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

Article 1 of the Convention. Scope of application. The Committee notes that section L.211-3 of the Labour Code excludes river transport enterprises from the scope of application of the provisions of the Code concerning hours of work. However, Article 1(1) of the Convention states that all industrial undertakings, including those engaged in the transport of passengers or goods by inland waterway, are covered by the Convention. The Committee therefore requests the Government to indicate which legal provisions regulate hours of work in river transport enterprises and to send a copy of them.

Article 2. Hours of work for night workers. The Committee notes that, under section L.211-15 of the Labour Code, normal hours of work for night workers may not exceed an average of eight hours within a 24-hour period calculated over a period of seven days. It requests the Government to clarify if the limit of 40 hours per week provided by section L.122-5 of the Labour Code is also applicable to these workers and to indicate whether an absolute limit has been established for daily hours of work.

Article 3. Additional hours – force majeure. The Committee notes that, under section L.211-7(4) of the Labour Code, work carried out beyond the limits established by the work organization plan in the context of the averaging of weekly hours of work is considered as overtime work, except in cases of unforeseeable events or force majeure. It notes that this provision defines the term “unforeseeable event” as an event which, at the time the work organization plan was drawn up, could not have been predicted, or which could also not have been predicted following a regular occurrence of the phenomenon in the preceding periods or following a cautious forecast made with due diligence by the employer of future events which should or could have been expected. The Committee draws the Government’s attention to the fact that Article 3 of the Convention, which allows normal limits on hours of work to be exceeded “in case of accident, actual or threatened, or in case of urgent work to be done to machinery or plant, or in case of force majeure”, must be interpreted strictly and that the formulation used in the abovementioned provision appears too broad in this respect. It recalls that other types of temporary exceptions are permissible but must meet the conditions laid down by Article 6(1)(b) and (2) of the Convention. This implies in particular the determination of the authorized number of overtime hours and a rate of pay at least 25 per cent higher than the regular rate for the workers concerned. The Committee requests the Government to take the necessary steps to limit the application of section L.211-7(4) of the Labour Code only to the cases provided for by Article 3 and Article 6(1)(b) of the Convention.

Article 5. Uneven distribution of hours of work over a period longer than a week. The Committee notes that, under section L.211-5 of the Labour Code, working time may not exceed eight hours per day and 40 hours per week. However, it notes that section L.211-6 permits these limits to be exceeded provided that weekly hours of work averaged over a reference period of four weeks do not exceed 40 hours. It also notes that the length of the reference period may be extended by collective agreement to a maximum of 12 months (sections L.211-8 and L.211-31) and that otherwise the Minister for Labour and Employment may, at the request of an enterprise, authorize a specified reference period after consultation of the employers’ organizations concerned and the most representative national trade union organizations (section L.211-9). Furthermore, the Committee notes that, in accordance with section L.211-12(1) of the Labour Code, the maximum working time, including additional or complementary hours, may not exceed ten hours per day or 48 hours per week. It notes that section L.211-12(2) provides that a Grand-Ducal regulation may determine a limited number of sectors, branches, activities or occupations in which maximum daily working hours may be extended to 12 hours by means of a collective agreement or otherwise by the Minister of Labour and Employment, provided that actual weekly working time does not exceed 40 hours. The Committee also notes that, according to the information supplied by the Government in its report relating to the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), no Grand-Ducal regulation has been adopted on the basis of section L.211-12(2) of the Labour Code and that the Government has no plans to adopt one, with the result that the Minister for Labour and Employment may not grant any extension beyond ten hours per day.

While noting the Government’s explanations, the Committee observes that the Labour Code authorizes the averaging of weekly hours of work practically without restriction. Hence, even though the 48-hour limit on weekly working time remains absolute, daily working time may at present be as much as ten or even 12 hours and the reference period may be extended to 12 months. The Committee draws the Government’s attention to the fact that the averaging of weekly hours of work is only authorized by the Convention – apart from the specific cases of shift work (Article 2(c)) and continuous processes (Article 4) – in exceptional cases where the normal limits of eight hours per day and 48 hours per week cannot be observed (Article 5). The Committee requests the Government to take the necessary steps to amend the relevant provisions of the Labour Code so as to bring them into conformity with the Convention on this point. Furthermore, in view of the substantial impact which prolonged working days can have on workers’ health, the Committee hopes that the Government will be able, in the near future, to eliminate the possibility of extending daily working time to 12 hours.

