“There was a social dialogue, it was bilateral. At the time, for the president of the UEL, it was clear that the reversal of the burden of proof in the context of sexual harassment was excluded. I had the same discussion with the trade unions: for them, the only feasible system was to introduce the reversal of the burden of proof. An agreement between the two was simply not possible. We had it in the coalition agreement, I made the law, that’s all.” The former minister of labour, employment and the social and solidarity economy, (LSAP), and rapporteur of the bill on protection against moral harassment in the context of labour relations, replied.
The dialogue of the deaf between the government on the subject was concluded by the vote of the law on Thursday 9 March in the Chamber of Deputies. For Kersch, “those who could not agree now say that there was no social dialogue. But it’s not because of me, it’s because the positions were so opposed that I knew from the beginning that it was impossible to reach an agreement.”
A text “not precise enough”
This is refuted by the UEL (Union des entreprises luxembourgeoises) and the Chamber of Trades, which point to the interprofessional agreement, “which has existed since 2009 and which works very well,” explains , director general of the Chamber of Trades. “We denounce in this context the major legal insecurity for companies that would result from the coexistence of two regimes, one from the future law, the other from the existing interprofessional agreement. What loopholes do the agreement have to close to require a new law?”
“The minister only consulted the trade unions, but we, the employers’ representatives, were not consulted, and this is where social dialogue has been flouted. We wrote letters to the minister and even to prime minister (DP) but they remained unanswered,” confirms , director general of the UEL.
During the vote on the law in the Chamber of Deputies, the CSV and the ADR abstained, (CSV) arguing that “we support the initiative of this law but we cannot support the text in itself, the Council of State and the various professional chambers have made many remarks which have not been listened to. For example, the people from should be integrated into the ITM. The text is not precise enough and leaves too much room for legal interpretation.”
What we are doing is not a revolution, we are far from the systems that already exist in other countries. I did what was feasible.
Even within the coalition parties, (DP) and (déi Gréng) explained that adaptations could perhaps be made after the entry into force of the text and the analysis of practical cases. (Piratepartei) added: “Mobbing is illegal, that is the most important message of this law.” A motion was adopted after the vote inviting the government to carry out “an evaluation of the law (...) two years after its entry into force in order to determine its effectiveness and identify any shortcomings that need to be addressed,” the text explains.
For Kersch, “the unions and the UEL tell me that the interprofessional agreement does not go far enough--it is from 2009, it is not adapted to the times, there are gaps. And both are unable to find a new agreement. So there is no other option than to legislate. Now, what we are doing is not a revolution, we are far from the systems which already exist in other countries. I did what was feasible,” he replied to Delano’s sister publication Paperjam.
Disagreement between trade unions and employers
“It is the trade unions that think that the interprofessional agreement does not go far enough, for us it works very well,” replied Olinger. “It is the trade unions that felt that a law would be a better solution, but this text is not precise enough, and in the end we still don’t know, once the law comes into force, which text will prevail over the other in the event of denunciation of moral harassment at work? For our part, we will not denounce the interprofessional agreement, but the government’s way of doing things will have a negative impact on the future and on social dialogue.”
For Kersch’s successor, (LSAP), “what the wage chambers and the employers are criticising is that there is an interprofessional agreement between the social partners and that no law is needed for that. I think that, firstly, a law gives much more importance to such a subject and much more security in this area. In addition, we have now introduced the path of the ITM, the path of control and negotiators in this area, and I think that with this law we have much more security in the area of moral harassment.”
This story was first published in French on . It has been translated and edited for Delano.