Luxembourg: 2023, Looking ahead

In 2023, Looking ahead, we explore the most important trends and developments related to labour and employment law in Luxembourg.

 

Main recent legislative changes

 

1. 2% increase in the minimum social wage on 1^st January 2023:

The Law of 23^rd December 2022 increased the minimum social wage by 3.2% on 1^st January 2023.

Thus, on 1^st January 2023, the new gross amounts (in euros) are as follows:

Age	%	Gross hourly wage	Gross monthly salary*	Gross monthly salary*
18 and over unqualified	100	13.8000	272.22	2,387.40
from 17 to 18	80	11.0400	217.78	1,909.92
from 15 to 17	75	10.3500	204.16	1,790.55
18 and over qualified	120	16.5600	326.66	2,864.88

 *Gross monthly salary base index 100

* Gross monthly salary index 877.01

The increase in the social minimum wage has an impact on the amount of the threshold for the tax exemption for the settlement agreement indemnity, the voluntary indemnity in case of resignation or termination by mutual agreement. This amount is on 1^stJanuary 2023 equal to EUR 28,648.80 gross.

 

2. Secondment of employees to Luxembourg

The Law of 23^rd December 2022 (entry into force on 27^th December 2022) has adapted the rules on the secondment of employees to Luxembourg.

Key points of attention to employers:

• Declaration of secondment: modification of the list of information to be communicated to the Labour Inspectorate to obtain the social badge.

 

• Abolition of the obligation to provide documents to the Labour Inspectorate: replaced by an obligation to keep and present them in the event of a control (e.g. no longer to be retained: VAT certificate; documents attesting to professional qualifications, etc.).

 

• Specific rules on the secondment of road transport drivers including:
• declaration of the secondment on the Internal Market Information System “IMI”;
• obligation to ensure that the employee has at his/her disposal, in paper or electronic form, certain documents (e.g. copy of the secondment declaration, etc.).

3. Cultural Leave

The Law of 6^th January 2023 (entry into force on 1^st February 2023) introduced cultural leave into the Labour Code.

Key points of attention to employers:

• Cultural leave is granted under certain conditions and its duration depends on the category of beneficiaries:

Category:
§  Creative and performing artists (visual and audio-visual arts, multimedia/digital arts, performing arts, literature, publishing, music and architecture);
§  Any other person involved in a project/production (movie, audio-visual, music, performing arts, graphic, plastic, visual or literary arts).
Duration:
maximum 12 days/year

Category:
Administrative managers of national federations and networks in the cultural sector
Duration:
§  5 days/year if less than 1,000 active members;
§  10 days/year if more than 1,000 active members.

Category:
Administrative managers of associations in the cultural sector
Duration:
§  2 days/year if – 50 active members;
§  3 days/year if between 50 and 200 active members;
§  4 days/year if more than 200 active members.

Category:
Employees of national federations and networks in the cultural sector
Duration:
Quota of 50 days/year for all their employees

Category:
Employees of associations in the cultural sector
Duration:
10 days/year for all their employees

• The leave is granted by the Minister of Culture and the employer only gives its opinion on the application for leave within 8 working days.

• The employee (outside the State sector) receives a compensatory allowance equal to the average daily wage (maximum four times the non-qualified minimum social wage). The amount is reimbursed by the State to the employer.

1. Changes and main Laws expected in 2023[1]

1. Indexation of wages on 1^st April 2023

The tripartite agreement of 28^th September 2022 provides for indexation of wages and pensions on 1^st April 2023 (application of the index tranche triggered in July 2022).

The minimum social wage (qualified and unqualified) will increase, which will also have an impact on other amounts (e.g.: minimum monthly starting wage required to apply a probationary period from 7 to 12 months, etc.).

2. Moral harassment

Bill No. 7864 (introduced on 23^rd July 2021) provides to introduce a new chapter on moral harassment in the Labour Code.

Key points of attention to employers:

• Introduction of a new definition of moral harassment (in particular, behaviour or acts of moral harassment may also occur outside the employee’s usual workplace and working hours).

 

• Obligation of the employer:
• to determine (after information and consultation of the staff delegation or, failing that, of all the staff) the preventive measures to be taken to protect employees against moral harassment at work (adapted to the nature of the activities and the size of the company);
• to immediately stop any moral harassment of which it is aware;
• to carry out an internal evaluation in the event of the occurrence of moral harassment behaviour towards an employee.

• Victims and witnesses of harassment shall not be subject to reprisals. Any provision or act to the contrary, and in particular any dismissal, shall be null and void.

• Involvement of the Labour Inspectorate if the harassment does not stop despite the implementation of preventive measures or if the employer fails to take action.

