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Workplace Representation

There is now only one body, the employee delegation, which represents employees at the workplace. Unions have important rights in this structure and many employee representatives are union members.

Except in the smallest workplaces, those with fewer than 15 employees, workers in Luxembourg have a legal right to representation at work. This is provided through the employee delegation (délégation du personnel), which is directly elected by all employees.

 

An additional works council type body, the joint company committee, which was previously required in companies with more than 150 employees, was abolished in legislation passed in 2015, with its tasks and rights going to the employee delegation.[1] This new arrangement came into effect with the elections for employee delegations in 2019.

 

Unlike some other European countries, including neighbouring Belgium, there is no legally backed trade union presence at the workplace, but trade union influence in the system is effectively safeguarded by the fact that trade unions have a range of rights in the election and operation of the employee delegations. In addition, many members of the employee delegations are union members.

 

Figures from Eurofound’s 2013 European Company Survey indicate that employee representation at workplace level is relatively extensive. In 2013, 57% of establishments in Luxembourg with at least 10 employees had some form of official employee representation, including both the employee delegation and the now abolished joint company committee. This is above the EU28 average of 32%.[2] The proportion is higher in larger workplaces (250 employees and above), where 87% had employee representation. Even in workplaces with between 10 and 49 employees, half (50%) had an employee delegation, despite the fact that the obligation to have one only begins in companies with 15 employees.

 

Numbers and structure

 

Every company employing 15 or more workers (excluding apprentices) over the previous 12 months is obliged to set up an employee delegation. In calculating the number of workers, all part-time workers on working 16 hours a week, or more, are counted as if they were full-time, and part-time workers on fewer than 16 hours are counted on a pro-rata basis. Workers on temporary contracts and temporary agency workers are also counted on a proportional basis, relative to the number of months worked in the preceding 12 months, unless they are directly replacing an absent member of the workforce, in which case the are excluded.

 

The size of the employee delegation, which consists entirely of workers, varies with number of employees, as set out in the table.

 

Number of employees

Number of members

15 to 25

1

26 to 50

2

51 to 75

3

76 to 100

4

101 to 200

5

201 to 300

6

301 to 400

7

401 to 500

8

501 to 600

9

601 to 700

10

701 to 800

11

801 to 900

12

901 to 1,000

13

1,001 to 1,100

14

 

Thereafter there is one extra member for every 400 employees until 5,500; then one extra for every complete block of 500 employees. There is no upper limit. These means a company with between 3,101 and 3,500 employees has 20 members.

 

There is also representation for young workers (aged under 21), provided there are at least five young workers employed. These representatives attend meetings of the employee delegation when issues relevant to young workers are discussed.

 

A company with at least three divisions can, at the request of the employee delegation, set up separate employee delegations in these divisions, provided each division consists of at least 100 employees.

 

It is also possible for employees in businesses which employ fewer than 15 workers to set up an employee delegation with other businesses, if they form a single economic and social entity, in other words an interdependent operation. This can either be done by linking with existing employee delegations or with other businesses without an employee delegation, although, in this second case, there must be at least three businesses involved, and together they must have at least 15 employees (see section on representation at group level).

 

At the first meeting of the employee delegation after it has been elected, it elects from its members a chair, vice-chair and secretary, as well as a member for health and safety and a member for equality. There is also a committee (bureau) to deal with daily business and prepare the delegation meetings. This consists of the chair, vice-chair and secretary, with extra members of the committee in larger companies, totalling around half the members of the delegation.

 

The employee delegation must meet at least six times a year and can meet once a month in works time. It must meet the employer three times a year.

 

Participants in the meetings are:

  • the elected members of the employee delegation (in small companies where there is only a single member, the elected replacement also has a right to attend);
  • the head of the company or his or her representative, provided they are invited by the employee delegation;
  • in companies with more than 50 employees, advisers nominated by the unions, who do not have to be employees, although they must be invited by a majority of the employee delegation and the number of such advisers cannot exceed a third of the size of the employee delegation; and
  • an expert if the employee delegation considers the issue is crucial.

 

In companies with between 51 and 150 employees, the trade union advisers are nominated by unions whose candidates make up at least a third of the elected members of the employee delegation. In companies with 151 or more employees, unions whose candidates make up 20% of the elected members can make the nominations, although the employee delegation decides whether or not to invite them.

