Employment law
Trade union: Number of representatives
One hundred and forty employees, three warehouses, a truck fleet. The HR manager opens a letter from the union: a union committee has just been formed, and seventeen names are notified. He reads it again, counts, and calls his lawyer to report an obvious mistake. There is none. At that headcount the scale does give seventeen union delegates, and it has been in writing since 1996.
The companies named in this article are fictitious and used only as examples.
1. The union committee first, the delegates second
Union delegates are not counted in a vacuum. They represent a union committee, and that committee has conditions of its own.
A union committee may be formed by any representative union in every undertaking or establishment usually employing 11 workers (Labour Code, article L.258). Two conditions, then: a representative union, and eleven usual employees.
The verb is decisive. The union committee may be formed: it is an option for the union, never an obligation on you. Conversely, staff delegates are elected in every establishment with more than ten workers, and it falls to the employer to run the ballot (Labour Code, article L.265). Two institutions, two logics.
Forming a union committee is subject to no condition of form or publicity. One obligation remains, and it concerns you directly: the names of the union committee members must be notified to you as soon as they are designated (article L.258).
What a « representative » union is
Representativeness is a union's recognised standing to speak for employees, including those who are not its members. To be representative, an organisation must have sufficient support in the branch or sector concerned (article L.78).
At company level this standing is determined by the Minister for Labour on the basis of the votes and seats won by the union's members at staff delegate elections. The representativeness survey is run every four years (article L.78).
In other words, the staff delegate elections you organise also serve to measure union representativeness. Not holding them does not make the union disappear; it merely deprives the measurement of its basis.
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2. The eleven employees: how they are actually counted
The threshold is worked out on the usual headcount, and the Code says precisely who is included.
In determining the undertaking's headcount, account is taken not only of permanent staff but also of apprentices, workers engaged on trial and casual or seasonal workers completing an average period of 6 months' work in the year (article L.258).
| Category | Counts in the headcount? | Condition |
|---|---|---|
| Permanent staff | Yes | None |
| Apprentices | Yes | None |
| Workers engaged on trial | Yes | None |
| Casual workers | Yes | Average period of 6 months' work in the year |
| Seasonal workers | Yes | Average period of 6 months' work in the year |
Order No. 96-1566 applies a very similar rule to the headcount for staff delegates, adding two categories: managers or representatives bound by a contract of employment in law or in fact, and homeworkers performing work for one or more establishments (article A.267.2).
The most common mistake
Leaving out apprentices and workers on trial. They are what tips a company over eleven, and their exclusion is the first thing a labour inspector checks. A workshop with eight permanent staff, two apprentices and one worker on trial reaches the threshold.
Note too that the threshold is not measured on the headcount of a given day but on the usual headcount. A one-off peak triggers nothing; a regular presence does.
Eleven usual employees, apprentices and trial workers included. The threshold is crossed sooner than people think.
3. The scale: from 5 to 26 union delegates
The Code sets the range and refers to an order: the number of union delegates, from 5 to 26 according to the establishment's headcount, is fixed by an order of the Minister for Labour (Labour Code, article L.260). That order is Order No. 96-1566 of 7 October 1996, whose article A.260 sets the scale.
| Headcount of the establishment | Number of union delegates |
|---|---|
| Up to 25 workers | 5 |
| From 26 to 50 workers | 7 |
| From 51 to 100 workers | 12 |
| From 101 to 250 workers | 17 |
| From 251 to 500 workers | 21 |
| From 501 to 1,000 workers | 24 |
| Above 1,000 workers | One more delegate per additional band of 500, never exceeding 26 in total |
Two remarks on the first line. The order's text covers headcounts « from 1 to 25 workers », not « from 11 to 25 » as is often quoted. The difference has no practical effect, since no union committee can exist below eleven usual employees under article L.258. But if you quote the scale in a document, quote it as it is written.
The last line also deserves a word. Above one thousand workers, one delegate is added per additional band of five hundred, subject to an absolute ceiling of twenty-six. In practice: twenty-five delegates at 1,500 employees, twenty-six from 2,000 onwards, and still twenty-six at 10,000. The ceiling is firm.
Example. Bamako Logistique usually employs 140 people, apprentices included.
- Usual headcount taken: 140 workers
- Applicable band in article A.260: from 101 to 250 workers
- Number of union delegates: 17
The contrast with staff delegates
At the same headcount the Code provides for far fewer staff delegates: from 101 to 250 workers, 5 full delegates and 5 substitutes (Labour Code, article L.266).
| Headcount | Staff delegates (article L.266) | Union delegates (article A.260) |
|---|---|---|
| From 11 to 25 | 1 full and 1 substitute | 5 |
| From 26 to 50 | 2 full and 2 substitutes | 7 |
| From 51 to 100 | 3 full and 3 substitutes | 12 |
| From 101 to 250 | 5 full and 5 substitutes | 17 |
| From 251 to 500 | 7 full and 7 substitutes | 21 |
| From 501 to 1,000 | 9 full and 9 substitutes | 24 |
The gap is not an anomaly. Staff delegates are elected to seats, with substitutes to replace them; union delegates are designated by the union to carry its voice, and they have no substitutes.
