Employment law
Trade Union: Employees’ Obligations
A leaflet goes up on the cannery noticeboard one Monday morning. It names the production manager and does so in a tone nobody would call measured. The director opens his reference material, finds that union communications must be « free of any polemical character », and drafts a warning. That phrase appears in no Malian text. It does not mean he has no recourse: it means he is looking in the wrong place.
The companies named in this article are fictitious and used only as examples.
1. The four obligations in circulation, and what they are worth
A list of four obligations on unionised workers turns up everywhere. Set against the Malian texts, not one of them is exactly where it belongs.
| Common claim | What the Malian texts say | Verdict |
|---|---|---|
| Not to take into account at work other workers' opinions or their membership of one union or another | Article L.257 states that prohibition, but addresses it to the employer: « Every employer is forbidden to take into account opinions, union membership or the exercise of union activity » | An employer obligation, not a worker one |
| Posted communications must have an exclusively professional and union purpose and carry no polemical character | Article L.262 covers « communications of a professional nature ». Article L.273 limits staff delegates' posting to information falling within their duties, « to the exclusion of any document of any kind ». Polemical character is nowhere mentioned | A real basis, a borrowed formula |
| Union committee meetings to be held outside working hours, unless the employer authorises otherwise | Article L.262 provides for a meeting once a month, outside working hours, in a room made available. The proviso « unless the employer authorises otherwise » is not in the text | Right in principle, the proviso is a matter of agreement |
| To use the hours credit exclusively for tasks relating to union activity | Article L.271 requires exclusive use « for tasks relating to staff activity as defined in Section 3 », that is the duties in article L.278. Article L.263 extends « the same time » to the union delegate | Right in principle, imprecise as to purpose |
Two clarifications on the third line. The added proviso is not unlawful: nothing prevents granting more than the law requires, and allowing the meeting during working hours is more favourable to the worker. But it is a matter of agreement between you, not an obligation you could enforce.
And on the fourth: the nuance is not academic. A staff delegate's hours credit is bounded by the duties in article L.278: presenting claims, referring matters to the labour inspector, ensuring health, safety and social welfare requirements are applied, passing on suggestions. Use for other purposes is a shortcoming that can be established; « union » use in a broad sense is not.
Three of these four obligations exist. None is worded the way it is quoted. It is the wording that gets litigated.
2. Where the worker's obligations actually sit
The Malian Labour Code has no chapter headed « obligations of workers » in union matters. The obligations exist, but they are scattered across four sets.
| Set | Content | Texts |
|---|---|---|
| Obligations attached to the mandate | Use of the hours credit, meeting outside hours, professional nature of communications, written note before being received | Articles L.262, L.271, L.273 and Order No. 96-1566, article A.275.3 |
| Obligations under the employment contract | The mandate does not suspend the contract: the worker owes his whole professional activity to the undertaking, save where the contract provides otherwise | Article L.16 |
| Obligations attached to strike action | Notice, negotiation, lawfulness, requisition | Articles L.231, L.231-1 and L.231-2 |
| Obligations under the work rules | Discipline and health and safety requirements, in a text endorsed by the inspector | Articles L.62 and L.64 |
The fourth set is the most important, and the least used. As with safety at work, it is the work rules, compulsory from ten workers, with content strictly limited to the technical organisation of work, discipline, health and safety requirements and the terms of wage payment, that make an instruction enforceable against a worker. Without them, misuse of the hours credit is hard to establish before the labour court.
3. The two-day written note: the obligation nobody knows
There is, however, a precise worker obligation, with a date and a figure attached, and it appears on none of the lists in circulation.
Save in exceptional circumstances, the delegates give the head of the establishment or his representative, two days before the date on which they are to be received, a written note briefly setting out the subject of the request (Order No. 96-1566, article A.275.3).
The obligation is reciprocal, which is what makes it workable. A copy of that note is transcribed, on the initiative of the head of the establishment, into a special register in which the reply to the note must be recorded within a period not exceeding six days. That register is kept available for one working day per fortnight, outside working hours, to workers, and permanently to the labour inspector.
The exceptional circumstances that remove the two-day notice are defined, which is rare in these texts. They 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 in the establishment 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).
In other words: the delegate must announce in writing what he wants to discuss, and you must reply in writing within six days. See the employer's obligations.
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4. Strike action: this is where the obligations bite
The right to strike is guaranteed to all employees (Labour Code, article L.231). But its exercise is framed, and failing to respect that frame costs more than everything else in this article put together.
The fifteen-day notice
A strike must be preceded by a notice period during which the parties are bound to negotiate. The notice period is fifteen calendar days (Labour Code, article L.231-1).
The duty to negotiate falls on both sides. An employer who refuses to meet during the notice period is in the wrong; so are workers who stop work before it expires.
