Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 4 and 5 of the Convention. Total or partial exceptions – Compensatory rest. In reply to the Committee’s previous comment, in which it noted that section L.231-11 of the Labour Code and section 1 of the Grand-Ducal Regulations of 26 July 1966 provide for workers to be given additional annual leave when it is not possible to grant them the normal uninterrupted weekly rest period of 44 hours, the Government indicates that no provision of the Labour Code ensures that the workers concerned benefit from a minimum period of rest of 24 consecutive hours in each week. The Committee also notes the Government’s indication that the rest period of 44 hours may be calculated, for certain branches or specific enterprises, on the basis of a reference period longer than a week, as determined by the labour and mine inspection services, when it is required for operational reasons or in the event of the legitimate preferences of the personnel. While observing that these exemptions to the normal weekly rest scheme envisage the intervention of the labour and mine inspection services as a monitoring body, the Committee nevertheless notes that the scope of application and the reasons for adopting such arrangements are set out in very broad terms and that their application could lead to situations that are potentially abusive and harmful to the health of workers, due to the postponement of the weekly rest for excessively long periods. In this respect, the Committee is bound to recall that the principles of regularity (24 hours of rest in every period of seven days), continuity (a rest period of at least 24 consecutive hours) and simultaneity (the same rest day for everyone) of weekly rest, clearly established in the Convention, are aimed at protecting workers’ health and allowing them to balance their private and professional lives. In this respect, the Committee recalls that, according to the letter and the spirit of the Convention, any exceptions to weekly rest should be limited to what is strictly necessary, and that workers should enjoy a minimum period of rest and leisure each week or, in any event, at reasonably close intervals. It refers on this point to Paragraph 3(a) of the Weekly Rest (Commerce and Offices) Recommendation, 1957 (No. 103), which suggests that persons to whom special schemes apply should not work for more than three weeks without receiving the periods of rest to which they are entitled. Consequently, the Committee requests the Government to provide information on any measures that it intends to adopt to ensure, in law and practice, that workers receive, as far as possible, a minimum period of rest of 24 consecutive hours each week, in compliance with the letter and spirit of the Convention. It would also be grateful if the Government would provide information on the discussions held and the recommendations made by the Standing Committee on Labour and Employment (CPTE) with respect to the study carried out by the CEPS/INSTEAD on the effect of the provisions of the Labour Code relating to the reference period and average weekly hours of work on the labour market, and, provide a copy of this study.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 2 of the Convention. Scope – Nursing personnel. The Committee notes that, according to the Government, night work by nursing personnel is governed by the collective labour agreement for private employees in the assistance and care sector and the social sector, declared to be a general obligation by a Grand-Ducal Regulation of 17 December 2010, and particularly by sections 12–15 of the above agreement which define night work and provide for additional pay for employees performing night work. The Committee points out that this Convention requires, in addition, the adoption of provisions on health assessments for night workers (Article 4), the transfer of night workers certified as temporarily unfit for night work (Article 6) and social services (Article 9). Observing that the collective agreement appears to make no provision for such measures, the Committee requests the Government to provide additional information on any provisions giving effect to these Articles of the Convention. It also requests the Government to indicate how effect is given to the provisions of the Convention in respect of nursing personnel in the public sector, who are excluded from the scope of the collective agreement by virtue of section 2, and to provide copies of all relevant provisions of laws and regulations, together with a copy of the collective labour agreement of employees of hospital establishments in Luxembourg.

Article 9. Social services. In the absence of a reply from the Government on this point, the Committee points out that according to Article 9 of the Convention, appropriate social services are among the specific measures required by the nature of night work which must be taken for night workers in order to protect their health and assist them to meet their family and social responsibilities, and of which examples are given in Paragraphs 13–18 of the Night Work Recommendation, 1990 (No. 178). Recalling that Article 3 of the Convention allows these measures to be taken progressively, the Committee once more requests the Government to indicate the measures taken or envisaged to give effect to this Article of the Convention.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 1 of the Convention. Definition of the term “night work”. The Committee notes that section L.214-2 of the Labour Code defines the term “nocturnal period” for employed persons engaged in mobile road transport activities as the period between midnight and 5 a.m. The Committee draws the Government’s attention to the fact that, in accordance with Article 1 of the Convention, the term “night work” means “all work which is performed during a period of not less than seven consecutive hours, including the interval from midnight to 5 a.m.”. The Committee therefore requests the Government to take the necessary measures to raise to at least seven consecutive hours the reference period used for the purposes of the calculation of the night work of employed persons engaged in mobile road transport activities.

