Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Luxembourg (Ratification: 2001)

Other comments on C111

Observation

Direct Request

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Article 1 of the Convention. Prohibited grounds of discrimination. In its previous comments the Committee noted that following the adoption of the Act of 28 November 2006, any direct or indirect discrimination on the basis of religion or belief, disability, age, sexual orientation or real or presumed membership or non-membership of a race or ethnic group is now prohibited (section L.241-1 of the Labour Code, section 1bis of the Act of 16 April 1979 issuing the general conditions of service of civil servants and section 1bis of the Act of 24 December 1985 issuing the general conditions of service of local government officials). The Committee noted, however, that no provision prohibited discrimination on the basis of colour, political opinion, national extraction or social origin. In the absence of any information on this point in the Government’s report, the Committee again recalls that national legislation which defines and prohibits discrimination in employment and occupation should cover at least all the grounds enumerated in Article 1(1)(a) of the Convention. The Committee urges the Government to indicate the manner in which the protection of workers is ensured, in law and in practice, against discrimination on the grounds of colour, political opinion, national extraction or social origin.

Sexual harassment and other forms of harassment. The Committee notes that following the adoption of the Grand-ducal Regulation of 15 December 2009, the agreement of 25 June 2009 concerning harassment and violence at work, concluded between the trade unions Onofhängege Gewerkschaftsbond Lëtzebuerg (OGB-L) and Lëtzebuerger Chrëschtleche Gewerkschaftsbond (LCGB), on the one hand, and the Union des entreprises luxembourgeoises (UEL), on the other, has been declared compulsory in all companies established on Luxembourg territory. Under this agreement, employers have the obligation to adopt measures, in consultation with staff representatives, to raise the awareness of workers and managers and also to take measures to prevent and penalize acts of harassment or violence at work. The Committee requests the Government to provide information on the application of this agreement in practice.

The Committee also asked the Government in its previous comments to provide information on the measures taken to prevent and combat sexual harassment, in particular the establishment and operation of the special commission responsible for monitoring the application of the legislation relating to sexual harassment. In the absence of any information on this point, the Committee is bound to repeat its request for information on the measures taken in law and practice in both the public and private sectors to prevent and combat sexual harassment. The Government is also requested to provide information on the activities of the special commission dealing with sexual harassment and on any cases of sexual harassment addressed by this commission or the competent authorities, and the results thereof.

Article 1(2). Inherent requirements of the job. In its previous comments the Committee noted that section L.241-3 of the Labour Code states that “with regard to access to employment, including the training leading to such employment, a difference of treatment on the basis of a characteristic related to sex shall not constitute discrimination within the meaning of the present Act where, by reason of the nature of the specific occupational activities concerned or the context in which they are performed, such a characteristic constitutes an essential and decisive professional requirement, provided that the objective is legitimate and the requirement proportionate”. The Committee notes that the Government’s report does not contain any information on this point. The Committee therefore requests the Government once again to provide information on the application in practice of section L.241-3 of the Labour Code and give examples of cases in which it has been used. The Government is also requested to provide a copy of any relevant court decisions, and particularly any interpretation by the courts of the terms “essential and decisive professional requirement”, “legitimate objective” and “proportionate requirement”.

Article 2. Equality of opportunity and treatment for men and women. The Committee notes that, according to the study entitled “Women and men in the employment market” published by the Ministry of Equal Opportunities (updated in 2010), the employment rate for women was 57 per cent in 2009 (compared to 73.2 per cent for men); 34.9 per cent of jobs held by women were part time (compared to 4.5 per cent for men); and 93 per cent of women were employed in the tertiary sector (compared to 68 per cent for men). Moreover, non-salaried employment still holds little attraction for women, who, in 2009, only accounted for 36 per cent of self-employed workers. According to the study, even though women are now leaving school with qualifications at least equivalent to those of men, overall training levels of women aged over 40 still lag behind those of men. The study also emphasizes a deficit in vocational guidance which is manifested in high concentrations of women in less well-paid occupations (41 per cent in social and economic sciences and commerce, 11 per cent in health and social work and 8 per cent in education). Specialist training in engineering or construction is less frequently found among women (4 per cent), and this is also the case with specialist apprenticeships. According to the study, the proportion of women in vocational training remains lower than it should be given their participation in the labour market. The Committee further notes that, according to a further study of the Ministry of Equal Opportunities entitled “Women and men in economic decision-making in 2011”, women are still under-represented in top management posts.

