Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 400, Octubre 2022

1. 519. The complaint is contained in a communication from the Luxembourg Association of Banking and Insurance Employees (ALEBA) dated 20 April 2021. The ALEBA sent further information in communications dated 2 and 8 June 2021.
2. 520. The Government sent its observations in a communication dated 16 March 2022.
3. 521. Luxembourg has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). However, it has not ratified the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 522. The complainant organization claims that the Minister of Labour, by way of a ministerial order of 2 March 2021 issued at the request of the Independent Trade Union Confederation of Luxembourg (OGB-L) and the Luxembourg Confederation of Christian Trade Unions (LCGB) made in a communication dated 12 November 2020, withdrew from the Luxembourg Association of Banking and Insurance Employees (ALEBA) the status of representative sectoral trade union on the grounds that, with representativeness of 49.22 per cent in the March 2019 elections to the Chamber of Employees, it no longer fulfilled the required conditions set out under article L.161-7(2) of the Labour Code, which requires representation of 50 per cent of votes to justify sectoral trade union recognition. The complainant organization points out that the score of 49.22 per cent corresponds to the score of the two confederations put together and that these confederations took two years to realize that said representation by the ALEBA was insufficient in terms of article L.167-1(2) of the Code. The complainant organization alleges that the result of the elections at the time “had been accepted by everyone” and that the Minister had announced to the press the day after the elections that the ALEBA, despite its score being 0.78 per cent below the 50 per cent threshold, retained its status of representative sectoral union. This reversal would have the effect, in the words of the complainant organization, of “undermining the ALEBA in the ongoing talks”.
2. 523. According to the complainant organization, this 50 per cent obligation contradicts article L.162-1(3) of the Code, according to which “a trade union or unions, which individually or together have obtained at least 50 per cent of votes at the most recent elections of staff representatives in the enterprises or establishments that fall within the scope of the collective agreement, must be admitted to the negotiating committee [for a collective agreement]”. The criteria contained in article L.161-7(2) and article L.162-1(3) would therefore appear to differ. In any case, these provisions have the effect of protecting the so called nationally representative trade union confederations.
3. 524. The complainant organization notes that its complaint is a direct continuation of the one it submitted to the Committee in 1998 (Case No. 1980) in which it denounced the fact that, under the terms of the 1965 Collective Labour Agreements Act and the case law interpretation of it, in order to claim representativeness and to sign a collective agreement alone, a workers’ organization had to demonstrate its size in terms of numbers on the national territory and also be present in several sectors of economic life. The complainant recalls that, in its examination of the case, the Committee questioned this dual requirement for representativeness and that the Administrative Court, in two decisions dated 28 June 2001 (judgments 12533C and 12534C), also rejected the requirement for multisectoralism called for by the State.
4. 525. Furthermore, the complainant organization observes that the Committee recommendation appears to have only been partially incorporated into national legislation, as article 7 of the Collective Labour Relations Act of 30 June 2004, which became article L.161-7 of the Labour Code, requires sectoral trade unions within the meaning of article L.161-6 to have representation of 50 per cent of votes at the most recent elections of the Chamber of Employees to justify their sectoral trade union recognition. Lastly, the complainant organization denounces the fact that the provisions of article 9 (1) of the Act of 30 June 2004, relating to trade unions participating ex officio in the negotiating committee for a collective agreement, were not fully incorporated into the Labour Code, meaning that article L.162-1(1) of the Code is now only aimed at multisectoral trade unions, while abovementioned article 9 (1) was also aimed at sectoral trade unions. The consequence of this is that the ALEBA can no longer represent employees ex officio in the negotiation of a collective agreement, including in its own sector.

