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Health and Safety Representation

Health and safety is one of the issues covered by the two main forms of employee representation in Luxembourg – the employee delegation and the joint company committee, a works council type body on which both employees and the employer are represented. The employee delegate for safety, an individual employee chosen by the employee delegation, has the most specific health and safety responsibilities. But some health and safety issues are decided by the joint company committee.

 

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 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 are two central elements in the overall system for employee representation at the workplace in Luxembourg. These are the employee delegates (les délégués du personnel), who should be elected in all workplaces with 15 or more employees and are known collectively as the employee delegation (délégation du personnel), and the joint company committee (comité mixte d’entreprise) – a works council type body, which should be set up in all private sector bodies with at least 150 employees. Both have a role in the specific area of health and safety, although that of the joint company committee is more important. The employee delegation has some health and safety functions, but it also chooses an employee to take special responsibility for health and safety issues as the employee delegate for safety (délégué à la sécurité du personnel).

 

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.

 

The joint company committee is a joint body, composed of equal numbers of representatives of the employer and the employees. It should be set up in all private sector bodies with at least 150 employees and its size also increases with the number employed (see table).

 

Number of employees

 

 

Number of employee members

 

 

150-499

 

 

3

 

 

500-1000

 

 

4

 

 

1001-1500

 

 

6

 

 

1501-5000

 

 

7

 

 

5000+

 

 

8

 

An employee delegate for safety should be appointed in all workplaces with at least 15 employees.

 

Tasks and rights

 

The joint company committee, where it exists – private sector organisations employing at least 150 – has decision-making power on the introduction or alteration of measures relating to workers’ health and safety and the prevention of occupational diseases. It should also be informed and consulted in advance on decisions involving changes in production methods and equipment, including their impact on working conditions and the work environment.

 

There is also a series of rights which are exercised by the joint company committee, or, where there is none, by the employee delegation:

  • those responsible for health and safety services within the organisation, whether internal or external, are required to cooperate with the joint company committee/employee delegation;
  • the company doctor is required, in organisations with more than 150 employees, to produce an annual report, which should be submitted to the joint company committee/ employee delegation;
  • the joint company committee/ employee delegation can ask the company doctor to carry out additional medical examinations; and
  • the joint company committee/ employee delegation should be given a list of occupations which pregnant or breastfeeding women should not carry out.

As well as this, the employee delegation, which has a general responsibility for looking after the interests of employees, is also called on in the Labour Code “to participate … in the prevention of accidents at work and occupational illnesses.” The employer is required to inform the employee delegation on the risks present in the company and the preventative and protection measures taken, as well the protective material which should be used. The employee delegation also selects the employee delegate for safety.

 

It is the employee delegate for safety who has most of the more specific rights in the area of health and safety. The employer is required to inform and consult the employee delegate for safety 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;
  • 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; and
  • the health and safety training of employees.

The employee delegate for safety also has the right to ask the employer to take action to reduce the risks to employees and to make his or her own proposals in this area.

 

However, in many ways the crucial right of the employee delegate for safety 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 employee delegate for safety 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 employee delegate for safety in its inspections or ask the employee delegate for safety for information about accidents.

 

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 employee members of the joint company committee are elected by the employee delegation.

 

The employee delegate for safety is chosen by the employee delegate, either from among themselves or from the employees as a whole.

 

The term of office for employee delegates and members of the joint company committee is five years.

 

Resources and time off

 

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 and the joint company committee is paid time off.

 

The employee delegate for safety 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 employee delegate for safety 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 employee delegate for safety 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. In the case of a member of the joint company committee, the dismissal must be accepted by the joint company committee, with disagreements between the employer and employee representatives going to the conciliation and arbitration procedure.

 

Key legislation

 

Labour Code

 

Book III: Protection, safety and health of employees

 

Book IV: Employee representation

 

Code du Travail

 

Livre III: Protection, sécurité et sante des salaries

 

Livre IV: Représentation du personnel

L. Fulton (2013) Health and Safety Representation in Europe. Labour Research Department and ETUI (online publication prepared for worker-participation.eu)