Texts of pending comments

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.

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 and 30 (hours of work) together.

Article 5(1) of Convention No. 1 and Article 6 of Convention No. 30. Averaging of hours. The Committee notes that sections L.211-6 and L.211-9 of the Labour Code, which authorize the distribution of hours of work over reference periods of up to four and 12 months respectively, do not specify the circumstances in which such a distribution of hours of work may be applied. The Committee recalls that Article 5(1) of Convention No. 1 and Article 6 of Convention No. 30 only authorize the variable distribution of hours of work over a reference period longer than a week in exceptional cases when the normal limits of eight hours in the day and 48 hours in the week are inapplicable. The Committee requests the Government to indicate the circumstances in which the working time arrangements envisaged in sections L.211-6 and L.211-9 of the Labour Code can be applied.

In order to provide an overview of the issues relating to the application of ratified Conventions on labour inspection, the Committee considers it appropriate to examine the Labour Inspection Convention, 1947 (No. 81), and the Labour Inspection (Agriculture) Convention, 1969 (No. 129), in a single comment.

Articles 3(1) and (2) and 5 of Convention No. 81, and Articles 6(1) and (2), 12(1) and 13 of Convention No. 129. Duties of labour inspectors. Monitoring the employment of third country nationals in an irregular situation. Further to its last comment, the Committee notes the statistics for 2019, disaggregated by economic sector, sent by the Government on the activities of the Labour and Mining Inspectorate (ITM) with regard to monitoring the employment of third-country nationals in an irregular situation with respect to their residence status. In this regard, it notes that out of 5,682 inspections made by the ITM, 62 situations were recorded which involved the presence of 68 third-country nationals with irregular residence status. The Government indicates that, for all third- country nationals, employers have been urged to regularize the statutory rights of employees. However, the Committee notes that the Government has not sent any statistical information on the cases in which workers in an irregular situation have actually been granted the rights due to them, further to action by labour inspectors. The Committee requests the Government to continue providing information on the nature of the action taken by the labour inspectorate to monitor the employment of third country nationals in an irregular situation, indicating the number of cases in which workers in an irregular situation have actually been granted their statutory rights, such as the payment of unpaid wages, social security benefits or the conclusion of an employment contract.

Article 10 of Convention No. 81, and Article 14 of Convention No. 129. Number of labour inspectors. Further to its last comment, the Committee notes the information sent by the Government on ITM staff numbers and the number of labour inspectors who devote themselves entirely to primary labour inspection duties. It notes the rise in ITM staff numbers, which increased from 143 employees in 2019 to 203 employees in 2020. The Committee further notes that in 2020 the number of labour inspectors in the field was 64, out of a total of 86 inspectors, compared with 29 labour inspectors in the field in 2019, out of a total of 54 inspectors. While noting the progress that has taken place, the Committee requests the Government to continue providing information on changes in ITM staff numbers, indicating the number of labour inspectors who devote themselves entirely to primary labour inspection duties.

Issues specifically concerning labour inspection in agriculture

Article 6(1) and (2), and Articles 9 and 27 of Convention No. 129. Information on the preventive and supervisory activities of labour inspection in agriculture. Specific training for labour inspectors in agriculture. Further to its previous comments, the Committee notes the Government’s indication that in 2019 a total of 80 inspections relating to working conditions and occupational safety and health were conducted in agriculture, out of a total of 5,682 inspections by the labour inspectorate. However, it notes that the ITM annual report for 2020 does not contain any statistics on the number of labour inspection staff in agriculture, on agricultural undertakings liable to inspection and the number of staff employed therein, or on violations committed and penalties imposed in agriculture. However, the Committee notes the information contained in the 2020 ITM annual report concerning the distribution of cases handled by the labour inspectorate, according to which 303 cases involving agriculture have been handled by the ITM, namely 0.40 per cent of the total number of inspection cases. Moreover, the Committee notes that the 2020 ITM annual report contains statistics on occupational accidents in agriculture but does not contain any statistics on occupational diseases. Lastly, the Committee notes that, according to the Government, the specific training given on agriculture forms an integral part of the training for all labour inspectors. Noting the low percentage of inspections carried out in agriculture, the Committee requests the Government to take steps to ensure the application of the legislation in agriculture, and to continue providing information on the number of inspection visits carried out in this sector. The Committee requests the Government to continue to publish annual reports on the work of the labour inspectorate and send them to the ILO, and to ensure that they contain information on all the matters covered by Article 27 of Convention No. 129, including statistics on labour inspection staff in agriculture, on agricultural undertakings liable to inspection and the number of persons working therein, on violations committed and penalties imposed, and also on occupational diseases and their causes.

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 3 of the Convention. The right of workers’ organizations to elect their representatives in full freedom, and to freely organize their activities and to formulate their programmes. The Committee previously referred to the 2016 observations of the Confederation of Christian Trade Unions of Luxembourg (LCGB) expressing regret that the new Act reforming social dialogue within enterprises entered into force in the absence of the Grand Ducal Regulations for its implementation, which are envisaged in various provisions, and indicating that this situation is hampering the exercise of trade union rights. The Committee notes the Government’s indication that three Grand Ducal Regulations, implementing sections L.412-2, L.413-1 and L.416-1 of the Labour Code, are in the course of adoption in 2017 within the framework of the legislative procedure. The Committee also notes that the procedures for votes by correspondence, about which the LCGB expressed concern, are specified in the draft Grand Ducal Regulations in relation to the election procedures for staff delegates. The Committee requests the Government to indicate any progress made in the adoption of the above draft Regulations and to report on any draft regulations on the new mediation procedure under section L.417-3 of the Labour Code.

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Part VII (Family Benefit). Article 44 of the Convention. Calculation of benefit. The report indicates that the Family Benefits Act of 23 July 2016 made changes in the family policy: the previous rule of the differentiation in the amount of the child benefit according to the number of children in a family was cancelled and replaced by a fixed amount of the family benefit of €265 per child. Consequently, the Committee requests the Government to recalculate the total value of the family benefit in accordance with Article 44 of the Convention.

Article 68. Suspension of benefit. According to the 49th annual report on the application of the European Code of Social Security, the family benefit could be ceased as a result of terminating study at school. The Committee requests the Government to explain how this rule is applied in practice, indicating in particular whether the fact of leaving the school before graduation automatically results in the stoppage of payment.

Part XI (Standards to be complied with by periodical payments). Applying the Convention on the basis of minimum benefits. The Committee recalls that Convention No. 102 can be applied on the force of social insurance schemes providing earnings-related benefits (Article 65) or flat-rate benefits (Article 66), or social assistance schemes providing means-tested benefits (Article 67). Another option consists in applying the Convention on the basis of basic income security guarantees where a social insurance scheme provides a minimum benefit, or a fixed basic amount as part of the earnings-related benefit, or where there is a guaranteed minimum income scheme or a universal social pension. The Committee systemically looks at this option every time when the regular benefit provided by the scheme in question does not attain the level prescribed by the Convention. It observes that the importance of the minimum benefits for the application of the Convention has been growing steadily inasmuch as in many countries the replacement level of regular benefits showed a marked downwards trend, falling below the percentage prescribed by the Convention and, for low-wage earners, even below the poverty line in absolute figures. For the ordinary labourers a guaranteed minimum pension often provides better protection in terms of the Convention, as they retain little chance of earning a higher pension after 30 years of insurance.

