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Health and Safety Representation

Health and safety is one of the issues covered by the employee delegation, now the only form of statutory employee representation at the workplace. (The joint company committee, a works council type body, which in the past existed alongside the employee delegation, has been abolished.) The delegate for safety and health, an individual employee chosen by the employee delegation, has specific health and safety responsibilities.

Basic approach at workplace level

 

The employer is required to ensure the health and safety of the employees in all areas linked to work. Depending on the size of the workplace, he or she can make use of internal or external experts to provide a health and safety service (see below) but ultimate responsibility remains with the employer. Part of the responsibility is to inform and consult with employees and their representatives.

 

Employee health and safety bodies

 

There is now only one way in which employee are represented at the workplace in Luxembourg. This is through the employee delegates (les délégués du personnel), who have wide powers in terms of information and consultation. They must be elected in all workplaces with 15 or more employees and are known collectively as the employee delegation (délégation du personnel). (The joint company committee (comité mixte d’entreprise) – a works council type body, which was previously set up in companies with 150 employees or more – was abolished in legislation passed in July 2015, although they continued to exist until their term of office ended – at the latest in 2018.) Although the employee delegation has specific health and safety rights, it also chooses an employee to take special responsibility for this area as the delegate for safety and health (délégué à la sécurité et à la santé). Before the 2015 changes, this representative was known as the delegate for safety (délégué à la sécurité).

 

Numbers and structure

 

All workplaces with at least 15 employees should elect at least one employee delegate, and the number increases with the size of the workplace (see table).

 

 

Number of employees

Number of members

15-25

1

26-50

2

51-75

3

76-100

4

101-200

5

Thereafter one extra member for every 100 employees until 1,100; then one extra for every 400 employees until 5,500; then one extra for every complete block of 500 employees. There is no upper limit.

 

Each full delegate should also have a substitute delegate, able to replace them if needed, and in small workplaces, with only one full delegate, both the full delegate and the substitute attend meetings with the employer.

 

A delegate for safety and health should be appointed in all workplaces with at least 15 employees.

 

Research by the European Agency for Safety and Health at Work in 2014 found that 67% of workplaces in Luxembourg had delegates for safety and health (delegates for safety at that point), higher than EU-28 average for workplaces with health and safety representatives, which is 58%. (The figures are for workplaces with five or more employees.)[1]

 

Tasks and rights

 

The overall purpose of the employee delegation is to safeguard and defend the interests of the company’s workforce including in the area of working conditions. In the specific area of health and safety, the head of the company must inform the employee delegation and the delegate for safety and health (see below) about:

  • the risks to safety as health as well as the preventive measures being taken – both in general and for specific types of work;
  • the measures of protection to be taken and the protective equipment to be used; and
  • changes in absence rates.

 

The employee delegation also participates in:

  • labour protection, the protection of the environment and the prevention of accidents at work and occupational diseases; and
  • the implementation of policies to prevent violence and sexual harassment at work.

 

In private sector organisations with at least at least 150 employees, there are some areas where decisions which must be taken jointly by the employer and the employee delegation, including one covering health and safety. This is “the introduction or alteration of measures relating to workers’ health and safety and the prevention of occupational diseases”.

 

In addition to the rights that the employee delegation has, the delegate for safety and health has some more specific rights. The employer is required to inform and consult the employee delegate for safety and health about:

  • risk evaluation;
  • protection measures and protective equipment;
  • declarations made to the labour inspectorate; 
  • any action that could have a substantial effect on health and safety;
  • the appointment of staff with responsibility for health and safety and risk prevention;
  • measures taken relating to first aid, fire fighting and staff evacuation;
  • measures intended to make links with outside bodies on first aid, urgent medical assistance, rescue and fire fighting;
  • the use of either internal or external expertise in the area of health and safety;
  • the health and safety training of employees;
  • an evaluation of the risks that the activities of the company might pose to the environment, as far as health and working conditions are concerned; and
  • the measures being taken to protect the environment, as far as the health and the working conditions of the employees are concerned.  

 

The delegate for safety and health also has the right to ask the employer to take action to reduce the risks to employees.

 

However, in many ways the crucial right of the delegate for safety and health is the ability to undertake a weekly inspection of the workplace, together with the employer or a representative of the employer. In temporary sites with fewer than 150 employees this inspection can only made with the agreement of the head of the workplace, and in administrative workplaces – in other words offices– the inspection can only happen twice a year. The delegate for safety and health should record his or her findings in a register to which the labour inspectorate and other employee delegates have access. In addition, in cases where there is an immediate need for the labour inspectorate to intervene, he or she is able to contact the inspectorate while at the same time informing the employer and the employee delegates. The labour inspectorate can also ask to be accompanied by the delegate for safety and health in its inspections or ask the delegate for safety and health for information about accidents.

 

Finally there are also obligations relating more generally to health and safety in the organisation which further strengthen the rights of the employee delegation and the delegate for safety and health. These state in general that employers must consult their employees and their representatives on all issues concerning health and safety at work, including allowing them to make proposals. The employees or the delegates for safety and health must be consulted in advance on or participate in decisions concerning:

  • any action which could have substantial effects on safety and health;
  • the designation of employees being given health and safety tasks;
  • information relating to risks, protective measures and accidents;
  • the use of external health and safety services; and
  • the health and safety training being provided.