Article 2. Scope of application. The Committee notes that section L.211-2 of the Labour Code enumerates the categories of workers for whom working hours shall be regulated by special laws, collective labour agreements or, in their absence, regulations of the public administration. The Committee requests the Government to provide information on the regulations applicable to each of these categories of employed persons, and particularly to personnel in domestic service and nursing personnel, in relation to night work. The Committee also notes that section L.211-3 of the Labour Code excludes, among others, family enterprises and home workers from the scope of its provisions respecting hours of work. It requests the Government to indicate the reasons why it considers that the application of the provisions of the Labour Code respecting night work to workers engaged in family enterprises and home workers would raise special problems of a substantial nature justifying their exclusion from the scope of application of the Convention.

Article 7(3)(c). Maintenance of benefits. The Committee notes that section L.333-3 of the Labour Code establishes the requirement for the employer to transfer to a day job a woman employee who is pregnant or who is nursing when, in the opinion of the occupational physician, it is necessary from the viewpoint of her safety or health. It notes that, under the terms of section L.333-4, if a transfer to a day job is not technically and/or objectively possible or cannot be reasonably required for duly justified reasons, the employer, based on the opinion of the occupational physician, is required to dispense the woman worker concerned from working during the whole period necessary for the protection of her safety or health, for the period determined by the occupational physician. Furthermore, the Committee notes that, under the terms of section L.332-3 of the Labour Code, the period of maternity leave is taken into account for the determination of entitlements relating to seniority, with the employed woman worker also maintaining all the benefits that she had acquired before the commencement of maternity leave and benefiting from any improvement in working conditions to which she would have been entitled during her absence. The Committee requests the Government to indicate whether, in cases where an employed woman is dispensed from working under the terms of section L.333-4 of the Labour Code, she benefits from the rights afforded to employed women on maternity leave under the terms of section L.332-3.

Article 9. Social services. The Committee notes that, with regard to the application of this Article of the Convention, the Government confines itself to indicating in its report that night workers benefit from the same social services as other workers. It draws the Government’s attention to the provisions of Paragraphs 13 to 18 of the Night Work Recommendation, 1990 (No. 178), which advocate a number of specific measures for night workers in relation to the organization of social services in the following areas: measures relating to travel by night workers between their residence and the workplace; the improvement of the quality of rest for night workers; the provision of suitably equipped resting places; measures to be taken by the employer to enable night workers to obtain meals and beverages; the taking into consideration of the extent to which night work is performed locally when deciding on the establishment of crèche and other services for the care of young children; and the consideration of the specific constraints on night workers within the framework of measures to encourage training and retraining, as well as cultural, sporting or recreational activities for workers. The Committee requests the Government to provide more specific information on the measures adopted for the benefit of night workers in these various fields.

Article 10. Consultation of workers’ representatives. The Committee notes that section L.414-1 of the Labour Code provides that the staff delegation shall be called upon to issue its opinion and make proposals on any matter relating to the improvement of the conditions of work and employment and the social situation of employed persons in the establishment, give its opinion on the formulation or modification of the service rules or the rules of the establishment and monitor closely the implementation of such rules. It also notes that section L.423-1 of the Labour Code provides that the enterprise joint committee, which must be established in any enterprise habitually employing at least 150 employed persons, has the competence to take decisions with regard, among other matters, to the establishment or modification of the internal rules or the workshop rules, taking into account, where appropriate, the collective agreements that are in force. However, the Committee observes that no provision in the Labour Code determines precisely the role of staff representatives in cases where night workers are employed in the enterprise. It recalls that, in accordance with Article 10 of the Convention, the workers’ representatives shall be consulted regularly on the details of night work schedules, the forms of organization of night work that are best adapted to the establishment and its personnel, as well as the occupational health measures and social services which are required. The Government is requested to indicate the measures adopted to ensure the application of this provision of the Convention.