According to the Convention, the amount of a guaranteed minimum cash benefit, whichever form it takes, shall not be less than the corresponding benefit calculated in accordance with the requirements of Article 66. For the family of the standard beneficiary, this amount shall be such as to attain, in respect of the contingency in question, at least the percentage of the reference wage of the ordinary adult male labourer indicated in the Schedule to Part XI of the Convention. For other beneficiaries with different family responsibilities, the guaranteed minimum benefit shall bear a reasonable relation to the benefit of the standard beneficiary (Article 66(3)). In all cases, the resulting amount shall be sufficient to maintain the family of the beneficiary “in health and decency” (Article 67(c)) under the conditions of entitlement prescribed by the corresponding Part of the Convention with respect to the qualifying period, age and duration of payment. This adequacy criteria comes forward when the amount of the minimum benefit calculated as percentage of the reference wage of the ordinary labourer falls below the poverty threshold to a point incompatible with living in “health and decency”. With respect to maintaining the family of the beneficiary in conditions of health, the minimum benefit shall be sufficient to cover the required cost-sharing by the beneficiary in the medical care guaranteed to his family under Part II of the Convention in such a manner as to avoid hardship and not to prejudice the effectiveness of medical and social protection (Article 10(2)). Persons on minimum benefit in need of health care should not face an increased risk of poverty due to the financial consequences of accessing the types of health care specified in Article 10(1). With regard to maintaining the family of the beneficiary in conditions of decency, the minimum benefit, together with other statutory social protections, shall allow life in dignity and provide income above the national poverty line or similar income threshold, preventing vulnerability and social exclusion. The entitlement to the minimum benefit shall not be subjected to any additional conditions of a discriminatory nature applied to any member of the family of the beneficiary, and shall not deprive the beneficiary of the acquired social and insurance status, including the rights acquired or in the course of acquisition under the statutory social security schemes. When the legislation makes the provision of social security benefits conditional upon occupational activity, periods during which minimum benefits are paid should normally be taken into consideration for acquisition of the right to other social security benefits. The rate of social insurance contributions or taxation or both applied to minimum benefits shall be determined in a manner which avoids hardship to persons of small means with due regard to social justice and equity (Article 70(1)). The current rates of the minimum benefits in respect of the long-term contingencies shall be adjusted to the cost of living (Article 66(8)). In the light of these explanations, the Committee requests the Government to assess whether and to what extent the existing minimum social security guarantees in Luxembourg comply with the abovementioned requirements of the Convention as to their level and conditions of entitlement, and could be used to give effect to its provisions under each accepted Part of the Convention. For the relevant statistical indicators concerning income, poverty and wages the Government may wish to refer to the ILO technical note.

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on occupational safety and health (OSH), the Committee considers it appropriate to examine together Conventions Nos 115 (radiation), 127 (maximum weight), 148 (air pollution, noise and vibration), 155 (OSH), 161 (occupational health services), 162 (asbestos), 167 (safety and health in construction), 174 (prevention of major industrial accidents), 176 (safety and health in mines) and 184 (safety and health in agriculture) in a single comment.

A. General provisions

1. Occupational Safety and Health Convention, 1981 (No. 155)

Articles 4 and 7 of the Convention. Periodic review of the national policy and situation regarding occupational safety and health. In response to its previous request, the Committee notes that the Government has not provided information in its report on the measures taken with a view to the periodic review of the national occupational safety and health policy and the holding of tripartite consultations on this subject. The Committee notes in this regard that, under the terms of sections L.324-1 and L.324-2 of the Labour Code, the Higher Occupational Safety and Health Council, which is tripartite, fulfils advisory functions to the ministers with responsibility for health, labour and social security in relation to occupational safety and health. The Committee once again requests the Government to provide information on the measures adopted or envisaged to ensure that the national occupational safety and health policy is reviewed periodically and to provide information on the nature and outcome of the consultations held with the organizations of workers and employers concerned in this respect. It also requests the Government to provide information on the activities of the Higher Occupational Safety and Health Council, including the frequency of its meetings in practice and the OSH issues discussed.

Articles 11(a)–(f) and 15. Obligation of the authorities to ensure that certain functions are progressively carried out to give effect to the national policy. Coordination between the various authorities. The Committee previously noted that the authorities responsible for the enforcement of the laws and requirements concerning safety, health and the working environment (namely the labour and mines inspectorates, the Health Directorate of the Ministry of Health, the Accident Insurance Association, and customs and excise) each fulfil the functions enumerated in Article 11(a)–(f) in their respective fields. The Committee also noted that, under the terms of section L.314-3 of the Labour Code, these institutions are required to coordinate their policies and activities in a coordinating committee for employee occupational safety and health that is to be established by Grand Ducal regulation. The Committee notes the Government’s indication that common projects for the prevention of occupational risks and the protection of safety and health at the workplace are discussed in the coordinating committee for employee occupational safety and health. The Committee requests the Government to provide further information on the functions of the coordinating committee for employee occupational safety and health in the field of OSH, and on the common prevention projects undertaken by the committee and their results in practice.

2. Occupational Health Services Convention, 1985 (No. 161)

Article 8 of the Convention. Participation of the social partners in the implementation of organizational measures relating to occupational health services. The Committee previously noted that the multisectoral occupational health service is the only service to have a tripartite structure in which employers, workers and their representatives cooperate. The Committee notes the Government’s indication that discussions have been continuing for some time on the establishment of tripartite structures for all the occupational health services, but that no decision has yet been taken in this respect. The Government adds that, according to the tradition in Luxembourg, common decisions, including on occupational health services, are taken in informal tripartite meetings. The Committee requests the Government to indicate the measures adopted or envisaged in law and practice to guarantee cooperation between employers, workers and their representatives in the implementation of measures relating to occupational health services.

B. Protection against specific risks

1. Radiation Protection Convention, 1960 (No. 115)

Article 1 of the Convention. Laws and regulations. The Committee notes the Government’s reference in its report to the adoption of the Grand Ducal Regulation of 1 August 2019 respecting radiation protection, which repeals the Grand Ducal Regulation of 14 December 2000 respecting the protection of the population against the dangers of ionizing radiation. It also notes the adoption of the Act of 28 May 2019 respecting: (1) the health protection of persons against the dangers of exposure to ionizing radiation and the safety of sources of ionizing radiation against malicious acts; (2) the management of radioactive waste, the transport and import of radioactive materials; and (3) amending the Act of 21 November 1980, as amended, on the organization of the Health Department.

Article 2. Application of the Convention to all activities involving exposure of workers to ionizing radiations in the course of their work. Emergency situations. With reference to its previous comments on the circumstances in which exceptional exposure is authorized, the Committee notes that the Government refers to the Act of 28 May 2019, which defines in section 75 “exceptional situations” as being circumstances in which it is necessary to “save lives, prevent serious health effects caused by radiation and prevent the occurrence of catastrophic situations”. The Committee notes with interest that this definition no longer includes “saving valuable equipment”, which addresses its previous request.

Articles 3(1) and 6. Effective protection of workers in the light of the knowledge available. Maximum permissible doses. The Committee previously noted that, under the terms of the previous Grand Ducal Regulations, the dose limits for the lens of the eye were set at 150 mSv a year. The Committee notes with interest that the Government refers to section 11 of the Act of 28 May 2019, which sets the limit for the equivalent dose for the lens of the eye at 20 mSv a year, in conformity with the recommendations of the International Commission on Radiological Protection (ICRP). The Committee notes this information, which addresses its previous request.

