Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Luxembourg (Ratification: 2001)

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1(1)(a) of the Convention. Sexual harassment and other forms of violence at work. The Committee previously noted that the Act of 23 July 2015 assigns to gender equality delegates, or failing that, to staff representatives, a role in the prevention, protection and assistance within the enterprise in relation to sexual harassment. It requested the Government to provide information on the measures taken to raise awareness of and promote the implementation of the Act of 2015 at the enterprise level. The Committee notes the Government’s statement, in its report, that the Ministry of Equality between Women and Men (MEGA) offers training on gender equality, in particular for gender equality delegates in enterprises. The Government indicates that a Bill on protection against moral harassment was elaborated in 2018 in order to fight against mobbing at work and that awareness-raising activities were undertaken in that regard. It adds that, in the meantime, courts tend to hold liable an employer in case of moral harassment perpetrated against an employee by the employer or other employees, on the basis of section 1134 of the Civil Code, considering that it is the employer’s obligation to take all necessary measures to prevent or put an end to any form of harassment among his or her employees. The Committee also notes the judicial decisions forwarded by the Government in that regard. While welcoming the ongoing developments regarding prevention and prohibition of moral harassment, the Committee regrets that the Government did not provide information regarding sexual harassment more specifically. Recalling its previous comments on the low number of complaints on sexual harassment, it notes, from the 2019 annual report of the Inspectorate of Labour and Mines (ITM), that the ITM received 515 requests related to harassment of which 40 were transferred to the Inspections, Controls and Surveys (ICE) service. It observes however that no specific statistical data is available on sexual harassment. In that regard, the Committee notes that, in its 2019 annual report, the Centre for Equality of Treatment (CET) continues to highlight the lack of capacity on the part of the ITM to penalize and prosecute perpetrators of sexual harassment, and again recommends that legislative measures shall be taken to provide for specific penalties and ensure that the ITM has the necessary means at its disposal to carry out its functions. As regards the agreement of 25 June 2009 concerning harassment and violence at work, concluded between the Luxembourg Confederation of Independent Trade Unions (OGB–L) and the Luxembourg Confederation of Christian Trade Unions (LCGB), on the one hand, and the Union of Enterprises of Luxembourg (UEL), on the other, the Committee again regrets the lack of information provided by the Government on its implementation. The Committee asks the Government to provide information on the specific measures taken to effectively prevent and combat sexual harassment and other forms of violence at work, including by raising awareness of workers, employers and their respective organizations, in virtue of the provisions of the Act of 23 July 2015 and of the collective agreement of 25 June 2009. It also asks the Government to provide information on the impact of the measures undertaken to that end, on the number of the gender equality delegates designated at the enterprise level and their activities, and on the number of complaints or cases of sexual harassment at work dealt with by the Inspectorate of Labour and Mines, the courts or any other competent authorities, specifying the remedies granted and the penalties imposed to perpetrators.

Article 2. Equality of opportunity and treatment for women and men. The Committee previously noted the adoption of the Equality Plan for Women and Men 2015–18 and the Municipal Action Plan for Equality for Women and Men 2015–18 adopted by the city of Luxembourg. The Committee notes that the Government’s report does not contain any information on the measures taken to promote gender equality in employment and occupation, in particular in the context of the above-referred action plans. However, it notes that a new National Action Plan for Equality between Women and Men was launched in July 2020, the implementation of which will be assessed every three years and for the first time in 2022. It notes more particularly that the new action plan sets as specific objectives to: (1) fight against gender stereotypes; (2) promote equality in education; and (3) enhance equality in employment. It further notes that a new Municipal Action Plan for Equality for Women and Men 2019–2022 was adopted by the city of Luxembourg. As regards measures taken to combat stereotypes and prejudices concerning women’s occupational aspirations and capabilities, it notes the Government’s statement that, as provided for under its Coalition Agreement 2018–2023, educational projects will be implemented by the MEGA in the coming years to promote gender neutral professional orientation and equality in education and vocational guidance for children and adolescents. As regards the target of 40 per cent of women employed in supervisory posts in the public sector by 2019, the Government indicates that the rate of women on the boards of directors of public institutions increased from 27.41 per cent in 2015 to 34.69 per cent in 2018. Furthermore, the percentage of women representing the State in public establishments increased from 30.34 per cent in 2015 to 40.19 per cent in 2018. The Committee welcomes this information. It however notes, from Eurostat, that, in 2018–2019, only 23 per cent of managers, 13 per cent of board members and 6 per cent of senior executives were women. Furthermore, it notes that, according to the 2019 Gender Equality Index of the European Institute for Gender Equality (EIGE), the concentration of women and men in different sectors of the labour market remains an issue, as around 26 per cent of women work in education, health and social work (compared to 9 per cent of men), while only 4 per cent of them work in science, technology, engineering and mathematics (STEM) occupations (compared to 28 per cent of men). In that regard, the Committee notes that, in its 2018 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) expressed specific concerns about : (1) the concentration of women in traditionally female-dominated fields of study and career paths; and (2) the low levels of representation of women in decision-making positions in both the public sector and on the boards of major enterprises (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraphs 39 and 41). The Committee asks the Government to provide detailed information on the measures taken to effectively promote gender equality in education, employment and occupation, including by combating gender stereotypes and occupational segregation, as well as increasing the participation of women in decision-making positions, in particular in the framework of the new National Action Plan for Equality between Women and Men of July 2020 and the Municipal Action Plan for Equality for Women and Men 2019-2022. It asks the Government to provide information on any study or assessment undertaken on the impact of such measures. The Committee further asks the Government to provide statistical information on the distribution of men and women in employment, disaggregated by economic sector and occupation.

Affirmative actions in favour of gender equality. The Committee previously noted that several public and local administrations as well as private enterprises had taken part in the voluntary Affirmative Action Programme since 2011 and that “affirmative action” label was awarded to enterprises which had fully implemented their affirmative action plans. The Committee welcomes the Government’s indication that the following measures have been identified as having a positive impact on gender equality at the workplace: (1) promoting gender diversity at all levels and recruiting men and women in atypical professions; (2) integrating gender equality in the enterprise’s charter of values; (3) ensuring individual interviews on career development taking into consideration equality of opportunity in access to training and regularly reviewing promotions of men and women; and (4) offering flexible work organization, including part-time for managerial positions and facilitating the reintegration into the workplace after a prolonged absence. The Government adds that once the action plan is completed, an evaluation of the affirmative action programme will be funded by the MEGA and enable it to assess the actual impact and effectiveness of the measures implemented as well as of the progress made in terms of organizational and structural changes. The Committee notes, from the Government’s report on the application of the Equal Remuneration Convention, 1951 (No. 100), that nearly 80 companies of all sizes and from different sectors have already participated in the programme, representing 13 per cent of the labour force. The Committee therefore asks the Government to provide information on the impact of the actions implemented in the framework of the Affirmative Action Programme on promoting equality between men and women in occupation and employment, both in the public and private sectors.

Workers with family responsibilities. The Committee previously noted that the Equality Plan for Women and Men 2015–18 provided for specific measures to enhance better conciliation between work and family responsibilities and requested the Government to provide information on the implementation of such measures. The Committee welcomes the adoption of the Act of 3 November 2016 reforming parental leave and provides that each parent can now benefit from full-time parental leave of 4 or 6 months or from part-time parental leave, under special conditions, of 8 or 12 months. As of 2016, the beneficiary of parental leave will receive a replacement income, the amount of which will vary between a minimum ceiling equal to the minimum social wage (€2,141.99) and a maximum ceiling equal to the minimum social wage increased by two thirds (€3,569.99). The Government states that the new Act introduces more flexibility allowing better conciliation between work and family responsibilities, while ensuring an income-related benefit to the beneficiary. The Committee notes, from the Intermediary Assessment of the results of the reform of parental leave published by the Luxembourg Institute of Socio-Economic Research (LISER) in February 2020, that between 2016 and 2017, the number of beneficiaries increased significantly, especially regarding fathers (+215.9 per cent) and was closed to equality between women and men in 2018 (4,875 women and 4,721 men). It further welcomes the fact that the Act of 15 December 2017 on paternity leave and leave for family reasons increased the duration of paternity leave from 2 to 10 days and introduced more flexibility in the rules applicable to leave for family reasons providing now for 35 days of leave, distributed by age groups, which can be used by any parent until the child reaches 18 years of age. The Committee notes that the new National Action Plan for Equality between Women and Men, launched in July 2020, also provides for negotiations to be held between the Government and the social partners to identify new ways to further improve the reconciliation between work and family responsibilities. It also notes that, according to Eurostat, while the gap in full-time equivalent employment rates between women and men narrowed to 13 percentage points in 2017 (45 per cent and 58 per cent respectively), the gap is still far wider for women and men in couples with children (23 percentage points). It further notes that, according to the National Statistics and Economic Studies Institute (STATEC), in 2019, 35 per cent of women were in part-time work (compared to 6 per cent of men) and for 57 per cent of them, family was the main reason for working part-time (Regards, No. 2; March 2019). In that regard, the Committee notes that, in its 2018 concluding observations, the CEDAW expressed concern about: (1) the disproportionate participation of women, especially mothers, in part-time work, illustrating an unequal division of family responsibilities between women and men; (2) regulations that exclude part-time employment workers for most managerial positions; (3) the persistence of stereotypes on the traditional roles of women and mothers as caregivers and of men as breadwinners; and (4) the low number of children between the age of 3 and school age in childcare facilities (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraphs 25 and 41). The Committee asks the Government to continue to provide information on the steps taken or contemplated to ensure the reconciliation of work and family responsibilities, including by: (i) combating stereotypes on the traditional roles of women and men in the family, and (ii) ensuring that part-time workers are not excluded from decision-making positions, both in law and in practice. It further asks the Government to provide statistical data, disaggregated by sex, on the number of workers in the private and public sectors who have availed themselves to the possibility of parental leave and part-time work for family reasons. Finally, noting that, in its Coalition Agreement 2018-2023, the Government states that improvements will be made regarding childcare, the Committee asks the Government to provide information on the specific measures taken in that regard.