The Government states in its report that the Ministry for Equal Opportunities has reorganized its activities, in accordance with the “National gender equality action plan for 2009–14”, with a view to specifically targeting each group in society in its media campaign. Hence, the first part of the campaign was aimed at raising young people’s awareness of gender equality issues; the second part targeted stakeholders in the world of work regarding the specific theme of women’s access to decision-making posts; the third part of the campaign concentrated on reconciling family life and working life and was designed for both families and enterprises. Moreover, the Committee notes that the “National gender equality action plan for 2009–14” defines the target areas of policy action and the related performance indicators. It notes in particular that the planned measures in the sphere of the “economic world” deal with combating wage gaps, involvement of the social partners and incorporation of gender equality issues in collective bargaining, revision of legislation relating to parental and maternity leave, reconciliation of private and working life and promotion of entrepreneurship for women. Education measures are concerned with compulsory training for teachers regarding gender equality; gender analysis of the impact of legislation adopted between 2004 and 2009, in particular legal texts concerning basic education and vocational training and their impact on girls and boys; promotion of diversification of vocational choices for girls and boys; and raising awareness of persons responsible for vocational guidance of gender issues. The Government also refers to initiatives allowing children to discover professions and occupations that they are unlikely to be attracted to because of stereotypes and prejudice regarding gender roles. Moreover, the Committee notes the information provided by the Government to the effect that, at the end of 2011, a new network of enterprises called “DivBiz – Diversity in Business” was launched at the initiative of the Ministry for Equal Opportunities for the purpose of promoting the presence of women on the boards of directors of private companies through awareness-raising activities aimed at company bosses. This network brings together various stakeholders, such as occupational associations and organizations. The Committee requests the Government to supply information on the implementation of the “National gender equality action plan for 2009–14”, particularly on the measures taken to promote gender equality in employment and occupation and also in education and training, especially with a view to eliminating gender-based horizontal and vertical occupational segregation, and on the results of these measures.

Workers with family responsibilities. The Committee notes that, according to the study referred to above entitled “Women and men in the employment market” (updated in 2010), family and domestic responsibilities are largely assumed by women, whether or not they exercise an occupation. The study concludes that temporary breaks from work often become permanent when there are problems reconciling childcare with two full-time jobs. The Committee notes the Government’s indication that, apart from awareness campaigns in enterprises with regard to reconciling personal and working life, in November 2011 the Ministry for Equal Opportunities launched a call for applications intended for enterprises which make a priority of reconciling family responsibilities with professional obligations, in order to create a network of enterprises promoting an innovative economy based on better reconciliation of personal and working life. Through this action, participating enterprises are to disseminate good practices and encourage other companies to adopt positive measures for such reconciliation. The Committee requests the Government to provide information on any steps taken or contemplated to promote and improve the reconciliation of work and family responsibilities and also on the specific impact of these measures. Furthermore, noting that the Committee on Work for Women launched discussions on the negotiations under way concerning the transposition of Council Directive 2010/18/EU of 8 March 2010 on parental leave, the Committee requests the Government to provide information on the outcome of these negotiations and also on any legislative or other developments with a view to the transposition of this Directive.

Affirmative action in favour of equal treatment for men and women. The Committee notes that, according to the 2011 annual report of the Ministry for Equal Opportunities, Bill No. 6101/00 of 8 January 2010 amending sections L.243-1 to L.243-5 of the Labour Code has been brought before the Chamber of Deputies. This Bill aims to introduce amendments to clarify the provisions of the Labour Code concerning affirmative action in the private sector, providing that affirmative action projects would be able to address one or more enterprises or a given economic sector (section L.243-3). The Committee further notes that in 2011, within the Committee on Affirmative Action, three projects were viewed favourably and received ministerial approval and financial support, four agreements were signed, a request for participation in the affirmative action programme was submitted and four companies expressed interest in the programme. Further, the Committee notes the information in the 2011, annual report to the effect that the affirmative action programme has been extended to the public sector on the basis of the government programme for 2009–14. In 2011 five public administrations applied to participate in the programme, namely, the Employment Development Agency (ADEM), the National Public Administration Institute (INAP), the State Personnel Administration (APE), the National Statistics and Economic Studies Institute (STATEC) and the University of Luxembourg. The Committee requests the Government to continue to provide information on the number and nature of affirmative action projects submitted and funded, and on their impact on achieving equality of opportunity and treatment for men and women in the public and private sectors. The Government is also requested to provide information on further developments regarding Bill No. 6101/00.

Equality of opportunity and treatment irrespective of race, colour or national extraction. The Committee notes that the report does not contain any information in reply to its previous direct requests. However, it notes that, according to the report of the European Commission against Racism and Intolerance (ECRI) of 8 December 2011, despite the Government’s efforts aimed at integration of pupils of foreign origin, in particular following the adoption of the Act of 6 February 2009, the school drop-out rate among foreign pupils, especially those of Cape Verdean origin, is still very high. The ECRI also notes situations of discrimination and racism in employment, especially with regard to black people (CRI(2012)4, paragraphs 70–71). The Committee notes that the “Multi-annual national action plan for integration and action against discrimination 2010–14” defines strategic components for intervention, in conformity with the common basic principles of the policy for the integration of immigrants in the EU. Priority areas of action for 2012 include the “two-way integration process” and education, and cover various objectives, in particular promotion of employability for target groups, promotion of the principle of equal treatment in enterprises, implementation of the “reception and integration contract” (CAI), which proposes language courses for immigrants, and the development of professional and technical skills acquired abroad. Educational measures seek to achieve equality of access to education and the prevention of failure in school, establish training in diversity for teachers and revamp educational information and guidance tools. The Committee requests the Government to provide information on the implementation of planned measures under the “Multi-annual national action plan for integration and action against discrimination 2010–14” aimed at ensuring equality of opportunity and treatment in access to education, employment and vocational training, and also on their impact on the elimination of discrimination against immigrants, particularly non-EU nationals. Also noting that the “National gender equality action plan for 2009–14” provides for a gender analysis of legislation concerning immigration and integration in order to achieve better understanding of the situation of immigrants and asylum seekers, the Committee encourages the Government to undertake in this context an in-depth study of the situation of immigrant workers in the employment market.