Article 14. Discontinuation of assignment to work involving exposure to ionizing radiation pursuant to medical advice and alternative employment. With reference to its previous comments on the situation of workers who can no longer perform work involving exposure to ionizing radiation, the Committee notes once again that no information has been provided concerning the measures proposed to provide workers with alternative employment or other means of maintaining their income. In this regard, the Committee wishes to draw the Government’s attention to paragraph 40 of its 2015 general observation which indicates that employers should make all reasonable efforts to provide workers with suitable alternative employment in circumstances in which it has been determined that workers, for health reasons, may no longer continue in employment in which they are, or could be, subject to occupational exposure. The Committee once again requests the Government to provide information on any measures taken or envisaged relating to assignment to suitable alternative employment in circumstances in which it has been determined that the workers concerned, for health reasons, may no longer continue to be employed in work by reason of which they could be subject to occupational exposure.

2. Maximum Weight Convention, 1967 (No. 127)

Articles 5 and 8 of the Convention. Training of workers assigned to the manual transport of loads. Consultation with the social partners. Further to its previous comments, the Committee notes the Government’s indication that consultations are held between occupational health services and employees engaged in the manual transport of loads and that the difference in loads between each occupation is taken into account in these consultations. The Government refers to the importance of the national back school in this context and indicates that this school essentially undertakes secondary and tertiary prevention for employees selected by occupational health services and also provides training for trainers in enterprises. The Committee also notes that, according to the Government, there are five professional chambers (the Chambers of employees, of public officials and employees, of agriculture, of commerce and of trades), which have the mission of defending the interests of the occupational groups that they represent, and which are consulted by the Government when it is planned to adopt laws or Grand Ducal regulations relating to the occupational sector that they defend. The Committee notes this information which replies to its previous comments.

Application of the Convention in practice. Further to its previous comment, the Committee notes the statistical data provided by the Government and compiled by the Multisectoral Occupational Health Service over the past three years. The Committee notes that, of the 246,023 employees covered, 19,279 workers (8 per cent) are engaged in the transport of light loads, 93,248 (38 per cent) middle weight loads and 35,867 (15 per cent) heavy loads. It also notes the number of workers who develop back pain: for light loads, 1,861 workers, of whom 298 suffer from chronic low-back pain; for middle weight loads, 10,953 workers, of whom 1,612 suffer from chronic low-back pain; and for heavy weights, 4,613 workers, of whom 749 suffer from chronic low-back pain. The Committee notes this information and requests the Government to take the necessary measures and to intensify its efforts to reduce to a minimum the number of workers suffering from chronic low-back pain.

3. Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148)

Application of the Convention in practice. Further to its previous comments, the Committee notes the extract from the report of the inspection services attached by the Government concerning an inspection undertaken following the limit values for soot being exceeded for certain jobs. The Committee notes this information which replies to its previous comments.

4. Asbestos Convention, 1986 (No. 162)

Application of the Convention in practice. The Committee notes the information provided by the Government according to which the Health Directorate does not have relevant statistics of occupational diseases caused by asbestos, the number of workers exposed to asbestos during the course of their work or data on the number and nature of violations in relation to the removal of asbestos. The Committee notes in this regard that, according to the 2020 annual report of the Labour and Mines Inspectorate (ITM), 278 violations concerning asbestos were reported in 2020. It also notes that, according to the annual report, 715 cases relating to exposure to and inhalation of asbestos fibres were referred that year to the ITM. The Committee also notes with concern the Government’s indication that the violations reported on sites removing asbestos generally show that 24 per cent do not provide personal protective equipment, 22 per cent do not provide specific training, 31 per cent have not issued a notification and 23 per cent have not carried out an analysis prior to beginning work. With regard to the training of workers exposed to or likely to be exposed to asbestos fibres, the Committee notes that, according to the Government, 1,269 workers have up to now received training to provide them with the necessary knowledge and skills for prevention and safety. The Committee urges the Government to intensify its efforts to collect data on the number of workers exposed to asbestos during their work, the occupational diseases caused by asbestos and the sanctions imposed, and to provide information on the application of the Convention in practice. The Committee also urges the Government to provide information on the measures taken to prevent health hazards due to occupational exposure to asbestos and to continue providing information on the number and nature of the violations reported, including the measures taken to remedy violations reported on sites removing asbestos.

5. Prevention of Major Industrial Accidents Convention, 1993 (No. 174)

Article 1(3) and (4) of the Convention. Exclusions. The Committee notes that section 1(3), points 5 to 8, of the Act of 28 April 2017 on controlling hazards related to major accidents involving hazardous substances and amending the Act of 10 June 1999, as amended, respecting classified establishments, enumerates exclusions that are not envisaged in Article 1(3) of the Convention. The Committee requests the Government to provide further information on these exclusions and to indicate whether they were decided following consultation with the representative organizations of employers and workers concerned and whether equivalent protection is provided for, as envisaged in Article 1(4) of the Convention.

Application of the Convention in practice. Further to its previous comments, the Committee notes the Government’s indication that statistics and information on the number of workers covered by the measures that give effect to the Convention, and the number and nature of the violations reported, still do not currently exist. Noting the absence of information in this regard, the Committee requests the Government to intensify its efforts to collect information on the number of workers covered by the measures giving effect to the Convention, the number and nature of the violations reported, and the nature and causes of the occupational illnesses and accidents reported, and to provide this information when it becomes available.

C. Protection in specific branches

1. Safety and Health in Construction Convention, 1988 (No. 167)

Application of the Convention in practice. Further to its previous comment, the Committee notes the Government’s indication that the Controls, Worksites and Authorizations (CCA) Service, created in March 2008, has the mandate of reinforcing the promotion of a culture of OSH prevention, awareness and information in the construction sector with a view to the continuous reduction of the number of occupational accidents and diseases. The CCA also carries out controls of working conditions, OSH, the posting of workers and the use of hoisting machinery on temporary or mobile worksites, as well as investigations relating to occupational accidents that occur in all sectors. In this regard, the Committee notes that the number of controls carried out by officials of the CCA Service has increased as follows: from 568 in 2018 to 1,189 in 2019 and 2,048 in 2020. During these controls, some 7,722 violations were reported in 2020, compared with 3,149 in 2019 and 1,064 in 2018. The Committee also notes the nature of the violations reported, and the decisions and measures adopted as a result of the controls. Finally, it notes the information in the 2020 annual report of the ITM, according to which the inspection services reported 161 occupational accidents in the construction sector, or 27.71 per cent of the accidents reported in 2020. The Committee requests the Government to intensify its efforts to reduce the number of occupational accidents in the construction sector. It also requests the Government to continue providing information on the application of the Convention in practice, including the number and nature of the violations reported, the measures taken as a result, the number of sanctions and remedial measures taken, and the number, nature and cause of the employment accidents and occupational diseases reported.

2. Safety and Health in Mines Convention, 1995 (No. 176)

Article 16(2) of the Convention. Inspection services and application of the Convention in practice. The Committee notes that the 2020 annual report of the ITM indicates that the Mines, Mining and Quarries (MMC) Service was created at the beginning of 2020. According to the report, the responsibilities of the Service include reporting on the conditions of sites, the full identification of sites, mapping, the determination of methods of surveillance and prevention. On the basis of the problems encountered in practice in relation to the securing of mine openings, the ITM envisages the preparation of new laws and regulations on the subject which also imply the retrocession of mining concessions. The report indicates that two persons are responsible for specific matters relating to the safety of existing mines that are still being exploited or are due to be closed with a view to ensuring the safety of all those called upon to intervene. In light of the creation of this Service, the Committee requests the Government to provide information on the application of the Convention in practice and to indicate the activities undertaken by the MMC since its establishment.

