Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 1, paragraph 1(a), of the Convention. Discrimination on grounds of sex. Legislation. The Committee notes with interest the adoption of the Act of 13 May 2008 on equal treatment for men and women which transposes Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women and amends the Labour Code. The Act of 2008 introduces into the Labour Code provisions which: (a) explicitly prohibit “any discrimination on the basis of sex, either directly, or indirectly by reference, among other factors, to marital or family status” (section L.241-1(1)); (b) provide a definition of “direct discrimination”; and (c) supplement it with “indirect discrimination” (section L.241-1(2)). The Committee also notes that the Act of 2008 supplements the provisions of section L.241-2 by applying the prohibition of discrimination to the various aspects of employment, through the addition of “conditions of employment” and “membership of, and participation in the activities of any organization of which the members exercise a specific occupation, including the benefits deriving from this type of organization”. The Committee requests the Government to provide information on the practical application of the provisions of the Labour Code with regard to the prohibition of any discrimination on the basis of sex and to provide, where appropriate, any extract from labour inspection reports and any court rulings addressing this issue.

Prohibited grounds of discrimination. Legislation. In its previous comments, the Committee noted that, following the adoption of the Act of 28 November 2006, the Labour Code now prohibits direct and indirect discrimination on the basis of religion or belief, disability, age, sexual orientation and real or presumed membership or non-membership of a race or ethnic group. Identical provisions were also introduced in 2006 into the amended Act of 16 April 1979 issuing the general conditions of service of State officials and into the amended Act of 24 December 1985 issuing the general conditions of service of communal officials. The Committee recalls that the national laws and regulations defining and prohibiting discrimination in employment and occupation should cover all the grounds enumerated in Article 1(1)(a) of the Convention. The Committee requests the Government to indicate the manner in which the protection of workers is ensured against discrimination on grounds of colour, political opinion, national extraction or social origin.

Sexual harassment. The Committee notes that the Act of 13 May 2008 referred to above supplements the provisions of the Labour Code respecting sexual harassment and explicitly provides that it constitutes discrimination on the basis of sex and is accordingly prohibited (section L.241-1(3)). It further notes that, according to the Government’s report, two enterprises have prepared a charter on sexual harassment in the context of the programme of “affirmative action” in private sector enterprises. However, the Committee observes that, according to the analysis of collective agreements conducted in 2007 in the study entitled “Equality between women and men in collective agreements”, provisions respecting sexual harassment often only consist of a declaration of principle relating to harassment, and more rarely to tangible measures for their application, particularly with a view to prevention of sexual harassment (page 14).

With regard to the public sector, the Committee notes that the Act of 2008 also supplements the provisions respecting harassment in the amended Act of 16 April 1979 issuing the general conditions of service of State officials and the amended Act of 24 December 1985 issuing the general conditions of service of communal officials. Furthermore, the Act of 1979 envisages the establishment of a special commission in the Ministry responsible for the public service with a view to ensuring compliance with the provisions respecting sexual and moral harassment (section 11-2).

Welcoming the provisions and measures adopted recently in relation to sexual harassment, the Committee requests the Government to continue providing information on the measures adopted in law and practice to prevent and combat sexual harassment both in the private sector in collaboration with the social partners, and in the public sector. In this respect, it also requests the Government to provide information on the establishment and operation of the special commission responsible for supervising the application of the legislation respecting sexual harassment and dealing with cases referred to it in the public service (procedure, number of cases examined, decisions, etc.). Finally, the Committee would be grateful if the Government would provide information on any cases of sexual harassment which come to the knowledge of the competent authorities.

Qualifications required for a specific job. In its previous comments, the Committee requested the Government to indicate whether Grand Ducal Regulations had been issued under section L.241-3-3(2) of the Labour Code determining the cases in which sex may be specified among the requirements for a job and, where appropriate, for training for the job or for an occupational activity for which, owing to its nature or the circumstances in which it is performed, sex is a decisive requirement. The Committee notes that the Act of 13 May 2008 referred to above amended the relevant provisions of the Labour Code. Section L.241-3 of the Labour Code now provides 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 determining professional requirement, on condition that the objective is legitimate and the requirement proportionate”. The Committee asks the Government to provide information on the effect given in practice to section L.241-3 of the Labour Code and provide examples of cases in which it has been used, with an indication of its impact on the recruitment of women and men. The Government is also requested to provide a copy of any relevant court decisions, and particularly any interpretation by the courts of the expressions “essential and determining professional requirement”, “legitimate objective” and “proportionate requirement”.

