New provisions introduced on the organisation of working time

Download article in original language : LU9903197FFR.DOC

In February 1999, intensive negotiations between Luxembourg's social partners culminated in a new law that maintains the principle of a normal eight-hour working day and 40-hour week, though within a statutory four-week reference period. A work organisation plan will have to be negotiated at enterprise level prior to each reference period, if employers wish to vary daily and weekly hours during the period.

On 3 February 1999, Luxembourg's much-delayed National Action Plan (NAP) on employment, in response to the EU Employment Guidelines, was finally passed by the Chamber of Deputies after more than a year's intensive negotiations at all levels (LU9902194N). The legislation's provisions on the organisation of working time (LU9805157F) were announced to the public at the same time, and it was widely known that the social partners had been discussing these provisions up to the very last minute. The legislators did not take the opportunity to harmonise legislation, with the result that there are still two separate laws governing the working time of blue-collar workers and of private sector white-collar workers. The differences between the two are slight and will mainly be ignored for the purposes of this article. In both cases, the principle of a normal eight-hour working day and 40-hour week has been maintained, but has been modified though a fundamental change in the "compensatory" scheme.

The four-week reference period

Under the new rules, employees may work more than eight hours a day as long as average weekly hours, calculated over a reference period of four consecutive weeks, do not exceed either 40 hours or normal maximum weekly hours as fixed by a collective agreement.

Work organisation plans

Any company wishing to make use of the four-week reference period must at some point, and at all events no later than five free days before the beginning of the reference period, produce a work organisation plan. This must cover the whole of the reference period, refer to the company's foreseeable workload during the period, and determine the principles that will govern the organisation of work in the event of unforeseeable circumstances or in cases of force majeure.

Where a collective agreement provides for a reference period that differs from the statutory four-week period (see below), it shall also determine the principles applying to the work organisation plans that have to be produced by the companies that it covers.

Except for unforeseeable events and cases of force majeure, work performed outside the limits set out in the work organisation plan for the day, week and entire reference period is deemed to be overtime and, as such, triggers an entitlement to pay premia (see below).

All work organisation plans must have previously been submitted for the opinion of the competent employee committee/works council (délégation du personnel) or, if there is none, for the opinion of the staff concerned.

Procedure in the event of disagreement

In the event of disagreement with the work organisation plan on the part of the employee committee/works council or the employees (disagreement is defined as four consecutive, negative opinions in response to work organisation proposals put to them), the party that has most to gain will take the case up with the director of the Labour Inspectorate, who will attempt to find an agreement between the parties.

If the director of the Labour Inspectorate announces that the disagreement has not been resolved, the matter may be referred to the National Conciliation Office (Office National de Conciliation) by the party that took the case up originally.

Other reference periods

A collective agreement may extend or reduce the four-week reference period, as long as it does not exceed a 12-month maximum.

In the absence of a collective agreement, the Minister of Employment and Labour may, at the request of an enterprise, authorise a special reference period after seeking the opinion of representative trade unions and employers' associations at national level. On the basis of this opinion, the Minister may make the authorisation requested by the enterprise subject to the conclusion of a sectoral agreement between the social partners concerned. This sectoral agreement may fix a reference period that is longer or shorter than four weeks.

Before giving authorisation for a special reference period, the Minister shall seek the opinion of the employee committee/works council in the enterprise concerned.

Daily/weekly limits and rest breaks

Working time may not normally exceed 10 hours a day, or 48 hours a week. A grand-ducal regulation may identify a small number of sectors or jobs where a maximum of 12 hours a day is permissible as long as weekly hours do not exceed 40.

Where daily working time exceeds six hours, all employees are entitled to a minimum unpaid rest break of 30 minutes. Daily working time may be broken by no more than one unpaid rest break.

Where weekly working hours are spread over five days or fewer, normal working time may automatically be extended to nine hours a day, as long as total working hours do not exceed normal weekly full-time hours for the enterprise or establishment concerned.

In a company where, because of the nature of the business, work may be neither interrupted nor delayed, or it is performed by successive shifts, staff may be employed for more than eight hours a day and 40 hours a week as long as average weekly hours (calculated on the basis of a maximum reference period of four consecutive weeks) do not exceed 40.

Working hours lost for reasons beyond the employer's control or owing to force majeure (eg accidents to plant, other workplace accidents, inclement weather, and interruptions in the supply of electrical power, lighting, heating or water) may be made up during the two-month period immediately following the return to work.

Pay premia

Private sector white-collar workers are entitled to a 50% pay premium for hours worked over and above the contractual hours giving rise to their normal pay. Blue-collar workers are entitled to a 25% premium for hours worked over and above the contractual hours giving rise to their normal pay. Overtime may, where possible, be compensated by replacing pay premia with paid time off, at a rate of one and a half hours off for every hour worked.

Where a collective agreement is in force, it shall specify the principle set out in the above provisions and the way in which these provisions are to be applied.

Commentary

While the legislators had appeared to be seeking to innovate, the results are limited. There had been provision for reference periods in previous legislation, but they have not been used in most sectors because there has been no scope for agreement between the social partners. The new legislation is likely to perpetuate the current situation. (Marc Feyereisen, ITM)

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