Employment law
Trade unions: Employers’ obligations
The letter arrives on a Monday, two paragraphs and seventeen names. The HR manager prints a list of obligations found online and starts ticking: room, noticeboard, hours credit. Six of the nine lines are right, one duplicates another, and four very real obligations are not there at all. Those are the ones that end up in inspection reports.
The companies named in this article are fictitious and used only as examples.
1. The starting point: you create nothing, you take note
Forming a union committee is subject to no condition of form or publicity. One formality exists, and it works in your favour: the names of the union committee members must be notified to you as soon as they are designated (Labour Code, article L.258).
You therefore have nothing to authorise, nothing to register, no approval to issue. Your obligations arise on notification, and not before. Until the names have been communicated to you, you have no identified counterparty.
The committee may be formed by any representative union in every undertaking or establishment usually employing 11 workers. It is never for you to create it, and its absence can never be held against you.
On calculating the headcount and the number of delegates the notification may legitimately contain, see the number of union delegates.
2. The committee's three material prerogatives
The Code lists them in a single article, and they are more precise than people think (Labour Code, article L.262).
| Obligation | What the text actually says | What follows from it |
|---|---|---|
| Posting and distribution | Freedom to post and distribute communications of a professional nature | The professional nature is the only limit the text sets |
| Room for the monthly meeting | Meeting of the union delegates once a month, outside working hours, in a room made available by the head of the undertaking | The meeting being outside hours, it does not consume the hours credit |
| Being received | Being received by the head of the undertaking at their request | No deadline is set, but repeated refusal amounts to obstruction |
A fourth material obligation sits elsewhere, and is almost always forgotten: posting spaces must be provided and dedicated to union communications, chosen in a visible place and preferably where staff pass through (article L.273). Those spaces are in addition to the entrance doors of the workplace, not a substitute for them.
A noticeboard by the gate is not enough. The text requires a visible space, on a thoroughfare, dedicated to union communications.
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3. The fifteen-hour credit: where it really comes from
This is the most quoted obligation and the most poorly sourced. One commonly reads that an employer must « grant a monthly credit of fifteen hours for union activity ». The figure is right, its origin and purpose are not.
The credit is first of all that of the staff delegate. The head of the establishment must allow him, within a limit which, save in exceptional circumstances, may not exceed fifteen hours a month, the time needed to carry out his functions. That time counts as working time and is paid as such. It must be used exclusively for tasks relating to staff activity as defined in Section 3, that is the duties listed in article L.278 (Labour Code, article L.271).
It is then article L.263 that extends it: a union delegate has, for the exercise of his functions, the same time and the protection granted by article L.277 (Labour Code, article L.263). And article L.281 does the same for staff representatives on the health and safety committee.
Three practical consequences follow.
- The credit is not a general « union » allowance to be used freely: it is bounded by the duties.
- The words « save in exceptional circumstances » mean that fifteen hours is a normal ceiling, not an absolute one.
- Since the union committee's monthly meeting is held outside working hours (article L.262), it is not charged against this credit.
What it weighs
Example. Ségou Agro-Industrie usually employs 210 people. The 101 to 250 band gives 17 union delegates (Order No. 96-1566, article A.260) and 5 full staff delegates (article L.266).
- Union delegates: 17 × 15 = 255 hours a month
- Full staff delegates: 5 × 15 = 75 hours a month
- Total: 330 hours a month
- Valued at the hourly minimum wage of XOF 230.77: 330 × 230.77 = XOF 76,154.10 a month
- Over a year: 76,154.10 × 12 = XOF 913,849.20
That amount is a floor, worked out at the minimum wage. Measured against actual salaries it is appreciably higher. Note too that holding both mandates does not automatically add the credits together: no text settles the point and it deserves a written agreement. See payroll in Mali.
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4. The obligations towards staff delegates that the list of nine forgets
The union committee is not your only counterparty, and staff delegates give rise to separate obligations.
You must first make available to them the room and the furniture needed to allow them to carry out their task and in particular to meet (Labour Code, article L.272). This is a different obligation from article L.262: it concerns staff delegates, it includes furniture, and it is not limited to a monthly meeting.
You must then receive them collectively at least once a month, and in addition in an emergency at their request (article L.274). Order No. 96-1566 sets out the details.
- They are also received, at their request, individually, by category, by workshop, service or occupational speciality, according to the matters to be dealt with; substitutes may attend meetings with the full delegates (article A.275.1).
- In a public limited company, the delegates are received by the board for claims that can only be acted on after its deliberation. If the board has not met for more than a month, the delegates may refer to it through you, and it must reply within fifteen days from its next meeting (article A.275.1).
- They may, at their request and after an appointment set by management, be assisted by a representative of the union that put the list forward. In that case they must be received by the head of the establishment (article A.275.2).
The special claims register
Here is the obligation almost no company meets, and that the labour inspector asks for every time.