3. Safety and Health in Agriculture Convention, 2001 (No. 184)

Article 9. Safe use of machinery. The Committee notes that, according to the Government’s report, responsibility for the implementation of the provisions of Article 9 lies with the Luxembourg Institute for the Standardization, Accreditation, Safety and Quality of Products and Services. The Committee requests the Government to provide further information on the legal framework and mandate of this Institute and on the activities undertaken for the implementation of measures relating to the safe use of machinery.

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government on 5 December 2020, as well as on the basis of the information at its disposal in 2019.

Articles 1(2) and 2 of the Convention. National policy for the vocational rehabilitation and employment of persons with disabilities. The Committee notes the detailed information sent by the Government on the application of the Convention and the measures adopted in the context of the implementation of the UN Convention on the Rights of Persons with Disabilities. It notes with interest the main policy statements, legislative texts and administrative regulations, and also the practical measures taken for persons with disabilities, including the adoption in January 2020 of the second “National Action Plan for the implementation of the Convention on the Rights of Persons with Disabilities 2019–24”. Section 7 of this Plan, devoted to work and employment, describes the measures concerning access to work, remaining in employment, follow-up to the measures and adaptation of the legislative framework. Moreover, the Committee notes a series of practical measures adopted for persons with disabilities, in particular: (i) the 2018–23 coalition agreement of the Government of Luxembourg, which aims, inter alia, at making the employment market more inclusive for persons with disabilities; (ii) the Act of 1 August supplementing the Labour Code establishing assistance with respect to inclusion in employment for workers with disabilities and workers involved in outplacement, which provides for support geared to the needs of persons with disabilities at their workplace, in order to facilitate integration in and retention of employment; (iii) the amended Act of 12 September 2003, incorporated into the Labour Code, which regularizes the recruitment of persons with disabilities and provides for a compensation tax in the event of an employer’s refusal to hire the prescribed number of persons with disabilities (section 12); and (iv) the programme for the occupational redeployment of workers who are unable to occupy their last job for reasons related to health, infirmity or reduced strength but do not receive an invalidity benefit. The aim of this programme is to enable these workers to keep their jobs (by appointment to another post within the enterprise or by adjustment of the post or hours of work) or to find work suited to their current capacities. The Committee requests the Government to provide information on the impact of the implementation of the second National Action Plan 2019–24 on the application of the Convention. It also requests the Government to provide information, including statistics disaggregated by sex and age, on the effects of the measures taken to ensure the inclusion in employment of persons with disabilities.

Articles 3 and 4. Promotion of employment for persons with disabilities. The Committee previously invited the Government to continue providing information on the measures taken to promote employment possibilities for persons with disabilities in the open labour market. The Government indicates that in 2018 the Ministry of Labour, Employment and the Social and Solidarity Economy (Ministry of Labour) signed collaboration agreements with 10 organizations which manage sheltered workshops. The Ministry of Labour also introduced a flat-rate subsidy system, the calculation for which is based on the number of workers with disabilities catered for in sheltered workshops. In 2018, sheltered workshops offered employment contracts to 1,213 workers with disabilities. With regard to measures to promote employment possibilities for workers with disabilities in the open labour market, the Government indicates that employers who hire workers with disabilities are eligible for wage subsidies (from 30 to 100 per cent) and coverage of a part of the costs of wages, training, adjustment of posts and access to them, employers’ social security contributions, and also the provision of adjusted occupational equipment. The Committee notes the detailed statistics provided by the Government, particularly those concerning the number of recipients of wage subsidies and the amount of reimbursements related to wage costs. It also notes that 50 jobs in the service of the State are still reserved for persons who have the status of workers with disabilities. Moreover, the Government refers to various compensation revenues and reintegration projects established for jobseekers who have the status of workers with disabilities and reside in Luxembourg. In this regard, the Committee notes that candidates capable of entering the regular employment market are invited to recruitment days using the “speed-dating” model in order to meet potential employers. It also notes the establishment of various services designed to favour the placement of persons with disabilities in the regular labour market, such as the “employment café”, the Contact Centre of the Employment Development Agency (ADEM), professionalization training courses, the reintegration in employment contract (CRE), and also the Disability and Vocational Rehabilitation Service (S-HRP). The Committee requests the Government to continue providing detailed and up-to-date information, including statistics disaggregated by sex, age and occupation relating to the impact of the measures adopted to promote employment possibilities for persons with disabilities in the open labour market.

Article 5. Consultation of the social partners. The Committee previously asked the Government to indicate the manner in which it is ensured that the representative organizations of workers and employers are consulted on the implementation of the Convention. The Government indicates that exchanges with the social partners take place regularly within the Standing Committee on Labour and Employment, bringing together the representatives of workers and employers. This Committee is responsible, inter alia, for examining the situation of vocational rehabilitation and the employment of persons with disabilities. It also indicates that, in the legislative context, employers’ associations and trade unions and also the Chamber of Workers and Trades are consulted by the drafters of laws and regulations which have a connection with disability policy. In this regard, the Committee notes that the new National Action Plan 2019–24 has been drawn up by the Ministry of the Family, Integration in the Greater Region (MIFA), in close collaboration with other ministerial departments, associations and various other stakeholders as well as the Higher Council for Persons with Disabilities (CSPH) and the Action Plan Steering Group. The Committee requests the Government to continue providing information on the manner in which the organizations of workers and employers and also representative organizations of and for persons with disabilities are consulted with regard to the implementation of the National Action Plan 2019–24 and any evaluation of its impact.

Articles 7 and 9. Vocational rehabilitation. With regard to vocational rehabilitation, the Government indicates that vocational rehabilitation measures are accessible to all categories of persons with disabilities. The Committee notes the information, including the statistics provided by the Government on measures for vocational guidance, training, re-education, integration and reintegration organized by ADEM. It also notes the activities of the S-HRP, which is mandated to provide employment-related advice, guidance, training and placements for persons with disabilities and also the implementation of the COSP-HR inter-ministerial cooperation project, aimed at evaluating the capacities of persons with disabilities and facilitating guidance and/or vocational rehabilitation for them. The Committee requests the Government to continue providing detailed information on the various measures taken by ADEM and the S-HRP, and also those envisaged in the context of the COSP-HR relating to vocational rehabilitation and employment for persons with disabilities. The Committee also requests the Government to provide up-to-date statistics, disaggregated by sex, age and occupation, on the number of men and women workers with disabilities who have been placed in sustainable employment in the open labour market or who have received advice and vocational training provided by the above-mentioned services.

Article 8(1) of the Convention. Employment protection. Dismissal for serious misconduct. Burden of proof. In its previous comments, the Committee noted that sections L.337-1 to L.337-6 of the Labour Code prohibited dismissal during pregnancy and maternity leave but that if a woman committed serious misconduct, she could be dismissed with immediate effect subject to authorization by the labour tribunal. In this regard, the Committee asked the Government to indicate whether, in the course of this procedure, the employer was required to prove that the dismissal for serious misconduct was unrelated to pregnancy, childbirth and its consequences or nursing. Since there has been no reply to this question from the Government, the Committee recalls that, even though Article 8(1) of the Convention provides for the possibility for an employer to dismiss a woman on grounds unrelated to pregnancy, childbirth and its consequences or nursing, the burden of proving that such grounds are unrelated lies with the employer, pursuant to the same Article. The Committee once again requests the Government to inform it of any legal or procedural measure establishing the obligation for the employer to prove that the grounds of dismissal for serious misconduct are unrelated to pregnancy, childbirth and its consequences or nursing, particularly in the context of the procedure for requesting authorization from the tribunal provided for in section L.337-1 of the Labour Code.

