Employment law
The trade union in Mali: what it is, what it can do, what it requires of you
The mango season starts in three weeks. The sorting lines are already running empty for adjustment, and the plant director finds a six-line letter on his desk: employees announce that they have formed a union. His first reaction is to look for who has to authorise it. Nobody. His second is to wonder what he must grant. A great deal, and not what he imagines.
The companies named in this article are fictitious and used only as examples.
1. The exact definition, and why the shortened version misleads you
Article L.232 was rewritten by Law No. 2017-021 of 12 June 2017. As now in force, trade unions « have as their exclusive object the study and defence of the rights as well as the material, economic, social and moral interests, both collective and individual, of their members » (Labour Code, article L.232).
The version in circulation everywhere is shorter: « the study and defence of the economic, social and moral interests of workers ». Four elements have vanished, and each one changes something.
- « rights »: the union does not defend interests alone, it defends rights. That is what grounds its legal action.
- « material »: material interests are expressly covered, which takes in wages, bonuses and the physical conditions of work.
- « both collective and individual »: the union may take on the individual case of a single member. It is not confined to collective claims.
- « of their members »: not « of workers ». The union acts for its members. It is the staff delegate who represents the whole workforce.
The word « exclusive » also counts. The object is limitative: a body pursuing anything else is not a trade union within the meaning of the Code, whatever name it gives itself.
People carrying on the same occupation, similar trades or connected occupations contributing to given products or services may freely form a trade union (article L.233).
The union defends its members, individually as well as collectively. The staff delegate defends the whole workforce. These are not the same job.
2. Forming it: nothing to authorise, everything to file
This is where employers most often mistake their role. You authorise nothing, you register nothing, and your agreement is asked for nowhere.
The founders file the statutes and the names of those responsible, on any basis, for the union's administration or management. The filing takes place at the seat of the administrative district where the union is established. A copy of the statutes goes to the labour inspector and to the public prosecutor, who checks their lawfulness and reports his conclusions to the union, the head of the administrative district and the labour inspector (Labour Code, article L.234).
Changes to the statutes and to the leadership follow the same forms. Your name appears at no stage.
Who may join, who may lead
- Members responsible for administration or management must be domiciled in Mali, enjoy their civic rights and have incurred no conviction entailing loss of the right to vote (article L.235).
- A married woman carrying on an occupation joins and takes part in management without her husband's authorisation; a minor over 15 joins without the prior authorisation of his parents or guardian (article L.236).
- Someone who has left the occupation may remain a member, provided he practised it for at least one year (article L.237).
- Any member may withdraw at any time, notwithstanding any clause to the contrary. The union nonetheless keeps the right to claim the subscription for the six months following withdrawal (article L.238).
Example. A member paying XOF 2,000 a month who resigns from the union still owes 6 × 2,000 = XOF 12,000. That debt belongs to the union, not to you: you deduct nothing from payroll on that account.
Breaches of articles L.232 to L.235 carry 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 (article L.328). That penalty targets the founders, not the employer.
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3. What the union can do, and what nobody else can do in its place
Trade unions enjoy civil personality. They have the right to sue and to acquire, without authorisation and whether free of charge or for consideration, movable and immovable property (Labour Code, article L.240).
Civil personality is a body's legal capacity to act in its own name: to sign, to own, to sue and be sued. It belongs to the union. It belongs neither to the union delegate nor to the union committee inside the company.
| Capacity | Content | Text |
|---|---|---|
| Going to court | Exercising before all courts the rights of a civil party, for any act causing direct or indirect harm to the collective interest of the occupation represented | Article L.241 |
| Creating works | Provident institutions, solidarity funds, laboratories, educational works, courses, publications of interest to the occupation | Article L.242 |
| Owning | Buildings and movable property needed for meetings, libraries and vocational courses cannot be seized | Article L.242 |
| Contracting | Entering into contracts or agreements with other unions, companies, undertakings or persons | Article L.244 |
| Registering a mark | Filing marks and labels and claiming exclusive ownership of them | Article L.247 |
| Running funds | Setting up among its members special mutual relief and pension funds, whose assets cannot be seized | Articles L.248 and L.249 |
Two limits are worth knowing. The union may not distribute profits to its members, even as rebates (article L.245). And any clause making the use of a union mark conditional on the employer engaging only members of the union that owns it is null and void (article L.247).
Where its money comes from
The financial resources of trade unions consist of members' subscriptions, receipts from cultural and sporting events, grants from public authorities, local authorities or undertakings, borrowings and other extraordinary resources decided by the general meeting (article L.245 bis).
The word « undertakings » is indeed in the text: an employer grant to a union is not unlawful in itself. It becomes unlawful if it serves as a means of pressure for or against an organisation, which article L.257 prohibits. That is where the line runs, and it is narrow.
On collection the Code is precise: union subscriptions 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 possible.
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4. Union federations: the level the company does not see coming
Your counterparty does not stop at the factory gate. Lawfully constituted unions may freely act together for the study and defence of their interests and form a federation, in whatever form (article L.250).
