New bill on trade union representativeness and industrial relations
In November 2002, Luxembourg's Minister of Labour and Employment presented a new bill dealing with collective labour relations, the regulation of collective labour disputes, and the National Conciliation Office. The bill redefines the controversial concept of the'national representativeness' of trade unions, while at the same time professionalising the work of the National Conciliation Office and setting up a national industrial relations observatory.
On 29 October 2001, the Minister of Labour and Employment presented a draft bill redefining the concept of the'representativeness ' of trade unions (representative status brings unions various rights, such as concluding collective agreements) (LU0111102F). The move was a response to administrative court rulings which overturned existing practice by awarding a sectoral trade union - the Luxembourg Association of Banking and Insurance Staff (Association luxembourgeoise des employés de banque et d'assurance, ALEBA) - nationally representative status (LU0011152F).
On 16 January 2002, the three trade unions representing white-collar employees in the private sector - ALEBA, the Confederation of Private Sector White-Collar Employees/National Union of Private Sector White-Collar Employees - Reformist (Confédération des employés privés/Syndicat national des employés privés-Rénovateurs, COEP/SNEP-R) and the Union of Private Sector White-Collar Employees (Union des employés privés, UEP) - responded by adopting a joint position opposed to the draft reform: it described the draft as a'declaration of war on the employment status of private sector white-collar employees' (LU0202102N). The unions claimed that the Minister's intention in the proposed reform was solely to try to relieve ALEBA of the nationally representative status it had recently been awarded by the administrative courts.
On 5 November 2002, the Minister of Labour and Employment officially presented the final version of thebill 'concerning collective labour relations, the regulation of collective labour disputes, and the National Conciliation Office'. According to the Minister:'It is possible that the bill will be controversial in a number of areas as it does not restrict itself to a lowest common denominator consensus, and it is possible that it will be amended.' The Minister wants to encourage broad public debate so that members of parliament can reach their decision in full possession of the facts.
The main innovations contained in the bill are set out below.
New definition of national representativeness
The Minister’s bill provides for three kinds of representative trade union, and also introduces a new procedure for recognition as representative by the Minister of Labour and Employment under the control of the administrative courts. The three types of union are as follows.
Unions that justify general nationally representative status
In order to qualify for'general nationally representative status', trade unions must demonstrate a degree of industrial relations influence at national level, and possess the necessary effectiveness and power both to take on the responsibilities that flow from such a status, and to be able to sustain any major conflict of industrial relations interest at national level. In detail, they must:
- undertake effective activity in most economic branches and regions of the country (this presence is to be assessed on the basis of results obtained by unions in the most recent elections of representatives on companyemployee committee s/works councils -LU9810172F);
- have obtained an average of 20% of the total votes cast by both blue-and white-collar workers in the two most recent elections to theprofessional chambers for these two categories of staff (LU9810172F), and an average of 15% in each of the two categories; and
- undertake action that is diversified both materially and geographically.
Unions that justify representative status in a particularly important sector of the economy
In order to qualify for'representative status in a particularly important sector of the economy', trade unions representing white- or blue-collar workers (or both categories together) must demonstrate a sufficient degree of industrial relations influence in a particularly important economic sector, and be able to sustain any conflict of industrial relations interest in that sector involving the category or categories of worker concerned.
A sector is considered'particularly important' if employment in it represents at least 10% of private-law paid employment in Luxembourg, and if it consists of more than one enterprise.
Such a union must have presented lists of candidates, and had representatives elected, in the last two elections to the relevant professional chamber or chambers, and must also have obtained 50% of the votes for the group of workers covered by that professional chamber which matches the scope of the collective agreement concerned (ie that agreement in respect of which the union in question wishes to be regarded as representative in order to sign).
Unions with a direct or indirect mandate from at least 50% of employees within scope of collective agreement
Trade unions that do not enjoy general or sectoral nationally representative status may conclude a collective agreement is they have a direct or indirect mandate from 50% of the employees within the scope of the collective agreement concerned. They are considered to have such a mandate if they have obtained at least 50% of the votes at the most recent elections to employee committees/works councils in the enterprises and establishments within the scope of the collective agreement.
Reorganisation of the National Conciliation Office
To guarantee optimum effectiveness of theNational Conciliation Office (Office National de Conciliation), its president and permanent assessors are to become paid professionals. In return, these members’ attendance will be compulsory at meetings.
Establishment of industrial relations observatory
The Minister’s bill also provides for the setting up of a National Observatory of Industrial Relations and Employment (Observatoire national des relations du travail et de l'emploi, ORPE) within the Ministry of Labour. The Observatory will have the task of scientifically studying and monitoring employment relations, and especially collective relations, in Luxembourg, and the role of these relations in fields including employment and training. In this context, special attention will be paid to inputs from the social partners, particularly in terms of the implementation of action plans for employment and continuing vocational training.
A tripartite management committee will determine the general direction of the Observatory’s work, establish its work plan, supervise results, and issue opinions on the publications to be produced. The work plan will define: the objectives and outcomes to be achieved; the various projects that will make up the Observatory’s activity; the actors involved in the different stages of projects; the allocation of various tasks to the various research centres involved in the successive phases of projects; the methodology; and the procedures and instructions to be complied with.
