
| The employment contract | The agency and the worker | The employment relationship: pay, qualification, rights |
There is no contract between the worker and the user. All the rules below follow from that point.
Why this framework? It guarantees the worker an identified employer, supervised by the administration and able to pay, even when the worker moves from one client to another.
The most common mistake
Many users believe the commercial contract signed with the provider is enough. It is not: each worker must also have a written employment contract with the agency. Without it, the arrangement does not comply.
A closer look
Law No. 2017-021 of 12 June 2017 rewrote article L.313 and created the outsourcing regime (articles L.313-1 to L.313-7). Decree No. 2022-0125/PT-RM of 4 March 2022 then raised the financial guarantee required of agencies (article D.313-9). For the worker's point of view, see Temporary employment contract and Temporary work.
Three parties, two contracts, one employer.
2. Who is the employer?
The Code answers plainly: the agency is deemed to be the employer and holds all the rights and obligations attached to that status (article L.313). Karitex receives the handlers and assigns them the tasks of the assignment. But it is not their employer.
| Who does what? | Agency (Renfort Plus Intérim) | User (Karitex) |
|---|---|---|
| Conclude the employment contract | Yes | No |
| Pay wages and issue the payslip | Yes | No |
| Pay the precarity payment at the end of the assignment | Yes | No |
| Receive the worker and assign the tasks of the assignment | No | Yes |
| Impose a disciplinary sanction | Yes | No |
| Terminate the employment contract | Yes | No |
The precarity payment is the sum paid at the end of a contract to offset the instability of the job. For a temporary worker, it equals the one due under a fixed-term contract (article L.24), except where the worker ends the contract or commits gross misconduct (Decree No. 96-178/P-RM, article D.313-7). Absent a collective agreement, its minimum rate is 2.5% of total gross pay (article D.24-1, as amended in 2022).
The most common mistake: disciplining the worker yourself
The Karitex team leader wants to send a written warning to a handler who has been late three times. He is then acting as the employer, although that power belongs to the agency. The right method: record the facts in writing and pass them on to Renfort Plus Intérim, which decides what happens next.
The end-of-assignment trap
The season ends in late April. Karitex keeps three handlers two weeks longer "to tidy up", without a new staff provision contract. The decree is clear: if the user keeps a temporary worker working after the assignment ends, without an employment contract with that worker or a new staff provision contract, the worker is deemed bound to the user by an open-ended contract (Decree No. 96-178/P-RM, article D.313-8). Karitex has just hired three employees without meaning to.
The temporary worker works at your site. He is not your employee.
What you need to do
- Route any disciplinary concern through the agency, in writing, without imposing a sanction yourself.
- Track the end date of each assignment and stop the assignment on that date, or sign a new staff provision contract.
- Never hand a payslip, termination letter or disciplinary summons to a temporary worker.
3. What to check before signing
The Karitex accountant finally asks Renfort Plus Intérim for its documents. Here is what she must obtain.
Approval and financial guarantee
The agency must be approved by the minister responsible for labour and operates under the supervision of the National Labour Directorate (article L.313). It may start business only after filing a declaration with the minister and obtaining a financial guarantee (Decree No. 96-178/P-RM, article D.313-11).
That guarantee pays wages and social contributions if the agency defaults. It is one million XOF when the company is set up, then at least 9% of annual turnover excluding tax after the first financial year (article D.313-9, as worded by Decree No. 2022-0125/PT-RM). The guarantor's name and address must appear on staff provision contracts and on employment contracts.
Two written contracts, on short deadlines
| Document | Deadline | Key particulars |
|---|---|---|
| Staff provision contract (one per worker) | In writing no later than two working days after the worker is placed (D.313-5) | The reason for using temporary work and the end of the assignment |
| Employment contract between the agency and the worker | In writing and sent to the worker within two working days of placement (D.313-6) | Qualification, pay, any probationary period, a statement that hiring by the user is not prohibited |
A temporary worker's pay may not be lower than that of a user employee with the same qualification in the same post (article D.313-6). Any clause preventing the user from hiring the temporary worker at the end of the assignment is deemed unwritten, meaning it has no effect (article D.313-5).
Duration and no fees
The assignment has an end date set precisely at signature, except in the special cases of article L.20 (article D.313-3). The employment contract may not exceed 24 months, renewals included (Labour Code, article L.313).