Equality of opportunity and treatment without distinction on the basis of race, colour or national extraction. Referring to its previous comments where it requested the Government to provide information on any new national integration plan, the Committee welcomes the adoption in 2018 of the Multi-Year National Action Plan on Integration which covers two areas, namely: the reception of and social support for those seeking international protection, and the integration of all non-Luxembourg citizens residing in the country. It notes the Government’s statement that one of the objectives of the new National Action Plan, which has no time limit and provides a general framework that can be revised and adapted over time, is to enhance access to training and employment for non-nationals. The Government adds that to this end the Ministry of Labour, Employment and the Social and Solidarity Economy (MTEESS) and the Employment Development Agency (ADEM), as well as a large number of actors have set up programmes designed to facilitate access to employment and entrepreneurship. The Committee welcomes this information. Noting that the Government did not provide information on the measures taken to promote equal treatment and diversity in enterprises in the context of the Diversity Charter, it observes, from the information available on the Diversity Charter website, that only 18 organizations adhered to the Charter since 2017. The Committee further notes that, in its 2018 concluding observations, the CEDAW expressed concerns about: (1) the lower school performance among migrant girls, especially those of non-European countries, and their low participation in higher education; and (2) the low employment rate among women migrants from non-European countries (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraphs 39 and 49). Referring to its observation and recalling that colour and national extraction are not included in the grounds of discrimination prohibited by the Labour Code, the Committee asks the Government to provide information on the measures implemented, in particular in the framework of the Multi-Year National Action Plan on Integration, to prevent discrimination based on race, colour or national extraction and ensure effective equality of opportunity and treatment in access to education, occupational training and employment for persons with migration backgrounds, particularly from non-European Union countries. It also asks the Government to provide information on any other measures taken to promote equal treatment and diversity in enterprises, in particular in the context of the Diversity Charter. Finally, the Committee asks the Government to provide statistical information on the participation of migrant workers, particularly from non-European Union countries, in the labour market, both in public and private sectors, as well as in education and training.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 3(a). Collective agreements. Collaboration with the social partners. The Committee previously noted that, while section L.162-12-4(4) of the Labour Code provides that collective agreements must contain provisions reflecting the result of collective bargaining on the application of the principle of gender equality in workplaces or enterprises to which these agreements are applicable, not all of them contain equality measures. In view of the lack of information provided by the Government on that point, the Committee again asks the Government to take steps to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures to promote equality of opportunity and treatment for women and men in employment and occupation, including through awareness campaigns, and to continue providing information on collective agreements concluded under section L.162-12-4(4) of the Labour Code.

Specialized equality body. The Committee recalls that, in its previous comments, the Committee noted that the Centre for Equality of Treatment (CET), established by Act of 28 November 2006 in order to promote, analyse and monitor equal treatment for all persons, does not have the power to deal with complaints or institute court proceedings and does not have adequate powers to gather information and evidence. It thus requested the Government to provide information on any steps taken to strengthen the role and powers of the CET to combat discrimination on the grounds listed under the Convention. The Committee notes that, according to its 2019 annual report, the CET identified 44 job vacancies which were discriminatory, 93 per cent of them on the basis of sex, and decided to carry out an awareness-raising campaigns for employers in order to combat discrimination in recruitment. The Committee notes that, in its 2019 report, the CET again regrets its lack of legal status and means of coercion. It further notes that, in their concluding observations, several UN treaty bodies also expressed concerns at the restricted capacities of the CET, which prevent it from dealing with complaints of discrimination or investigating cases of discrimination (CEDAW/C/LUX/CO/6-7, 14 March 2018, paragraph 17; and CRPD/C/LUX/CO/1, 10 October 2017, paragraph 12). Furthermore, in the framework of the Universal Periodic Review (UPR), the European Commission against Racism and Intolerance (ECRI) specifically recommended that the CET shall be given the right to hear and consider complaints; the powers necessary to conduct effective investigations; the right to initiate legal proceedings; and the right to participate in judicial and administrative proceedings. The Council of Europe’s Commissioner for Human Rights also made similar recommendations (A/HRC/WG.6/29/LUX/3, 3 November 2017, paragraphs 24 and 25). The Committee again asks the Government to provide information on any steps taken to strengthen the role of the Centre for Equality of Treatment in combating discrimination on the grounds listed in the Convention, particularly in relation to dealing with complaints and conducting investigations.

Enforcement. The Committee takes note of the statistical information provided by the Government on the number of requests forwarded to the ITM in 2018, but observes that no information refers specifically to cases of discrimination. Referring to its observation made on the application of the Convention, the Committee wishes to draw the attention of the Government to the fact that, pursuant to sections 241-10 and 254-1 of the Labour Code, the ITM is responsible for monitoring the respect of principle of equality and treatment between men and women as well as the application of the principle of non-discrimination on the grounds referred to in section 241-1, thus excluding the grounds of colour, political opinion, national extraction and social origin from its scope of action. It further notes that the 2020 European Commission country report on non-discrimination highlighted that there is still very little case law on discrimination which may be explained by the fact that victims do not have the financial means to bring a case to court, or that many people are unaware of anti-discrimination laws (European Commission, Country report on non-discrimination, 2017, pages 9 and 42). The Committee once again asks the Government to provide information on the activities of the Inspectorate of Labour and Mines and other competent authorities in relation to enforcing the legislation to combat discrimination in employment and occupation, and raising awareness among workers, employers and their organizations on all the grounds of discrimination covered by the Convention. It asks the Government to provide information on the number of complaints or cases for discrimination in employment and occupation detected or dealt with by the Inspectorate of Labour and Mines or any other competent authorities, as well as relevant extract from labour inspection reports or administrative and judicial decisions.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1(1)(a) and (b) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee previously noted that, pursuant to Act of 3 June 2016, which amends the Labour Code, the Act of 13 May 2008 on equal treatment for men and women, and the conditions of service of local and central government officials, discrimination “on the basis of a change of sex” shall be deemed equivalent to discrimination on the basis of sex. It however drew the Government’s attention to the fact that, despite section 454 of the Penal Code, which defines discrimination as “any distinction made between persons on account of their origin, their skin colour, […] their political views […]”, the grounds of colour, political opinion, national extraction and social origin are not covered by the Labour Code (section L.241-1), the Act of 16 April 1979 establishing the general conditions of service for central government officials (section 1 bis) and the Act of 24 December 1985 establishing the general conditions of service for local government officials (section 1 bis). It requested the Government to amend these provisions to include colour, political opinion, national extraction and social origin. The Committee notes the Government’s indication in its report that Act of 7 November 2017 amending the Labour Code and the conditions of service of local and central government officials, introduced “nationality” among the grounds of discrimination prohibited under these laws. While welcoming this information, the Committee wishes to recall that the concept of “national extraction” covers distinctions made on the basis of a person’s place of birth, ancestry or foreign origin, and thus differs from “nationality” (2012 General Survey on the fundamental Conventions, paragraph 764). It further notes the Government’s repeated statement that victims of discrimination, on grounds which are not prohibited under section L.241-1 of the Labour Code, such as colour, political opinion, national extraction and social origin, can lodge a complaint under section 454 of the Penal Code, for which the Office of the Public Prosecutor will assess the case for prosecution. The Government adds that section L.244-3 of the Labour Code provides for a reversal of the burden of proof in labour tribunals where facts allow the presumption of the existence of discrimination, while under the Penal Code it is for the plaintiff to prove the existence of discrimination. The Committee is bound to reiterate that criminal prosecution is generally not sufficient to eliminate discrimination in the workplace: (1) because of its particular nature, which arises from the specific features of the work environment (fear of reprisals, loss of employment, hierarchies, etc.); and (2) because of the burden of proof, which is often hard to meet. Indeed, in the event of a complaint against discrimination, the burden of proof can be a significant obstacle, particularly as much of the information needed in cases involving unfair or discriminatory treatment is in the hands of the employer (2012 General Survey, paragraph 885). Furthermore, the Committee wishes to draw the Government’s attention to the fact that, at national level, the common understanding seems to be that the legislation does not protect against discrimination in employment and occupation on the grounds of colour, political opinion, national extraction and social origin. The Committee refers in that regard to the awareness-raising campaign carried out in 2018 by the Centre for Equality of Treatment (CET) to combat discrimination in recruitment, which referred only to the grounds of discrimination listed in section L.241-1 of the Labour Code, without making any reference to section 454 of the Penal Code (CET, 2018 annual report, page 75). In order to enable workers to assert their rights effectively in relation to discrimination based on all the grounds listed in Article 1(1)(a) of the Convention, the Committee urges the Government to take the necessary steps to amend the list of grounds of discrimination prohibited by the Labour Code (section L.241-1), the Act of 16 April 1979 establishing the general conditions of service of central government officials (section 1 bis) and the Act of 24 December 1985 establishing the general conditions of service of local government officials (section 1 bis) to include the grounds of colour, political opinion, national extraction and social origin. It asks the Government to provide information on any progress made in that regard. The Committee further asks the Government to provide information on the number of administrative and judicial decisions handed down by the competent authorities on cases or complaints for discrimination in employment and occupation, including on the basis of section 454 of the Penal Code, specifying the grounds of discrimination, the remedies provided and the sanctions imposed.

