Employment law
The union delegate: who he is, what he may do, how he is protected
In Sévaré, the passenger transport company has twenty-nine employees. On a Monday the union notifies the manager of the name of its union delegate. On the Wednesday the manager refuses him access to the notice board, on the ground that he has “not yet been accredited”. Two mistakes in two days: a union delegate is not accredited, and refusing access to the notice board interferes with a prerogative written into the Code.
Sévaré Transport Voyageurs and the people named here are fictional. They serve only as an example throughout this article.
1. What a union delegate is
A union delegate is the appointed representative of a representative union in a company or establishment habitually employing eleven workers or more. His mission is written in one sentence: union delegates represent the union before the head of the company (Labour Code, article L.261).
Two further points complete that definition and are often overlooked. Union delegates represent the union organisation on the management committee. And their functions may be combined with those of staff delegate: nothing prevents one employee from holding both mandates.
The confusion to clear up: union delegate and staff delegate
These are two different institutions, sharing neither origin nor mission. Confusing them means applying the wrong procedure at the wrong moment.
| Union delegate | Staff delegate | |
|---|---|---|
| How he arrives | Appointed by a representative union, name notified to the employer | Elected by the establishment’s staff |
| Threshold | 11 employees habitually employed | More than 10 workers per establishment |
| Mission | Represent the union before the head of the company | Present grievances, refer matters to the labour inspector, oversee health and safety |
| Term | No term set by the Code | Three-year term, renewable |
| Protection | That of article L.277 | That of article L.277 |
The staff delegate is elected by everyone. The union delegate is appointed by a union. The protection is the same for both.
2. The two conditions to check, and the ones people invent
The Code sets two conditions, and only two.
- One year of service. Union delegates must have been part of the company for one year.
- Appointment by a representative union. Representativeness is assessed at company level on the basis of votes and seats won in staff-delegate elections.
Everything else is invention. The formation of a union committee is subject to no condition of form or publicity; only notification to the employer of the members’ names is required, as soon as they are appointed (Labour Code, article L.258). The employer does not accredit, does not validate, and receives no application file.
A union delegate is notified. He is not validated.
| What you need to do |
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The formation formalities on the union side are set out in Setting up a union and a union committee.
3. How many delegates?
The Code gives a range and refers to a ministerial order for the detailed table: the number of union delegates, from 5 to 26 depending on the establishment’s headcount, is determined by an order of the Minister of Labour (Labour Code, article L.260). Before disputing a number, consult the order in force rather than reasoning by analogy.
For staff delegates, by contrast, the Code itself gives the full scale. It is worth having to hand, if only because it is what triggers the elections.
| Establishment headcount | Full members | Substitutes |
|---|---|---|
| From 11 to 25 workers | 1 | 1 |
| From 26 to 50 workers | 2 | 2 |
| From 51 to 100 workers | 3 | 3 |
| From 101 to 250 workers | 5 | 5 |
| From 251 to 500 workers | 7 | 7 |
| From 501 to 1,000 workers | 9 | 9 |
| Above that | +1 per further 500 | +1 per further 500 |
Example. Sévaré Transport Voyageurs employs 29 people. The establishment falls in the 26-to-50 band: it must therefore elect 2 full delegates and 2 substitutes.
4. Time: fifteen hours a month, and what “exceptional” means
The Code proceeds by cross-reference, and that is what misleads: the union delegate benefits, for the exercise of his functions, from the same time and the same protection granted by article L.277 (Labour Code, article L.263).
That “same time” is the staff delegates’ time. The head of establishment must allow them, within a limit that, save in exceptional circumstances, may not exceed fifteen hours a month, the time needed to carry out their functions. That time counts as working time and is paid as such, and must be used exclusively for the tasks of the office.
Three points follow, and the second is the one most often lost.
- Delegation time is paid. It gives rise to no deduction, and it is not taken out of annual leave.
- Fifteen hours is not an absolute ceiling. The text expressly reserves exceptional circumstances.
- It is earmarked. It serves the tasks of the office, which justifies the company knowing its overall use, without monitoring the content of union activity.
Example. A delegate earns XOF 120,000 a month. On the basis of the statutory forty-hour week, about 173 hours a month:
- Hourly rate: 120,000 ÷ 173 ≈ XOF 692.