Part II of the Convention. Progressive abolition of fee-charging employment agencies. The Committee notes the Government’s report, in which it indicates the measures taken to monitor the activities of temporary work agencies and the recruitment of workers abroad, in accordance with Part III of the Convention. The Government recalls that the activities of temporary work agencies are subject to several conditions that include obtaining authorization from the Ministry of Labour, which bases its decisions on the views of the Employment Development Agency (ADEM) and the Labour Inspectorate. The Government also indicates that the conditions set forth in legislation for the recruitment of workers abroad vary depending on workers’ statuses. The European network of employment services, EURES, introduced through Regulation (EU) 2016/589 of the European Parliament and of the Council, allows Luxembourg employers to recruit foreign nationals from the European Union, Switzerland, Iceland, Liechtenstein and Norway. However, recruitment of foreign nationals from third countries is subject to certain requirements, including obtaining a certificate from ADEM enabling the employer to recruit the person in question, after proving that no one is available in Luxembourg whose profile corresponds to the specific post being sought after. The Committee refers once again to its previous comments and recalls that on 6 November 1958 the Government informed the ILO that its ratification of the Convention included acceptance of the provisions of Part II of the Convention. Like other member States which ratified the Convention and accepted Part II thereof, Luxembourg undertook to abolish fee-charging employment agencies conducted with a view to profit. The Committee recalls that the revision of Convention No. 96 was based on the recognition of the role played by private employment agencies in the operation of the labour market and that the modern standard in this field is now the Private Employment Agencies Convention, 1997 (No. 181). It also recalls that the ILO Governing Body invited States parties to Convention No. 96 to contemplate ratifying, as appropriate, Convention No. 181, the ratification of which would, ipso jure, involve the immediate denunciation of Convention No. 96 (GB.273/LILS/4(Rev.1)). It once again hopes that the Government will soon be in a position to subscribe to the obligations set out in Convention No. 181. The Committee requests the Government to provide updated information on the national legislation which gives effect to Part II of the Convention and on the manner in which the Convention is applied in practice, including, for example, extracts of official reports, information on the number and nature of the contraventions reported and the penalties imposed. It also requests the Government to provide information, in consultation with the social partners, on any developments concerning the possibility of ratifying the Private Employment Agencies Convention, 1997 (No. 181).

Articles 1 and 2 of the Convention. Assessment and reduction of the gender pay gap. The Committee previously noted that the Affirmative Action Programme, which encourages enterprises to draw up a plan of action covering aspects of equal treatment, including equal pay for equal work or work of equal value, had been extended to the public sector and a higher number of participating enterprises in the private sector, and led to the setting-up of a network for the exchange of good practices. It requested the Government to provide information on the content and scope of the programme and on its impact on reducing gender pay gaps. The Committee notes the Government’s indication in its report that the gender pay gap stood at 5.7 per cent in 2017. It further notes that, according to Eurostat, the unadjusted gender pay gap (the difference between the average gross hourly earnings of men and women expressed as a percentage of the average gross hourly earnings of men) decreased from 5.5 per cent in 2016 to 4.6 per cent in 2018. The Committee welcomes this information. It however notes that, according to Eurostat, the gender pay gap remains substantial in several sectors, and was estimated in 2017 at about 22 per cent in the financial and the insurance activities and in wholesale and retail trade, which employ an equal share of women and men, and up to 30.7 per cent in other service activities, where a majority of women are employed. In that regard, the Committee refers to its comments on occupational gender segregation in relation to the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Government indicates that companies are regularly informed and encouraged to ensure equal remuneration for the same work or work of equal value, in particular through the Affirmative Action Programme. It adds that the Ministry of Equality between Women and Men (MEGA) offers advice and financial support to the partners of the programme, in both the public and private sectors, for the voluntary implementation of concrete measures in favour of equal pay and the elimination of gender wage inequalities, as well as equal access for men and women to management positions. The Committee notes that, during the implementation of the two-year action plan, regular progress reports shall be provided by the company to the MEGA, which carries out a final evaluation to assess the impact and effectiveness of the affirmative actions implemented once the action plan is completed. The Committee however observes that the Government has not provided specific information on the action implemented in this framework or on its impact in reducing gender pay gaps. The Committee therefore asks the Government to provide information on the measures taken to address the gender pay gap and its underlying causes, such as vertical and horizontal occupational gender segregation, including by providing examples of the specific action implemented in the framework of the Affirmative Action Programme, and on its impact on reducing gender pay gaps, both in the public and private sectors. It asks the Government to provide extracts of any available study or assessment report undertaken in that regard, in particular by the Ministry of Equality for Women and Men. The Committee further asks the Government to continue providing statistical data on the gender pay gap, disaggregated by economic activity and occupation, in both the public and private sectors.

Articles 2 and 4. Collective agreements and collaboration with the social partners. The Committee previously noted that, according to a 2011 study, only 56 per cent of branch collective agreements addressed the issue of equal pay and asked the Government to take steps to encourage the social partners to include in collective agreements clauses dealing with equal remuneration for work of equal value. The Committee notes the Government’s statement that collective labour agreements must contain provisions on the methods of application of the principle of equal remuneration for men and women. In this regard, it notes the examples of clauses contained in three collective labour agreements concluded in 2017 and 2018, forwarded by the Government. The Committee however observes that, while such clauses provide that the employer is required to ensure equal remuneration for men and women for the same work or work of equal value, they do not contain any information on the objective method or criteria that shall be used for that purpose for the evaluation and classification of the tasks laid down in the collective agreements. The Committee therefore asks the Government to provide information on: (i) the measures taken to ensure that the method and criteria for the evaluation and classification of tasks set out in collective agreements are objective and do not result in the undervaluation of jobs traditionally held by women in comparison with those traditionally held by men; and (ii) the extent to which the obligation to include clauses in collective agreements on the methods of application of the principle of equal remuneration for work of equal value is implemented in practice. The Committee asks the Government to continue providing extracts of collective agreements of which the terms reflect the principle of the Convention.

Article 3. Objective job evaluation. The Committee previously noted that a new version of the equal pay evaluation tool (Logib-Lux) had been used by some 50 enterprises as part of their participation in the Affirmative Action Programme, and requested the Government to take steps to promote the use of this evaluation tool by enterprises and workers’ and employers’ organizations with a view to reducing pay inequalities. The Committee notes the Government’s statement that this pay evaluation tool is available to all companies, which can download it free of charge from the MEGA website, but that any company that participates in the Affirmative Action Programme automatically accept an evaluation of its salary structure by the Logib-Lux software. The Government adds that, in the framework of the Affirmative Action Programme, business leaders and managers can benefit from training to enable them to better evaluate jobs and classify functions and skills to establish perfectly fair salary scales. The Committee notes that nearly 80 companies of all sizes and from different sectors have already participated in the programme, employing 13 per cent of the active population. The Committee asks the Government to continue: (i) taking steps to promote the use of the Logib-Lux evaluation tool by enterprises and workers’ and employers’ organizations, in both the public and private sectors, with a view to reducing pay inequalities and applying the principle of the Convention; and (ii) providing information on the number of the enterprises that have used the pay evaluation tool, including in the framework of the Affirmative Action Programme, as well as specific information on the results of the evaluations undertaken and any adjustments made. In this regard, the Committee asks the Government to provide specific examples of possible improvements that have been suggested to enterprises and of good practices that have been implemented to ensure equal remuneration for men and women for work of equal value.