3. Right to disconnect

Bill No. 7890 (introduced on 28^th September 2021) intends to introduce the right to disconnection into the Labour Code.

Key points of attention to employers:

• Obligation for employers whose employees use digital tools for work purposes to set up a regime ensuring the respect of the right to disconnect outside working time.

 

• Content of the specific regime may include:
• practical arrangements and technical measures for disconnecting from digital tools;
• awareness raising/training measures; and,
• compensation arrangements (in case of exceptional derogations to the right to disconnect).

Examples: raise employees’ awareness of disconnection / blocking access to the company’s server during certain daily and weekly time slots / leaving digital tools in company premises, etc.

• Setting up the specific regime:
• At the level of the existing CBA or a sectoral agreement;
• Failing that, the scheme should be defined at company level by the employer after consultation with the staff delegation (or mutual agreement from 150 employees). If there is no staff delegation, the employer should inform the employees of the scheme.

• Penalty for non-compliance: fine of EUR 251 – 25,000 pronounced by the Labour Inspectorate.

4. Whistleblowing

Bill No. 7945 (introduced on 10^th January 2021) aims to transpose into national law Directive (EU) 2019/1937 of 23^rd October 2019 on the protection of persons who report violations of Union law.

Key points of attention to employers:

• Protection of whistleblowers who report information about violations (unlawful acts/omissions or acts/omissions contrary to the object or purpose of national or European law “in so far as the consequence is a breach of the public interest” obtained in the course of their professional activities.

 

• Obligation for private entities with at least 50 employees, public sector entities and communal administrations with more than 10,000 residents to establish internal reporting channels (procedure and follow-up), and possibility if less than 50 employees or less than 10,000 residents:
• From the entry into force of the Law for companies from 250 employees (4 days after publication in the Mémorial);
• No later than 17 December 2023 → exception for private entities with 50 to 249 employees.

• Penalty for non-compliance with the provisions on internal reporting channels: administrative fine of EUR 1,500 to EUR 250,000 (in the absence of special rules in sectoral laws).

• Conditions for whistleblower protection:
• reasonable grounds to believe that the information provided on violations was true at the time of reporting + it falls within the scope of the law;
• must have made a report (internal/external/public disclosure → priority to internal reporting).

• Whistleblower will be protected against any reprisals, threats or attempts at reprisals (e.g. suspension, lay-off, dismissal, demotion, refusal of promotion, change of duties, place of work or salary, etc.). Any action taken in this respect is void.

 

 

5. Work/life balance

Bill No.8016 (introduced on 2^nd June 2022) intends to transpose the EU Directive 2019/1158 of 20 June 2019 on work-life balance for parents and carers.

Key points of attention to employers:

• Adding two cases of extraordinary leave:
  • 1 day over a period of 12 months in the event of force majeure linked to urgent family reasons in the event of illness or accident of a family member requiring the immediate and vital presence of the employee certified by a doctor;
  • 5 days in a 12-month period to provide personal care or assistance (to a family member or to a person living in the same household as the employee who requires considerable care or assistance for serious medical reasons certified by a doctor).
• Possibility for the employee to request flexible working arrangements (e.g. teleworking, flexible working hours or reduced working hours for a fixed period of time not exceeding 1 year) under the following conditions:
• seniority of at least 6 months; and,
• being a parent of a child under 9 years of age or having to provide personal care or assistance to a family member or a person living in the same household who requires considerable care or assistance for serious medical reasons certified by a doctor.

The employer has the possibility to refuse or postpone the request (reasons in writing by registered letter).

 

6. Transparent and predictable working conditions

Bill No. 8070 (introduced on 7^th September 2022) is intended to transpose EU Directive 2019/1152 of 20^th June 2019 on transparent and predictable working conditions in the European Union.

Key points of attention to employers:

• Important change of the Labour Code: contract templates to be amended then!

• Modification of compulsory provisions of the employment contract, apprenticeship contract, temporary work contract and internship contract of pupils/students during their school holidays.

• Limitation of the trial periods in fixed-term contracts: minimum 2 weeks and maximum 1/4 of the duration of the fixed-term contract or of the minimum duration for which the fixed-term contract is concluded.

• Right of the employee to request a change to more stable forms of work (eg.: fixed-term contract to permanent contract or full-time to part-time or part-time to full-time).

• Presumption of full time in the absence of a written document mentioning the duration of the part-time employee’s work and its repartition.

• Nullity of exclusivity clauses that are not justified by legitimate and objectively verifiable higher interests (health and safety, the protection of business confidentiality, the integrity of the public service or the avoidance of conflicts of interests).

• Penalty for non-compliance with this provisions: EUR 251 to- 5,000 EUR.

[1] Please note that the provisions of the Bills as presented (initial or amended draft) are provisional and subject to change.