Equality of opportunity and treatment for men and women. The Committee notes the studies and documents provided by the Government on the situation of men and women in employment and occupation. It observes that, according to the study entitled “Women and the employment market” (updated in 2007) provided by the Government, women’s employment, and particularly part-time employment, is in constant progression and remains concentrated in certain low-skilled sectors and occupations. The study also shows that non-salaried employment remains relatively unattractive and inaccessible to women. The study emphasizes that the causes of inequalities between men and women in employment and occupation include the deficit in terms of vocational training and guidance for women in relation to men (the concentration of women in training for less well-paid occupations which offer fewer career prospects, the lack of appeal of technical training, etc.), and the inadequate sharing of family responsibilities, which may lead to career interruptions or part-time work. While noting the measures adopted by the Government to enable women and men to reconcile their professional and family responsibilities more effectively, such as the creation of crèches, temporary and day-care centres for children, the Committee however notes that, in its concluding comments of 2008 (CEDAW/C/LUX/CO/5), the Committee on the Elimination of Discrimination against Women particularly emphasizes the need to step up efforts to assist women and men in striking a balance between family and employment responsibilities, inter alia, through further awareness-raising and education initiatives, as well as ensuring that part-time employment is not taken up almost exclusively by women. It also emphasizes the importance of strengthened measures aimed at changing attitudes concerning the roles of men and women in the family and in society. In its report, the Government adds that, with a view to promoting equality between men and women in the private sector, it has developed a programme of affirmative action in enterprises. Although it has proven to be particularly difficult to measure the impact of such affirmative action, due to a lack of feedback from enterprises and the failure of the participating enterprises and the Ministry for Equal Opportunities to establish systematic evaluation procedures, it is nevertheless true that participation in this type of project has enabled certain enterprises to assess the situation of men and women in the workplace and that a real impact has been seen in projects and enterprises which have opted for structural change.

Noting this information and the efforts made by the Government to implement a policy of equality between men and women, the Committee requests the Government to provide information in its next report on the measure adopted or envisaged, including awareness-raising measures, with a view to:

(i)    combating sexist stereotypes and prejudices concerning the roles of men and women in society and their professional aptitudes;

(ii)   developing and diversifying vocational training and guidance for girls and boys;

(iii) promoting the access of women to employment in sectors in which male workers predominate and the access of women to positions of responsibility with a view to preventing both horizontal and vertical occupational segregation; and

(iv) enabling men and women to reconcile professional obligations and family responsibilities more effectively.

Equality of opportunity and treatment without distinction on grounds other than sex. The Committee requests the Government to provide information on the national policy to promote equality of opportunity and treatment in employment and occupation with a view to eliminating any discrimination on the grounds of race, colour, religion, political opinion, national extraction or social origin. The Government is also requested to indicate the measures adopted or envisaged to eliminate any discrimination on the basis of disability or sexual orientation, which are covered by the Labour Code. Further referring to its previous comments, the Committee once again requests the Government to provide information on the operation and activities of the Centre for Equal Treatment in this respect.

Collaboration with the social partners. In its previous comments, the Committee requested the Government to provide examples of equality plans for employment and remuneration, the adoption of which, through collective bargaining, is envisaged by section L.162-12-4(4) of the Labour Code. It notes that the Government’s report does not contain information any information on this subject. Furthermore, the study undertaken in 2007 on “Equality between women and men in collective agreements”, finds that, in terms of collective bargaining, the commitment to equality of treatment is limited. It also emphasizes that the social partners should play an active role in overcoming stereotypes and establishing working conditions that are more favourable to equality between women and men in terms of recruitment and career opportunities (page 16). The Committee requests the Government to indicate the measures adopted or envisaged to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures intended to promote equality of opportunity and treatment of women and men in employment and occupation, and particularly with regard to the adoption of equality plans for employment and remuneration.