The worker pays nothing to be placed (article L.313). No "processing fee" may be deducted from the worker's wages.
What an irregular arrangement costs
The Code punishes breaches of article L.313 with a fine of 20,000 to 50,000 XOF, raised to 50,000 to 250,000 XOF for a repeat offence (Labour Code, article L.332). The fine applies as many times as there are offences, up to fifty times the maximum (article L.335).
Example. Renfort Plus Intérim places twenty handlers without a written employment contract. The fine incurred may reach:
Maximum per offence: 50,000 XOF
Number of offences: 20
Total: 20 × 50,000 = 1,000,000 XOF
Legal ceiling: 50 × 50,000 = 2,500,000 XOF, not reached
For Karitex, the main risk lies elsewhere: a provider without a guarantee that fails to pay its workers, and temporary workers kept beyond their assignment who become Karitex's own employees.
Not to be confused with placement
A fee-charging placement agency matches job offers and job seekers without becoming a party to the contract (article L.301). It may also operate as a temporary work agency, but must then apply all the rules of the Code (article L.313).
No approval, no guarantee: no staff provision.
What you need to do
- Require a copy of the approval and the financial guarantee certificate before signing anything.
- Sign one staff provision contract per worker, stating the reason for and end of the assignment.
- Check that each temporary worker has received an employment contract and that nothing is deducted from their pay.
4. Staff provision, outsourcing, task subcontracting: three different arrangements
Karitex is also considering handing its security and payroll to providers. From a distance, these operations look like staff provision: people who are not Karitex employees work for it. But the Code treats them differently.
| Arrangement | What you are buying | Duration | Text |
|---|---|---|---|
| Staff provision | Workers, for a non-permanent assignment | 24 months at most, renewals included | L.313 and D.313-2 |
| Outsourcing | An activity transferred to a specialist partner | Two years per contract, renewable without limit | L.313-1, L.313-6 and D.313-6-1 |
| Task subcontracting | Work or a service at a fixed price, performed by a workforce the subcontractor hires itself | The time needed to perform the agreed work | L.91 |
Outsourcing
Outsourcing is the transfer of all or part of a company's activity to a specialist external partner (article L.313-1). The contract may be renewed without limit (Labour Code, article L.313-6), but each contract covers an operation of two years at most (Decree No. 96-178/P-RM, article D.313-6-1, introduced by the 2022 decree).
Before outsourcing, the company consults the union committee or, failing that, the staff delegates, and sends the minutes of the meeting to the labour inspector (article D.313-7-1). The employment contracts concerned transfer to the outsourcing agency (article D.313-7-2), and employees keep their acquired rights (article L.313-7). See Payroll and administration outsourcing.
A temporary work agency may also act as an outsourcing agency (article L.313-3). Its approval as a temporary work agency authorises outsourcing, not the other way round (Labour Code, article L.313-4).
Task subcontracting
A task subcontractor (tâcheron) hires its own workforce and undertakes to perform work for a fixed price. The contract must be in writing, and the main contractor sends two copies to the labour inspectorate without delay (Labour Code, article L.91). If the subcontractor becomes insolvent, the main contractor is liable for the wages owed to the workers (article L.92).
The most common mistake: renaming the contract
To escape the 24-month ceiling, some companies relabel staff provision as "outsourcing". Ask yourself a simple question instead: are you buying people or a result? If the provider merely supplies hands that your team leaders direct, the operation looks like staff provision, whatever its title.
You hire hands: that is staff provision. You hand over an activity: that is outsourcing.
What you need to do
- Classify each arrangement by what you are really buying, not by the contract's title.
- Consult staff representatives and inform the labour inspector before any outsourcing.
- Put every task subcontract in writing and send two copies to the labour inspectorate.
Key takeaways in 6 points
- Use staff provision only for non-permanent assignments: it is not a way to fill a permanent post.
- Check the agency's ministerial approval and financial guarantee before signing anything.
- Sign one staff provision contract per worker within two working days, and make sure each worker has a written employment contract.
- Let the agency alone exercise the employer's powers: pay, payslips, sanctions, termination.
- End each assignment on schedule: a temporary worker kept on without a new contract becomes your open-ended employee.
- Distinguish staff provision, outsourcing and task subcontracting by what you are buying, and apply the rules specific to each.