Employment law
Trade union: Freedom of association
At Bamako Logistique, a dock supervisor has been handing out union leaflets during breaks for three weeks. The operations manager calls him in, withdraws his performance bonus for the month and moves him to the archives department. Three decisions taken in one morning. Three offences, one of which exposes the manager to a prison sentence.
Bamako Logistique and the people named here are fictional. They serve only as an example throughout this article.
1. A freedom with two faces
Freedom of association is a fundamental public freedom. It operates on two levels that must be distinguished, because they do not protect the same people.
At the individual level, it is the right to join the union of one’s choice, and just as much the right to stay outside any organisation. The Code is direct: any worker or employer may freely join a union of his choice within his occupation (Labour Code, article L.256). The corollary is written down too: any member may withdraw at any time, notwithstanding any clause to the contrary, the union being entitled only to claim the dues for the six months following withdrawal.
At the collective level, it is the right of unions to form and operate freely. People carrying on the same occupation, similar trades or related occupations may freely constitute a professional union.
A reference that needs updating
Many articles in circulation still tie freedom of association to “the 1992 Constitution”. Mali adopted a new Constitution in 2023, replacing that of 1992. Internationally, the reference remains Convention No. 87 of the International Labour Organization on freedom of association and protection of the right to organise, adopted in 1948 and ratified by Mali.
Freedom of association is the right to join. It is just as much the right not to join, and the right to leave whenever you wish.
2. What the employer has no right to take into account
The Code does not merely proclaim the freedom: it lists the decisions union membership must never enter into. Every employer is forbidden to take into account opinions, union membership or the exercise of union activity when taking his decisions (Labour Code, article L.257).
| The decision | What has no right to enter into it |
|---|---|
| Hiring | Known or assumed membership of a union |
| The conduct and allocation of work | The fact of carrying on union activity in the company |
| Vocational training and advancement | Opinions expressed by the worker |
| Remuneration and the granting of social benefits | Any union mandate whatsoever |
| Disciplinary measures and dismissal | Any element drawn from union activity |
The text goes further than a bare ban on discrimination. The head of the company and his representatives must use no means of pressure for or against any union organisation. Encouraging an in-house union is therefore just as irregular as fighting an outside one.
Any measure taken in breach of these rules is treated as wrongful and gives rise to damages. And the offence is criminal: a fine of XOF 50,000 to 250,000 and imprisonment of 1 to 4 months, or one of those two penalties. On a repeat offence the fine rises to XOF 500,000–1,000,000 and the imprisonment to 8 months (Labour Code, article L.329).
3. The Bamako Logistique case, decision by decision
Take the operations manager’s morning again. Each decision reads in the light of the same article.
| The decision taken | What it breaches | What it produces |
|---|---|---|
| Withdrawal of the performance bonus | The ban on taking union activity into account in remuneration | A wrongful measure: repayment of the bonus and damages |
| Transfer to the archives department | The ban on taking it into account in the conduct and allocation of work | A wrongful measure; if the job or place lastingly changes, it also requires the worker’s consent |
| A summons meant to deter | The ban on using means of pressure against a union organisation | The same characterisation, plus exposure to the criminal penalty |
Example. The dock supervisor’s performance bonus is XOF 25,000 a month and is withdrawn for three months.
- Sums to be repaid: 3 × 25,000 = XOF 75,000.
- To which are added damages assessed by the labour court.
- And, on the criminal side, a fine of XOF 50,000 to 250,000, with imprisonment of 1 to 4 months or one of those two penalties.
Comparison with decisions taken about other employees is the first thing the court will examine. On that mechanism, see Fairness and even-handedness: what the court reviews.
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4. What the union may do, and what it may not
Freedom of association is not purposeless. Professional unions have as their exclusive object the study and defence of the rights and of the material, economic, social and moral interests, both collective and individual, of their members (Labour Code, article L.232). The word “exclusive” is a real limit.
| What the union may do | Within what limits |
|---|---|
| Bring legal proceedings and acquire movable or immovable property | It enjoys legal personality |
| Exercise the rights of a civil party | For acts causing direct or indirect harm to the collective interest of the occupation it represents |
| Create, run or subsidise professional works | Solidarity funds, provident institutions, publications, courses, educational works |
| Buy in order to hire out, lend or distribute among its members | If its statutes allow it, and without distributing profits, even as rebates |
| Act as intermediary for the sale of its members’ produce | Free of charge, and without carrying out the sale in its own name and under its own responsibility |
Its financial resources are framed too: members’ dues, receipts from cultural and sporting events, subsidies granted by public authorities, local authorities or companies, borrowings and other extraordinary resources decided by the general meeting.
5. Absences for union activity
Three different regimes coexist, and confusing them leads either to refusing an absence that is due or to paying for one that is not (Labour Code, articles L.254 and L.255).
| Type of absence | Paid? | Effect on the contract |
|---|---|---|
| Statutory congress of the union organisation | Yes, and the absence is not deducted from annual leave | Authorisation granted on production of a written, named convocation |
| Union training course, on the organisation’s designation | The Code does not provide for pay to continue | The worker is authorised to leave the company, without that absence being a ground for termination |
| Permanent administrative or management office in a union | No | The worker ceases his professional activity without his absence being, for up to one year, a ground for termination |
A fourth case completes the picture: unpaid leave for union education or training may be granted to workers on request. Those periods are treated as periods of actual work for calculating paid leave, entitlement to family benefits and length of service in the company. Unpaid, then, but with no loss of seniority.
6. Union dues on the payslip
An employer may collect union dues, but on three cumulative conditions: at the request of the union or unions, in the form of a voluntary assignment of wages duly made by the worker, and for the benefit of the organisation of his choice (Labour Code, article L.123).
Each of those conditions rules out a common practice. The employer does not decide alone to deduct: the union must ask. He does not deduct without a writing from the worker: a voluntary assignment is needed. And he does not choose the recipient organisation: the worker names it.
A deduction made without a written assignment is an irregular deduction, punishable by a fine of XOF 10,000 to 18,000, rising to XOF 20,000–50,000 and imprisonment of 6 to 10 days on a repeat offence (Labour Code, article L.321). The full regime for deductions appears in Wages: what may be deducted.
No written assignment, no deduction. Union dues are never taken automatically.
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A closer look: a strike does not end the contract
The right to strike is guaranteed to all employees. A strike must be preceded by a notice period of fifteen calendar days, during which the parties are required to negotiate. And the decisive rule fits in one sentence: a strike does not end the contract of employment, save for gross misconduct attributable to the worker (Labour Code, articles L.231 and L.231-2).
During a strike called in compliance with the procedure for settling collective disputes, the contract is suspended. The worker is not paid, but he is not dismissed: suspension is not termination.
Two limits are worth knowing on both sides. A minimum service is instituted to safeguard users’ basic needs, public order, the safety of persons and property and the continuous operation of installations; staff may be requisitioned in the cases the law provides, and a worker who fails to carry out a properly notified requisition order may be dismissed without notice or payment. Furthermore, strikes and lock-outs are unlawful during the conciliation procedure and once an arbitral decision has become enforceable.
Key takeaways in 6 points
- Remember that freedom of association protects the right not to join, and to withdraw at any time, as much as the right to join.
- Let no union consideration enter hiring, allocation of work, training, advancement, pay or discipline.
- Apply no pressure, neither against one union nor in favour of another.
- Grant authorised absences for statutory congresses, paid and outside annual leave.
- Deduct union dues only against a written voluntary assignment by the worker.
- Remember that a lawful strike suspends the contract but does not end it.