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4. Who may be a union delegate
Union delegates represent the union before the head of the undertaking. They must have belonged to the undertaking for one year (Labour Code, article L.261).
One condition only, then: one year's presence. Compare that with what is required of a staff delegate, who must be 21 years of age, be a Malian national or a national of a State bound to Mali by a convention on equal access to salaried employment, be able to express himself in French, and have worked in the undertaking without interruption for at least twelve months (Order No. 96-1566, article A.267.6).
The same article adds that holding both offices is allowed: the functions of union delegate may be combined with those of staff delegate (article L.261). And that union delegates represent the union within the management committee.
What the texts do not say
Neither the Labour Code nor Order No. 96-1566 fixes the term of office of a union delegate. The chapter of the order devoted to union committees contains a single article, article A.260, which deals only with numbers.
Claims of a three-year term, often advanced by symmetry with that of staff delegates, therefore have no textual basis. Designation lies with the union, which notifies you of the names; so does withdrawal.
No text sets a method of designation either, or a procedure for challenging the number notified. If you consider that the scale has not been respected, the normal route is the labour inspector: he is competent to attempt an amicable settlement of an individual dispute (article L.190) and must be notified without delay of any collective dispute (article L.219).
Staff delegates are elected, subject to conditions of age, nationality and language. Union delegates are designated, subject to one condition: one year's presence.
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5. What the union committee may require of you
The Code lists three prerogatives, and only one of them is commonly granted.
- Freedom to post and distribute communications of a professional nature (article L.262). You must provide spaces for union communications, separate from the entrance doors already required (article L.273).
- A room for the monthly meeting of the union delegates, made available by the head of the undertaking. The meeting is held once a month and outside working hours (article L.262). It therefore does not consume the hours credit.
- Being received by the head of the undertaking at their request (article L.262). The text sets no deadline, but repeated refusal amounts to obstruction.
Two individual rights of the delegate come on top. A union delegate has, for the exercise of his functions, the same time and the same protection as granted by article L.277 (Labour Code, article L.263): he therefore has the credit of fifteen hours a month, paid as working time (article L.271), and his dismissal requires the labour inspector's prior authorisation. See protection of the delegate.
Finally, leave of absence may be granted to help workers attend statutory congresses and conferences of trade unions. Those absences are paid and are not deducted from annual leave (article L.264).
What it weighs in your costs
Example. Bamako Logistique, 140 employees, 17 union delegates each with 15 hours a month.
- Total monthly hours credit: 17 × 15 = 255 hours
- Valued at the hourly minimum wage of XOF 230.77: 255 × 230.77 = XOF 58,846.35 a month
- Over a year: 58,846.35 × 12 = XOF 706,156.20
That figure is a floor: it is worked out at the minimum wage, while delegates are rarely the lowest-paid employees. Measured against each one's actual salary, the cost is appreciably higher. See payroll in Mali.
The point of this calculation is not to contest the hours credit, which is owed. It is to budget for it, and to organise work accordingly rather than discovering it at month end.
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6. On receiving the notification: what to do
Your role is narrow, but it is not nil. Three checks, and one reply to give.
- Check that the union behind the committee is representative within the meaning of article L.78.
- Check that the number of delegates notified matches the band in article A.260 applicable to your usual headcount.
- Check that each person designated has belonged to the undertaking for at least one year (article L.261).
Then acknowledge receipt in writing, stating the posting spaces chosen, the room allocated to the monthly meeting and the name of your contact. Nothing else is asked of you, and nothing less.
What not to do matters even more. Taking union membership or union activity into account in a decision on hiring, assignment, training, advancement, pay, discipline or dismissal is punishable by a fine of XOF 50,000 to 250,000 and imprisonment of 1 to 4 months; for a repeat offence the fine runs from XOF 500,000 to 1,000,000 and imprisonment to eight months (Labour Code, article L.329, penalising article L.257).
On the object and legal capacity of the union itself, see the trade union; on the distinction from staff delegates, see unions and delegates: the differences.
Key takeaways in 6 points
- Remember the threshold of eleven usual employees, apprentices and trial workers included, applied to the usual headcount and not to a single day's.
- Recall that the union committee is an option for the union, whereas electing staff delegates is an employer obligation.
- Apply the scale in article A.260: 5 delegates up to 25 workers, 17 from 101 to 250, 26 at most.
- Check only one condition in the designated delegate: one year's presence in the undertaking.
- Grant the committee's three prerogatives: posting, a room for the monthly meeting outside working hours, and being received on request.
- Budget fifteen hours a month per delegate, paid as working time, and protect them from dismissal without the inspector's authorisation.