Centre for Equal Treatment. The Committee notes the information contained in the 2011 annual report of the Centre for Equal Treatment (CET). It notes in particular the awareness-raising activities undertaken by the CET in 2011 for civil society, especially young persons, and also the training sessions on equal treatment issues organized with 12 employers in the public and private sectors and members of the Luxembourg Confederation of Christian Trade Unions (LCGB). On the basis of the observation that many employers did not respect the principle of equal treatment in the wording of their job vacancies, the CET has been undertaking a systematic analysis since April 2011 in order to raise employers’ awareness of the need to eliminate any discriminatory formulation in their job vacancies. Accordingly, in 2011, a total of 90 job offers which were discriminatory on the basis of sex were referred to ADEM to impose the penalties provided for under section L.241-11 of the Labour Code. As regards discrimination on grounds other than sex, the CET identified four job vacancies that were discriminatory on the basis of age. The CET also undertook the task of raising the awareness of daily newspapers in Luxembourg concerning their responsibility regarding any publication of discriminatory job vacancies. The Committee further notes that as part of its advisory and assistance functions, the CET handled 118 files in 2011, of which 50 per cent were submitted by men and 44.1 per cent by women, the other files having been submitted on the basis of self referral or by associations. Of these submissions, 75.4 per cent came from EU nationals, and Luxembourg nationals formed a majority of these (48.3 per cent). The grounds for discrimination raised were race (18.6 per cent), disability (16.1 per cent), sex (11.9 per cent), sexual orientation, religion and multiple forms of discrimination (5.1 per cent for each of the aforementioned grounds). The Committee further notes that the CET has made a large number of recommendations in order to improve the legislation on equality of treatment and the application thereof in practice. The CET recommends in particular the strengthening of its powers of investigation to enable it to perform its role more effectively; more systematic consultations with the CET with a view to an opinion being reached, especially on draft legislation relating to equal treatment; developing a standard methodology for recording data relating to discrimination; grouping the different grounds of discrimination under the same legislation in order to eliminate any notions of hierarchy among these grounds and to harmonize the related penalties; and adopting legal provisions in order to identify instances of multiple discrimination. The Committee requests the Government to continue to provide information on cases of discrimination submitted to the CET, and also information on the other activities of the CET aimed at promoting equality of opportunity and treatment in all aspects of employment and occupation. The Government is also requested to supply information on action taken further to the recommendations made by the CET.

Article 3(a). Collective agreements and cooperation with employers’ and workers’ organizations. In its previous comments the Committee noted that, under section L.162-12-4(4) of the Labour Code, collective agreements must contain provisions subjecting the result of collective bargaining to the application of the principle of gender equality in establishments or enterprises to which these agreements are applicable. This section also states that such bargaining must cover the establishment of an equality plan for jobs and wages and the means of making the company and further training accessible to persons wishing to re-enter the job market after a career break. In the absence of any information in the Government’s report concerning the application of this provision in practice, the Committee requests the Government to provide information in its next report on collective agreements signed under section L.162-12-4(4) of the Labour Code which promote and guarantee equality of opportunity and treatment, giving particular examples of equality plans that have been adopted. The Government is also requested to indicate the measures taken or contemplated to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures intended to promote equality of opportunity and treatment for women and men in employment and occupation.

Parts III to V of the report form. Enforcement and practical application. The Committee notes that, according to the ECRI report, the laws on discrimination in employment, in particular the Act of 28 November 2006, are still hardly ever applied because lawyers are unfamiliar with their provisions (CRI(2012)4, paragraph 69). The Committee also notes that the CET, in its 2011 annual report, emphasizes the difficulties of access to case law relating to equal treatment and recommends that an easily accessible publication be produced which would constitute a key tool for awareness-raising. Further noting the rarity of case law relating to equal treatment since the entry into force of the Act of 28 November 2006, the CET considers that the legal remedies provided for by this Act do not meet the needs and expectations of the victims of discrimination. The Committee requests the Government to provide information on the implementation of the legislation on non-discrimination and equality, in particular any measures taken or contemplated to disseminate the contents thereof as widely as possible and to train persons involved in the application of these provisions. Please communicate any judicial or administrative decisions and extracts from labour inspection reports relating to the application of the legislation.