Part IV of the report form. Court decisions. The Government is requested to indicate whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention. If so, the Government is requested to provide the texts of these decisions.

Part V of the report form. Application in practice. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice, including, for example, extracts from reports of the inspection services, detailed information on the categories of workers concerned and statistics on the number of male and female workers employed at night, the number and nature of violations reported and the measures taken as a result.

Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working-Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part-time and night work, remain relevant in the twenty-first century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Act of 31 July 2006 issuing a Labour Code consolidates a large number of laws relating to labour matters, including the Act of 1 August 1988 on the weekly rest period of salaried employees and manual workers. It notes that the Labour Code contains rules relating to the prohibition in principle of work on Sundays and the requirement to grant workers a period of weekly rest of at least 44 consecutive hours. The Committee wishes to raise the following points with regard to the application of the Convention.

Articles 1 and 4 of the Convention. Scope of application. Managerial and supervisory staff. The Committee notes that the principle of the prohibition of work on Sundays, established by section L.231-1 of the Labour Code, is not applicable to employees engaged in executive positions or to higher level managerial staff whose presence in the enterprise is indispensable for its operation and supervision. It draws the Government’s attention to the fact that, while the need for a certain flexibility in the organization of working time for higher level managerial staff can be acknowledged, the weekly rest period remains an essential element in protecting the health of all workers. Article 4 of the Convention nevertheless allows total or partial exceptions to the normal weekly rest scheme to be introduced, on condition that humanitarian and social considerations are taken into account, and not only economic considerations. The Committee considers in this respect that it would be desirable to establish a certain framework for exceptions to the normal rules relating to the weekly rest period applicable to the staff members covered by section L.231-1 of the Labour Code, instead of purely and simply excluding them from the applicable provisions in this respect. The Committee requests the Government to keep the Office informed of any decision that it may take in this respect.

Article 4. Total or partial exceptions to the rules respecting the weekly rest period. The Committee notes that, under section L.231-11 of the Labour Code, workers shall benefit from a weekly rest period of at least 44 consecutive hours, which shall in so far as possible coincide with Sunday. It observes that workers accordingly benefit in principle from a weekly rest period that is well above the minimum duration required by the Convention, namely 24 consecutive hours. The Committee also notes that, by virtue of section L.231-11(3) of the Labour Code, employed persons whose service does not allow this uninterrupted rest period of 44 hours are entitled to additional annual leave of six working days. It further notes that section 1 of the Grand Ducal Regulations of 26 July 1966, issued under the Act of 22 April 1966 adopting uniform regulations on the annual holidays with pay of employed persons in the private sector grants one additional day of annual holiday for each full period of eight weeks, whether or not they are successive, during which the uninterrupted rest period of 44 hours in the week is not granted. The Committee requests the Government to provide further information on the extent to which it is authorized to make exceptions from the normal scheme of 44 consecutive hours of weekly rest, and to indicate whether workers are in any case ensured of a minimum period of rest of 24 consecutive hours. Finally, the Committee notes that Grand Ducal Regulations are to be made to determine the conditions for the implementation of section L.231-11(3) of the Labour Code. It requests the Government to indicate whether these Grand Ducal Regulations have been issued and, if so, to provide a copy.