Enforcement and awareness-raising. The Committee previously noted that the Regulation of 15 December 2016 inserted sections L.225-1 to L.225-5 into the Labour Code, reproducing the Grand-Ducal Regulation which had thus been repealed, while adding a definition of the expression “work of equal value” and establishing fines for employers for any failure to meet their obligation to pay equal wages for equal work or work of equal value. It requested the Government to provide information on awareness-raising activities undertaken on the new provisions of the Labour Code and on their application in practice. The Committee notes the Government’s statement that a brochure and a leaflet on equal pay, providing information on the new provisions of the Labour Code for employees and companies, as well as a list of contact bodies to which the persons concerned can refer to when needed, were disseminated in May 2017. The Government adds that in 2018 the Inspectorate of Labour and Mines (ITM) set up an information line and new reception facilities to specifically address the issue of equal pay for men and women. In 2018, eleven requests for information and one complaint regarding gender pay inequality were received by the ITM. The Committee further notes that, according to the Coalition Agreement 2018-23, the Government plans to implement the necessary measures to bring an end to pay inequalities between women and men in practice, including by strengthening the means of control of the ITM. The Committee asks the Government to continue providing information on: (i) the measures implemented to raise awareness among workers, employers and their respective organizations on the principle of the Convention and the penalties provided for in the Labour Code for non-observance; (ii) any measures taken to strengthen the means of control of the ITM with regard to pay inequality; and (iii) the number of cases or complaints on pay inequality dealt with by the Inspectorate of Labour and Mines, the courts or any other competent authorities, the penalties imposed and remedies granted.

Article 1(1)(a) of the Convention. Sexual harassment and other forms of violence at work. The Committee previously noted that the Act of 23 July 2015 assigns to gender equality delegates, or failing that, to staff representatives, a role in the prevention, protection and assistance within the enterprise in relation to sexual harassment. It requested the Government to provide information on the measures taken to raise awareness of and promote the implementation of the Act of 2015 at the enterprise level. The Committee notes the Government’s statement, in its report, that the Ministry of Equality between Women and Men (MEGA) offers training on gender equality, in particular for gender equality delegates in enterprises. The Government indicates that a Bill on protection against moral harassment was elaborated in 2018 in order to fight against mobbing at work and that awareness-raising activities were undertaken in that regard. It adds that, in the meantime, courts tend to hold liable an employer in case of moral harassment perpetrated against an employee by the employer or other employees, on the basis of section 1134 of the Civil Code, considering that it is the employer’s obligation to take all necessary measures to prevent or put an end to any form of harassment among his or her employees. The Committee also notes the judicial decisions forwarded by the Government in that regard. While welcoming the ongoing developments regarding prevention and prohibition of moral harassment, the Committee regrets that the Government did not provide information regarding sexual harassment more specifically. Recalling its previous comments on the low number of complaints on sexual harassment, it notes, from the 2019 annual report of the Inspectorate of Labour and Mines (ITM), that the ITM received 515 requests related to harassment of which 40 were transferred to the Inspections, Controls and Surveys (ICE) service. It observes however that no specific statistical data is available on sexual harassment. In that regard, the Committee notes that, in its 2019 annual report, the Centre for Equality of Treatment (CET) continues to highlight the lack of capacity on the part of the ITM to penalize and prosecute perpetrators of sexual harassment, and again recommends that legislative measures shall be taken to provide for specific penalties and ensure that the ITM has the necessary means at its disposal to carry out its functions. As regards the agreement of 25 June 2009 concerning harassment and violence at work, concluded between the Luxembourg Confederation of Independent Trade Unions (OGB–L) and the Luxembourg Confederation of Christian Trade Unions (LCGB), on the one hand, and the Union of Enterprises of Luxembourg (UEL), on the other, the Committee again regrets the lack of information provided by the Government on its implementation. The Committee asks the Government to provide information on the specific measures taken to effectively prevent and combat sexual harassment and other forms of violence at work, including by raising awareness of workers, employers and their respective organizations, in virtue of the provisions of the Act of 23 July 2015 and of the collective agreement of 25 June 2009. It also asks the Government to provide information on the impact of the measures undertaken to that end, on the number of the gender equality delegates designated at the enterprise level and their activities, and on the number of complaints or cases of sexual harassment at work dealt with by the Inspectorate of Labour and Mines, the courts or any other competent authorities, specifying the remedies granted and the penalties imposed to perpetrators.

Article 2. Equality of opportunity and treatment for women and men. The Committee previously noted the adoption of the Equality Plan for Women and Men 2015–18 and the Municipal Action Plan for Equality for Women and Men 2015–18 adopted by the city of Luxembourg. The Committee notes that the Government’s report does not contain any information on the measures taken to promote gender equality in employment and occupation, in particular in the context of the above-referred action plans. However, it notes that a new National Action Plan for Equality between Women and Men was launched in July 2020, the implementation of which will be assessed every three years and for the first time in 2022. It notes more particularly that the new action plan sets as specific objectives to: (1) fight against gender stereotypes; (2) promote equality in education; and (3) enhance equality in employment. It further notes that a new Municipal Action Plan for Equality for Women and Men 2019–2022 was adopted by the city of Luxembourg. As regards measures taken to combat stereotypes and prejudices concerning women’s occupational aspirations and capabilities, it notes the Government’s statement that, as provided for under its Coalition Agreement 2018–2023, educational projects will be implemented by the MEGA in the coming years to promote gender neutral professional orientation and equality in education and vocational guidance for children and adolescents. As regards the target of 40 per cent of women employed in supervisory posts in the public sector by 2019, the Government indicates that the rate of women on the boards of directors of public institutions increased from 27.41 per cent in 2015 to 34.69 per cent in 2018. Furthermore, the percentage of women representing the State in public establishments increased from 30.34 per cent in 2015 to 40.19 per cent in 2018. The Committee welcomes this information. It however notes, from Eurostat, that, in 2018–2019, only 23 per cent of managers, 13 per cent of board members and 6 per cent of senior executives were women. Furthermore, it notes that, according to the 2019 Gender Equality Index of the European Institute for Gender Equality (EIGE), the concentration of women and men in different sectors of the labour market remains an issue, as around 26 per cent of women work in education, health and social work (compared to 9 per cent of men), while only 4 per cent of them work in science, technology, engineering and mathematics (STEM) occupations (compared to 28 per cent of men). In that regard, the Committee notes that, in its 2018 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) expressed specific concerns about : (1) the concentration of women in traditionally female-dominated fields of study and career paths; and (2) the low levels of representation of women in decision-making positions in both the public sector and on the boards of major enterprises (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraphs 39 and 41). The Committee asks the Government to provide detailed information on the measures taken to effectively promote gender equality in education, employment and occupation, including by combating gender stereotypes and occupational segregation, as well as increasing the participation of women in decision-making positions, in particular in the framework of the new National Action Plan for Equality between Women and Men of July 2020 and the Municipal Action Plan for Equality for Women and Men 2019-2022. It asks the Government to provide information on any study or assessment undertaken on the impact of such measures. The Committee further asks the Government to provide statistical information on the distribution of men and women in employment, disaggregated by economic sector and occupation.