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

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 1(1)(a) of the Convention. Sexual harassment and other forms of harassment. Violence at work. The Committee welcomes the provisions of the Act of 23 July 2015 introducing reforms to the arrangements for social dialogue within enterprises and which assign to gender equality delegates, or failing that, to staff representatives, a role in the prevention, protection and assistance within the enterprise in relation to sexual harassment. The Committee notes that, in the public sector, equality delegates, who numbered 120 in 2014, are the persons to contact in the event of harassment (Equality Plan for Women and Men 2015–18). According to the Government’s report, only three complaints for sexual harassment were filed with the Inspectorate of Labour and Mines (ITM) in 2015. In this regard, the Committee recalls that the absence of complaints regarding sexual harassment does not necessarily indicate that it does not exist; rather, it is likely to reflect the lack of an appropriate legal framework, the lack of awareness, understanding and recognition of this form of sex discrimination among government officials, and workers and employers and their organizations, as well as the lack of access to or the inadequacy of complaints mechanisms and the means of redress, or fear of reprisals (General Survey on the fundamental Conventions, 2012, paragraph 790). The Committee also notes that the Centre for Equality of Treatment (CET), in its 2016 annual report, continues to highlight the lack of capacity on the part of the ITM to penalize and prosecute, and again recommends that measures to prosecute and prevent sexual harassment should be reinforced. With regard to the agreement of 25 June 2009 concerning harassment and violence at work, concluded between the Luxembourg Confederation of Independent Trade Unions (OGB–L) and the Luxembourg Confederation of Christian Trade Unions (LCGB), on the one hand, and the Union of Enterprises of Luxembourg (UEL), on the other, the Committee notes the very general information provided by the Government on arrangements for enforcement of the agreement by the ITM. It observes that this information does not permit an evaluation of the scope of its application or its effectiveness in combating harassment and violence at work. The Committee once again asks the Government to implement specific measures, such as information campaigns on the provisions of the Act of 23 July 2015 and those of the collective agreement of 2009 and awareness campaigns on the issue of harassment and violence at work, to prevent and combat effectively these practices. The Committee also asks the Government to provide information on any measures adopted for preventing and resolving cases of harassment to promote the implementation of the Act of 2015 in enterprises and, on any evaluation of the application of the collective agreement of 2009 (which was due five years after it was signed). Further, the Committee asks that the Government provide information on the penalties applicable to the perpetrators of sexual harassment and other forms of harassment and violence at work.

Article 2. Equality of opportunity and treatment for women and men. The Committee notes the new Equality Plan for Women and Men 2015–18, which has been drawn up in light of the conclusions of the evaluation of the previous plan and priorities established by the Government in relation to gender equality, and the Municipal Action Plan for Equality for Women and Men 2015–18, adopted by the city of Luxembourg. The Committee also notes that, between January 2015 and June 2017, the total percentage of women members of executive boards increased from 21.75 per cent to 26.76 per cent (and from 27.18 per cent to 33.46 per cent for representatives of the State). A target of 40 per cent women in supervisory posts in the public sector has been fixed for 2019. The Committee asks the Government to provide detailed information on the steps taken, in the context of the Equality Plan 2015–18 and the Municipal Action Plan for Equality for Women and Men for the same period, to promote gender equality in employment and occupation. Recalling the importance of implementing measures to combat stereotypes and prejudices concerning women’s occupational aspirations and capabilities, to promote gender-balanced jobs, to diversify the availability of vocational training and to increase the participation of women at all levels of enterprises, the Committee asks the Government to provide information on all steps taken in this respect. It also asks the Government to supply information on the results achieved in relation to the employment of women in supervisory posts in the public sector.

Affirmative action in favour of gender equality. The Committee notes the Government’s indication that 20 public administrations and 10 local administrations have taken part in the Affirmative Action Programme since 2011 and that, according to the 2016 annual report of the Ministry for Equal Opportunities, 72 enterprises in various sectors have also participated. It also notes that each year an “affirmative action” label is awarded to enterprises which have fully implemented their affirmative action programmes and that all measures taken are documented and evaluated by the Ministry so that they can be applied to other enterprises. Welcoming this information, the Committee asks the Government to provide examples of measures which have had a real impact on gender equality in the public and private sectors and to continue providing information on the enterprises and administrations involved in the Affirmative Action Programme and on the results achieved.

Workers with family responsibilities. Noting that the Government’s report does not contain any information on this point, the Committee nevertheless observes that the Equality Plan for Women and Men 2015–18 provides for the adoption of awareness-raising measures to encourage more fathers to avail themselves of parental leave, the development and evaluation of a national programme aimed at encouraging enterprises to support any specific measures that promote the work-life balance and, if applicable, the harmonization of holidays for family reasons. The Committee asks the Government to provide information on the adoption and implementation of these measures and the results achieved.

Equality of opportunity and treatment without distinction on the basis of race, colour or national extraction. The Committee notes the Government’s indication that in 2012 it launched the “Diversity Charter” based on the recognition and valuation of individual skills and aimed at promoting equal opportunities and diversity in organizations. It notes that in 2016 the Charter covered 170 organizations representing 15 per cent of the active population, mainly in the private sector. The Government also refers to the “welcome and integration contract” available to foreigners who have long-term established status in the country. The Committee notes that, despite its previous request, the Government’s report does not contain any information on implementation of the measures laid down in the Multi-Annual National Action Plan for Integration and to Combat Discrimination (2010–14) or on the results achieved. It also notes that in its report on Luxembourg the European Commission against Racism and Intolerance (ECRI) recommends that the authorities should quickly adopt a new national integration action plan, allocate an appropriate budget to it, and provide for an annual evaluation of each goal and measure. The ECRI also recommends the authorities to take the necessary steps to ensure that children with migration backgrounds are able to acquire the language level required for lasting success at school, and to adopt affirmative measures to facilitate access to the job market for persons with migration backgrounds with a low level of education (CRI(2017)4, adopted on 6 December 2016 and published on 28 February 2017, paragraphs 66, 68, 74 and 80). Referring to its observation and recalling that colour and national extraction are not included in the grounds of discrimination prohibited by the Labour Code, the Committee once again asks the Government to provide detailed information on the steps taken to effectively combat discrimination based on race, colour or national extraction and to ensure effective equality of opportunity and treatment in access to education, occupational training and employment for persons with migration backgrounds, particularly persons originating from non-European Union countries. The Committee also asks the Government to provide information on any new national integration plan and more specifically on any measures to promote equal treatment in enterprises in the context of the Diversity Charter or in any other manner, and on the results achieved.

Article 3(a). Collective agreements. Collaboration with the social partners. The Committee recalls that, under section L.162-12-4(4) of the Labour Code, collective agreements must contain provisions reflecting the result of collective bargaining on the application of the principle of gender equality in workplaces or enterprises to which these agreements are applicable. The Committee notes the Government’s information concerning the number of new collective agreements registered with the ITM in 2013, 2014 and 2015 and observes that not all of them contain equality measures. The Committee asks the Government to take steps to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures to promote equality of opportunity and treatment for women and men in employment and occupation, including through awareness campaigns, and to continue providing information on collective agreements concluded under section L.162-12-4(4) of the Labour Code.

Specialized equality body. The Committee notes that the Government’s report does not contain any information on the activities of the CET. It observes that the CET, according to its 2016 report, continues to analyse job vacancies and identified 120 vacancies which were discriminatory, 90.9 per cent of them on the basis of sex, 5.8 per cent on the basis of age, and 3.3 per cent on both grounds. The Committee also notes that the CET has formulated a number of recommendations, including that its opinion on draft legislation should be requested and that its powers of investigation should be strengthened. In this regard, the Committee notes that the ECRI emphasizes in its report that the competence of the CET is limited to providing advice and guidance for victims of discrimination; it does not have the power to deal with complaints or institute court proceedings and does not have adequate powers to gather information and evidence (CRI(2017)4, paragraphs 20, 23 and 24). The Committee asks the Government to provide information on any steps taken to strengthen the role of the CET in combating discrimination on the grounds listed in the Convention, particularly in relation to dealing with complaints and conducting investigations.

Enforcement. In view of the lack of information on this point in the Government’s report, the Committee once again asks the Government to provide information on the activities of the ITM in relation to enforcing the legislation to combat discrimination in employment and occupation, and raising awareness among workers, employers and their organizations on the issues of discrimination and equality. The Committee also asks the Government to forward any judicial or administrative decisions and extracts from labour inspection reports relating to discrimination and equality.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee welcomes the provisions of the Act of 3 June 2016 which amend the Labour Code (section L.241-1), the Act of 13 May 2008 on equal treatment for men and women, and the conditions of service for local and central government officials. These provide that “discrimination on the basis of a change of sex shall be deemed equivalent to discrimination on the basis of sex”. However, the Committee notes again that by omitting colour, political opinion, national extraction and social origin, the Labour Code (section L.241-1) and the conditions of service for local and central government officials do not cover all the grounds of discrimination prohibited by the Convention. The Government indicates in its report that section 454 of the Penal Code defines discrimination as “any distinction made between persons on account of their origin, their skin colour, … their political views …” and that it considers that the grounds missing for the Labour Code and the conditions of service for local and central government officials are therefore covered. The Committee notes, however, that section L.244-3 of the Labour Code allows a reversal of the burden of proof in labour tribunals where facts exist that allow the existence of discrimination to be presumed, whereas under the Penal Code it is for the complainant to prove the existence of discrimination. In this regard, the Committee considers that criminal prosecution is generally insufficient to eliminate discrimination in the workplace because its particular nature, which arises from the specific features of the work environment (fear of reprisals, loss of employment, hierarchies, etc.) and because of the burden of proof, the latter often being difficult to discharge. In its General Survey of 2012 on the fundamental Conventions, the Committee observes that in the event of a complaint against discrimination, the burden of proof can be a significant obstacle, particularly as much of the information needed in cases involving unfair or discriminatory treatment is in the hands of the employer (paragraph 885). In order to enable workers to assert their rights effectively in relation to discrimination based on the grounds listed in the Convention, the Committee asks the Government to take the necessary steps to amend the list of grounds of discrimination prohibited by the Labour Code (section L.241-1); the Act of 16 April 1979 establishing the general conditions of service for central government officials (section 1bis) and the Act of 24 December 1985 establishing the general conditions of service for local government officials (section 1bis) in order to include colour, political opinion, national extraction and social origin. The Committee asks the Government to supply information on the progress made in this respect.