- Fifteen hours of delegation: 15 × 692 ≈ XOF 10,385 a month, paid as working time.
The prerogatives this time serves to exercise, posting, the monthly meeting, being received by the head of the company, are set out in The prerogatives of the union committee.
5. Protection: the labour inspector’s prior authorisation
This is the most important provision in the whole chapter, and the one that costs most when ignored. The labour inspector’s authorisation is required before any dismissal of a delegate, full member or substitute, contemplated by the employer or his representative (Labour Code, article L.277).
| Situation | What applies |
|---|---|
| Request for authorisation filed | The authorisation or refusal is notified to the employer and to the delegate concerned |
| Inspector silent for 15 days | Counts as authorisation to dismiss |
| Expert assessment judged necessary | Period extended to 30 days, the inspector having to inform the employer in writing before the first 15 days expire |
| Dismissal imposed without authorisation | Automatically void: the delegate is restored to his rights and reinstated in the company |
| Gross misconduct alleged | Immediate provisional suspension possible pending the final decision |
| Authorisation refused after suspension | The suspension is deprived of all effect |
A protection broader than people think
It is not limited to serving delegates. It also covers workers who are candidates for delegate posts, during the period between the posting of the lists and the ballot, elected delegates until the date of the new elections, and former delegates for six months following the expiry of their term.
Two further categories enjoy the same protection, for the same periods: staff representatives on the health and safety committee, who also have the same time credit, and the worker members of the Higher Labour Council.
The cost of getting it wrong is twofold. On the civil side, automatic nullity and reinstatement. On the criminal side, anyone who interferes or attempts to interfere either with the free designation of staff delegates or with the regular exercise of their functions faces a fine of XOF 100,000 to 500,000 and imprisonment of one month to one year, or one of those two penalties. On a repeat offence, imprisonment is always imposed (Labour Code, article L.331).
| What you need to do |
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Handling a disciplinary file involving a protected employee is set out in Disciplinary power.
6. End of term, removal, replacement
Here too the two institutions do not follow the same path, and the Code regulates only one of them.
For the staff delegate, the Code organises removal during the term. It occurs on a proposal from the union organisation that put him forward, approved by secret ballot by a majority of the electoral college he belongs to. Where he was not put forward by a union organisation, removal requires a written petition signed by a majority of the electoral college, confirmed by secret ballot by that same majority (Labour Code, article L.276).
Each staff delegate also has a substitute, elected on the same terms, who replaces him in case of justified absence, death, resignation, removal, change of professional grade, termination of the contract of employment or loss of the conditions of eligibility.
For the union delegate, the Code provides no removal procedure. The logic is different: he is appointed by the union, and it is for the union to bring that appointment to an end. The employer is informed by notification, exactly as for the original appointment. He has no more of a role at the end than at the beginning.
A closer look: holding both mandates and the time credit
Combining the functions of union delegate and staff delegate is expressly permitted. It raises a question the Code does not settle: do the time credits add up?
The texts say only two things. Staff delegates have a period that, save in exceptional circumstances, may not exceed fifteen hours a month. And the union delegate benefits from “the same time”. No provision allows for doubling, and none expressly rules it out.
In practice, two routes are sensible. The first is to check the sector collective agreement, which often settles the point. The second, where the agreement is silent, is to deal with it in an establishment agreement: such agreements exist precisely to adapt collective agreements to the company’s particular circumstances and may provide terms more favourable to workers (Labour Code, article L.88).
What should be avoided is deciding alone and letting the disagreement harden around a question of hours. A unilateral refusal in this area reads easily as interference with the regular exercise of the delegate’s functions.
Key takeaways in 6 points
- Remember that a union delegate is appointed by a representative union and simply notified: he is not accredited.
- Check the one condition that falls to you: one year of service in the company.
- Apply the Code’s scale for staff delegates, and the ministerial order for the number of union delegates.
- Pay the fifteen monthly hours of delegation as working time, without deducting them from annual leave.
- Seek the labour inspector’s authorisation before dismissing any protected employee, failing which the dismissal is automatically void.
- Keep the list of protected employees current: delegates, candidates, and former delegates for six months.