Affirmative actions in favour of gender equality. The Committee previously noted that several public and local administrations as well as private enterprises had taken part in the voluntary Affirmative Action Programme since 2011 and that “affirmative action” label was awarded to enterprises which had fully implemented their affirmative action plans. The Committee welcomes the Government’s indication that the following measures have been identified as having a positive impact on gender equality at the workplace: (1) promoting gender diversity at all levels and recruiting men and women in atypical professions; (2) integrating gender equality in the enterprise’s charter of values; (3) ensuring individual interviews on career development taking into consideration equality of opportunity in access to training and regularly reviewing promotions of men and women; and (4) offering flexible work organization, including part-time for managerial positions and facilitating the reintegration into the workplace after a prolonged absence. The Government adds that once the action plan is completed, an evaluation of the affirmative action programme will be funded by the MEGA and enable it to assess the actual impact and effectiveness of the measures implemented as well as of the progress made in terms of organizational and structural changes. The Committee notes, from the Government’s report on the application of the Equal Remuneration Convention, 1951 (No. 100), that nearly 80 companies of all sizes and from different sectors have already participated in the programme, representing 13 per cent of the labour force. The Committee therefore asks the Government to provide information on the impact of the actions implemented in the framework of the Affirmative Action Programme on promoting equality between men and women in occupation and employment, both in the public and private sectors.

Workers with family responsibilities. The Committee previously noted that the Equality Plan for Women and Men 2015–18 provided for specific measures to enhance better conciliation between work and family responsibilities and requested the Government to provide information on the implementation of such measures. The Committee welcomes the adoption of the Act of 3 November 2016 reforming parental leave and provides that each parent can now benefit from full-time parental leave of 4 or 6 months or from part-time parental leave, under special conditions, of 8 or 12 months. As of 2016, the beneficiary of parental leave will receive a replacement income, the amount of which will vary between a minimum ceiling equal to the minimum social wage (€2,141.99) and a maximum ceiling equal to the minimum social wage increased by two thirds (€3,569.99). The Government states that the new Act introduces more flexibility allowing better conciliation between work and family responsibilities, while ensuring an income-related benefit to the beneficiary. The Committee notes, from the Intermediary Assessment of the results of the reform of parental leave published by the Luxembourg Institute of Socio-Economic Research (LISER) in February 2020, that between 2016 and 2017, the number of beneficiaries increased significantly, especially regarding fathers (+215.9 per cent) and was closed to equality between women and men in 2018 (4,875 women and 4,721 men). It further welcomes the fact that the Act of 15 December 2017 on paternity leave and leave for family reasons increased the duration of paternity leave from 2 to 10 days and introduced more flexibility in the rules applicable to leave for family reasons providing now for 35 days of leave, distributed by age groups, which can be used by any parent until the child reaches 18 years of age. The Committee notes that the new National Action Plan for Equality between Women and Men, launched in July 2020, also provides for negotiations to be held between the Government and the social partners to identify new ways to further improve the reconciliation between work and family responsibilities. It also notes that, according to Eurostat, while the gap in full-time equivalent employment rates between women and men narrowed to 13 percentage points in 2017 (45 per cent and 58 per cent respectively), the gap is still far wider for women and men in couples with children (23 percentage points). It further notes that, according to the National Statistics and Economic Studies Institute (STATEC), in 2019, 35 per cent of women were in part-time work (compared to 6 per cent of men) and for 57 per cent of them, family was the main reason for working part-time (Regards, No. 2; March 2019). In that regard, the Committee notes that, in its 2018 concluding observations, the CEDAW expressed concern about: (1) the disproportionate participation of women, especially mothers, in part-time work, illustrating an unequal division of family responsibilities between women and men; (2) regulations that exclude part-time employment workers for most managerial positions; (3) the persistence of stereotypes on the traditional roles of women and mothers as caregivers and of men as breadwinners; and (4) the low number of children between the age of 3 and school age in childcare facilities (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraphs 25 and 41). The Committee asks the Government to continue to provide information on the steps taken or contemplated to ensure the reconciliation of work and family responsibilities, including by: (i) combating stereotypes on the traditional roles of women and men in the family, and (ii) ensuring that part-time workers are not excluded from decision-making positions, both in law and in practice. It further asks the Government to provide statistical data, disaggregated by sex, on the number of workers in the private and public sectors who have availed themselves to the possibility of parental leave and part-time work for family reasons. Finally, noting that, in its Coalition Agreement 2018-2023, the Government states that improvements will be made regarding childcare, the Committee asks the Government to provide information on the specific measures taken in that regard.

Equality of opportunity and treatment without distinction on the basis of race, colour or national extraction. Referring to its previous comments where it requested the Government to provide information on any new national integration plan, the Committee welcomes the adoption in 2018 of the Multi-Year National Action Plan on Integration which covers two areas, namely: the reception of and social support for those seeking international protection, and the integration of all non-Luxembourg citizens residing in the country. It notes the Government’s statement that one of the objectives of the new National Action Plan, which has no time limit and provides a general framework that can be revised and adapted over time, is to enhance access to training and employment for non-nationals. The Government adds that to this end the Ministry of Labour, Employment and the Social and Solidarity Economy (MTEESS) and the Employment Development Agency (ADEM), as well as a large number of actors have set up programmes designed to facilitate access to employment and entrepreneurship. The Committee welcomes this information. Noting that the Government did not provide information on the measures taken to promote equal treatment and diversity in enterprises in the context of the Diversity Charter, it observes, from the information available on the Diversity Charter website, that only 18 organizations adhered to the Charter since 2017. The Committee further notes that, in its 2018 concluding observations, the CEDAW expressed concerns about: (1) the lower school performance among migrant girls, especially those of non-European countries, and their low participation in higher education; and (2) the low employment rate among women migrants from non-European countries (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraphs 39 and 49). Referring to its observation and recalling that colour and national extraction are not included in the grounds of discrimination prohibited by the Labour Code, the Committee asks the Government to provide information on the measures implemented, in particular in the framework of the Multi-Year National Action Plan on Integration, to prevent discrimination based on race, colour or national extraction and ensure effective equality of opportunity and treatment in access to education, occupational training and employment for persons with migration backgrounds, particularly from non-European Union countries. It also asks the Government to provide information on any other measures taken to promote equal treatment and diversity in enterprises, in particular in the context of the Diversity Charter. Finally, the Committee asks the Government to provide statistical information on the participation of migrant workers, particularly from non-European Union countries, in the labour market, both in public and private sectors, as well as in education and training.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 3(a). Collective agreements. Collaboration with the social partners. The Committee previously noted that, while section L.162-12-4(4) of the Labour Code provides that collective agreements must contain provisions reflecting the result of collective bargaining on the application of the principle of gender equality in workplaces or enterprises to which these agreements are applicable, not all of them contain equality measures. In view of the lack of information provided by the Government on that point, the Committee again asks the Government to take steps to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures to promote equality of opportunity and treatment for women and men in employment and occupation, including through awareness campaigns, and to continue providing information on collective agreements concluded under section L.162-12-4(4) of the Labour Code.

Specialized equality body. The Committee recalls that, in its previous comments, the Committee noted that the Centre for Equality of Treatment (CET), established by Act of 28 November 2006 in order to promote, analyse and monitor equal treatment for all persons, does not have the power to deal with complaints or institute court proceedings and does not have adequate powers to gather information and evidence. It thus requested the Government to provide information on any steps taken to strengthen the role and powers of the CET to combat discrimination on the grounds listed under the Convention. The Committee notes that, according to its 2019 annual report, the CET identified 44 job vacancies which were discriminatory, 93 per cent of them on the basis of sex, and decided to carry out an awareness-raising campaigns for employers in order to combat discrimination in recruitment. The Committee notes that, in its 2019 report, the CET again regrets its lack of legal status and means of coercion. It further notes that, in their concluding observations, several UN treaty bodies also expressed concerns at the restricted capacities of the CET, which prevent it from dealing with complaints of discrimination or investigating cases of discrimination (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraph 17; and CRPD/C/LUX/CO/1, 10 October 2017, paragraph 12). Furthermore, in the framework of the Universal Periodic Review (UPR), the European Commission against Racism and Intolerance (ECRI) specifically recommended that the CET shall be given the right to hear and consider complaints; the powers necessary to conduct effective investigations; the right to initiate legal proceedings; and the right to participate in judicial and administrative proceedings. The Council of Europe’s Commissioner for Human Rights also made similar recommendations (A/HRC/WG.6/29/LUX/3, 3 November 2017, paragraphs 24 and 25). The Committee again asks the Government to provide information on any steps taken to strengthen the role of the Centre for Equality of Treatment in combating discrimination on the grounds listed in the Convention, particularly in relation to dealing with complaints and conducting investigations.