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

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 1(1)(a) of the Convention. Sexual harassment and other forms of harassment. The Committee notes that the Government’s report indicates that it cannot provide information on the application of the Agreement of 25 June 2009 concerning harassment and violence at work, concluded between the trade unions: Independent Trade Union Federation of Luxembourg (OGB L) and the Christian Trade Union Federation of Luxembourg (LCGB) on the one hand, and the “Union of Enterprises of Luxembourg” (UEL), and which was made generally binding by the Grand Ducal Regulation of 15 December 2009, as the monitoring of compliance with this agreement is carried out by the social partners. The Committee also notes that, in its 2012 activity report, the Centre for Equality of Treatment (CET) emphasizes that the Labour Code does not entrust the labour and mines inspectorate, which is responsible for ensuring the application of the provisions on sexual harassment (sections L.245-1 to L.245-8 of the Labour Code), with any means of repression or of imposing sanctions on persons committing sexual harassment. In this respect, in its report, the CET recommends that prosecution and prevention of sexual harassment are strengthened and that victim protection is reinforced, especially when the employer is the author of the harassment. In light of the severity and serious repercussions of this discriminatory practice, the Committee requests the Government to take specific measures to prevent and combat sexual harassment effectively in the public and private sectors. The Committee also requests the Government to provide information on the following points:

• (i) the cases of sexual harassment reported by the labour and mines inspectorate and by the CET, or brought to their attention, including the sanctions imposed and remedies provided;
• (ii) the measures taken to give effect to the CET recommendations concerning sexual harassment and, in particular, the protection of victims against possible reprisals; and
• (iii) the activities of the special commission on harassment (number of cases, sanctions imposed, etc).

The Government is also requested to specify the manner in which, and the authority through which, compliance is ensured with the collective agreement of 25 June 2009, concerning harassment and violence at work, as it is binding.

Article 1(2). Inherent requirements of the job. The Committee notes the Government’s indications that section L.241-3 of the Labour Code has been used by the Catholic Church. The Committee requests the Government to continue providing information on the application in practice of section L.241-3 of the Labour Code, giving examples of cases in which it has been used and forwarding copies of any relevant court decisions.

Article 2. Equality of opportunity and treatment for women and men. The Committee notes that, according to the National Statistics Institute, the employment rate of women aged 20–64 years was 64.1 per cent in 2012 and was considerably lower than that of men, which was 78.3 per cent. At all education levels, the employment rate of women is lower than that of men. In respect of measures intended to promote equality between women and men, the Government once again refers to “Girls’ Day – Boys’ Day”, providing girls and boys with the opportunity to discover atypical occupations in relation to gender and to combat gender stereotypes in educational guidance. While noting these indications, the Committee requests the Government to provide detailed information on the measures taken, within the framework of the National Gender Equality Action Plan 2009–14, to achieve equality between women and men in employment and occupation, including measures to diversify the availability of vocational training and combat stereotypes and prejudices concerning the occupational aspirations and capacities of women. Please provide the information available on the evaluation of the results obtained in the framework of the Action Plan.

Affirmative action in favour of equality between women and men. While noting the information provided by the Government on the objectives of affirmative action, the Committee requests the Government to provide detailed information on the concrete results of affirmative action programmes in the private and public sectors, in terms of the enterprises and services or departments concerned, and the employment rate and the promotion of women to management positions.

Workers with family responsibilities. The Committee notes that equality between women and men in reconciling work and private life is one of the priority themes of the Affirmative Action Programme of the Ministry for Equality of Opportunity. The Committee notes the adoption of the Act of 19 June 2013, amending the Labour Code, the Act of 16 April 1979, issuing the general conditions of service of public servants and the Act of 24 December 1985, issuing the general conditions of service of local government officials, which extend the period of unpaid parental leave (from three to four months) and provides workers with the opportunity to request from their employers, upon their return from parental leave, an adjustment of their working hours for a maximum period of one year. The Committee requests the Government to indicate whether an evaluation has been carried out of the measures introduced by the Act of 19 June 2013 and to provide statistical data, disaggregated by sex, on the number of workers in the private and public sectors who have availed themselves of the provisions on the adjustment of working hours. Noting also that one of the objectives of the National Gender Equality Action Plan 2009–14 is the expansion of the provision of care for children attending school outside school hours (paragraph 6.13), the Committee requests the Government to provide information on the measures taken to this end and on any other measure aimed at helping workers to reconcile work and family responsibilities.

Equality of opportunity and treatment without discrimination based on race, colour or national extraction. The Committee notes the information provided by the Government on the structures established to cater for and train young people with special needs and to provide language courses to foreign families and children. The Committee notes that the priorities for 2013 of the Multi-annual National Action Plan for Integration and to Combat Discrimination 2010–14 include: (i) the promotion of equality of treatment in enterprises through the inclusion of integration and diversity, alongside gender in affirmative action projects, and the promotion and development of the Diversity Charter; and (ii) the promotion of enterprise creation by women and men of immigrant extraction. The Committee once again requests the Government to provide detailed information on the practical implementation of the measures envisaged by the Multi-annual National Action Plan for Integration and to Combat Discrimination 2010–14 with a view to ensuring effective equality of opportunity and treatment in access to education, vocational training and employment for persons of immigrant extraction, and particularly persons with origins from outside the European Union, and also on the impact of these measures on the elimination of discrimination on the basis of race, colour and national extraction. Please also provide more specific information concerning measures to promote equality of treatment in enterprises and to support the establishment of enterprises by persons of immigrant extraction, and on the results obtained.

Article 3(a). Collective agreements. Cooperation with the social partners. The Committee recalls that under section L.162-12-4(4) of the Labour Code, collective agreements must contain provisions subjecting the result of collective bargaining to the application of the principle of gender equality in establishments or enterprises to which these agreements are applicable. It notes that, according to the study “Collective bargaining through an analysis of collective labour agreements”, conducted in 2011 by the Centre for Social Science Research (CEPS/INSTEAD) and attached to the Government’s report, 50 per cent of the branch collective agreements in 2005 and 2006 do not contain clauses regarding equality of treatment between women and men, and 67 per cent of these agreements do not address the issue of sexual harassment. The Committee once again requests the Government to provide information on collective agreements concluded under section L.162-12-4-(4) of the Labour Code which promote and guarantee equality of opportunity and treatment, giving examples of the equality plans adopted. The Government is also once again requested to indicate the measures taken or envisaged to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures to promote equality of opportunity and treatment for women and men in employment and occupation.

Specialized equality body. The Committee welcomes the numerous training, awareness-raising and monitoring activities carried out by the CET, of which the Government provided the activity report for 2012. The Committee requests the Government to supply information on the action taken further to the recommendations made by the CET in its 2011 and 2012 activity reports concerning, in particular, multiple discrimination, requests for opinions by state authorities, investigations into discrimination, filing cases before the courts and data collection disaggregated by the various grounds of discrimination.

Enforcement. The Committee notes that, in reply to its previous comments concerning, in particular, the weak implementation of anti-discrimination legislation and the inappropriate legal remedies for victims, as emphasized in 2011 by the CET, the Government refers to the report by the labour and mines inspectorate. The Committee notes that, except for a few figures on harassment and on “women’s work”, the annual inspection report contains no information on the application of provisions prohibiting discrimination in employment and occupation. The Committee requests the Government to provide information on the activities of the labour and mines inspectorate on the enforcement of legislation to combat discrimination in employment and occupation, and on awareness raising among workers, employers and their organizations on these issues. Please provide any judicial or administrative decisions and extracts from labour inspection reports relating to discrimination and equality.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee recalls that, following the adoption of the Act of 28 November 2006, any direct or indirect discrimination on the basis of religion or belief, disability, age, sexual orientation or real or presumed membership or non-membership of a race or ethnic group is prohibited under the Labour Code, the Act of 16 April 1979, issuing the general conditions of service of public servants and the Act of 24 December 1985, issuing the general conditions of service of local government officials. For several years, the Committee has been drawing the Government’s attention to the fact that no provision prohibits discrimination on the basis of colour, political opinion, national extraction or social origin and recalls that national legislation which defines and prohibits discrimination in employment and occupation should cover at least all the grounds enumerated in Article 1(1)(a) of the Convention. In the absence of a reply from the Government on this point, the Committee requests it to take the necessary measures to ensure that colour, political opinion, national extraction and social origin are included in the list of prohibited grounds of discrimination in the Labour Code (section L.241-1), the Act of 16 April 1979, issuing the general conditions of service of public servants (section 1bis), and the Act of 24 December 1985, issuing the general conditions of service of local government officials (section 1bis), and to provide information in this regard.