 

Tasks and rights

 

Following the legislation adopted in 2015, the role of the employee delegation has been extended from its original purpose: to “safeguard and defend the interests” of the employees. In companies with more than 150 employees, it also participates in certain decisions taken by the employer – a role previously taken by the joint company committee – now abolished,

 

It is the responsibility of the employee delegation to:

  • avoid and resolve individual or collective disputes between the employer and employees;
  • pass on to the employer any complaints that may arise – both individual and collective;
  • to refer disputes that cannot be resolved to the labour inspectorate (ITM) as well as concerns that laws, regulations and collective agreements are not being properly observed.

 

In exercising its functions, the employee delegation must ensure the employer complies with the need for equal treatment in terms of access to employment, occupational training, pay and working conditions.

 

The head of the business must give the employee delegation the information it needs to perform its duties and which is likely to improve the delegation’s understanding of the progress and operation of the business (including recent and likely changes in its activities, and financial position).

 

For companies with between 15 and 150 employees, this information must be provided at the three meetings the delegation is required to hold every year with management. For companies with more than 150 employees, the information must be provided monthly, or in line with the wishes of the employee delegation. The employee delegation can ask for more information if it considers that the information provided is insufficient.

 

The head of the business must also provide the employee delegation and the member of the delegation with specific responsibility for health and safety with information on the health and safety risks, the measures taken to protect against them and the absence rates of the workforce.  

 

In companies with fewer than 150 employees, management is required to provide the employee delegation with a written report on the company’s operations and future prospects each year, setting out: turnover, production volumes, orders, the amount of pay, as well as changes in the pay structure and investments undertaken  

 

The role of the staff delegation is to:

 

  • make proposals for improving working conditions and employee welfare;
  • present its views on the drawing up or modification of the company’s internal regulations;
  • make its own proposals on modifying the internal regulations, to which the employer must respond with a decision within two months;
  • participate in the training of apprentices (where the company has more than 100 employees);
  • cooperate in establishment and implementation of initial and continuing training schemes, especially apprenticeships;
  • promote the integration of accident victims and people with disabilities and the creation of suitable jobs for them;
  • participate in health and safety activities and the prevention of accidents at work and occupational diseases;
  • participate in in the implementation of anti-harassment policies and the prevention of workplace violence;
  • present its views on starting or ending additional pension schemes;
  • present its views on working time issues;
  • present its views on plans for ongoing occupational training;
  • participate in initiatives to support young people;
  • cooperate in internal regrading; and
  • promote balance between work and family life.

 

The head of the business must inform and consult the employee delegation and the member of the delegation with special responsibility for equality on the structure and likely development of employment in the company, as well as on any measures being planned, particularly where they could threaten employment. They must also be given statistics on the gender breakdown of the workforce, covering recruitment, training, pay and promotion as well as total numbers employed every six months.

 

The head of the business must also inform and consult the employee delegation on “decisions likely to lead to substantial changes in work organisation or in contractual relations”, as well as specifically on collective redundancies and company transfers. The employee delegation and the member of the delegation with special responsibility for equality must also be informed and consulted on the use of special contracts for young people at the start of the careers.

 

Finally, the head of the business must inform and consult the employee delegation on the management of facilities run for the benefit of employees or their families including company housing, presenting an annual report on their management.

 

There are more extensive information and consultation obligations on the employer in companies employing at least 150 workers. In these companies, the head of the business must inform and consult the employee delegation before taking important decisions on:

  • the construction, alteration or extension of facilities used in production or administration;
  • the introduction, improvement, renewal or alteration of equipment;
  • the introduction, improvement, renewal or alteration of working methods and production processes, other than manufacturing secrets.

The head of the business must specifically inform the delegation about the impact of such measures on the working conditions and environment. More generally he or she must inform and consult the employee delegation on current and projected staffing needs, particularly relating to training and retraining measures, at least once a year.

 

In addition, the head of the business must inform and consult the employee delegation, on economic and financial decisions that may have an impact on the structure of the business or the level of employment. Examples are decisions concerning

  • the volume of sales and production and changes in products;
  • investment policy;
  • plans to discontinue or transfer all or part of the business;
  • projects concerning the reduction or extension of business activities; and
  • alternations to additional pension schemes.

 

Information and consultation on these issues must take particular account of their impact on the nature and level of employment and working conditions, as well as social measures, particularly training proposed by the company.

