The law of July 23rd 2015 on the reform of the social dialogue within undertakings (hereinafter the “Law”) has substantially amended the existing rules on social dialogue within undertakings, with the purpose of simplifying the existing procedure.
The Law will enter into force in two phases: some provisions of the Law entered into force on January 1st 2016 with the rest due to enter into force after the next social elections scheduled for November 2018.
The changes implemented by the Law concern the following key points:
- abolition of the joint works council – entering into force after the date of the next social elections;
- a new remit for the different employees’ representation bodies – some provisions entered into force on January 1st 2016, others will only enter into force after the date of the next social elections;
- advisers – entered into force on January 1st 2016;
- external experts – entered into force on January 1st 2016;
- a new mediation committee – entered into force on January 1st 2016, and
- special protection against dismissal – entered into force on January 1st 2016.
Abolition of the joint works council
Before the adoption of the Law, two types of employees’ representation bodies existed:
- the employee delegates (“délégués du personnel”), to be elected in any establishment employing at least 15 employees, and
- the joint works council (“comité mixte”), to be established in any commercial, industrial or craftsmanship undertaking employing at least 150 employees.
The joint works council has been abolished pursuant to the Law; its remit will be transferred to the staff delegation. All joint works councils currently in place will remain until the next elections, which will take place in November 2018.
The employees representation bodies
- The staff delegation
Due to the abolition of the joint works council, the powers of the staff delegation will be extended, and new functions have been assigned to it.
- For matters for which the undertaking is required to consult the staff delegation, the staff delegation has the right to request further information from the undertaking where it considers that the information provided is insufficient.
- The staff delegation must ensure the respect of the principle of equal treatment between female and male employees with respect to access to employment, career advancement, vocational training and general working conditions.
- The staff delegation must collaborate in the implementation of internal redeployment.
- The staff delegation must participate in the implementation of vocational training, including apprenticeships. For that purpose, it must also participate in the management of measures benefit young employees.
- The staff delegation must participate in the implementation of a policy dealing with harassment and violence at the workplace.
- The career advancement’s right of staff delegates for mandated-specific training has been extended. Notably, delegates that have been elected for the first time are entitled to additional training leave of 16 delegation hours.
- The time credit granted to staff delegates has been increased for undertakings which have more than 150 employees; they are entitled to paid time credit in proportion to the number of employees they represent.
- The staff delegation has the right to communicate with employees using all of the undertaking’s electronic means, such as emails; they may contact all employees of the undertaking, and move freely within the undertaking.
- The equality representative and the health and safety representative
Prior to the adoption of the Law, there were three other types of delegates aside the staff delegation :
- the equality representative (“délégué à l’égalité”);
- the health and safety representative (“délégué à la sécurité et à la santé”);
- the young employees’ representative (“délégué des jeunes salariés”).
While the role of the first two representatives will be maintained, there will no longer be a young employees’ representative from November 2018. As a corollary to this, the Law gives young employees the right to vote at the age of 16 (rather than 18), provided that they have been working for the undertaking for at least 6 months before the election day.
As regards the health and safety representative, the employer is required to consult and inform him/her about the evaluation of the risks that the undertaking's activities may have on the environment as far as health or work conditions are concerned.
The equality representative must protect the equal treatment of employees with respect to access to employment and to career development, as well as in pay and working conditions. The equality delegate shall collaborate the establishment and implementation of any professional training regime, in particular apprenticeships.
- Economic and Social Entity’s Delegation
If several companies combine together to form an economic and social entity, a single delegation of that economic and social entity may be established, when requested by at least two different delegations.
This delegation shall have no other power than the exchange of information with the employee delegations from which it originated.
The delegation at the level of economic and social entity must be established at the latest following the social elections in November 2018.
Until now, external advisers (“conseillers”) were only permitted in undertakings with at least 150 employees. This threshold has been reduced to 51 employees; more specifically an undertaking with at least 51 employees over a period of 12 months preceding the first announcement of the elections.
Advisers are permitted to attend meetings of the staff delegation and have a right of discussion.
The appointment of advisers may be requested by a majority of the delegates. The advisers may be employees of the undertaking, or third-parties. However, the number of advisers to be appointed may not exceed one-third of the members of the delegation.