Save in exceptional circumstances, the delegates give you, two days before the date on which they are to be received, a written note briefly setting out the subject of the request. A copy of that note is transcribed, on your initiative, into a special register in which the reply to the note must be recorded within a period not exceeding six days (Order No. 96-1566, article A.275.3).
That register must be kept available for one working day per fortnight, outside working hours, to workers of the establishment who wish to consult it. It must also be kept permanently available to the labour inspector (same article).
The exceptional circumstances that remove the two-day notice mean either the urgency of the request, installing a safety device after an accident at work, for instance, or circumstances affecting the social climate, such as imminent serious unrest or the need to restore understanding between employer and workers. In every case the request for a meeting must be compatible with respect for the prerogatives of the head of the establishment (article A.275.4).
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5. Compulsory consultations, and their order
Four decisions cannot be taken without consultation, and in three cases the union committee comes before the staff delegates.
| Decision | Who to consult | Timing and formality | Text |
|---|---|---|---|
| Technical or economic lay-off | The staff delegates where they exist, or the union committee | Prior notice to the Regional Labour Director | Article L.35 |
| Additional criteria for the order of economic dismissals | The union committee, failing which the staff delegates | Settled by agreement | Article L.48 |
| List of volunteers for departure | The union committee, failing which the staff delegates | Fifteen days before the dismissal; list and observations sent to the inspector before any departure | Order No. 2024-4363, new article A.48.1 |
| Outsourcing an activity | The union committee, failing which the staff delegates | Minutes sent to the labour inspector | Decree No. 96-178, new article D.313-7-1 |
Two further consultations concern staff delegates alone. The draft work rules are sent to them, and they have fifteen days to submit written observations; silence counts as agreement (article L.65). And an employer contemplating an economic dismissal must consult them and look with them for every solution that keeps jobs (article L.47).
Note the order. Consulting the staff delegates alone where a union committee exists is a procedural irregularity, and the labour inspector has fifteen days to give an opinion on whether the consultation was regular (Order No. 2024-4363, article A.48.2).
6. Financial, administrative and protective obligations
Four obligations complete the picture, and they appear on no common list.
- Collect union subscriptions if asked to. They may be collected by the employer, at the request of the union or unions, in the form of a voluntary wage assignment duly made out by the worker in favour of the organisation of his choice (article L.123). Without that written assignment, no deduction is lawful.
- Grant union education or training leave. It is granted on request, is unpaid, but is treated as a period of effective work for calculating paid leave, entitlement to family benefits and length of service (article L.10).
- Release workers designated for a course or a permanent office. A worker duly designated to attend a training course is authorised to leave the undertaking without that absence being a ground for termination; one duly elected to permanent administrative or management office in a union or federation is authorised to stop work, without his absence, up to one year, being a ground for termination (article L.255).
- Pay absences for congresses. Leave for statutory congresses and conferences is granted on production of a written, named convocation; it is paid and is not deducted from annual leave (articles L.254 and L.264).
On top of that comes the heaviest obligation, dealt with separately: obtaining the labour inspector's prior authorisation before dismissing any delegate, whether staff or union (articles L.277 and L.263). See protection of the delegate.
7. What each breach costs
The penalties are not uniform, and the heaviest is not a fine.
| Breach | Penalty | Text |
|---|---|---|
| Interference with the free designation of staff delegates or the proper exercise of their functions | XOF 100,000 to 500,000 and one month to one year's imprisonment; on a repeat offence imprisonment is always imposed | Article L.331 |
| Taking union membership or activity into account in a decision | XOF 50,000 to 250,000 and 1 to 4 months; repeat offence: XOF 500,000 to 1,000,000 and eight months | Article L.329 |
| Failure to hold staff delegate elections | XOF 10,000 to 18,000, and XOF 100,000 for a repeat offence | Article L.330 |
| Failure to send the draft work rules to the delegates | XOF 50,000 to 200,000, and XOF 100,000 to 400,000 for a repeat offence | Article L.318 |
| Dismissing a delegate without the inspector's authorisation | Dismissal null and void, restoration of rights and reinstatement | Article L.277 |
The fine is incurred as many times as there are offences, and in particular as many times as there are workers concerned, up to fifty times the maximum rate (Labour Code, article L.335). For article L.331 that ceiling reaches 50 × 500,000 = XOF 25,000,000.
Finally, any measure taken in breach of article L.257 is deemed wrongful and gives rise to damages, on top of the fine (Labour Code, article L.257). On the mirror obligations that fall on workers, see the obligations of workers.
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Key takeaways in 6 points
- Start your obligations from the notification of names, and demand no approval the law does not provide for.
- Grant the three prerogatives of article L.262 (posting, a room for the monthly meeting outside hours, being received on request) and the posting spaces of article L.273.
- Trace the fifteen-hour credit to its real source: article L.271, extended by article L.263, and bounded by the duties.
- Open the special claims register and record your reply within six days.
- Consult the union committee before the staff delegates on technical lay-off, the order of economic dismissals, voluntary departures and outsourcing.
- Obtain the labour inspector's authorisation before dismissing any delegate: it is the only obligation whose breach leads to reinstatement.