 

As far as possible, the process of informing and consulting the employee delegation should take place before any decision is made, other than where, to do so, might damage the management of the business or compromise planned activities. In such cases, the business manager must give the employee delegation the necessary information within three days of the decision.

 

The head of the business must inform the employee delegation in writing, at least twice per year, about the business's economic and financial development. This takes the form of a comprehensive report on the business activity, annual turnover, overall production results and operating income, orders, changes in salary structures and the total wage bills and investments undertaken.

 

Management must provide the employee delegation with documents such, as the profit and loss account, and the balance sheet, before they are presented to the shareholders or other decision-making bodies. In addition, where consultation with the employee delegation over issues likely to have a significant impact on the workforce has not led to agreement, the board of the company, or equivalent body in non-company structures, must be informed.

 

As well as issues that are subject to information and consultation, there are some issues which must be decided jointly by the employer and the employee delegation, although this requirement only applies in businesses with at least 150 employees.

The issues that must be dealt with in this way are:

  • the introduction or application of technical systems to monitor employee conduct and performance in the workplace;
    • the introduction or modification of measures relating to employee health and safety, and prevention of occupational diseases;
    • the establishment or modification of general criteria for recruitment, promotion, transfer and dismissal of staff, and, where relevant, access to early retirement schemes;
    • the implementation of all continuing training schemes;
    • the introduction or modification of general criteria for employee assessment;
    • the introduction or modification of the company’s internal regulations, taking account of collective agreements, where appropriate; and
    • payments linked to staff suggestion schemes

 

A meeting must be held at least once every three months between the employer and the employee delegation to discuss these topics and reach an agreement. The agenda must be agreed jointly by the two sides and if no agreement can be reached the issue is referred to the committee (bureau) of the employee delegation, which can be helped in its work by up to four advisers nominated by the unions. If an agreement is still not possible, the issue is referred to a national system of conciliation and arbitration.

 

As well as these rights relating to the whole employee delegation, the members who have specific responsibilities for health and safety and equality have additional rights in these areas. For the member for health and safety this includes undertaking inspections and being information on a range of health and safety issues. The member for equality has the right to make proposals on a range of issues linked to equality, including presenting a plan to promote equality at the workplace.

 

Members of the employee delegation who have been nominated by the unions, can undertake trade union tasks, such as putting up notices or distributing material.

 

Election and term of office

 

Members of the employee delegation are elected five years by all employees at the workplace, including apprentices, who are aged at least 16 and have at least six months’ service. Candidates must be at least 18 and must have at least 12 months’ service. They must also be either citizens of Luxembourg or have the right to work in Luxembourg. Close relatives of the head of the business cannot be candidates, nor can directors.

 

Candidates can be nominated by:

  • nationally representative trade unions (see section on unions);
  • unions which are representative at an industry level but only in the industry in which they are representative (see section on unions);
  • unions which had an absolute majority of members in the previous employee delegation; and
  • groups of employees:
    • at least 5% of the workforce up to a ceiling of 100 employees in companies employing at least 100; and
    • at least five employees in companies employing between 15 and 99 workers.

 

In companies with between 15 and 99 workers, members of the employee delegation are elected individually and the candidates with the most votes are elected. In companies with 100 or more employees, candidates stand as members of lists and seats are distributed proportionately between the lists

 

A substantial number of the members of the employee delegations are nominated by the unions, but they are no longer the majority. In the most recent elections in March 2019, candidates nominated by the two nationally representative union confederations together won under 40% of the seats (OGB-L – 24.1% and LCGB –14.2%), while candidates from ALEBA, the union representative at industry level (finance), got 4.0%. All the other unions together got 0.8% of the seats, which means individuals proposed by groups of employees made up a majority (56.8%) of the members of the employee delegations across the country.[3]

 

The term of office is five years (the elections coincide with those for the Chamber of Employees – CSL), and there is no limit on the number of terms individuals can serve.

Protection against dismissal

 

The employer cannot alter major aspects of the contract of members of the employee delegation or dismiss them, even on the basis of “grave misconduct”, during their time in office and for a period of six months after leaving office.

 

However, if grave misconduct is alleged, the employer can take the issue to the labour court and request their dismissal.