B. The Government’s reply

1. 526. In its communication dated 16 March 2022, the Government provides the following information as to the facts:
   • (i) the ministerial order issued by the Minister of Labour on 2 March 2021, whereby the ALEBA had its recognition of sectoral representativeness withdrawn, was issued in accordance with the procedure set forth in article L.161-8 of the Labour Code. This ministerial order was issued on the request of the OGB-L and the LCGB, in accordance with legal provisions;
   • (ii) following the partial denunciation by the Luxembourg Bankers’ Association (ABBL) of the collective agreement for bank employees dated 11 November 2020, the ALEBA allegedly began negotiations with the ABBL on its own initiative, as well as with the Association of Insurance and Reinsurance Companies (ACA), which resulted in them reaching an agreement in principle regarding the renewal of the respective collective agreements for a period of three years;
   • (iii) the ministerial order was issued on the basis of the detailed report by the Labour and Mines Inspectorate (ITM) submitted to the Minister on 23 February 2021. Following analysis of the legal criteria, the ITM concluded that in the 2019 trade elections the ALEBA had not reached the threshold of 50 per cent of votes stipulated in article L.161-7(2) of the Labour Code and that consequently the request for withdrawal submitted jointly by the OGB-L and the LCGB was founded in terms of the quantitative criteria;
   • (iv) Following the publication of the ministerial order of 2 March 2021, the ALEBA lodged an appeal before the Administrative Court of Luxembourg on 26 March 2021 to cancel or otherwise amend the ministerial order. The case will be examined on 17 January 2023 before the Third Chamber for oral proceedings;
   • (v) The application for interim measures lodged by the ALEBA on 26 March 2021 before the Administrative Court of Luxembourg was rejected on 4 May 2021.
2. 527. The Government rejects the allegations relating to the alleged non-compliance of national law with the Committee’s recommendation of March 2001 regarding trade union representativeness. On the contrary, the Government considers that the Act of 30 June 2004 complies with both the Committee’s recommendation and the judgments handed down by the Administrative Court in June 2001, aiming to clearly establish criteria for representativeness. It notes that the ALEBA is making these claims over 15 years since the publication of the 2004 Act. Until the withdrawal of the recognition of sectoral representativeness by way of the ministerial order of 2 March 2021, the ALEBA had never voiced the slightest criticism or contested the validity of the Act of 30 June 2004, subsequently codified in articles L.161-1 et seq. of the Labour Code.
3. 528. Regarding the alleged contradiction between article L.161-7 of the Labour Code (which requires representation of 50 per cent of votes at the most recent elections of the Chamber of Employees to justify sectoral trade union recognition) and article L.162-1 (3) of the Code (whereby a trade union or unions, which individually or together have obtained at least 50 per cent of votes at the most recent elections of staff representatives must be admitted to the negotiating committee for a collective agreement), the Government considers that there is no contradiction between these two legal instruments as the purpose of their content is not the same. According to the Government, article L.161-7 of the Code stipulates the condition of thresholds to be respected in order to justify sectoral representativeness, while article L.162-1 of the Code relates to the composition of a negotiating committee for a collective labour agreement. In this regard, article L.162-1 (3) applies to all trade unions that meet the 50 per cent criteria, irrespective of any sectoral or national representativeness.
4. 529. Regarding the result of the elections to the Chamber of Employees in which the ALEBA obtained 49.22 per cent of the vote, the Government indicates that it is due to disputes with the OGB-L and the LCGB at the time of the negotiation of the collective agreement in the banking sector that the two confederations finally contested this representativeness. The Government points out that no application for withdrawal of sectoral representation had been made following the results of these 2019 elections, which could be considered as recognition of sectoral representativeness in the case of the ALEBA despite the failure to meet the 50 per cent threshold, but in no case would this constitute an acquired right.
5. 530. Lastly, the Government observes that the ALEBA can obviously submit lists at the next elections and on that occasion reach the threshold required for it to be able once again to seek recognition of its status as most representative trade union in this particularly important economic sector. Consequently, the ALEBA is not irrevocably losing its sectoral representativeness.