Modifications to the law on collective agreements
The bill is particularly innovative in the terms of the procedure for negotiating collective agreements. Under the terms of the law of 12 June 1965 concerningcollective agreement s, it is normally possible for only a single trade union to sign a collective agreement, if it has nationally representative status. The bill, however, provides for a'bargaining committee' (commission de négociation) to be set up for the negotiation of each collective agreement. Trade unions with general nationally representative status, or sectoral representative status in respect of collective agreements in the relevant sector, will be entitled to representation on the bargaining committee. These unions may unanimously decide to allow other unions to take part in the negotiations. The Minister will decide in the event of a refusal to admit a unions or a non-unanimous decision.
Collective agreements will in principle have to be signed by all trade unions with national and sectoral representative status that sit on the bargaining committee, which have'automatic signing rights'. Where there is no unanimity on the union side and only one or more trade unions agree with the employers to sign a collective agreement, they must invite the other unions on the committee to join them in signing it, and give their reasons. In the event of a refusal by the other unions to sign, the parties wishing to sign may refer the matter to the National Conciliation Office.
If the National Conciliation Office finds that the union or unions wishing to sign an agreement have obtained at least 50% of the votes at the most recent elections to employee committees/works councils in the enterprises and establishments within the scope of the collective agreement, this union or unions may sign the agreement - alone, if needs be. If not, the National Conciliation Office will order a ballot among the employees covered by the agreement. If over 50% of the votes cast are in favour of the terms of the agreement, the union or unions that made the request to the Office may sign the collective agreement - alone, if needs be.
The Luxembourg Confederation of Independent Trade Unions (Onofhängege Gewerkschafts-Bond Lëtzebuerg, OGB-L) welcomed the Minister's initiative designed to give a legal definition to the criteria of national representativeness, and said that the bill avoids a fragmentation of the trade union movement, which might undermine social dialogue in Luxembourg. OGB-L is also in favour of the proposed criteria for sectoral representative status.
The Luxembourg Confederation of Christian Trade Unions (Lëtzebuerger Chrëschtleche Gewerkschafts-Bond, LCGB) holds the same view, although it believes that sectoral representativeness should be better defined. It also argues that it should be possible to conclude intersectoral and national social dialogue agreements, particularly when such agreements could transpose EU Directives.
According to the main opposition political party, the Socialist Workers’ Party of Luxembourg (Parti ouvrier socialiste luxembourgeois, POSL), the bill is generally speaking'a move in the right direction'. The bill'seeks to go down a difficult path with a view to establishing a judicious balance between guaranteed freedom of association and a desire to avoid fragmentation - a concept synonymous with the weakening - of the trade union movement'.
The small opposition Ecology Party (Déi Gréng) welcomed the decision of the Minister of Labour to present an open bill'enabling parliament to have more influence than usual over wide-ranging reform of such a complex issue'. It said that the Minister had'achieved a very difficult balance between the fear articulated by the executive and legislative branches that they might break up the trade union movement and a guarantee of a degree of trade union pluralism'. The Ecology Party approves the proposed mechanisms for establishing national and sectoral representativeness, but wants to avoid any further regulation, and thus restriction, of the right to strike.
The president of the ALEBA announced that his trade union did not agree even with the principles underlying the new bill. According to ALEBA, the bill presented by the Minister of Labour'lacks objectivity and impartiality, and favours the two trade unions with nationally representative status' (ie OGB-L and LCGB).'There is a possibility', the president warned,'of ALEBA simply being excluded under the new version of the criteria for representativeness'. He expressed concern about the very future of his union.
Under the proposed new criteria for sectoral representative status, ALEBA would no longer be considered representative in the insurance sector, where it nonetheless has a major presence. Furthermore, in order to qualify for general nationally representative status, a union would have to organise both white- and blue-collar workers. This is not true of ALEBA, and the union thinks that the proposed new provisions are'quite simply an attack on freedom of association'. As for the idea of bargaining committees, ALEBA believes that the implementation procedure is far too complex.
The bill from the Minister of Labour is unquestionably one of the most notable industrial relations developments of the last decade. It seeks to regulate Luxembourg’s most sensitive trade union issue, that is to say national representativeness. It should not be forgotten that the issue of nationally representative status is closely linked to Luxembourg’s system oftripartism (LU9711127F), which is one of the guarantees of a national economy that continues to be envied on the international stage. Awarding a trade union nationally representative status allows it to sit on a number of tripartite bodies, and in this way contribute to the economic and social direction that the country takes.
From this point of view, it seems to be acknowledged in the bill that a trade union can be nationally representative only if it is established in several sectors of the economy, and thereby avoids having interests that are excessively focused in just one direction.
A by-product of representativeness is the ability to sign collective agreements and, in the event of a failure to agree, to organise a strike. It is in this context that the administrative courts awarded ALEBA nationally representative status: the union can thus at present'go it alone' and sign collective agreements on its own. The Minister’s bill would make this much more difficult by setting up multi-union bargaining committees.
The proposed legislation would inevitably make the trade union movement more unified, while losing some room for manoeuvre, and the author wonders whether this point might cause current ideas to change fundamentally. (Marc Feyereisen)