With regard to the prohibition of work on Sundays, the Committee notes that, under the terms of section L.231-6(1)(7) of the Labour Code, this rule does not apply to transport enterprises. It notes that section L.214-5 of the Labour Code provides that mobile workers employed in the road transport sector shall be granted a weekly rest period in accordance with the provisions of the Community Regulation on driving time and rest periods or, failing that, with the AETR Agreement. The Committee requests the Government to provide further information on the weekly rest scheme applicable to the workers covered by section L.214-5 referred to above, and the rules applicable in this respect to other categories of workers engaged in the transport of persons or goods by road, rail or internal waterways, who are included in the scope of application of the Convention under the terms of Article 1(1)(d). The Committee also notes that, by virtue of section L.231-6 (1)(9) of the Labour Code, the prohibition of Sunday work is not applicable in enterprises in which the work, by virtue of its nature, cannot be interrupted or put off. It notes that a Grand Ducal Regulation to be issued following the opinion of the Council of State is to determine the enterprises concerned and specify the nature of work that may be performed on a Sunday. The Committee requests the Government to indicate whether this Grand Ducal Regulation has been adopted and, if so, to provide a copy. Finally, the Committee notes that the last clause of section L.231-6(1) of the Labour Code provides that a Grand Ducal Regulation to be issued following the opinion of the Council of State may supplement the list of enterprises in which exemptions may be made from the weekly rest scheme. It requests the Government to indicate whether such a Grand Ducal Regulation has been adopted and, if so, to provide a copy.

Article 5. Compensatory rest. The Committee notes that, under the terms of section L.231-7 of the Labour Code, employees who, under the terms of one of the exceptions established in sections L.231-2 to L.231-6, work on Sundays are entitled to a period of compensatory rest which does not necessarily have to be granted on a Sunday, nor on the same day for all the employees in the same enterprise. It notes that this rest period consists of a full day where the work on Sunday lasted more than four hours, and at least a half day where it was less than four hours. Moreover, the workers concerned have to be paid wages that are 70 per cent higher than the normal. The Committee also notes, as indicated above, that employees whose service does not allow them to take an uninterrupted period of 44 hours of weekly rest are entitled to six working days of additional annual holidays, under section L.231-11(3) of the Labour Code, and that section 1 of the Grand Ducal Regulation of 26 July 1966, referred to above, grants one additional day of annual leave for each full period of eight weeks, whether or not they are consecutive, during which the uninterrupted period of rest of 44 hours in the week is not granted.

With regard to compensatory rest in the case of Sunday work, the Committee notes that section L.231-7 of the Labour Code does not establish the time limit within which this rest period has to be granted to the worker. Furthermore, in the case of exemptions from the minimum weekly period of rest of 44 consecutive hours, it notes that the compensation takes the form of days of annual holiday. Although the Convention does not set a precise limit within which the period of compensatory rest has to be granted, compliance with the spirit of the Convention requires this to be within a reasonably short time, otherwise the Convention might be bereft of all significance. The Committee therefore hopes that the Government will rapidly take measures to establish a reasonably short time limit for the granting of compensatory rest to workers covered by the exceptions from the normal rules respecting weekly rest and the prohibition of Sunday work. The Government is requested to provide information on any developments in this respect.

The Committee further notes that section L.211-7(1) of the Labour Code envisages the drawing up of a work organization plan containing, among other information, indications concerning the weekly rest period and, where appropriate, the compensatory rest due in cases where the weekly rest is not granted. It notes that, by virtue of section L.211-11 of the Labour Code, sections L.211-6 to L.211-10 were only valid up to 31 July 2007, and were then extended up to 1 January 2012 by an Act of 24 July 2007. It also notes that an evaluation was to be carried out of the impact of these provisions on the employment market over an observation period ending on 31 December 2006. The Committee requests the Government to provide all relevant information on the findings of the evaluation.

Part V of the report form. Application in practice. The Committee notes that the Ministry of Labour and Employment has drawn up a form for the declaration of Sunday work which is to be submitted, where applicable, to the Labour and Mines Inspectorate. It requests the Government to provide general information on the manner in which the Convention is applied in practice including, for instance, extracts from reports of the inspection services and, if such statistics are available, information on the number of workers in industry covered by the relevant legislation, and the number and nature of the contraventions reported and the measures taken as a consequence.

Finally, the Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that the ratification of up to date Conventions, including the Weekly Rest (Industry) Convention, 1921 (No. 14), and the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106), should be encouraged because they continue to respond to current needs (see GB.283/LILS/WP/PRS/1/2, paragraphs 17–18). The Committee accordingly invites the Government to envisage ratifying Convention No. 106 and to keep the Office informed of any decision taken or envisaged in this respect.