New law regulates working time in hotels and catering
A new law, adopted in December 2002, regulates working time in the Luxembourg hotels and catering sector, after a 30- year legal vacuum, during which the industry's social partners failed to regulate the matter themselves. The new legislation has introduces a statutory 40-hour week in three stages, starting in January 2003.
Unusually, there has been hardly any legislation on working time in the hotels and catering sector since 1970, when the legislator left the matter to be regulated by the industry's social partners through collective agreement. In December 1999, in response to the social partners’ failure to reach agreement on the issue, the Minister of Labour announced that he would deal with the matter by legislative means (LU0001124N).
The hotels and catering sector in Luxembourg (known as HORESCA) is made up of 2,500 enterprises employing 10,000 staff. The workforce is divided equally between men and women, while 95% have foreign nationality and are classified as blue-collar workers. Establishments in the HORESCA sector are divided into three categories: small catering outlets, restaurants and accommodation.
It emerged from numerous meetings between the HORESCA social partners that they did not expect to be able to conclude a collective agreement on working time, but that they were not opposed to legislation on the issue, particularly with a view to making employment in the sector more attractive to young people.
On 20 July 2001, the Minister of Labour presented a bill which sought to: transpose the 1991 International Labour Organisation Convention No. 172 on working conditions in hotels and restaurants; and regulate the working time of blue-collar workers, apprentices and trainees employed in the sector (LU0108172N). The legislation was approved by the Chamber of Deputies on 18 December 2002.
Content of the new law
The new law will come into force in three stages:
- on 1 January 2003 for establishments regularly employing at least 50 staff, and enterprises providing catering on vessels plying rivers;
- on 1 January 2004 for enterprises regularly employing 15-49 staff; and
- on 1 January 2005 for enterprises regularly employing fewer than 15 staff.
The law essentially applies to the HORESCA sector the general terms of Luxembourg's 1970 and 1971 legislation on working time, that is to say an eight-hour day and a 40-hour week, with the possibility to vary these hours limits, while respecting them on average, over reference periods that differ according to the size and nature of the enterprise. The reference period is: four weeks or one month for enterprises that regularly employ at least 50 people; eight weeks or two months for enterprises employing between 15 and 49 staff; and six months for seasonal enterprises and establishments employing fewer than 15 staff.
During this reference period, it is possible to exceed the limits of eight working hours a day and 40 hours a week, normally to a maximum of 10 and 48 hours respectively. During exceptional periods (specifically restricted to Christmas, Easter and the summer), it is possible for weekly hours to be as high as 51-60 hours, depending on the size of the enterprise, but with a daily limit of 12 hours. In all cases, average weekly working hours must be lower than, or equal to, 40 hours over the reference period.
Daily working hours may only be interrupted by a single unpaid break lasting a maximum of three hours.
Remuneration for all work performed between 01.00 and 06.00 is subject to a premium of 25%, which may be taken as time off or paid in cash.
As the law’s rapporteur in parliament stated: 'adoption of the 40-hour week is fair, and all overtime must be paid as such, but it would nonetheless be wrong to disrupt a sector that would be in danger of suffering from an excessive increase in these charges'. He went on to stress how balanced he believed the government bill was, given the complexity of the issue and the sector.
In the vote in the Chamber of Deputies, the Greens (Déi Gréng) political party abstained, as it criticised the numerous exemptions from the basic working time rules, and thought that these should attract higher pay premia.
Social partners' positions
Two weeks before the vote on the new law, a delegation of HORESCA employers successfully proposed a six-month reference period for small enterprises, and for seasonal enterprises in the event of a predictable peak in business. The delegation also criticised the provision in the bill that outlawed a reduction in hourly, monthly or annual pay in currently valid employment contracts. This latter provision was withdrawn from the final draft on the advice of the Council of State (Conseil d'Etat), on the grounds that common law banned any reduction in employees’ pay in the sector anyway.
The Luxembourg Confederation of Christian Trade Unions (Lëtzebuerger Chrëschtleche Gewerkschafts-Bond, LCGB) stresses that the new law is based on a compromise between the social partners. The union criticises 30 years of unregulated conditions of employment in the sector, and welcomes this 'essential and necessary stage', which at last places employees in the hotels and catering sector on a legal footing. However, LCGB claims that the new law 'still leaves a lot to be desired in respect of a number of important features', although it acknowledges that this stage contains 'recognition and a reassessment of jobs in the sector'.
The Luxembourg Confederation of Independent Trade Unions (Onofhängege Gewerkschafts-Bond Lëtzebuerg, OGB-L) welcomes the new law, stating that it has put a lot of energy into drafting it, collaborating closely with the Ministry of Labour and emphasising 'efforts to link working time reductions with pay compensation'. The union also announced that it intends to call on HORESCA employers to 'create pay and working conditions that are in line with the law, and in this way to play their part in industrial peace'. OGB-L has announced a meeting with employers in the sector to this end.
Since the almost total introduction of the statutory 40-hour week in 1970-1, the HORESCA sector has not achieved self-regulation, mainly because of the frequently intransigent approach of the employers. The absence of any regulation has led to serious abuses in the sector, the legal environment providing opportunities to ignore any limitations in respect of daily or weekly working hours, and even to oppose normal overtime payments. The new law finally deletes one of the few negative features of Luxembourg employment legislation. (Marc Feyereisen)