Update: the bill was voted through late afternoon on Tuesday 13 June, with 59 votes in favour and just one abstention. A motion was tabled to “evaluate the right to disconnect within companies three years after its application.” The bill is now awaiting dispensation from the second constitutional vote.
Can you send messages to your employee at midnight? Or during their holidays? Do they have to reply? Can you use an external application like Whatsapp? Luxembourg’s labour code already defined working time, but not the notion of the right to disconnect.
Section 8 will incorporate it into current legislation, following the vote in the Chamber of Deputies the afternoon of Tuesday 13 June.
While the text does indeed fulfil its mission, set out in the explanatory memorandum, of “expressly incorporating” this issue into Luxembourg labour law, it does have certain limitations that raise questions about its ability to really protect all employees in the face of “the development of digitalisation and the widespread use of IT tools.”
A scheme defined by the company
Article 312-9 specifies that “when employees use digital tools for professional purposes, a system ensuring respect for the right to disconnect outside working hours adapted to the specific situation of the company or sector in question must be defined at company or sector level.”
This system must include: “the practical arrangements and technical measures for disconnecting from digital tools, awareness-raising and training measures and compensation arrangements in the event of exceptional derogations from the right to disconnect.” It may be defined by collective agreement or by subordinate agreement. And “in the absence of a collective labour agreement or a subordinate agreement, the specific arrangements are to be defined at company level, in compliance with the powers of the staff delegation if any.”
The introduction and modification of these arrangements are carried out following the conclusion of a joint agreement between the employer and the staff delegation in companies with 150 or more employees, and following simple consultation between the employer and the staff delegation in companies with fewer employees.
In the event of non-compliance, the labour and mines inspectorate (ITM) can impose administrative fines ranging from €251 to €25,000.
No precise rules
Does this mean that if the head of a small company without staff representatives decides to include in their ‘disconnection regime’ the possibility of contacting his employees at any time of the day or night and during their holidays, with or without compensation, the law does not prohibit him from doing so?
“That’s the problem. There are no safeguards,” admits Myriam Cecchetti (déi Lénk), a member of the labour, employment and social security committee. “If we have a collective agreement, it will be settled by the unions. In other companies, by the staff representatives. But for those that don’t, the employer can do as he likes.”
As a reminder, the presence of staff delegates is compulsory for companies with 15 or more employees. Small and medium-sized enterprises (SMEs) account for 99.5% of companies in Luxembourg, and 87% of them have fewer than ten employees.
“Before, we used to get out of the office and go home. Weekends were weekends,” continues Cecchetti. “Today, even at home, you always have work on the side. With digitalisation, almost everyone receives all the information on their personal phone.” Because of the “competition between employees” and the “fear of being made redundant,” it’s hard to disconnect and not respond.
Why didn’t the company publish any guidelines, such as the obligation to provide a work phone or a ban on calling employees outside working hours, unless there were clearly defined exceptions?
“This was not possible with this majority,” the MP regrets. Contacted by Delano’s sister publication Papaerjam, the author of the bill, Dan Kersch (LSAP), did not respond to a request for an interview.
“It’s better to have something than nothing at all,” says Cecchetti. Even if the text will not be able to completely “eliminate non-disconnection,” according to her. If employees have problems with their company’s rules, she advises them to contact the trade unions.
Penalties in three years’ time
The committee’s latest report, dated 8 June, nevertheless specifies that “in all cases, this system must ensure compliance with the legal or contractual provisions applicable to working time.” These are already defined in the labour code.
For employment lawyer Guy Castegnaro, who defends employers, the text could not have gone further “because it would have been impossible to take account of the specific features of each sector and each company.” He points out that the right to disconnect stems from a “concern to protect the health and safety of employees.” It was recognised by Luxembourg case law “in a ruling on 2 May 2019 which recognised an employee’s right to disconnect during his recreation leave, allowing him not to react to his employer’s instructions and calls during that time.”
Provided for in the coalition agreement, the bill before the chamber on Tuesday 13 June is the result of tripartite work, which in turn led to an opinion from the economic and social council (CES) in April 2021. The Chamber of Employees (CSL) also approved it in its opinion of 21 December 2021.
The sanctions will only apply three years after publication in the official journal, even though the law will come into force “four days after publication,” Castegnaro points out. “In the meantime, employers will have to put in place a procedure relating to the right to disconnect, and employment tribunals will in principle be able to convict employers for failure to respect the right to disconnect, even if administrative sanctions are not applied.”
This story was first published in French on Paperjam. It has been translated and edited for Delano.