 

In addition, those responsible for health and safety services within the organisation, whether internal or external, are required to cooperate with the employee delegation. The employee delegation also has certain rights in relation to medical services;

  • to be given a copy of  annual report by the occupational physician, where one is produced;
  • to ask the occupational physician to carry out additional medical examinations; and
  • to be given a list of occupations which pregnant or breastfeeding women should not carry out.

 

The employee delegation must be given details of any workers aged less than 18 and the delegate for safety and health should be involved in their supervision.

 

Frequency of meetings

 

The employee delegation meets once a month  and the joint company committee meets once every three months, although it can meet on other occasions if a quarter of the members ask for this.

 

Election and term of office

 

Employee delegates and their substitutes are elected by secret ballot using proportional representation. Candidates must be nominated by one of the unions or by at least 5% of the employees.

 

The delegate for safety and health is chosen by the employee delegates, either from among themselves or from the employees as a whole. Where the individual chosen is not a member of the employee delegation, he or she can attend all meetings in a consultative capacity.

 

The term of office for employee delegates is five years.

 

Resources, time off and training

 

Employee delegates have the right to paid time off for their duties. In workplaces with up to 500 employees this is calculated on a pro-rata basis, with of 40 hours’ time off per week for every 500 employees. In larger workplaces at least one employee delegate is completely freed from normal duties. In addition the time spent in meetings of the employee delegation is paid time off.

 

The delegate for safety and health should be given sufficient paid time off and the necessary means to carry out his or her responsibilities and not suffer any loss of pay because of his or her inspection tours or the support he provides to the labour inspectorate.

 

The members of the employee delegation have the right to paid training, ranging from one week over five years in smaller workplaces – 50 employees or below – to one week per year in workplaces with more than 150 employees.

 

The legislation states that the delegate for safety and health should receive appropriate training for the role, which goes beyond that foreseen for employee delegates and is also updated from time to time. A detailed regulation states that this should consist of training on basic health and safety issues of no more than eight hours and further training specific to the industry concerned, followed by at least one day’s refresher training after five years.

 

The employer must provide a room for the employee delegation to meet in; and, where one or more of its members are entirely freed from other duties, the employer should also provide an office and associated materials.

 

Protection against dismissal

 

Neither the employee delegates nor the delegate for safety and health may be dismissed by the employer, other than for gross misconduct. Where the employer alleges that gross misconduct has taken place, the issue must be decided by the labour court, before the individual can be dismissed.

Other elements of workplace health and safety

 

Employers must designate one or more of their employees to undertake the necessary health and safety tasks. These “designated employees” (salariés désignés) may not be disadvantaged for carrying out their duties and they must have sufficient time and be sufficiently capable to carry them out. If the employer does not have sufficient capacity or skill internally he or she can make use of an external health and safety expert or service. The number of designated health and safety employees required varies according to the number of employees and the industries concerned is set out in great detail in separate regulation (Grand-Ducal Order 9 June 2006). This also sets out the required qualifications and the time required to undertake the work.

 

In companies with fewer than 50 employees the employer can take the role of the designated employee, provided he or she has the necessary qualifications.

 

All employers must also provide a medical service, although only the largest (with more than 5,000 employees (3,000 if at least 100 are at particular risk) must provide it internally.  

 

National context

 

The main body dealing with health and safety at work is the Labour and Mines Inspectorate (L’Inspection du travail et des mines – ITM). Compliance with health and safety laws and regulations in Luxembourg is ensured by the same inspectorate, which works under the Ministry of Labour, Employment and the Social and Solidarity Economy (Ministère du Travail, de l'Emploi et de l'Économie sociale et solidaire). The Labour and Mines Inspectorate also enforces laws relating to general labour rights.

 

Trade unions and employers are able to influence health and safety policy through their membership of the tripartite Economic and Social Council (Conseil économique et social – CES). The Council covers a very wide range of issues, but it has dealt with health and safety, producing a formal opinion on stress in 2006. There is also a more narrowly focused Permanent Committee for Labour and Employment (Comité permanent du travail et de l’emploi), which deals with health and safety among other issues.[2]

 

Luxembourg legislation does not refer specifically to psychosocial risks. However, legislation passed in 2000 (Loi du 26 mai 2000 concernant la protection contre le harcèlement sexuel à l’occasion des relations de travail)  outlawed sexual harassment at the workplace, extended to general harassment in 2006, and legislation passed in 2006 (Article 4) and specifically makes clear that it applies to civil servants (fonctionnaires).

 

Key legislation

 

Labour Code

Book III: Protection, safety and health of employees

Book IV: Employee representation

(After changes introduced by the Law of 23 July 2015 on the reform of the social dialogue within companies)

Grand-Ducal Order 9 June 2006

 

Code du Travail

Livre III: Protection, sécurité et sante des salaries

Livre IV: Représentation du personnel

(Loi du 23 juillet 2015 portant réforme du dialogue social à l'intérieur des entreprises)

Règlement grand-ducal du 9 juin 2006

[1] Second European Survey of Enterprises on New and Emerging Risks, European Agency for Safety and Health at Work, 2016

[2] For more information on the national context see  OSH system at national level – Luxembourg by Nadine Schneider, OSH Wiki  https://oshwiki.eu/wiki/OSH_system_at_national_level_-_Luxembourg

L. Fulton (2018) Health and safety representation in Europe. Labour Research Department and ETUI (online publication). Produced with the assistance of the Workers' Interest Group of the Advisory Committee for Safety and Health at Work (of the EU Commission). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.