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

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 1 of the Convention. Prohibited grounds of discrimination. In its previous comments the Committee noted that following the adoption of the Act of 28 November 2006, any direct or indirect discrimination on the basis of religion or belief, disability, age, sexual orientation or real or presumed membership or non-membership of a race or ethnic group is now prohibited (section L.241-1 of the Labour Code, section 1bis of the Act of 16 April 1979 issuing the general conditions of service of civil servants and section 1bis of the Act of 24 December 1985 issuing the general conditions of service of local government officials). The Committee noted, however, that no provision prohibited discrimination on the basis of colour, political opinion, national extraction or social origin. In the absence of any information on this point in the Government’s report, the Committee again recalls that national legislation which defines and prohibits discrimination in employment and occupation should cover at least all the grounds enumerated in Article 1(1)(a) of the Convention. The Committee urges the Government to indicate the manner in which the protection of workers is ensured, in law and in practice, against discrimination on the grounds of colour, political opinion, national extraction or social origin.

Sexual harassment and other forms of harassment. The Committee notes that following the adoption of the Grand-ducal Regulation of 15 December 2009, the agreement of 25 June 2009 concerning harassment and violence at work, concluded between the trade unions Onofhängege Gewerkschaftsbond Lëtzebuerg (OGB-L) and Lëtzebuerger Chrëschtleche Gewerkschaftsbond (LCGB), on the one hand, and the Union des entreprises luxembourgeoises (UEL), on the other, has been declared compulsory in all companies established on Luxembourg territory. Under this agreement, employers have the obligation to adopt measures, in consultation with staff representatives, to raise the awareness of workers and managers and also to take measures to prevent and penalize acts of harassment or violence at work. The Committee requests the Government to provide information on the application of this agreement in practice.

The Committee also asked the Government in its previous comments to provide information on the measures taken to prevent and combat sexual harassment, in particular the establishment and operation of the special commission responsible for monitoring the application of the legislation relating to sexual harassment. In the absence of any information on this point, the Committee is bound to repeat its request for information on the measures taken in law and practice in both the public and private sectors to prevent and combat sexual harassment. The Government is also requested to provide information on the activities of the special commission dealing with sexual harassment and on any cases of sexual harassment addressed by this commission or the competent authorities, and the results thereof.

Article 1(2). Inherent requirements of the job. In its previous comments the Committee noted that section L.241-3 of the Labour Code states that “with regard to access to employment, including the training leading to such employment, a difference of treatment on the basis of a characteristic related to sex shall not constitute discrimination within the meaning of the present Act where, by reason of the nature of the specific occupational activities concerned or the context in which they are performed, such a characteristic constitutes an essential and decisive professional requirement, provided that the objective is legitimate and the requirement proportionate”. The Committee notes that the Government’s report does not contain any information on this point. The Committee therefore requests the Government once again to provide information on the application in practice of section L.241-3 of the Labour Code and give examples of cases in which it has been used. The Government is also requested to provide a copy of any relevant court decisions, and particularly any interpretation by the courts of the terms “essential and decisive professional requirement”, “legitimate objective” and “proportionate requirement”.

Article 2. Equality of opportunity and treatment for men and women. The Committee notes that, according to the study entitled “Women and men in the employment market” published by the Ministry of Equal Opportunities (updated in 2010), the employment rate for women was 57 per cent in 2009 (compared to 73.2 per cent for men); 34.9 per cent of jobs held by women were part time (compared to 4.5 per cent for men); and 93 per cent of women were employed in the tertiary sector (compared to 68 per cent for men). Moreover, non-salaried employment still holds little attraction for women, who, in 2009, only accounted for 36 per cent of self-employed workers. According to the study, even though women are now leaving school with qualifications at least equivalent to those of men, overall training levels of women aged over 40 still lag behind those of men. The study also emphasizes a deficit in vocational guidance which is manifested in high concentrations of women in less well-paid occupations (41 per cent in social and economic sciences and commerce, 11 per cent in health and social work and 8 per cent in education). Specialist training in engineering or construction is less frequently found among women (4 per cent), and this is also the case with specialist apprenticeships. According to the study, the proportion of women in vocational training remains lower than it should be given their participation in the labour market. The Committee further notes that, according to a further study of the Ministry of Equal Opportunities entitled “Women and men in economic decision-making in 2011”, women are still under-represented in top management posts.

The Government states in its report that the Ministry for Equal Opportunities has reorganized its activities, in accordance with the “National gender equality action plan for 2009–14”, with a view to specifically targeting each group in society in its media campaign. Hence, the first part of the campaign was aimed at raising young people’s awareness of gender equality issues; the second part targeted stakeholders in the world of work regarding the specific theme of women’s access to decision-making posts; the third part of the campaign concentrated on reconciling family life and working life and was designed for both families and enterprises. Moreover, the Committee notes that the “National gender equality action plan for 2009–14” defines the target areas of policy action and the related performance indicators. It notes in particular that the planned measures in the sphere of the “economic world” deal with combating wage gaps, involvement of the social partners and incorporation of gender equality issues in collective bargaining, revision of legislation relating to parental and maternity leave, reconciliation of private and working life and promotion of entrepreneurship for women. Education measures are concerned with compulsory training for teachers regarding gender equality; gender analysis of the impact of legislation adopted between 2004 and 2009, in particular legal texts concerning basic education and vocational training and their impact on girls and boys; promotion of diversification of vocational choices for girls and boys; and raising awareness of persons responsible for vocational guidance of gender issues. The Government also refers to initiatives allowing children to discover professions and occupations that they are unlikely to be attracted to because of stereotypes and prejudice regarding gender roles. Moreover, the Committee notes the information provided by the Government to the effect that, at the end of 2011, a new network of enterprises called “DivBiz – Diversity in Business” was launched at the initiative of the Ministry for Equal Opportunities for the purpose of promoting the presence of women on the boards of directors of private companies through awareness-raising activities aimed at company bosses. This network brings together various stakeholders, such as occupational associations and organizations. The Committee requests the Government to supply information on the implementation of the “National gender equality action plan for 2009–14”, particularly on the measures taken to promote gender equality in employment and occupation and also in education and training, especially with a view to eliminating gender-based horizontal and vertical occupational segregation, and on the results of these measures.

Workers with family responsibilities. The Committee notes that, according to the study referred to above entitled “Women and men in the employment market” (updated in 2010), family and domestic responsibilities are largely assumed by women, whether or not they exercise an occupation. The study concludes that temporary breaks from work often become permanent when there are problems reconciling childcare with two full-time jobs. The Committee notes the Government’s indication that, apart from awareness campaigns in enterprises with regard to reconciling personal and working life, in November 2011 the Ministry for Equal Opportunities launched a call for applications intended for enterprises which make a priority of reconciling family responsibilities with professional obligations, in order to create a network of enterprises promoting an innovative economy based on better reconciliation of personal and working life. Through this action, participating enterprises are to disseminate good practices and encourage other companies to adopt positive measures for such reconciliation. The Committee requests the Government to provide information on any steps taken or contemplated to promote and improve the reconciliation of work and family responsibilities and also on the specific impact of these measures. Furthermore, noting that the Committee on Work for Women launched discussions on the negotiations under way concerning the transposition of Council Directive 2010/18/EU of 8 March 2010 on parental leave, the Committee requests the Government to provide information on the outcome of these negotiations and also on any legislative or other developments with a view to the transposition of this Directive.

Affirmative action in favour of equal treatment for men and women. The Committee notes that, according to the 2011 annual report of the Ministry for Equal Opportunities, Bill No. 6101/00 of 8 January 2010 amending sections L.243-1 to L.243-5 of the Labour Code has been brought before the Chamber of Deputies. This Bill aims to introduce amendments to clarify the provisions of the Labour Code concerning affirmative action in the private sector, providing that affirmative action projects would be able to address one or more enterprises or a given economic sector (section L.243-3). The Committee further notes that in 2011, within the Committee on Affirmative Action, three projects were viewed favourably and received ministerial approval and financial support, four agreements were signed, a request for participation in the affirmative action programme was submitted and four companies expressed interest in the programme. Further, the Committee notes the information in the 2011, annual report to the effect that the affirmative action programme has been extended to the public sector on the basis of the government programme for 2009–14. In 2011 five public administrations applied to participate in the programme, namely, the Employment Development Agency (ADEM), the National Public Administration Institute (INAP), the State Personnel Administration (APE), the National Statistics and Economic Studies Institute (STATEC) and the University of Luxembourg. The Committee requests the Government to continue to provide information on the number and nature of affirmative action projects submitted and funded, and on their impact on achieving equality of opportunity and treatment for men and women in the public and private sectors. The Government is also requested to provide information on further developments regarding Bill No. 6101/00.

Equality of opportunity and treatment irrespective of race, colour or national extraction. The Committee notes that the report does not contain any information in reply to its previous direct requests. However, it notes that, according to the report of the European Commission against Racism and Intolerance (ECRI) of 8 December 2011, despite the Government’s efforts aimed at integration of pupils of foreign origin, in particular following the adoption of the Act of 6 February 2009, the school drop-out rate among foreign pupils, especially those of Cape Verdean origin, is still very high. The ECRI also notes situations of discrimination and racism in employment, especially with regard to black people (CRI(2012)4, paragraphs 70–71). The Committee notes that the “Multi-annual national action plan for integration and action against discrimination 2010–14” defines strategic components for intervention, in conformity with the common basic principles of the policy for the integration of immigrants in the EU. Priority areas of action for 2012 include the “two-way integration process” and education, and cover various objectives, in particular promotion of employability for target groups, promotion of the principle of equal treatment in enterprises, implementation of the “reception and integration contract” (CAI), which proposes language courses for immigrants, and the development of professional and technical skills acquired abroad. Educational measures seek to achieve equality of access to education and the prevention of failure in school, establish training in diversity for teachers and revamp educational information and guidance tools. The Committee requests the Government to provide information on the implementation of planned measures under the “Multi-annual national action plan for integration and action against discrimination 2010–14” aimed at ensuring equality of opportunity and treatment in access to education, employment and vocational training, and also on their impact on the elimination of discrimination against immigrants, particularly non-EU nationals. Also noting that the “National gender equality action plan for 2009–14” provides for a gender analysis of legislation concerning immigration and integration in order to achieve better understanding of the situation of immigrants and asylum seekers, the Committee encourages the Government to undertake in this context an in-depth study of the situation of immigrant workers in the employment market.

