Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Luxembourg (Ratification: 2001)

1. Recalling its previous comments concerning the national legislation applying the Convention, the Committee notes with satisfaction that during 2006 a number of laws have been enacted further strengthening the legislative and institutional framework for the promotion of equality of opportunity and treatment in employment and occupation. The Committee welcomes the fact that progress has been made by introducing new anti-discrimination legislation, and also by strengthening and consolidating provisions applying the Convention contained in constitutional, labour, as well as penal law.

2. The Constitution. The Committee notes that the Act of 13 July 2006 amended article 11(2) of the Constitution to read as follows: “Women and men are equal in rights and duties. The State must actively promote the elimination of any existing obstacles to equality between women and men.” The Committee welcomes the introduction of a positive duty on the State to promote equality of men and women. In this context the Committee notes the 2006 National Action Plan for Equality of Women and Men 2006, particularly its section on the economy, as well as the Government’s indication that a number of public-awareness activities are planned in the context of the European Year for Equal Opportunities for All 2007. The Committee requests the Government to provide information on the implementation of the National Action Plan as far as it relates to the promotion of equality of men and women in employment and occupation. The Government is particularly requested to provide information on the adoption and implementation of equality plans in the civil service and the private sector, as well as the implementation of positive measures to promote full equality. The Committee also wishes to be kept informed of any decisions of the Constitutional Court involving article 11(2) of the Constitution in relation to employment and occupation.

3. Anti-discrimination legislation. The Committee also notes with interest the adoption of the Act of 28 November 2006, transposing the European Council directives 2000/78/EC and 2000/43/EC and amending the Labour Code, the Criminal Code and the Act on disabled persons. The Act prohibits direct and indirect discrimination, inter alia, in employment and occupation based on religion or belief, disability, age, sexual orientation, and real or presumed membership or non-membership of a particular race or ethnic group (section 1). The Committee notes particularly the provisions concerning the shifting of the burden of proof in civil or administrative discrimination cases. The Committee notes with interest that the Act of 28 November 2006 provides for the establishment of a Centre for Equal Treatment as an independent institution to promote, analyse and monitor equal treatment of all persons, irrespective of race, ethnic origin, sex, religion or belief, disability or age.

4. Labour legislation. The Committee notes that the provisions concerning equality between women and men previously contained in separate laws, such as the Act of 8 December 1981 concerning equality of opportunity and treatment of men and women and the Act of 26 May 2000 concerning protection from sexual harassment at work, have been integrated into the new Labour Code (Act of 31 July 2006). Further, the Committee notes that the Act of 28 November 2006 introduced a new Chapter V (equal treatment) into the Labour Code containing corresponding provisions (sections L.251-1 and L.251-2), supplemented by provisions permitting certain exceptions based on essential and determining occupational requirements (section L.252-1). With regard to age, differential treatment may be permissible if it relates to a legitimate objective concerning employment policy, the labour market, or vocational training (section L.252-2). The Labour Code also permits special measures to compensate for disadvantages related to one of the prohibited grounds, with a view to promoting full equality in practice (section L.252-3). Further, the Committee notes that section L.253-1 provides for protection from victimization, including the possibility of reinstatement of workers who have been dismissed after having raised complaints or protests in relation to the right to equal treatment. As regards the public service, the Committee notes that provisions concerning discrimination on the grounds of religion or belief, disability, age, sexual orientation, and real or presumed membership or non-membership of a particular race or ethnic group have been introduced by Act of 29 November 2006 amending the 1979 State Civil Service Act and the 1985 Municipal Civil Service Act.

5. The Penal Code. The Committee notes that the definition of discrimination set out in section 454 of the Penal Code, as amended by the Act of 28 November 2006, continues to include all prohibited grounds listed in Article 1(1)(a) of the Convention. Recalling its previous comments that section 455 of the Penal Code did not penalize discrimination in respect of certain aspects of employment and occupation covered by the Convention, the Committee notes that the amended section 455, in line with the Committee’s previous comments, now also penalizes discriminatory acts relating to access to work, vocational training, working conditions and affiliation with or engagement in a workers’ or employers’ organization (section 455, point 7 of the Penal Code).

6. In relation to the above, the Committee requests the Government to provide, in its next report, information concerning the practical application of the non-discrimination and equality provisions contained in the Act of 28 November 2006, the Labour Code, the Penal Code as well as the civil service legislation, including information on any cases decided by the competent courts or dealt with by the labour inspectors. The Committee also requests the Government to provide information on the establishment, functioning and specific activities of the Centre for Equal Treatment during the reporting period.

7. Cooperation with the social partners. The Committee notes that under the Labour Code, collective agreements must include provisions reflecting the result of negotiations concerning measures to apply the principle of equality between women and men in undertakings or enterprises to which the agreement applies. In this regard, negotiations must be held concerning the adoption of gender equality plans (section 162-12, paragraph 4(4) of the Labour Code). The Committee requests the Government to provide information on the collective agreements concluded in accordance with this provision that promote and ensure equality of opportunity and treatment and to indicate any examples of equality plans adopted following collective negotiations.

The Committee is raising other points in a request addressed directly to the Government.