Time off and other resources

 

Members of the employee delegation have a right to carry out their duties in works time and be paid as normally during this period. Meetings of the employee delegation are also considered working time. In addition, they have a specific right to paid time off.

 

In companies with up to 150 employees this is calculated based on 40 hours of time off per week for every 500 employees. On this basis, the employee delegation in a company with 100 employees has a right to eight hours of paid time off (one fifth of 40).

 

In companies with between 150 and 249 employees, the calculation is based on 40 hours of time off per week for every 250 employees. This means, in a company with 200 employees, the employee delegation has the right to 32 hours a week time off (four-fifths of 40).

 

In companies with at least 250 employees, one or more members of the employee delegation are completely freed from normal duties (see table)

 

Number of employees

Number of members of employee delegation freed from normal duties

250 to 500

1

501 to 1,000

2

1,001 to 2,000

3

2,001 to 3,500

4

Above 3,500

One extra member for every 1,500 employees

 

The employee delegation as a whole chooses the members who will be freed from normal duties, but, in companies employing more than 1,000, unions can each chose one member in this position provided they are nationally representative – in practice only OGB-L and LCGB – and are represented in the company.

 

In addition, the member of the employee delegation with responsibility for equality between women and men has the right to additional paid time-off as set out in the table.

 

Number of employees

Paid time off for member of employee delegation with responsibility for equality

15 to 25

4 hours a month

26 to 50

6 hours a month

51 to 75

8 hours a month

76 to 150

10 hours a month

More than 150

4 hours a week

 

The members of the employee delegation are entitled to circulate freely throughout the business and contact employees, after notifying the employer.

 

The employer must provide a room where the employee delegation can meet in, as well as access to internal and external communications. Where one or more of its members are freed from other duties, the employer should also provide an office and associated materials, plus, where appropriate, the necessary staff.

 

Training rights

 

The members of the employee delegation also have the right to paid training during their five-year period of office, which varies with the numbers employed (see table).

 

Number of employees

Paid time for training for each member of the employee delegation

15 to 49

1 week over period of office (5 years) – paid by the state

50 to 150

2 weeks over period of office (5 years) – paid by the state

More than 150

1 week each year – paid by the employer

 

Members elected for the first time have a right to an additional 16 hours of training in the first year of office.

 

In addition, members of the employee delegation with special responsibilities have additional training rights. The member with responsibility for health and safety has the right to 40 hours training over the period of office (five years), plus another 10 hours if elected for the first time. This is paid by the state in companies with 150 employees or fewer. The member with responsibility for equality between women and men has the additional right to two half-days training a year. This is also paid by the state in companies with 150 employees or fewer..

 

Representation at group level

 

There is no representation at group level, in the sense of a group of independent companies. However, it is possible to set up a employee delegation at a higher level than a single company, when several companies can be said to form an “economic and social entity”, in other words a groups of businesses that are not independent but act together, even if legally they are separate entities.

 

An employee delegation at economic and social entity level can only be set up if at least three of the employee delegations at company level within the entity request it, and the request must be made within three months of the elections.

 

The role of the employee delegation at this level is to protect the interests of all the employees within the entity through an exchange of information. The members are elected by the members of the company-level employee delegations within the entity, and the number depends on the number of employees. A company with between 15 and 100 employees sends one delegate; a company with between 101 and 500 sends two; and a company with more than 500 sends three. There is also a possibility of providing representation for employees within the entity who work in companies employing fewer than 15 people.

 

The employee delegation at economic and social entity level has the same tasks and enjoys the same rights as the employee delegation at company level, but with some important exceptions. In particular, it has fewer information and consultation rights in relation to economic, technical and financial issues, and it is not involved in taking decisions jointly with management on topics such as monitoring systems, health and safety issues and general criteria on recruitment and promotion. There are also no delegation members with special responsibility for health and safety or equality. They are also only entitled to half the time of for training provided to a delegation member at company level.

[1] Loi du 23 juillet 2015

[2] Eurofound (2015), Third European Company Survey – Overview report: Workplace practices – Patterns, performance and well-being, Figures for Table 44

[3] ITM Total national (22.04.20) https://itm.public.lu/fr/conditions-travail/elections-sociales/resultats/total-national.html (Accessed 22.04.2020)

L. Fulton (2021) National Industrial Relations, an update (2019-2021). Labour Research Department and ETUI (online publication). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.