Centre for Equal Treatment. The Committee notes the information contained in the 2011 annual report of the Centre for Equal Treatment (CET). It notes in particular the awareness-raising activities undertaken by the CET in 2011 for civil society, especially young persons, and also the training sessions on equal treatment issues organized with 12 employers in the public and private sectors and members of the Luxembourg Confederation of Christian Trade Unions (LCGB). On the basis of the observation that many employers did not respect the principle of equal treatment in the wording of their job vacancies, the CET has been undertaking a systematic analysis since April 2011 in order to raise employers’ awareness of the need to eliminate any discriminatory formulation in their job vacancies. Accordingly, in 2011, a total of 90 job offers which were discriminatory on the basis of sex were referred to ADEM to impose the penalties provided for under section L.241-11 of the Labour Code. As regards discrimination on grounds other than sex, the CET identified four job vacancies that were discriminatory on the basis of age. The CET also undertook the task of raising the awareness of daily newspapers in Luxembourg concerning their responsibility regarding any publication of discriminatory job vacancies. The Committee further notes that as part of its advisory and assistance functions, the CET handled 118 files in 2011, of which 50 per cent were submitted by men and 44.1 per cent by women, the other files having been submitted on the basis of self referral or by associations. Of these submissions, 75.4 per cent came from EU nationals, and Luxembourg nationals formed a majority of these (48.3 per cent). The grounds for discrimination raised were race (18.6 per cent), disability (16.1 per cent), sex (11.9 per cent), sexual orientation, religion and multiple forms of discrimination (5.1 per cent for each of the aforementioned grounds). The Committee further notes that the CET has made a large number of recommendations in order to improve the legislation on equality of treatment and the application thereof in practice. The CET recommends in particular the strengthening of its powers of investigation to enable it to perform its role more effectively; more systematic consultations with the CET with a view to an opinion being reached, especially on draft legislation relating to equal treatment; developing a standard methodology for recording data relating to discrimination; grouping the different grounds of discrimination under the same legislation in order to eliminate any notions of hierarchy among these grounds and to harmonize the related penalties; and adopting legal provisions in order to identify instances of multiple discrimination. The Committee requests the Government to continue to provide information on cases of discrimination submitted to the CET, and also information on the other activities of the CET aimed at promoting equality of opportunity and treatment in all aspects of employment and occupation. The Government is also requested to supply information on action taken further to the recommendations made by the CET.

Article 3(a). Collective agreements and cooperation with employers’ and workers’ organizations. In its previous comments the Committee noted that, under section L.162-12-4(4) of the Labour Code, collective agreements must contain provisions subjecting the result of collective bargaining to the application of the principle of gender equality in establishments or enterprises to which these agreements are applicable. This section also states that such bargaining must cover the establishment of an equality plan for jobs and wages and the means of making the company and further training accessible to persons wishing to re-enter the job market after a career break. In the absence of any information in the Government’s report concerning the application of this provision in practice, the Committee requests the Government to provide information in its next report on collective agreements signed under section L.162-12-4(4) of the Labour Code which promote and guarantee equality of opportunity and treatment, giving particular examples of equality plans that have been adopted. The Government is also requested to indicate the measures taken or contemplated to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures intended to promote equality of opportunity and treatment for women and men in employment and occupation.

Parts III to V of the report form. Enforcement and practical application. The Committee notes that, according to the ECRI report, the laws on discrimination in employment, in particular the Act of 28 November 2006, are still hardly ever applied because lawyers are unfamiliar with their provisions (CRI(2012)4, paragraph 69). The Committee also notes that the CET, in its 2011 annual report, emphasizes the difficulties of access to case law relating to equal treatment and recommends that an easily accessible publication be produced which would constitute a key tool for awareness-raising. Further noting the rarity of case law relating to equal treatment since the entry into force of the Act of 28 November 2006, the CET considers that the legal remedies provided for by this Act do not meet the needs and expectations of the victims of discrimination. The Committee requests the Government to provide information on the implementation of the legislation on non-discrimination and equality, in particular any measures taken or contemplated to disseminate the contents thereof as widely as possible and to train persons involved in the application of these provisions. Please communicate any judicial or administrative decisions and extracts from labour inspection reports relating to the application of the legislation.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Article 1(1)(a) of the Convention. Discrimination on grounds of sex. Legislation. The Committee notes the adoption of the Act of 13 May 2008 on equal treatment for men and women which transposes Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women and amends the Labour Code. The Act of 2008 introduces into the Labour Code provisions which: (a) explicitly prohibit “any discrimination on the basis of sex, either directly, or indirectly by reference, among other factors, to marital or family status” (section L.241-1(1)); (b) provide a definition of “direct discrimination”; and (c) supplement it with “indirect discrimination” (section L.241 1(2)). The Committee also notes that the Act of 2008 supplements the provisions of section L.241-2 by applying the prohibition of discrimination to the various aspects of employment, through the addition of “conditions of employment” and “membership of, and participation in the activities of any organization of which the members exercise a specific occupation, including the benefits deriving from this type of organization”. The Committee requests the Government to provide information on the practical application of the provisions of the Labour Code with regard to the prohibition of any discrimination on the basis of sex and to provide, where appropriate, any extract from labour inspection reports and any court rulings addressing this issue.

Prohibited grounds of discrimination. Legislation. In its previous comments, the Committee noted that, following the adoption of the Act of 28 November 2006, the Labour Code now prohibits direct and indirect discrimination on the basis of religion or belief, disability, age, sexual orientation and real or presumed membership or non-membership of a race or ethnic group. Identical provisions were also introduced in 2006 into the amended Act of 16 April 1979 issuing the general conditions of service of State officials and into the amended Act of 24 December 1985 issuing the general conditions of service of communal officials. The Committee recalls that the national laws and regulations defining and prohibiting discrimination in employment and occupation should cover all the grounds enumerated in Article 1(1)(a) of the Convention. The Committee requests the Government to indicate the manner in which the protection of workers is ensured against discrimination on grounds of colour, political opinion, national extraction or social origin.

Sexual harassment. The Committee requests the Government to continue providing information on the measures adopted in law and practice to prevent and combat sexual harassment both in the private sector in collaboration with the social partners, and in the public sector. In this respect, it also requests the Government to provide information on the establishment and operation of the special commission responsible for supervising the application of the legislation respecting sexual harassment and dealing with cases referred to it in the public service (procedure, number of cases examined, decisions, etc.). Finally, the Committee would be grateful if the Government would provide information on any cases of sexual harassment which come to the knowledge of the competent authorities.

Qualifications required for a specific job. In its previous comments, the Committee requested the Government to indicate whether Grand Ducal Regulations had been issued under section L.241-3-3(2) of the Labour Code determining the cases in which sex may be specified among the requirements for a job and, where appropriate, for training for the job or for an occupational activity for which, owing to its nature or the circumstances in which it is performed, sex is a decisive requirement. The Committee notes that the Act of 13 May 2008 referred to above amended the relevant provisions of the Labour Code. Section L.241-3 of the Labour Code now provides that “with regard to access to employment, including the training leading to such employment, a difference of treatment on the basis of a characteristic related to sex shall not constitute discrimination within the meaning of the present Act where, by reason of the nature of the specific occupational activities concerned or the context in which they are performed, such a characteristic constitutes an essential and determining professional requirement, on condition that the objective is legitimate and the requirement proportionate”. The Committee asks the Government to provide information on the effect given in practice to section L.241-3 of the Labour Code and provide examples of cases in which it has been used, with an indication of its impact on the recruitment of women and men. The Government is also requested to provide a copy of any relevant court decisions, and particularly any interpretation by the courts of the expressions “essential and determining professional requirement”, “legitimate objective” and “proportionate requirement”.

Equality of opportunity and treatment for men and women. The Committee notes the studies and documents provided by the Government on the situation of men and women in employment and occupation. It observes that, according to the study entitled “Women and the employment market” (updated in 2007) provided by the Government, women’s employment, and particularly part-time employment, is in constant progression and remains concentrated in certain low-skilled sectors and occupations. The study also shows that non-salaried employment remains relatively unattractive and inaccessible to women. The study emphasizes that the causes of inequalities between men and women in employment and occupation include the deficit in terms of vocational training and guidance for women in relation to men (the concentration of women in training for less well-paid occupations which offer fewer career prospects, the lack of appeal of technical training, etc.), and the inadequate sharing of family responsibilities, which may lead to career interruptions or part-time work. While noting the measures adopted by the Government to enable women and men to reconcile their professional and family responsibilities more effectively, such as the creation of crèches, temporary and day-care centres for children, the Committee however notes that, in its concluding comments of 2008 (CEDAW/C/LUX/CO/5), the Committee on the Elimination of Discrimination against Women particularly emphasizes the need to step up efforts to assist women and men in striking a balance between family and employment responsibilities, inter alia, through further awareness-raising and education initiatives, as well as ensuring that part-time employment is not taken up almost exclusively by women. It also emphasizes the importance of strengthened measures aimed at changing attitudes concerning the roles of men and women in the family and in society. In its report, the Government adds that, with a view to promoting equality between men and women in the private sector, it has developed a programme of affirmative action in enterprises. Although it has proven to be particularly difficult to measure the impact of such affirmative action, due to a lack of feedback from enterprises and the failure of the participating enterprises and the Ministry for Equal Opportunities to establish systematic evaluation procedures, it is nevertheless true that participation in this type of project has enabled certain enterprises to assess the situation of men and women in the workplace and that a real impact has been seen in projects and enterprises which have opted for structural change.