The Law does not specify who is responsible for the third-party-advisers’ payment, which means that in any case, the employer cannot be obliged to budget for their remuneration.
In undertakings employing at least 15 employees, the staff delegation may choose to appoint an external expert where it considers that such appointment is of crucial importance for the undertaking and/or its employees.
Unless otherwise agreed, the expenses to be borne by the undertaking are limited on a yearly basis to one expert and those expenses may not exceed per financial year and per expert, a percentage of the total annual salary mass of employees, to be determined by Grand Ducal Regulation.
A new mediation procedure has been created for the purposes of finding a joint resolution to conflicts before the bringing of a claim either to the Labour and Mines Inspectorate (Inspection du Travail et des Mines – ITM) or to the Labour Courts.
The undertakings may set up a mediation committee
- either pursuant to a collective agreement within a given sector, or undertaking, or
- within the framework of an agreement relating to inter-professional dialogue.
If set up, the mediation committee will be competent in respect of the following areas:
- disputes relating to advisers or experts;
- staff delegation’s requests for further information;
- organisation and functioning of the staff delegation.
If the ITM has certified a dispute as unresolved, the parties have the possibility, within one month, to bring the dispute before the mediation committee, chaired by a mediator appointed by mutual agreement of the parties.
If the undertaking did not set up a mediation committee, the parties may, within one month after the ITM certified the dispute as unresolved, escalate the matter to the Director of the ITM, who appoints a mediator within 5 days. In that case, the mediator is chosen by mutual agreement from a list containing six persons proposed by the Minister of Justice. If the parties do not agree on the mediator, he/she will be selected by a draw from the eligible people on the list.
In the scenario where the mediation procedure does not result in an agreement within 3 months, a disagreement report will be transmitted to the parties and to the director of the ITM.
As for the advisers and the external experts, the new provisions about the mediation entered into force on January 1st 2016.
Special protection against dismissal
The members of staff delegations, as well as the health and safety representative and the equality representative, benefit from special protection against dismissal:
- they cannot be dismissed;
- they cannot be convened to a preliminary interview prior to dismissal, and
- none of the essential provisions of their employment contracts can be modified.
The special protection covers the whole duration of their mandate and only expires 6 months after their mandate ends. Even the non-elected candidates benefit from protection against dismissal for a period of 3 months after the submission of his/her candidacy.
In case of a breach, the concerned delegate now has the choice between 2 options:
- either he/she brings an action in summary proceedings seeking the nullity of the dismissal before the juge des référés within one month following the dismissal, and asks for his/her reintegration; or
- within three months following the dismissal, he/she applies to the Tribunal du travail (Labour Court) for a declaration that the employment contract ceased on the date of notification of the dismissal, and orders the judge to require the employer to pay damages proportionate to the prejudice suffered by the employee. The employee who choses this second option will be considered as being involuntarily unemployed from the date of the dismissal onwards.
The delegate’s choice for one or the other option is irreversible.
In the event of gross misconduct, the undertaking has the right to give the delegate notice of termination, provided that the notice states precisely the grounds underlying that decision. During the first three months following the termination notice, the delegate will automatically be entitled to salary continuation, including allowances and other benefits. The employee must again choose between 2 options :
- either he/she may apply to the juge des référés within one month following the termination, for an order for continued payment of his/her salary beyond the three-month period, pending the definitive outcome of the dispute (in that case the employer wishes to be reinstated); or
- he/she applies to the Tribunal du travail within three months following the termination, for a declaration that the employment contract has been terminated and orders the judge to require the employer to pay damages proportionate to the specific prejudice suffered by a staff representative.
Again, the delegate’s choice is irreversible.
In the case of the closure of the undertaking, the mandate of the employee delegation will automatically cease. This, however, does not mean that their employment contract ceases automatically. The employer is obliged to dismiss them after dismissing all his/her other employees.
Who is protected and for how long?
- Members of the staff delegation : mandate period + 6 months
- Equality representative : mandate period + 6 months
- Health and safety representative : mandate period + 6 months
- Non-elected candidate : 3 months after submission of application
Against what are they protected?
- Being convened to a preliminary interview prior to dismissal
- Modification of the essential provisions of employment contracts