Those federations enjoy all the rights conferred on trade unions: civil capacity, legal action, marks, relief funds (article L.251). They must make known the name and registered office of the unions composing them, and their statutes set the rules of representation on the board and in general meetings (article L.250).
Two points deserve your attention. First, premises are made available to the most representative federations by order of the Minister for Labour; once they serve as a registered office, those premises are inviolable and may only be searched under a judicial warrant, limited to the purposes for which the warrant was issued (Labour Code, article L.252). Second, professional associations recognised by order of the Minister for Labour are treated as trade unions and enjoy the same rights (article L.253).
The practical consequence: a negotiation that fails in your company may continue at branch level, through a collective agreement (article L.70) or the joint commission convened by the Minister (article L.78).
5. Freedom of association: the costliest rule in the Labour Code
Every worker and every employer may freely join a union of his choice within his occupation (Labour Code, article L.256). It is a right, not a tolerance.
The next article is the one you must know by heart. Every employer is forbidden to take into account opinions, union membership or union activity in reaching decisions on, among other things, hiring, the conduct and allocation of work, vocational training, advancement, pay and the granting of social benefits, disciplinary measures and dismissal (Labour Code, article L.257).
The same article adds that the head of the undertaking and his representatives must use no means of pressure for or against any trade union. Any measure to the contrary is deemed wrongful and gives rise to damages.
Termination is moreover expressly classed as wrongful where the dismissal is motivated by the worker's opinions, his union activity or his membership or non-membership of a given union (article L.51).
What it costs
The penalty under article L.257 is among the heaviest in the Code: a fine of XOF 50,000 to 250,000 and imprisonment of 1 to 4 months, or either penalty alone; for a repeat offence, a fine of XOF 500,000 to 1,000,000 and eight months' imprisonment (article L.329).
And the fine is incurred as many times as there are offences, up to fifty times the maximum rate (article L.335).
Example. At Kéné Agro three union members are passed over for promotion in favour of colleagues with less service, and the meeting minutes say so.
- Offences recorded: 3
- Maximum fine per offence: XOF 250,000
- Fine incurred: 3 × 250,000 = XOF 750,000
- Applicable statutory ceiling: 50 × 250,000 = XOF 12,500,000
- Damages are owed on top, the measure being wrongful (article L.257)
Writing down in black and white why you did not promote someone protects you. Writing that he is a union member convicts you.
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6. Absences for union activity: paid or unpaid?
The Code draws two regimes apart, and confusing them is costly in both directions.
| Type of absence | Pay | Effect on entitlements | Text |
|---|---|---|---|
| Statutory congresses and conferences of trade unions | Paid | Not deducted from annual leave | Articles L.254 and L.264 |
| Union education or training leave | Unpaid | Treated as effective work for paid leave, family benefits and length of service | Article L.10 |
| Training course on union designation | Not specified by the text | The absence cannot be treated as a ground for terminating the contract | Article L.255 |
| Permanent administrative or management office in a union or federation | Unpaid | The absence is not a ground for termination, up to one year | Article L.255 |
Absence for a statutory congress is granted on production of a written, named convocation from the union concerned (Labour Code, article L.254). Require that convocation: it is the condition the text lays down, and the only one.
Note finally that the employment contract is suspended during workers' education leave (article L.34, 9°), and that this suspension is granted without payment of wages (article L.38).
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A closer look: what the Code does not say
Two claims circulate about the union's role and should be set aside, because they have no textual basis in Mali.
The first: that the union's mission is to « propose social protection measures in line with the company's capacity ». No article confers that task. What the texts do give it is broader and more precise: it is consulted on all disputes and questions within its field, and its opinions are kept available to the parties in contentious cases (article L.246); it negotiates collective agreements (article L.70) and signs establishment agreements alongside the staff delegates (article L.88). Ensuring that social welfare requirements are applied is, by contrast, a duty of the staff delegates (article L.278).
The second: that the employer must guarantee an environment « free of harassment or pressure of any kind ». The Malian Labour Code contains no general provision on harassment. The ban on pressure in article L.257 is specifically about unions: it targets pressure for or against a trade union. General protections do exist, but they go by other names: non-discrimination, including on grounds of invalidity, disability, HIV and AIDS (article L.4); workers' right of expression through representative institutions (article L.5); the absolute ban on forced labour (article L.6); equal pay (article L.95).
Citing the right basis is not a lawyer's refinement. Before the labour court, a claim resting on a text that does not exist is lost. See also the number of union delegates, the differences between unions and delegates and protection of the delegate.
Key takeaways in 6 points
- Hold on to the full definition in article L.232: the union defends the rights and interests, material included, collective and individual, of its members.
- Authorise nothing: forming a union is filed with the administration, not with you.
- Treat the union as a full legal person: it owns, contracts and litigates.
- Require a written voluntary assignment from the worker before any union subscription deduction.
- Record in writing, on professional criteria, every promotion or disciplinary decision: article L.257 carries the heaviest penalty in the Code.
- Pay absences for statutory congresses on a named convocation, without deducting them from annual leave.