Noting this information and the efforts made by the Government to implement a policy of equality between men and women, the Committee requests the Government to provide information in its next report on the measure adopted or envisaged, including awareness-raising measures, with a view to:

• (i) combating sexist stereotypes and prejudices concerning the roles of men and women in society and their professional aptitudes;
• (ii) developing and diversifying vocational training and guidance for girls and boys;
• (iii) promoting the access of women to employment in sectors in which male workers predominate and the access of women to positions of responsibility with a view to preventing both horizontal and vertical occupational segregation; and
• (iv) enabling men and women to reconcile professional obligations and family responsibilities more effectively.

Equality of opportunity and treatment without distinction on grounds other than sex. The Committee requests the Government to provide information on the national policy to promote equality of opportunity and treatment in employment and occupation with a view to eliminating any discrimination on the grounds of race, colour, religion, political opinion, national extraction or social origin. The Government is also requested to indicate the measures adopted or envisaged to eliminate any discrimination on the basis of disability or sexual orientation, which are covered by the Labour Code. Further referring to its previous comments, the Committee once again requests the Government to provide information on the operation and activities of the Centre for Equal Treatment in this respect.

Collaboration with the social partners. In its previous comments, the Committee requested the Government to provide examples of equality plans for employment and remuneration, the adoption of which, through collective bargaining, is envisaged by section L.162-12-4(4) of the Labour Code. It notes that the Government’s report does not contain information any information on this subject. Furthermore, the study undertaken in 2007 on “Equality between women and men in collective agreements”, finds that, in terms of collective bargaining, the commitment to equality of treatment is limited. It also emphasizes that the social partners should play an active role in overcoming stereotypes and establishing working conditions that are more favourable to equality between women and men in terms of recruitment and career opportunities (page 16). The Committee requests the Government to indicate the measures adopted or envisaged to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures intended to promote equality of opportunity and treatment of women and men in employment and occupation, and particularly with regard to the adoption of equality plans for employment and remuneration.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 1(1)(a), of the Convention. Discrimination on grounds of sex. Legislation. The Committee notes with interest the adoption of the Act of 13 May 2008 on equal treatment for men and women which transposes Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women and amends the Labour Code. The Act of 2008 introduces into the Labour Code provisions which: (a) explicitly prohibit “any discrimination on the basis of sex, either directly, or indirectly by reference, among other factors, to marital or family status” (section L.241-1(1)); (b) provide a definition of “direct discrimination”; and (c) supplement it with “indirect discrimination” (section L.241‑1(2)). The Committee also notes that the Act of 2008 supplements the provisions of section L.241-2 by applying the prohibition of discrimination to the various aspects of employment, through the addition of “conditions of employment” and “membership of, and participation in the activities of any organization of which the members exercise a specific occupation, including the benefits deriving from this type of organization”. The Committee requests the Government to provide information on the practical application of the provisions of the Labour Code with regard to the prohibition of any discrimination on the basis of sex and to provide, where appropriate, any extract from labour inspection reports and any court rulings addressing this issue.

Prohibited grounds of discrimination. Legislation. In its previous comments, the Committee noted that, following the adoption of the Act of 28 November 2006, the Labour Code now prohibits direct and indirect discrimination on the basis of religion or belief, disability, age, sexual orientation and real or presumed membership or non-membership of a race or ethnic group. Identical provisions were also introduced in 2006 into the amended Act of 16 April 1979 issuing the general conditions of service of State officials and into the amended Act of 24 December 1985 issuing the general conditions of service of communal officials. The Committee recalls that the national laws and regulations defining and prohibiting discrimination in employment and occupation should cover all the grounds enumerated in Article 1(1)(a) of the Convention. The Committee requests the Government to indicate the manner in which the protection of workers is ensured against discrimination on grounds of colour, political opinion, national extraction or social origin.

Sexual harassment. The Committee requests the Government to continue providing information on the measures adopted in law and practice to prevent and combat sexual harassment both in the private sector in collaboration with the social partners, and in the public sector. In this respect, it also requests the Government to provide information on the establishment and operation of the special commission responsible for supervising the application of the legislation respecting sexual harassment and dealing with cases referred to it in the public service (procedure, number of cases examined, decisions, etc.). Finally, the Committee would be grateful if the Government would provide information on any cases of sexual harassment which come to the knowledge of the competent authorities.

Qualifications required for a specific job. In its previous comments, the Committee requested the Government to indicate whether Grand Ducal Regulations had been issued under section L.241-3-3(2) of the Labour Code determining the cases in which sex may be specified among the requirements for a job and, where appropriate, for training for the job or for an occupational activity for which, owing to its nature or the circumstances in which it is performed, sex is a decisive requirement. The Committee notes that the Act of 13 May 2008 referred to above amended the relevant provisions of the Labour Code. Section L.241-3 of the Labour Code now provides that “with regard to access to employment, including the training leading to such employment, a difference of treatment on the basis of a characteristic related to sex shall not constitute discrimination within the meaning of the present Act where, by reason of the nature of the specific occupational activities concerned or the context in which they are performed, such a characteristic constitutes an essential and determining professional requirement, on condition that the objective is legitimate and the requirement proportionate”. The Committee asks the Government to provide information on the effect given in practice to section L.241-3 of the Labour Code and provide examples of cases in which it has been used, with an indication of its impact on the recruitment of women and men. The Government is also requested to provide a copy of any relevant court decisions, and particularly any interpretation by the courts of the expressions “essential and determining professional requirement”, “legitimate objective” and “proportionate requirement”.

Equality of opportunity and treatment for men and women. The Committee notes the studies and documents provided by the Government on the situation of men and women in employment and occupation. It observes that, according to the study entitled “Women and the employment market” (updated in 2007) provided by the Government, women’s employment, and particularly part-time employment, is in constant progression and remains concentrated in certain low-skilled sectors and occupations. The study also shows that non-salaried employment remains relatively unattractive and inaccessible to women. The study emphasizes that the causes of inequalities between men and women in employment and occupation include the deficit in terms of vocational training and guidance for women in relation to men (the concentration of women in training for less well-paid occupations which offer fewer career prospects, the lack of appeal of technical training, etc.), and the inadequate sharing of family responsibilities, which may lead to career interruptions or part-time work. While noting the measures adopted by the Government to enable women and men to reconcile their professional and family responsibilities more effectively, such as the creation of crèches, temporary and day-care centres for children, the Committee however notes that, in its concluding comments of 2008 (CEDAW/C/LUX/CO/5), the Committee on the Elimination of Discrimination against Women particularly emphasizes the need to step up efforts to assist women and men in striking a balance between family and employment responsibilities, inter alia, through further awareness-raising and education initiatives, as well as ensuring that part-time employment is not taken up almost exclusively by women. It also emphasizes the importance of strengthened measures aimed at changing attitudes concerning the roles of men and women in the family and in society. In its report, the Government adds that, with a view to promoting equality between men and women in the private sector, it has developed a programme of affirmative action in enterprises. Although it has proven to be particularly difficult to measure the impact of such affirmative action, due to a lack of feedback from enterprises and the failure of the participating enterprises and the Ministry for Equal Opportunities to establish systematic evaluation procedures, it is nevertheless true that participation in this type of project has enabled certain enterprises to assess the situation of men and women in the workplace and that a real impact has been seen in projects and enterprises which have opted for structural change.

Noting this information and the efforts made by the Government to implement a policy of equality between men and women, the Committee requests the Government to provide information in its next report on the measure adopted or envisaged, including awareness-raising measures, with a view to:

(i)    combating sexist stereotypes and prejudices concerning the roles of men and women in society and their professional aptitudes;

(ii)   developing and diversifying vocational training and guidance for girls and boys;

(iii)  promoting the access of women to employment in sectors in which male workers predominate and the access of women to positions of responsibility with a view to preventing both horizontal and vertical occupational segregation; and

(iv) enabling men and women to reconcile professional obligations and family responsibilities more effectively.

Equality of opportunity and treatment without distinction on grounds other than sex. The Committee requests the Government to provide information on the national policy to promote equality of opportunity and treatment in employment and occupation with a view to eliminating any discrimination on the grounds of race, colour, religion, political opinion, national extraction or social origin. The Government is also requested to indicate the measures adopted or envisaged to eliminate any discrimination on the basis of disability or sexual orientation, which are covered by the Labour Code. Further referring to its previous comments, the Committee once again requests the Government to provide information on the operation and activities of the Centre for Equal Treatment in this respect.

Collaboration with the social partners. In its previous comments, the Committee requested the Government to provide examples of equality plans for employment and remuneration, the adoption of which, through collective bargaining, is envisaged by section L.162-12-4(4) of the Labour Code. It notes that the Government’s report does not contain information any information on this subject. Furthermore, the study undertaken in 2007 on “Equality between women and men in collective agreements”, finds that, in terms of collective bargaining, the commitment to equality of treatment is limited. It also emphasizes that the social partners should play an active role in overcoming stereotypes and establishing working conditions that are more favourable to equality between women and men in terms of recruitment and career opportunities (page 16). The Committee requests the Government to indicate the measures adopted or envisaged to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures intended to promote equality of opportunity and treatment of women and men in employment and occupation, and particularly with regard to the adoption of equality plans for employment and remuneration.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1, paragraph 1(a), of the Convention. Discrimination on grounds of sex. Legislation. The Committee notes with interest the adoption of the Act of 13 May 2008 on equal treatment for men and women which transposes Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women and amends the Labour Code. The Act of 2008 introduces into the Labour Code provisions which: (a) explicitly prohibit “any discrimination on the basis of sex, either directly, or indirectly by reference, among other factors, to marital or family status” (section L.241-1(1)); (b) provide a definition of “direct discrimination”; and (c) supplement it with “indirect discrimination” (section L.241-1(2)). The Committee also notes that the Act of 2008 supplements the provisions of section L.241-2 by applying the prohibition of discrimination to the various aspects of employment, through the addition of “conditions of employment” and “membership of, and participation in the activities of any organization of which the members exercise a specific occupation, including the benefits deriving from this type of organization”. The Committee requests the Government to provide information on the practical application of the provisions of the Labour Code with regard to the prohibition of any discrimination on the basis of sex and to provide, where appropriate, any extract from labour inspection reports and any court rulings addressing this issue.