When a strike is unlawful
A strike does not terminate the employment contract, save for gross misconduct attributable to the worker. But lock-outs and strikes are unlawful during the conciliation procedure and as soon as an arbitral decision has become enforceable (Labour Code, article L.231-2).
The consequences are asymmetrical, and severe on both sides.
| Party at fault | Consequence | Text |
|---|---|---|
| The employer | Payment to the workers of the days' wages lost; ineligibility for three years for chamber of commerce office; a ban on sitting on the Higher Labour Council and on taking part in any works contract or supply contract for the State or a public body | Article L.231-2 |
| The workers | Termination of the contract from the day work stopped, with no rights other than the wages and the paid-leave allowance accrued at that date | Article L.231-2 |
Read the second line again. There is no notice, no dismissal indemnity, no damages. Termination is final and entitlements stop on the day work stopped.
Example. A worker at the Mopti cannery, paid monthly at XOF 120,000, with eight years' service, stops work during the conciliation procedure.
- Contract terminated from the day work stopped (article L.231-2)
- Entitlements kept: wages accrued and the paid-leave allowance accrued at that date
- Notice lost: one month for a monthly-paid worker, that is XOF 120,000 (article L.41)
- Dismissal indemnity lost: 20% for each of the first five years and 25% for each of the following three, that is 5 × 20% + 3 × 25% = 175% (article L.53)
- Amount of the lost indemnity: 120,000 × 175% = XOF 210,000
- Total loss: 120,000 + 210,000 = XOF 330,000
Requisition
Where work stops by concerted action, a minimum service is established to safeguard users' basic needs, public order, the safety of persons and property and the continuous operation of installations. Staff may be requisitioned by the administrative authority where an essential public sector is interrupted by an unlawful strike, or where, in an important sector of the economy, a total and prolonged stoppage may endanger the life, health or safety of the population (article L.231).
Any worker who does not carry out, or who stops even temporarily carrying out, a requisition order duly notified to him may be dismissed from his job, without notice or indemnity (article L.231). The word « duly » is the checkpoint: the order must come from the administrative authority and have been notified.
Conversely, where a strike is called in compliance with the collective dispute settlement procedure, the employment contract is simply suspended (article L.34, 7°). It resumes when the action ends.
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5. What the worker keeps, whatever happens
Obligations have counterparts, and ignoring them exposes you as much as inventing them does.
- Every worker may freely join a union of his choice within his occupation (article L.256), and withdraw at any time notwithstanding any clause to the contrary, the union keeping the right to claim the following six months' subscription (article L.238).
- No decision on hiring, assignment, training, advancement, pay, discipline or dismissal may be based on his opinions, his union membership or his union activity (Labour Code, article L.257).
- Workers keep the right to present their own claims and suggestions to the employer; the existence of delegates does not take it away (Labour Code, article L.279).
- Union education or training leave, though unpaid, is treated as a period of effective work for calculating paid leave, entitlement to family benefits and length of service (article L.10).
- A delegate, union or staff, cannot be dismissed without the labour inspector's prior authorisation (articles L.277 and L.263).
6. Disciplining a delegate who oversteps
The question always comes up in the end, and it has a clear four-part answer.
- The mandate does not protect against every penalty. Article L.277 requires the labour inspector's authorisation before any dismissal. A warning, or a disciplinary suspension of up to eight days (article L.34, 8°), remains possible without authorisation.
- But the ground must be professional. A penalty based, even partly, on union activity carries XOF 50,000 to 250,000 and 1 to 4 months' imprisonment, and the measure is deemed wrongful (articles L.329 and L.257).
- And fines remain prohibited. An employer is forbidden to impose fines (articles L.69 and L.121). No wage deduction can punish a leaflet.
- Removing the mandate is not yours to do. A staff delegate may only be removed during his term on a proposal from the union that put him forward, approved by secret ballot by the majority of his electoral college, or on a written petition from the majority of that college confirmed by secret ballot (Labour Code, article L.276).
Back to the leaflet. If its content goes beyond the professional nature required by article L.262, or beyond the information falling within the delegate's duties under article L.273, the shortcoming can be established, but on that basis, and not on a notion of « polemical character » absent from the texts. See disciplinary suspension, notice periods in Mali and protection of the delegate.
You can discipline the worker. You cannot remove the delegate, nor impose a fine on him.
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Key takeaways in 6 points
- Do not hold article L.257 against workers: it sets an employer obligation, not theirs.
- Base any posting requirement on the professional nature required by articles L.262 and L.273, never on « polemical character », which does not exist in Malian law.
- Tie use of the hours credit to the duties in article L.278, the only purpose article L.271 allows.
- Apply the reciprocal obligation in article A.275.3: a written note two days ahead, a reply in the register within six days.
- Check that action is lawful before any penalty: an unlawful strike terminates the contract with no notice and no dismissal indemnity.
- Write the instructions into the work rules: they are the only text that makes an obligation enforceable against a worker.