Enforcement. The Committee takes note of the statistical information provided by the Government on the number of requests forwarded to the ITM in 2018, but observes that no information refers specifically to cases of discrimination. Referring to its observation made on the application of the Convention, the Committee wishes to draw the attention of the Government to the fact that, pursuant to sections 241-10 and 254-1 of the Labour Code, the ITM is responsible for monitoring the respect of principle of equality and treatment between men and women as well as the application of the principle of non-discrimination on the grounds referred to in section 241-1, thus excluding the grounds of colour, political opinion, national extraction and social origin from its scope of action. It further notes that the 2020 European Commission country report on non-discrimination highlighted that there is still very little case law on discrimination which may be explained by the fact that victims do not have the financial means to bring a case to court, or that many people are unaware of anti-discrimination laws (European Commission, Country report on non-discrimination, 2017, pages 9 and 42). The Committee once again asks the Government to provide information on the activities of the Inspectorate of Labour and Mines and other competent authorities in relation to enforcing the legislation to combat discrimination in employment and occupation, and raising awareness among workers, employers and their organizations on all the grounds of discrimination covered by the Convention. It asks the Government to provide information on the number of complaints or cases for discrimination in employment and occupation detected or dealt with by the Inspectorate of Labour and Mines or any other competent authorities, as well as relevant extract from labour inspection reports or administrative and judicial decisions.

Article 1(1)(a) and (b) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee previously noted that, pursuant to Act of 3 June 2016, which amends the Labour Code, the Act of 13 May 2008 on equal treatment for men and women, and the conditions of service of local and central government officials, discrimination “on the basis of a change of sex” shall be deemed equivalent to discrimination on the basis of sex. It however drew the Government’s attention to the fact that, despite section 454 of the Penal Code, which defines discrimination as “any distinction made between persons on account of their origin, their skin colour, […] their political views […]”, the grounds of colour, political opinion, national extraction and social origin are not covered by the Labour Code (section L.241-1), the Act of 16 April 1979 establishing the general conditions of service for central government officials (section 1 bis) and the Act of 24 December 1985 establishing the general conditions of service for local government officials (section 1 bis). It requested the Government to amend these provisions to include colour, political opinion, national extraction and social origin. The Committee notes the Government’s indication in its report that Act of 7 November 2017 amending the Labour Code and the conditions of service of local and central government officials, introduced “nationality” among the grounds of discrimination prohibited under these laws. While welcoming this information, the Committee wishes to recall that the concept of “national extraction” covers distinctions made on the basis of a person’s place of birth, ancestry or foreign origin, and thus differs from “nationality” (2012 General Survey on the fundamental Conventions, paragraph 764). It further notes the Government’s repeated statement that victims of discrimination, on grounds which are not prohibited under section L.241-1 of the Labour Code, such as colour, political opinion, national extraction and social origin, can lodge a complaint under section 454 of the Penal Code, for which the Office of the Public Prosecutor will assess the case for prosecution. The Government adds that section L.244-3 of the Labour Code provides for a reversal of the burden of proof in labour tribunals where facts allow the presumption of the existence of discrimination, while under the Penal Code it is for the plaintiff to prove the existence of discrimination. The Committee is bound to reiterate that criminal prosecution is generally not sufficient to eliminate discrimination in the workplace: (1) because of its particular nature, which arises from the specific features of the work environment (fear of reprisals, loss of employment, hierarchies, etc.); and (2) because of the burden of proof, which is often hard to meet. Indeed, in the event of a complaint against discrimination, the burden of proof can be a significant obstacle, particularly as much of the information needed in cases involving unfair or discriminatory treatment is in the hands of the employer (2012 General Survey, paragraph 885). Furthermore, the Committee wishes to draw the Government’s attention to the fact that, at national level, the common understanding seems to be that the legislation does not protect against discrimination in employment and occupation on the grounds of colour, political opinion, national extraction and social origin. The Committee refers in that regard to the awareness-raising campaign carried out in 2018 by the Centre for Equality of Treatment (CET) to combat discrimination in recruitment, which referred only to the grounds of discrimination listed in section L.241-1 of the Labour Code, without making any reference to section 454 of the Penal Code (CET, 2018 annual report, page 75). In order to enable workers to assert their rights effectively in relation to discrimination based on all the grounds listed in Article 1(1)(a) of the Convention, the Committee urges the Government to take the necessary steps to amend the list of grounds of discrimination prohibited by the Labour Code (section L.241-1), the Act of 16 April 1979 establishing the general conditions of service of central government officials (section 1 bis) and the Act of 24 December 1985 establishing the general conditions of service of local government officials (section 1 bis) to include the grounds of colour, political opinion, national extraction and social origin. It asks the Government to provide information on any progress made in that regard. The Committee further asks the Government to provide information on the number of administrative and judicial decisions handed down by the competent authorities on cases or complaints for discrimination in employment and occupation, including on the basis of section 454 of the Penal Code, specifying the grounds of discrimination, the remedies provided and the sanctions imposed.

The Committee is raising other matters in a request addressed directly to the Government.

Comments adopted by the CEACR: Luxembourg

Adopted by the CEACR in 2021

C013 - 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)

C014 - 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)

C030 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C081 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Issues specifically concerning labour inspection in agriculture

C087 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C102 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C127 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

A. General provisions

1. Occupational Safety and Health Convention, 1981 (No. 155)

2. Occupational Health Services Convention, 1985 (No. 161)

B. Protection against specific risks

1. Radiation Protection Convention, 1960 (No. 115)

2. Maximum Weight Convention, 1967 (No. 127)

3. Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148)

4. Asbestos Convention, 1986 (No. 162)

5. Prevention of Major Industrial Accidents Convention, 1993 (No. 174)

C. Protection in specific branches

1. Safety and Health in Construction Convention, 1988 (No. 167)

2. Safety and Health in Mines Convention, 1995 (No. 176)

3. Safety and Health in Agriculture Convention, 2001 (No. 184)

C159 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C183 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C096 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C100 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C111 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C111 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Comments adopted by the CEACR: Luxembourg

Display the list by:

Adopted by the CEACR in 2021

C013 - 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)

C014 - 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)

C030 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C081 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Issues specifically concerning labour inspection in agriculture

C087 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C102 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C127 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

A. General provisions

1. Occupational Safety and Health Convention, 1981 (No. 155)

2. Occupational Health Services Convention, 1985 (No. 161)

B. Protection against specific risks

1. Radiation Protection Convention, 1960 (No. 115)

2. Maximum Weight Convention, 1967 (No. 127)

3. Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148)

4. Asbestos Convention, 1986 (No. 162)

5. Prevention of Major Industrial Accidents Convention, 1993 (No. 174)

C. Protection in specific branches

1. Safety and Health in Construction Convention, 1988 (No. 167)

2. Safety and Health in Mines Convention, 1995 (No. 176)

3. Safety and Health in Agriculture Convention, 2001 (No. 184)

C159 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C183 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C096 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C100 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C111 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C111 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)