Employment law
Temporary agency work in Mali: three parties, two contracts, one employer
September, Bamako industrial zone. Orders for bags for the cotton season are pouring in at Wassa Emballages, and management needs fifteen handlers for five months. An agency offers to supply them "from Monday, on a simple purchase order". The offer is tempting, but a poorly built arrangement can turn these fifteen temps into fifteen open-ended employees of the factory.
Wassa Emballages is a packaging factory with 120 employees. It is considering using Sahel Intérim, a temporary work agency. These companies and the people mentioned are fictitious: their names are used for illustration only.
1. What exactly are we talking about?
The word "interim" covers two different situations in Malian law, and confusing them leads to poorly built contracts.
- The replacement contract concluded directly between the company and a worker, to temporarily replace an employee whose contract is legally suspended. It is a special case of fixed-term contract (Labour Code, article L.20). See Replacement contract.
- Temporary agency work, the subject of this article, which goes through a specialised company.
A temporary work agency is a company whose business is to place workers it hires and pays at the temporary disposal of other companies, known as user companies (Decree No. 96-178/P-RM of 13 June 1996, article D.313-1). The task given to the worker is called an assignment: it is a non-permanent task (article D.313-2).
| Party | Its role |
|---|---|
| The temporary work agency (Sahel Intérim) | Recruits, pays and remains the worker's employer |
| The user company (Wassa Emballages) | Hosts the worker and directs their work during the assignment |
| The temporary worker | Carries out the assignment; is an employee of the temporary work agency |
What the rule protects
The temporary work agency is deemed to be the employer and holds the rights and obligations attached to that status (Labour Code, article L.313). The worker thus knows who owes them their wages, even when moving from one user company to another.
The most common mistake
Believing that the user company becomes the employer because it gives the instructions. As long as the arrangement is lawful, it is the agency that draws up the employment contract, pays the wages and bears the employer's obligations.
The user company directs the work. The agency remains the employer.
2. Two written contracts, two days to sign them
| Contract | Between whom | Deadline | Compulsory content |
|---|---|---|---|
| Placement contract | The user company and the temporary work agency | In writing no later than 2 working days after the placement, one per worker | The reason for using a temporary worker and the end date of the assignment (D.313-5) |
| Temporary employment contract | The temporary work agency and the worker | In writing and sent to the worker within 2 working days | Qualification, pay, any probation period, and a statement that hiring by the user company at the end of the assignment is not prohibited (D.313-6) |
These two contracts are neither the same nor interchangeable. The purchase order offered to Wassa Emballages is therefore not enough: a written placement contract is needed for each of the fifteen handlers.
The temp's pay
The temporary worker's pay may not be lower than that received, in the user company, by an employee with equal qualifications holding the same post (D.313-6). This rule prevents agency work from being used to push wages down.
What you need to do
- Require a written placement contract for each worker, no later than two working days after arrival.
- Check that it states the reason for and the end date of the assignment.
- Tell the agency the pay of an employee with the same qualifications in the same post.
3. Before signing: check the provider
- Approval. The temporary work agency must be approved by the minister responsible for labour. It operates under the supervision of the National Directorate of Labour (L.313).
- Declaration and financial guarantee. It may only operate after filing a declaration with the minister and obtaining a financial guarantee (D.313-11). This guarantee ensures that wages and social contributions are paid if the agency defaults. It is one million XOF on creation, then at least 9% of annual turnover excluding tax (article D.313-9, as amended by Decree No. 2022-0125/PT-RM of 4 March 2022).
- The guarantor's name. It must appear on placement contracts and on the workers' contracts (D.313-9).
- Free of charge. The worker pays nothing for being placed (L.313).
What an irregular provider costs
An agency operating without a declaration or financial guarantee may be closed by the minister after a formal notice that goes unheeded (D.313-15). Breaches of article L.313 are punishable by a fine of XOF 20,000 to 50,000, and XOF 50,000 to 250,000 for a repeat offence (Labour Code, article L.332). For Wassa Emballages, a provider without a guarantee also means the risk of unpaid workers in the middle of the season.
What you need to do
- Ask for a copy of the ministerial approval before signing anything.
- Check the name and address of the financial guarantor on the draft contracts.
- Rule out any provider that makes workers pay for their placement.
4. Duration: a non-permanent task, a precise end date, 24 months at most
The assignment must correspond to a non-permanent task (D.313-2). Its end date is set precisely when the placement contract is concluded, except in the cases provided for in article L.20 (D.313-3). Its total duration, including renewals, may not exceed 24 months (L.313 and D.313-4).
