Informe definitivo - Informe núm. 391, Octubre 2019

1. 329. This complaint is contained in a communication from the Confederation of Christian Trade Unions of Luxembourg (LCGB) dated 21 March 2017.
2. 330. The Government sent its observations on 2 June 2017 and 26 July 2019.
3. 331. Luxembourg has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 332. In a communication dated 21 March 2017, the LCGB indicates that in September 2014, together with the Independent Trade Union Confederation of Luxembourg (OGB-L), it requested negotiations on the renewal of the collective agreement for staff of Cargolux Airlines International (“the company”).
2. 333. The complainant explains that the company’s management terminated the collective agreement dated 29 December 2014 on the basis of article L. 162-10 (1) of the Labour Code, such that under article L. 162-10 (2), the agreement ceased to have effect on 1 December 2015.
3. 334. By a letter dated 15 January 2015, the unions that had signed the complaint, namely, the LCGB and the OGB-L, referred the matter to the National Conciliation Service (ONC) set up under the Minister responsible for labour in accordance with L. 163-2 of the Labour Code, considering that after eight meetings the negotiations could be considered to have failed.
4. 335. The complainant alleges that after the matter was referred to the ONC, the latter proposed several dates for the initial meeting of the Joint Committee (26 February, 5 March and 12 March 2015) but that all of the meetings arranged by the ONC were cancelled at the express request of Cargolux.
5. 336. The LCGB states that: (i) no settlement of the dispute was reached within the time limit established by law, namely, under article L. 164-5 (4) in conjunction with article L. 164 2 (3) of the Labour Code; and (ii) consequently, as a majority union and a party to the dispute, it sent a letter to the ONC on 9 December 2015 in which it declares, on the basis of article L. 164 5 of the Labour Code, that there has been failure to reach an agreement and requests the ONC to issue an official report of failure to reach an agreement in accordance with article L. 164 5 (4) of the Code. The LCGB states that:
6. According to article L. 164-5:
   • (1) The conciliation process shall be concluded either by the signature of a collective agreement or an agreement in accordance with chapter V of this Title, or by an official report of failure to reach an agreement.
   • (2) The settlement of a dispute shall result from the signature of an agreement between the parties to the dispute that are qualified to sign and ratified, as appropriate, by their competent bodies.
   • In the absence of agreement of all unions in the workers’ delegation, the agreement shall be valid if signed by those unions that have a majority mandate, in accordance with article L. 162-4 (4).
   • Failure to reach an agreement can be recorded by a unanimous vote of both groups within the Joint Committee.
   • (3) If a settlement is not reached within 16 weeks from the initial meeting of the Joint Committee, a party or the parties to the dispute may declare failure to reach an agreement.
   • (4) The Secretary shall draft minutes signed by the Chairperson.
7. According to article L. 164-2 (3), the initial meeting of the Joint Committee must take place no later than the first day of the sixth week following the date on which the request is received by the President of the ONC.
8. In the event of an appeal, the initial meeting shall take place no later than 15 days after the decision of the administrative courts becomes final.
9. 337. The complainant alleges that the ONC, by its decision of 10 December 2015, refused to grant the request for an official report of failure to reach an agreement on the grounds that the necessary conditions had not been met since, on the one hand, the 16-week period from the initial meeting of the Joint Committee had not started to elapse, as such a meeting had never taken place and, on the other hand, the LCGB was not considered to be a party to the dispute. An administrative appeal against this decision was lodged on 11 January 2016.
10. 338. The LCGB considers that such an administrative practice is patently inconsistent with the principles of freedom of association and collective bargaining in that it clearly infringes the right to strike.

B. The Government’s response

1. 339. In a communication dated 6 June 2017, the Government conveys its position concerning the appeal of the LCGB against the decision of the ONC (Appeal No. 37.395: Trade union organization LCGB et al. v. Minister for Labour, Employment and the Social and Solidarity Economy – National Conciliation Service).
2. 340. The Government acknowledges the difficulty of setting a date for the ONC meeting, both on the part of the employer and of the unions themselves, and highlights a clear disagreement between the LCGB and the OGB-L. The Government observes that the parties have never had the serious and unanimous will to take part in an ONC meeting. In the Government’s view, the parties have therefore placed themselves outside the conciliation process provided for by law.
3. 341. The Government states that on 9 December 2015, the LCGB declared failure to reach an agreement, whereas in its view it was not qualified to do so. The Government underscores that in order to declare failure to reach an agreement under article L. 164-5 (3) of the Labour Code, one or more trade unions that were members of the negotiating committee must meet the majority conditions established under article L. 162-4 (4) of the Labour Code which would allow them to sign a collective labour agreement.
4. 342. On the basis of this text, the Government indicates that a trade union or unions that wishes to sign a collective agreement must have obtained at least 50 per cent of votes at the most recent elections to the staff delegations of the enterprises or establishments that fall within the scope of the collective agreement; only votes won by candidates who run under the banner of the applicant trade union or unions shall be taken into consideration, excluding so-called neutral candidates. In the present case, the Government demonstrates, supported by figures, that the LCGB does not meet this condition:
5. At the elections to the staff delegations of 3 August 2011, the LCGB obtained 6,034 votes, whereas the 50 per cent threshold was (5,626 + 6,034 + 3,066 = 14,726 ( 2) 7,363 votes.
6. At the elections to the staff delegations of 13 November 2013, la LCGB obtained 9,447 votes, whereas the 50 per cent threshold was (7,364 + 9,447 + 2,852 = 19,663 ( 2) 9,831.5 votes.
7. 343. In a communication dated 26 July 2019, the Government indicated that the Administrative Court, in a ruling of 17 October 2017, had upheld the decision of the Administrative Tribunal of the Grand Duchy of 4 April 2017 declaring the LCGB’s appeal inadmissible.

C. The Committee’s conclusions

1. 344. The Committee notes that, according to the complainant, the refusal of the ONC to grant its request for failure to reach an agreement constitutes an infringement of the right to strike and that, in this case, the refusal to record failure to reach an agreement is the result of the employer’s intent to delay the work of the Joint Committee, and thus the date from which the parties to the dispute, or one of the parties thereto, is able to declare failure to reach an agreement.
2. 345. The Committee notes that the Government acknowledges the difficulty of establishing the date of the first ONC meeting, but that according to the Government both the employer and the unions themselves bear responsibility in this regard. The Government also suggests that the LCGB and the OGB-L are divided on this matter. The Committee also notes the Government’s indication that the LCGB did not meet the requirement of obtaining at least 50 per cent of votes at the most recent elections to the staff delegation of the enterprises or establishments that fall within the scope of the collective agreement and that the LCGB was therefore not entitled to declare failure to reach an agreement.
3. 346. The Committee notes that the judgments provided by the Government do not address the substance and do not lead to the conclusion that there has been any administrative wrongdoing on the part of the ONC with regard to the failure to reach an agreement. In this respect, the Committee observes according to these judgments that the ONC does not establish but merely “records” failure to reach an agreement. The Committee considers, in view of the information before it, that it does not have sufficient evidence to call into question the conclusions of the administrative court and to consider that the delay caused and the action of the ONC constituted a procedural irregularity and infringed the principles of freedom of association.
4. 347. Furthermore, the Committee takes note of a statement published by the LCGB on 6 August 2019 stating that the LCGB, the OGB-L and the management of the company had signed two new collective agreements, the first covering the period from 1 December 2018 to 31 December 2019 and the second covering the period from 1 January 2020 to 31 December 2022. Under these circumstances, the Committee considers that this case does not call for further examination.