Luxembourg: Entry into force of the new convention on the legal regime of telework

Significantly accelerated by the health crisis, reflections on telework have become a heated topic in recent months. Within a few days, the Government and the country’s employers were confronted with a new social and economic challenge, which places itself in a relatively limited legal framework.

With the massive expansion of telework, among both resident workers and cross-border workers, the current legal framework has shown its shortcomings. It has demonstrated that the practice of telework goes far beyond the current legal and regulatory framework, which does not meet the current requirements.

Accordingly, the Conseil Économique et Social (hereafter “CES”) took up this topical issue. On 16^th September 2020, it published an opinion on the subject, intending to initiate the expansion of the regulatory framework characterised by a new convention project, covering the legal regime of telework.

The recommendations of the CES and the stated project were discussed and approved by the social partners. It led to the signing, on 20^th October 2020, of a new convention on the legal regime of telework, by the Union des Entreprises Luxembourgeoises on one hand and the OGBL and LCGB (the 2 biggest trade unions in Luxembourg) on the other (hereafter “the Convention”).

The Convention has been declared generally applicable through a Grand-Ducal Regulation entered into force on 2^nd February 2020 and is valid for 3 years from its entry into force.

Please find below a non-exhaustive recap of the main points in the Convention:

1. Telework must remain voluntary and based on a mutual agreement between the employer and the employee. There will be no entitlement/right to telework ;
2. The establishment of a broader scope of the telework regime and the acknowledgement of occasional telework.

According to the Convention, telework is occasional (i) if carried out to cope with unforeseen events or (ii) if representing less than 10% on average of the employee’s standard annual working time. The reference period is the calendar year.

Within a week, 10% corresponds to approximately 4 hours of telework.

Telework agreements currently providing more than 4 hours of telework per week without applying the provisions of regular telework will no longer be compliant.

3. The Convention provides for a more moderate formalisation of the agreement. The agreement will not be subject to the signature of an addendum to the employment contract, but can be set up by a simple written document, such as an e-mail for example;
4. The mandatory adjustment period (“période d’adaptation”) granted in the old convention is abolished;
5. The Convention also provides for the obtainment of needed equipment for telework and the assumption of costs, in particular those related to communication when telework is regular. Contrary to the demands of some employees, no provision has been made for the employer to pay part of the employee’s rent;
6. The employer will no longer have the possibility to request an appointment to check the employee’s equipment, to ensure compliance with the rules on safety and health at work. The initiative must originate from the employee.

Finally, companies where there are less than 150 employees, the staff delegation must be consulted and informed of any measures relating to the implementation of a specific telework scheme.

The Convention now provides that in companies with more than 150 employees, the staff delegation has co-decision powers. Hence, the introduction of a specific telework scheme must be agreed between the employer and the staff delegation. The signatories of the Convention also demand that co-decision on this topic should be expressly included in Article L.414-9 of the Labour Code.

For more information on these articles or any other issues involving labour and employment matters in Luxembourg, please contact Christian Jungers (Partner) of KLEYR | GRASSO at christian.jungers@kleyrgrasso.com or visit www.kleyrgrasso.com.