These rules prevent a permanent job from being filled indefinitely through a series of assignments. Wassa Emballages therefore sets the end date of the fifteen assignments at the end of the season, five months after they start. For the rules specific to fixed-term contracts, see Fixed-term contract.
The "one-third waiting period" trap
Some guides impose a "one-third waiting period" (tiers-temps), meaning a compulsory gap between two assignments in the same post. This rule comes from French law. No Malian text provides for it. In Mali, the safeguards are the non-permanent task, the precise end date, the 24-month ceiling and the penalty for an assignment that overruns.
What an overrunning assignment costs
If Wassa Emballages keeps a handler working after the end of the assignment, without an employment contract with him or a new placement contract, that worker is deemed bound to the factory by an open-ended contract (D.313-8). To part ways, the factory will have to follow the dismissal procedure and pay notice, plus severance pay once he reaches one year of service.
What you need to do
- Set the precise end date of each assignment in the placement contract.
- Track the end dates of all ongoing assignments in a table.
- Sign a new placement contract, or release the worker, before the scheduled date.
5. What the temporary worker receives
At the end of the assignment, the temporary worker is entitled to a precarity payment, meaning a wage supplement that compensates for the temporary nature of the job. It is equal to the payment due to employees on fixed-term contracts (D.313-7 and Labour Code, article L.24). Unless a collective agreement provides otherwise, its minimum rate is 2.5% of the total gross pay received during the contract (Decree No. 2022-0125/PT-RM, article D.24-1). It is not due if the contract is ended at the worker's initiative or for gross misconduct (D.313-7).
Example. A handler placed with Wassa Emballages for 5 months receives a gross wage of XOF 90,000 a month.
Total gross pay: 90,000 × 5 = XOF 450,000
Precarity payment: 450,000 × 2.5% = XOF 11,250
Sahel Intérim, as the worker's employer, pays it. Otherwise, ordinary employment law governs the relationship between the agency and the worker: paid leave, working time, weekly rest (D.313-10). Health and safety rules, for their part, apply in all establishments where workers are employed, and therefore also in the factory where the temp carries out the assignment (Labour Code, article L.170).
What you need to do
- Check that the precarity payment appears in the end-of-assignment statement prepared by the agency.
- Apply the same safety instructions to temps as to the factory's own staff.
- Respect working time and weekly rest for them.
6. During and after the assignment: three tricky situations
The worker is not suitable
Wassa Emballages is not his employer: it cannot dismiss him. It contacts the agency, under the terms of the placement contract.
The factory wants to hire him at the end of the assignment
This is allowed. Any clause preventing the user company from hiring the worker at the end of the assignment is deemed unwritten, meaning it has no effect (D.313-5).
The factory wants to hire him before the end of the assignment
The worker is still bound to the agency. When a worker unlawfully breaks his contract, a new employer who hires him knowing he is bound by an employment contract is jointly liable for the harm caused to the previous employer (Labour Code, article L.56). It is better to wait for the assignment to end.
Hire the temp after the assignment, not during it.
What you need to do
- Send any replacement request to the agency, never to the worker.
- Wait until the assignment ends before offering a job.
- Refuse any clause that prohibits hiring the temp at the end of the assignment.
A closer look: temporary agency work or outsourcing?
Since Law No. 2017-021 of 12 June 2017, the Code also regulates outsourcing, meaning the transfer of all or part of an activity to a specialised external partner (Labour Code, article L.313-1). It is no longer about placing a worker, but about handing over an entire activity.
- An approved temporary work agency may operate as an outsourcing agency, its approval serving as authorisation (articles L.313-3 and L.313-4).
- For each outsourcing contract, it notifies the labour inspector of the start date, the area of operation, the name of the user company and the number of workers concerned (article L.313-4).
- Before outsourcing, the company consults the union committee or, failing that, the staff delegates, and sends the minutes to the labour inspector (Decree No. 2022-0125/PT-RM, article D.313-7-1).
- The outsourcing contract covers a period of two years at most, but may be renewed without limit (article D.313-6-1).
- Workers whose activity is outsourced keep all their acquired rights (article L.313-7).
If Wassa Emballages handed its entire handling department over to Sahel Intérim, it would leave temporary agency work and enter this regime.
Key takeaways in 6 points
- Treat the temporary work agency as the temp's employer, and send all your requests to it.
- Check the provider's ministerial approval and financial guarantee before signing.
- Sign a written placement contract for each worker, no later than two working days after arrival.
- Use agency work only for a non-permanent task, with a precise end date and 24 months at most.
- Never let a temp keep working after the assignment ends without a new contract: he would become your open-ended employee.
- Check that the temp is paid like your employees with the same qualifications and receives the precarity payment.