Article 6, paragraph 1(a). Permanent exceptions – preparatory or complementary work, and intermittent work. The Committee notes that section L.211-4 of the Labour Code states that, in the case of workers whose work is essentially intermittent, collective labour agreements or otherwise Grand-Ducal regulations can determine the time during which the worker is at the employer’s disposal. It also notes that section L.211-20 states that the Minister for Labour and Employment may authorize hours in excess of normal working time for preparatory or complementary work. The Committee requests the Government to indicate whether collective labour agreements or Grand-Ducal regulations have been adopted on the basis of section L.211-4 of the Labour Code and, if so, to send copies of them. The Government is also requested to provide information on the type of authorization issued by the Minister of Labour and Employment under section L.211-20 of the Code.

Article 6, paragraphs 1(b) and 2.  Temporary exceptions. The Committee notes that section L.211-35(2) of the Labour Code states that a Grand-Ducal regulation determines the enterprises which, owing to particular service requirements, are to be granted a provisional dispensation in whole or in part, from observing any particular provision of the Code concerning hours of work. It requests the Government to indicate whether such a regulation has been adopted and, if so, to send a copy of it.

Number of additional hours. The Committee notes that section L.211-25 of the Labour Code permits an exception, by means of collective agreement, to the legal provisions concerning hours of work in sectors, branches or enterprises in which there is a shortage of labour and whose output is unlikely to be improved by work organization, mechanization or rationalization measures. It notes that in this case working time may not exceed ten hours per day or 44 hours per week and that these exceptions may not be applied for more than two years. Moreover, it notes that the limitations laid down by section L.211-26 concerning the authorized number of overtime hours are not applicable to the work covered by section L.211-25. The Committee requests the Government to supply more detailed information on the sectors of work covered by section L.211-25, to send copies of collective agreements adopted on the basis of this provision, and to clarify the hours of work, including overtime, which are authorized for these categories of workers.

Overtime pay. The Committee notes that section L.211-27 of the Labour Code, as amended by the Act of 13 May 2008 introducing unified regulations, provides that overtime hours shall either be compensated for by a paid time of rest, on the basis of one and a half hours of compensatory rest for one hour of overtime worked or calculated at the same rate and added to a “time savings account”. It notes that employees are only entitled to a 40 per cent higher rate of pay compared with the regular rate in cases where, for reasons inherent to the organization of the enterprise, it is not possible to grant compensatory rest or if the employee has left the enterprise before taking such a rest period. The Committee recalls that, under the terms of Article 6(2) of the Convention, workers shall be entitled to a rate of pay at least 25 per cent higher for overtime worked in the context of temporary exceptions, whether or not compensatory rest is granted. It observes that section L.211-27, as amended, of the Labour Code makes no provision for workers’ preferences to be taken into account as regards the choice between compensatory rest and a higher rate of pay, this depending solely on the requirements of the enterprise, and also makes no reference to collective agreements on this point. The Committee therefore requests the Government to supply more detailed information on the implementation in practice of the system of compensation for overtime and on the outcome of consultations held with employers’ and workers’ organizations on this point before the adoption of the Act of 13 May 2008 introducing unified regulations.

Part VI of the report form. Practical application. The Committee notes the information contained in the annual report of the labour and mines inspectorate for 2007 as regards the distribution of inspections undertaken by the staff of the various offices with respect to labour law. It notes that matters relating to hours of work were the subject of 164 inspections by the Luxembourg office, 114 inspections by the Esch/Alzette office, and 21 inspections by the Diekirch office. The Committee requests the Government to provide more detailed information on the results of these inspection activities, particularly the number and nature of infringements reported with regard to the legislation on hours of work, and also any remedial action taken in this regard.