Banking sector agreement will apply provisionally

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In December 1999, Luxembourg's Minister of Labour's decided to reject the registration of a 1999-2001 collective agreement for white-collar banking staff, on the grounds that the signatory trade unions were not representative. However, the president of the Administrative Tribunal has subsequently ordered that the measures contained in the agreement should be made provisionally applicable, on the grounds that failure to do so would cause staff serious and lasting detriment.

By a ministerial decree of 1 December 1999, the new Minister of Labour and Employment rejected the registration of a collective agreement for 1999-2001 covering white-collar workers in the banking sector, signed by the Association of Luxembourg Banks and Bankers (Association des banques et banquiers du Luxembourg, ABBL) and two trade unions - the Luxembourg Association of Bank Staffs (Association luxembourgeoise des employés de banque, ALEBA ) and the Union of Private Sector White-Collar Employees (Union des Employés Privés, UEP) (LU9912117N). The agreement had not been signed by the Luxembourg Confederation of Independent Trade Unions (Onofhängege Gewerkschafts-Bond Lëtzebuerg, OGB-L) and the Luxembourg Confederation of Christian Trade Unions (Lëtzebuerger Chrëschtleche Gewerkschafts-Bond, LCGB) (LU9905104F)

The collective agreement had been sent to the Inspectorate of Labour and Mines (Inspection du travail et des mines, ITM ) on 29 April 1999, and then forwarded to the Minister of Labour with a recommendation that registration should be refused on the grounds that the signatory unions did not have "nationally representative" status. For a collective agreement to be valid, it must be registered and have the support of one or more of "the most representative trade union organisations at national level" (which excludes sectoral unions, company unions and enterprise- and establishment-level employee representatives). Trade unions identify themselves as the most representative nationally through the size of their membership, their activities and their independence. Only OGB-L and LCGB have full nationally representative status at present (LU9812185N).

On 2 December 1999, ALEBA and ABBL announced that they were seeking both an emergency interim ruling and a fundamental ruling against the Minister's decision before the Luxembourg Administrative Tribunal (Tribunal Administratif). They also said that banking employers would continue to apply the terms of the agreement, as it "satisfied everybody".

Request for a safeguarding measure

Although Luxembourg courts process legal proceedings relatively quickly, the pre-trial investigation phase takes six months. Thus, in seeking an emergency ruling, ALEBA and ABBL particularly asked for a declaration that the terms set out in the collective agreement would continue to have effect pending a fundamental Administrative Tribunal decision on the substance of the case. The applicants believe that the Minister's decision of 1 December 1999 is unlawful, and that it could cause them serious and lasting detriment.

The issue of trade unions' legal personality

The government raised the issue of the possible inadmissibility of ALEBA's application on the grounds that it does not have "legal personality" (ie the capacity to enjoy rights and to be subject to obligations). Much has been written about the legal personality of trade unions, and legal proceedings initiated by trade unions have frequently been declared inadmissible on the grounds that the unions lack this quality

However, the president of the Administrative Tribunal has stated that, for trade unions to be legally recognised, there is no law that says that they should be set up in a particular way in order to acquire legal personality. Under the terms of this ruling, trade unions may, whether or not they have legal personality, sign collective agreements and exercise their rights in law in the event that the registration of such agreements is turned down. Furthermore, trade unions are also the only bodies empowered to sign collective agreements, and to apply to the courts for the agreements to be legally recognised. To be considered as such, a trade union need only meet the relevant statutory conditions - that is to say it must have an internal organisation, and its aims must be to defend and represent its members' employment interests and improve their living conditions.

In the context of the case brought, ALEBA has thus been accepted as a trade union able to take legal action.

Request for a safeguarding measure

Under Article 12 of a law of 21 June 1999 on procedure before the administrative courts, the president of the Administrative Tribunal may provisionally order all necessary measures to safeguard the interests of the parties or persons with an interest in the solution to a case that the Administrative Tribunal is dealing with, except where the measures concern civil rights. Such measures may be ordered only on condition that (i) carrying out the disputed decision could cause the applicant serious and lasting detriment, and (ii) the arguments adduced in support of the appeal against the decision are serious.

In the ALEBA/ABBL case, the president of the Administrative Tribunal established initially that:

1. the signatory parties have been implementing the measures contained in the collective agreement since it was submitted for registration;

2. through inaction over a period of seven months following the submission of the collective agreement, the Minister of Labour has allowed a state of affairs to develop which has created faits accomplis, with pay having been adjusted, bonuses paid, and training courses having taken place; and

3. the non-applicability of the collective agreement may cause the employees concerned serious and lasting detriment, with salaries possibly having to be recalculated and bonuses having to be handed back.

In the light of these three criteria, the president of the Administrative Tribunal ordered that the conditions set out in the 1999-2001 bank employees' collective agreement should be implemented provisionally, on the grounds that failure to do so could cause employees serious and lasting detriment. This decision was taken pending the Administrative Tribunal's judgment on the legality of the Ministerial decree of 1 December 1999 concerning the rejection of the submitted collective agreement. It is not open to appeal.

National Conciliation Office procedure suspended

On 1 December 1999, at the same time as he refused to accept the banking collective agreement, the Minister called a meeting at the National Conciliation Office (Office National de Conciliation, ONC) with a view to encouraging negotiations in the banking sector: he strongly urged the parties to cooperate constructively and reach an agreement that meets the needs of all parties involved in the sector.

A meeting of the ONC, to which ALEBA was invited, was held on 9 February 2000. The agenda was headed: "Resolution of the dispute between the OGB-L, LCGB and FEP/FIT et Cadres trade unions on the one hand, and ABBL on the other, concerning renewal of the collective agreement for white-collar employees in banking". At this meeting, ALEBA and ABBL stated that there was no collective labour dispute, and referred to their existing collective agreement. ALEBA criticised "an abuse that involves using the ONC to trigger an artificial dispute, deliberately upsetting a situation of industrial peace, and destroying a collective agreement that is not only one of the fairest but has also been very warmly received by all concerned."

Given the Administrative Tribunal president's order that the collective agreement was provisionally applicable, the president of the ONC halted discussion pending the Administrative Tribunal's judgment on the legality of the Minister's decision of 1 December 1999.

Commentary

The issue of nationally representative status is beginning to turn sour. Since the Economic and Social Council (Conseil économique et social, CES) failed in 1997 to identify factors that might guide the government in the area of new criteria for representative status and related competences (LU9705107F), incidents have become increasingly frequent.

It now appears that the government is waiting for the Administrative Tribunal's decision, and then that of the Administrative Court: it is the latter body that will determine whether ALEBA has national representative status, unless the International Labour Organisation's Committee on Freedom of Association in Geneva- to which ALEBA has made a complaint - gives its verdict before then (LU9912117N). In the writer's view, a matter of such importance to the functioning of Luxembourg society should not be resolved at this level. (Marc Feyereisen)