C. The Committee’s conclusions

1. 531. The Committee notes that in the present case the complainant organization complains about the withdrawal of the sectoral representativeness of the ALEBA by the Minister of Labour following the result of elections to the Chamber of Employees in March 2019, which allegedly had the effect of influencing its ability to legitimately negotiate and conclude collective agreements in the banking and insurance sector. The Committee observes that it is the second time, coming 20 years after the first, that the ALEBA has submitted to it a matter relating to the representative status of the complainant organization as a sectoral organization.
2. 532. The Committee notes that: (i) article 7 of the Collective Labour Relations Act of 30 June 2004, which became article L.161-7 of the Labour Code, requires that sectoral trade unions within the meaning of article L.161-6 have representation of 50 per cent of votes at the most recent elections of the Chamber of Employees to justify their sectoral trade union recognition; and (ii) it is on this basis that the Minister of Labour, by way of a ministerial order of 2 March 2021 issued at the request of the OGB-L and the LCGB, withdrew from the ALEBA the status of representative sectoral trade union on the grounds that, with representativeness of 49.22 per cent in the March 2019 elections to the Chamber of Employees, it no longer fulfilled the required conditions to be a representative sectoral trade union. The Committee notes that, according to the Government, the ministerial order was issued, in accordance with the procedure set out in article L.161-8 of the Labour Code, on the basis of the detailed report by the ITM submitted to the Minister on 23 February 2021, which concluded that in the 2019 trade union elections the ALEBA had not reached the threshold of 50 per cent of votes stipulated in article L.161-7(2) of the Code and that consequently the request for withdrawal submitted jointly by the OGB-L and the LCGB was founded in terms of the quantitative criteria.
3. 533. The Committee notes that, according to the complainant organization, the 50 per cent obligation contradicts article L.162-1(3) of the Labour Code, according to which a trade union or unions, which individually or together have obtained at least 50 per cent of votes at the most recent elections of staff representatives in the enterprises or establishments that fall within the scope of the collective agreement, must be admitted to the negotiating committee [for a collective agreement]. The criteria contained in article L.161-7(2) and article L.162-1(3) would therefore appear to differ. The Committee notes in this regard that the Government does not consider there to be any contradiction between these two instruments, as the purpose of their content is not the same: article L.161-7 of the Code stipulates the condition of thresholds to be respected in order to justify sectoral representativeness, while article L.162-1 of the Code relates to the negotiating committee for a collective labour agreement; furthermore, article L.162-1(3) of the Code applies to all trade unions that meet the 50 per cent criteria, irrespective of any sectoral or national representativeness.
4. 534. The Committee notes these observations. It notes that sectoral recognition within the meaning of article L.161-7 entitles the organization concerned to a series of prerogatives, including participation in collective bargaining as well as in the signing of collective agreements in the sector concerned, participation in the conclusion of national and cross-industry agreements, the submission of lists in elections of staff representatives, participation in certain enterprise decisions, the granting of training leave and the appointment of workers’ representatives to certain bodies.
5. 535. The Committee notes that in the 2019 elections to the Chamber of Employees, the OGB-L obtained 31.58 per cent of the vote, the LCGB 19.20 per cent, as compared to 49.22 per cent for the ALEBA. The Committee observes that this reduction in sectoral representativeness compared to the previous elections to the Chamber of Employees means that the ALEBA would no longer have sufficient weight to allow it to sign a collective agreement alone. The Committee also notes that, when articles L.161 - 7 and L-162-1 of the Labour Code are read together, in addition to the signature, it is the participation of the sectoral organization in collective bargaining that no longer seems to be acquired. Indeed, the Committee notes that in order to be admitted to the negotiating committee, when the conditions set out in article 161-7 are not met, either: (i) a unanimous decision must be taken by the trade unions eligible to sit on the negotiating committee in accordance with article L.162-1(2) of the Code (that is trade unions with general national representativeness); or (ii) … the trade union(s) has or have individually or together obtained at least 50 per cent of votes at the most recent elections of staff representatives in the enterprises or establishments that fall within the scope of the collective agreement (article L.162-1(3)). The Committee observes that the ALEBA does not meet this condition either: according to the results of the elections to appoint staff representatives reported by the complainant, the OGB-L and the LCGB together account for 27.57 per cent of the workforce in the finance sector, as compared to 30.09 per cent for the ALEBA.
6. 536. The Committee wishes to recall that in a case where, in the light of national conditions, the right to engage in collective bargaining had been restricted to the two most representative national unions of workers in general, it considered that this should not prevent a union representing the majority of workers of a certain category from furthering the interests of its members. The Committee therefore recommended that the Government be requested to examine the measures that it might take under national conditions to afford this union the possibility of being associated with the collective bargaining process so as to permit it adequately to represent and defend the collective interests of its members [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1385]. The Committee considers in this case that, although it fell below the 50 per cent threshold in the 2019 elections to the Chamber of Employees, the ALEBA remains the most representative trade union in its sector, which the Government does not dispute, and it should consequently be able to continue to defend the collective interests of its members.
7. 537. In these circumstances, the Committee invites the Government to take the necessary measures, as appropriate, to ensure that the most representative trade union of a sector concerned can fully defend the interests of its members, particularly by participating in the negotiation of relevant collective agreements. The Committee requests the Government to keep it informed of the decision to be handed down by the Administrative Court of Luxembourg on the substance of the case.

The Committee’s recommendation

1. 538. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee invites the Government to take the necessary measures, as appropriate, to ensure that the most representative trade union of a sector concerned can fully defend the interests of its members, particularly in the framework of the negotiation of relevant collective agreements. The Committee requests the Government to keep it informed of the decision to be handed down by the Administrative Tribunal of Luxembourg on the substance of the case.