Problems in transposing the National Action Plan on Employment

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In late 1998, Luxembourg's National Action Plan for employment, negotiated on a tripartite basis in April 1998, was mired in controversy in the various professional chambers and within the framework of the legislative procedure in parliament. Despite the efforts of the minister of labour and employment and the parliamentary rapporteurs, it is by no means certain that the draft legislation will be adopted by 1 January 1999.

In April 1998, the Tripartite Coordination Committee (Comité de Coordination Tripartite) agreed a National Action Plan (NAP) on employment (LU9805157F). As with all the other Member States, Luxembourg had to draw up such an NAP in response to the EU Employment Guidelines for 1998 (EU9805107N).

A draft law to implement the NAP was lodged by the government on 10 August 1998, and since 13 September 1998, its 161 articles have been analysed by a special Chamber of Deputies commission, which sits several times a week. According to the limited information to emerge about the commission's work, it was thought initially that the draft legislation "might undergo minor amendments that will not affect the overall outline" and that it was "likely to come into force on 1 January 1999". However, in October 1998, the Plan was coming under criticism from all quarters.

The price of petrol

Since the commission began its work, it has been widely rumoured that the price of petrol will go up by LUF 4 per litre, compared with an increase of LUF 1 originally agreed by the tripartite committee (at LUF 25 a litre, petrol in Luxembourg is the cheapest in the whole of the European Union). Analysis of the texts and an interview with the chair of the commission has clarified that the government's draft legislation does provides for a possible increase of LUF 4 in the price of petrol, broken down as follows:

  • an increase of LUF 1.75 already agreed back in 1994 to finance the "Fund for Employment (Fonds pour l'Emploi)", which is intended to fund all measures adopted by the Employment Administration, and particularly to compensate unemployed workers;
  • an increase of LUF 1 agreed by the social partners under the April tripartite agreement; and
  • an increase of LUF 1.25 which the government may, if necessary, make use of through a grand-ducal regulation, should funding for the NAP be in doubt.

As this latter tranche of LUF 1.25 could be implemented without prior consultation of the Chamber of Deputies, it is very likely that the Chamber will refuse to give the government carte blanche, and that it will reject this element.

Differing opinions from the professional chambers

Debate and criticism of the NAP from the professional chambers (chambres professionnelles) - which represent employers and workers by socio-professional category and give opinions on any legislation affecting them - have touched on those areas which proved most controversial during the tripartite discussions: the organisation of working time; and the introduction of parental leave and leave for family reasons. Although there has been what might be described as "an agreement in principle with the conclusions of the Tripartite Coordination Committee meeting held on 18 April 1998", all parties have stressed that the NAP forms a whole that is supposed to reflect a balance between the various positions of the parties concerned.

Working time

On the averaging of working time, the draft law applies the principle of a minimum reference period of four weeks to all workers, allowing an unequal daily and weekly distribution of working hours over a four-week period, though employees may not work more than 10 hours a day or 48 hours a week. A "work organisation plan" covering each period of four weeks, must be drawn up at least five days prior to the reference period.

The employees' professional chambers state that employers will enjoy absolute power when drawing up work organisation plans and imposing them on staff. They fear that employees might be forced to accept ever-changing hours of work, which could be particularly unpleasant, and they reject such a high degree of "flexibility" which would make it impossible for workers to reconcile their working and family lives. The chambers argue that flexibility should be negotiated, and not imposed on employees.

The employers' professional chambers predictably approve of the introduction of a statutory four-week reference period for calculating average working time; they see such a reference period as vital for companies. The employers' chambers also welcome the fact that the draft legislation stresses the ability of the social partners to conclude "subordinate" collective agreements which regulate, preferably at enterprise level, the concrete ways of implementing measures set out in sectoral and multi-enterprise collective agreements. However, for the employers, some of the provisions dealing with the length of working time might benefit from clarification or amendment.

Equal opportunities policy

The draft legislation contains new measures on parental leave and leave for family reasons (LU9805160N).

The employees' professional chambers state that the draft law does not go as far as the 1996 EU Council Directive on parental leave (96/34/EC) (TN9801201S). For these chambers, the draft law also raises the issue of whether people on vocational integration or reintegration courses are also entitled to parental leave, and leaves unanswered the question as to whether cross-border workers are eligible. If not, this could lead to unfair competition on the labour market between workers living in Luxembourg and those commuting from other countries, because employment of the latter will become more advantageous to employers in the medium and long term. The chambers also fear that part-timers might find it difficult to take full parental leave, and ask why the law does not allow the leave to be divided into blocks. Accordingly, they propose that employees should be allowed to take parental leave in blocks, with each block lasting a minimum of two months.

The employers' professional chambers agree with the principle of introducing parental leave, which is required by an EU Directive. They claim that the draft legislation's concrete measures for implementing the leave go well beyond what is laid down in the Directive. The chambers find the proposed level of parental leave compensation somewhat excessive, while they state that the leave itself is certain to cause many companies serious staff management problems. It is also unlikely to be effective in combating unemployment.

Leave for family reasons was discussed only in principle in the tripartite committee. Concrete measures for implementing it will not come under the NAP, and planned measures will need to be substantially revised.

Marathon meeting at the Ministry

On 26 October 1998, there was a six-hour meeting between the draft law's two parliamentary rapporteurs and the minister of labour and employment. The aim was to review the situation and to seek to transpose the tripartite committee's agreement into legislation by 1 January 1999. It was noted that the opinions of the professional chambers concerned highlight that the text of the draft law does not reflect the spirit of the tripartite agreement in all respects and that there are principled differences on a number of measures. It was agreed that the parliamentary commission itself will draft a number of amendments, in anticipation of the Council of State's opinion, which was due to be made public in late November 1998.

Commentary

It is difficult for an observer standing outside the legislative procedure to offer a view on the events currently taking place in this area which, all in all, do not reflect particularly well on a country that prides itself on its advanced tripartite system. However, it should not be forgotten that when the professional chambers were in the process of drafting their opinions, they were faced with a dilemma: either simply ratify the agreement with a very brief document; or produce a detailed opinion that would necessarily contain strong criticism.

Given that the next legislative elections are scheduled for June 1999, and in the absence of the impending opinion from the Council of State which could contain departures from the Constitution, there is everything to play for between now and 31 December 1998. (Marc Feyereisen, ITM)

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