National Action Plan on employment still not approved

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Luxembourg's National Action Plan on employment, in response to the EU Employment Guidelines, had still not been adopted by the Chamber of Deputies in January 1999. The Council of State continued to express formal opposition on a number of points, while the consultative Chamber representing white-collar workers was extremely critical of the Council of State's opinion. A parliamentary commission thus issued a new series of 36 supplementary amendments that it hoped would be accepted by all concerned, enabling the Action Plan to be voted through in February 1999.

In April 1998, Luxembourg's Tripartite Coordination Committee (Comité de Coordination Tripartite) agreed a National Action Plan (NAP) on employment (LU9805157F), in response to the EU Employment Guidelines for 1998 (EU9805107N). Draft legislation to implement the NAP was submitted by the government in August 1998 and examined by a special Chamber of Deputies commission. The government's plan was that the NAP would be finalised and ready for implementation on 1 January 1999 (LU9811174F). However the government proposal underwent an initial series of amendments from the Chamber of Deputies commission and was on the receiving end of severe criticism from the Council of State (Conseil d’Etat) - which examines all draft laws before they are voted on by the Chamber - in December 1998 (LU9812182F). As a result, the NAP did not come into effect on 1 January 1999.

Amendments do not find favour with Council of State

The Chamber of Deputies commission drew up 27 amendments to the initial government draft on 17 November 1998. Following an inital opinion on 25 November, the Council of State issued a second, 62-page opinion on 1 December 1998. Although this was expressed in a generally more positive fashion, a number of "formal oppositions" remained.

In particular, the commission had submitted amendments relating to flexible working time schedules, including changes that were both general and specific. The Council of State came out in favour of a negotiated solution to this issue. It rejected the approach put forward by the commission - which had sought to introduce a "security" element for workers alongside enhanced flexibility - considering that the commission's proposals narrowed the greater flexibility that the original draft had sought to apply to work organisation. Out of the five proposals that the commission made with a view to guaranteeing the "security" element, the Council of State rejected four.

While agreeing that each work organisation plan should previously be put to employee committees/works councils, or that the opinion of the employees affected should be requested, the Council of State wanted to abolish the proposed provision entitling the employee committee/works council or the staff concerned to make complaints to the Inspectorate of Labour and Mines (Inspection du travail et des mines).

Finally, the Council argued that a four-week reference period for averaging-out working hours should apply generally, and not simply be an instrument for reacting to specific situations such as foreseeable or unforeseeable fluctuations in workload.

The formal oppositions that the Council continues to sustain are more at the level of funding of those measures to be financed by the Fund for Employment (Fonds pour l’emploi). It follows that the Council's opinion no longer appears to constitute an insurmountable obstacle to finalising legislation on introducing the NAP.

White-collar workers criticise Council of State's position

In the view of the consultative Chamber of Private Sector White-Collar Staff (Chambre des Employés Privés), the draft legislation as amended by the commission, which aims to strengthen the "security" element in the flexibility-security trade-off, tallies perfectly with the EU Employment Guidelines adopted at the European Council Employment Summit in November 1997 (EU9711168F). For the Chamber, the introduction of a "security" element for workers will prevent employers from changing working time schedules every four weeks just as they please, without the justification of a fluctuation in workload. The Chamber thus opposes the Council of State's opinion on this issue.

The Chamber also criticises the Council of State severely for allegedly opposing employees' rights of decision or co-decision when a work organisation plan is being drawn up.

By supporting a general reference period for hours-averaging, rather than using the the reference period as an instrument for reacting to specific situations, the Council of State - in the view of the white-collar Chamber - is making it almost impossible for households where both partners work to reconcile their working and private lives. As a result, women will be the first to suffer under the newly proposed system of flexibility. The Chamber fears that, in the event of the Council of State's proposals on flexible working hours finding favour with lawmakers, there will be a major reduction in the number of women in employment, particularly among those working part-time. The positive effect that is expected to flow from the NAP measures aimed at promoting or facilitating women's employment, and coming under the heading of "equal opportunities", will therefore be swept away by measures that make it impossible for households with dependent children to coordinate family and work responsibilities, according to the Chamber. In this way, there is a danger that the "high level of flexibility" advocated by the Council of State will jeopardise arrangements that households make, particularly with regard to childcare.

Commission draws up new amendments

The Chamber of Deputies commission met again on 21 December 1998, and drew up 36 amendments (not yet published at the time of writing) which are designed to please all the economic and social partners affected.

The commission's proposed solution on working hours is the outcome of a majority agreement that should please both the Council of State and employers' associations still reluctant to give their support. The solution provides that the new flexibility will be accompanied by an assurance that workers will be able to organise their private lives. Furthermore, proposed solutions relating to the introduction of parental and family leave will seek to encourage an agreement in principle on the part of the Council of State, to which the new amendments were immediately sent, and whose new opinion was expected at the end of January 1999. After this opinion has been handed down, a final draft can then be presented to the Chamber of Deputies during February 1999.

Commentary

The NAP is entering its final stage, and it will probably get through the Chamber of Deputies in February 1999. As a result, it is likely that Luxembourg will have legislation on working time that will be more flexible, but which will retain the 40-hour-week principle linked to a longer reference period for averaging purposes.

If the Council of State were to carry on sustaining formal opposition, there is still a possibility that some measure relating to parental or family leave - the areas in which the strongest criticism remains - will be eliminated. (Marc Feyereisen, ITM)