Employment law
Setting up a union and a union committee: the steps
In Kati, the Kati Béton concrete plant employs forty people. A group of plant operators tells the manager that a union committee is being formed. The manager asks for the statutes, an accreditation and a full list of members before “recognising” anything. None of the three requests has any basis, and the refusal he maintains in the meantime is already an offence.
Kati Béton and the people named here are fictional. They serve only as an example throughout this article.
1. Two different things both called “the union”
The first source of misunderstanding is vocabulary. Two structures share the same word in everyday conversation, while the Code treats them separately, with opposite formalities.
| The professional union | The union committee | |
|---|---|---|
| Where it exists | Outside the company, within an occupation | Inside a company or an establishment |
| Who forms it | People carrying on the same occupation, similar trades or related occupations | Any representative union |
| Formalities | Filing of statutes and officers’ names, copy to the labour inspector and the public prosecutor | No condition of form or publicity; only the members’ names are notified to the employer |
| Headcount threshold | None | 11 employees habitually employed |
The union is formed outside, by filing statutes. The union committee is formed inside, by simple appointment.
2. Forming the union: filing the statutes
The founders of any professional union must file the statutes and the names of those responsible, on whatever basis, for its administration or management (Labour Code, articles L.233 and L.234). The procedure runs in four movements.
| Step | What to do |
|---|---|
| 1. Draft | Draw up the statutes and appoint those responsible for administration or management |
| 2. File | File statutes and names at the seat of the administrative district where the union is established |
| 3. Transmit | Send a copy of the statutes to the labour inspector and to the public prosecutor |
| 4. Keep current | Report every change of statutes and of officers to the same authorities, in the same forms |
The public prosecutor checks the lawfulness of the statutes and informs the union concerned, the head of the administrative district and the labour inspector of his conclusions. That review covers lawfulness, not expediency: it is not a prior authorisation.
Who may lead, join, stay, leave
Members responsible for administration or management must be domiciled in the Republic of Mali, enjoy their civic rights, and have incurred none of the convictions that remove the right to vote. A married woman carrying on an occupation may join and take part in the administration without her husband’s authorisation, and a minor over fifteen may join without the prior authorisation of his parents or guardian (Labour Code, articles L.235 and L.236).
Two further rules complete the picture. People who have left their occupation may remain members, provided they practised it for at least one year. And 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.
Breaches of the formation rules are not without consequence: they are punishable by a fine of XOF 5,000 to 15,000, rising to XOF 180,000 for a false declaration about the statutes or the names and capacities of the officers (Labour Code, article L.328).
| What you need to do |
|---|
|
3. The threshold of eleven: counting the headcount
A union committee may be formed by any representative union in each company or establishment habitually employing eleven employees (Labour Code, article L.258). The Code itself sets out the counting method, which heads off argument.
The headcount includes permanent staff, apprentices, workers engaged on probation, and casual or seasonal workers averaging six months of work in the year.
Example. Kati Béton employs 28 permanent staff, 4 apprentices, 3 workers on probation and 9 seasonal workers, 5 of whom average seven months a year.
- Permanent staff, apprentices and probationers: 28 + 4 + 3 = 35.
- Seasonal workers counted, those reaching the six-month average: 5.
- Headcount to use: 40 employees, well above the threshold of eleven.
Three thresholds that must not be confused
The same headcount triggers different obligations depending on the institution, and the figures are close enough to be mixed up.
| Institution | Threshold | Who sets it up |
|---|---|---|
| Internal rules | At least 10 employees, in an industrial, commercial or agricultural undertaking | The head of the company, compulsorily |
| Staff delegates | More than 10 workers per establishment | The staff, by election, on the initiative of the head of establishment |
| Union committee | 11 employees habitually employed | A representative union, by appointment |
| Health and safety committee | 50 employees in an industrial establishment, 100 in others | The employer, under regulation |
Internal rules follow their own procedural rules, set out in Internal rules.
4. Forming the union committee: no formality, one notification
This is the point the Kati Béton manager missed, and it is written in black and white. The formation of a union committee is subject to no condition of form or publicity. One obligation exists, and it falls on the union: the names of the union committee’s members must be notified to the employer as soon as they are appointed.
Three practical consequences follow, and they all point the same way.
- The employer issues no accreditation. He has nothing to recognise or validate: he receives information.
- He cannot demand the list of members. Only the names of the committee’s members must be notified to him.
- He cannot demand the union’s statutes. Those are filed with the administration and the prosecutor, not with him.
The union committee then represents its members’ professional interests, under the provisions applicable to professional unions. Its prerogatives are listed by the Code and set out in The prerogatives of the union committee.
| What you need to do |
|---|
|
5. Representativeness: who may form a committee
The Code reserves the union committee to a representative union. Representativeness is the capacity recognised in one or more unions to speak for employees or companies, including those who are not their members. To be representative, an organisation must have sufficient support in the branch or sector concerned (Labour Code, article L.78).
Who decides, and on what basis? The representative character of a workers’ union is determined by the Minister of Labour, on the basis of the votes and seats won by its members:
- in staff-delegate elections, where representativeness is assessed at company level;
- in occupational elections, where it is assessed at national, branch or sector level.
Representativeness thresholds are set by regulation by the Minister of Labour, after consultation with the most representative employers’ and workers’ organisations. The representativeness survey is carried out every four years.
The consequence companies measure poorly
It is participation in staff-delegate elections that builds representativeness inside the company. A company that does not hold those elections therefore does not neutralise union activity: it merely deprives organisations of the only measuring instrument provided, while putting itself in breach. Failing to hold staff-delegate elections is punishable by a fine of XOF 10,000 to 18,000, rising to XOF 100,000 on a repeat offence (Labour Code, article L.330).
6. Federations of unions
Professional unions properly formed may freely consult together for the study and defence of their economic, social and moral interests, and may form a federation in any form whatsoever (Labour Code, articles L.250 and L.251).
The rules for forming unions apply to them. They must also make known, in the same forms, the name and registered office of the unions that compose them, and their statutes must set the rules by which affiliated unions are represented on the board and at general meetings. Once formed, federations enjoy all the rights conferred on professional unions.
One provision is worth knowing beyond union circles: premises are made available to the most representative workers’ federations, at their request, by order of the Minister of Labour. Once they serve as headquarters, those premises are inviolable: they may be searched only under a warrant from the judicial authority, and the search must be limited to the purposes for which the warrant was issued.
A closer look: dissolution and which court has jurisdiction
On voluntary or judicially ordered dissolution, the union’s assets devolve in accordance with the statutes or, failing any statutory provision, under rules determined by the general meeting. In no case may they be distributed among the members (Labour Code, article L.239).
The second paragraph of that article settles a procedural question often discovered too late: disputes concerning the formation, statutes and dissolution of a union fall to the civil courts, not to the labour court. The labour court hears individual disputes arising out of work between workers and their employers; it has no business with a union’s internal life.
Two practical consequences. A challenge to the appointment of a union delegate is not argued in the same place as a challenge to the validity of the statutes. And a company disputing an organisation’s representativeness goes to neither: representativeness is a matter for the Minister of Labour.
Key takeaways in 6 points
- Distinguish the professional union, formed by filing statutes, from the union committee, formed by appointment.
- File statutes and officers’ names at the district seat, with a copy to the labour inspector and the prosecutor.
- Count the headcount including apprentices, probationers and seasonal workers averaging six months.
- Remember that a union committee requires no accreditation, no statutes and no member list: only the members’ names are notified.
- Hold staff-delegate elections: they are the instrument for measuring representativeness in the company.
- Remember that disputes over statutes and dissolution fall to the civil courts, not the labour court.