Prohibited grounds of discrimination. Legislation. In its previous comments, the Committee noted that, following the adoption of the Act of 28 November 2006, the Labour Code now prohibits direct and indirect discrimination on the basis of religion or belief, disability, age, sexual orientation and real or presumed membership or non-membership of a race or ethnic group. Identical provisions were also introduced in 2006 into the amended Act of 16 April 1979 issuing the general conditions of service of State officials and into the amended Act of 24 December 1985 issuing the general conditions of service of communal officials. The Committee recalls that the national laws and regulations defining and prohibiting discrimination in employment and occupation should cover all the grounds enumerated in Article 1(1)(a) of the Convention. The Committee requests the Government to indicate the manner in which the protection of workers is ensured against discrimination on grounds of colour, political opinion, national extraction or social origin.

Sexual harassment. The Committee notes that the Act of 13 May 2008 referred to above supplements the provisions of the Labour Code respecting sexual harassment and explicitly provides that it constitutes discrimination on the basis of sex and is accordingly prohibited (section L.241-1(3)). It further notes that, according to the Government’s report, two enterprises have prepared a charter on sexual harassment in the context of the programme of “affirmative action” in private sector enterprises. However, the Committee observes that, according to the analysis of collective agreements conducted in 2007 in the study entitled “Equality between women and men in collective agreements”, provisions respecting sexual harassment often only consist of a declaration of principle relating to harassment, and more rarely to tangible measures for their application, particularly with a view to prevention of sexual harassment (page 14).

With regard to the public sector, the Committee notes that the Act of 2008 also supplements the provisions respecting harassment in the amended Act of 16 April 1979 issuing the general conditions of service of State officials and the amended Act of 24 December 1985 issuing the general conditions of service of communal officials. Furthermore, the Act of 1979 envisages the establishment of a special commission in the Ministry responsible for the public service with a view to ensuring compliance with the provisions respecting sexual and moral harassment (section 11-2).

Welcoming the provisions and measures adopted recently in relation to sexual harassment, the Committee requests the Government to continue providing information on the measures adopted in law and practice to prevent and combat sexual harassment both in the private sector in collaboration with the social partners, and in the public sector. In this respect, it also requests the Government to provide information on the establishment and operation of the special commission responsible for supervising the application of the legislation respecting sexual harassment and dealing with cases referred to it in the public service (procedure, number of cases examined, decisions, etc.). Finally, the Committee would be grateful if the Government would provide information on any cases of sexual harassment which come to the knowledge of the competent authorities.

Qualifications required for a specific job. In its previous comments, the Committee requested the Government to indicate whether Grand Ducal Regulations had been issued under section L.241-3-3(2) of the Labour Code determining the cases in which sex may be specified among the requirements for a job and, where appropriate, for training for the job or for an occupational activity for which, owing to its nature or the circumstances in which it is performed, sex is a decisive requirement. The Committee notes that the Act of 13 May 2008 referred to above amended the relevant provisions of the Labour Code. Section L.241-3 of the Labour Code now provides that “with regard to access to employment, including the training leading to such employment, a difference of treatment on the basis of a characteristic related to sex shall not constitute discrimination within the meaning of the present Act where, by reason of the nature of the specific occupational activities concerned or the context in which they are performed, such a characteristic constitutes an essential and determining professional requirement, on condition that the objective is legitimate and the requirement proportionate”. The Committee asks the Government to provide information on the effect given in practice to section L.241-3 of the Labour Code and provide examples of cases in which it has been used, with an indication of its impact on the recruitment of women and men. The Government is also requested to provide a copy of any relevant court decisions, and particularly any interpretation by the courts of the expressions “essential and determining professional requirement”, “legitimate objective” and “proportionate requirement”.

Equality of opportunity and treatment for men and women. The Committee notes the studies and documents provided by the Government on the situation of men and women in employment and occupation. It observes that, according to the study entitled “Women and the employment market” (updated in 2007) provided by the Government, women’s employment, and particularly part-time employment, is in constant progression and remains concentrated in certain low-skilled sectors and occupations. The study also shows that non-salaried employment remains relatively unattractive and inaccessible to women. The study emphasizes that the causes of inequalities between men and women in employment and occupation include the deficit in terms of vocational training and guidance for women in relation to men (the concentration of women in training for less well-paid occupations which offer fewer career prospects, the lack of appeal of technical training, etc.), and the inadequate sharing of family responsibilities, which may lead to career interruptions or part-time work. While noting the measures adopted by the Government to enable women and men to reconcile their professional and family responsibilities more effectively, such as the creation of crèches, temporary and day-care centres for children, the Committee however notes that, in its concluding comments of 2008 (CEDAW/C/LUX/CO/5), the Committee on the Elimination of Discrimination against Women particularly emphasizes the need to step up efforts to assist women and men in striking a balance between family and employment responsibilities, inter alia, through further awareness-raising and education initiatives, as well as ensuring that part-time employment is not taken up almost exclusively by women. It also emphasizes the importance of strengthened measures aimed at changing attitudes concerning the roles of men and women in the family and in society. In its report, the Government adds that, with a view to promoting equality between men and women in the private sector, it has developed a programme of affirmative action in enterprises. Although it has proven to be particularly difficult to measure the impact of such affirmative action, due to a lack of feedback from enterprises and the failure of the participating enterprises and the Ministry for Equal Opportunities to establish systematic evaluation procedures, it is nevertheless true that participation in this type of project has enabled certain enterprises to assess the situation of men and women in the workplace and that a real impact has been seen in projects and enterprises which have opted for structural change.

Noting this information and the efforts made by the Government to implement a policy of equality between men and women, the Committee requests the Government to provide information in its next report on the measure adopted or envisaged, including awareness-raising measures, with a view to:

(i)    combating sexist stereotypes and prejudices concerning the roles of men and women in society and their professional aptitudes;

(ii)   developing and diversifying vocational training and guidance for girls and boys;

(iii) promoting the access of women to employment in sectors in which male workers predominate and the access of women to positions of responsibility with a view to preventing both horizontal and vertical occupational segregation; and

(iv) enabling men and women to reconcile professional obligations and family responsibilities more effectively.

Equality of opportunity and treatment without distinction on grounds other than sex. The Committee requests the Government to provide information on the national policy to promote equality of opportunity and treatment in employment and occupation with a view to eliminating any discrimination on the grounds of race, colour, religion, political opinion, national extraction or social origin. The Government is also requested to indicate the measures adopted or envisaged to eliminate any discrimination on the basis of disability or sexual orientation, which are covered by the Labour Code. Further referring to its previous comments, the Committee once again requests the Government to provide information on the operation and activities of the Centre for Equal Treatment in this respect.

Collaboration with the social partners. In its previous comments, the Committee requested the Government to provide examples of equality plans for employment and remuneration, the adoption of which, through collective bargaining, is envisaged by section L.162-12-4(4) of the Labour Code. It notes that the Government’s report does not contain information any information on this subject. Furthermore, the study undertaken in 2007 on “Equality between women and men in collective agreements”, finds that, in terms of collective bargaining, the commitment to equality of treatment is limited. It also emphasizes that the social partners should play an active role in overcoming stereotypes and establishing working conditions that are more favourable to equality between women and men in terms of recruitment and career opportunities (page 16). The Committee requests the Government to indicate the measures adopted or envisaged to encourage workers’ and employers’ organizations to participate in the formulation and implementation of measures intended to promote equality of opportunity and treatment of women and men in employment and occupation, and particularly with regard to the adoption of equality plans for employment and remuneration.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Sexual harassment. The Committee notes that according to Luxembourg’s fifth periodic report under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW/C/LUX/5, 8 May 2006, paragraph 33), the High Court of Justice had recognized the right of victims of sexual harassment to obtain compensation. The Committee requests the Government to provide more detailed information in its next report on the practical application of the legal provisions concerning sexual harassment, including information on any action taken to publicize the relevant provisions, indications on the action taken by the labour inspectors to monitor their implementation, as well as information on any relevant judicial or administrative decisions.

2. Inherent requirements of the job. The Committee notes that the Government did not provide any information in reply to point 4 of the Committee’s previous direct request concerning the practical application of section L. 241-3, paragraph 3(2) of the Labour Code (previously section 3(2) of the Act of 31 December 2001). This provision provides that the Government may, by a regulation of the Grand Duchy, after consultation with the relevant occupational chambers and the Committee on Women’s Work, establish the instances in which sex may be specified among the requirements for a job and, where appropriate, for training for the job or an occupational activity for which, owing to its nature or the circumstances in which it is performed, sex is a decisive requirement. The Government is requested to indicate whether any regulations have been issued under section L. 241-3, paragraph 3(2), of the Labour Code and, if so, what practical effect such regulations have had on the employment of women and men respectively.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the information sent by the Government in its first report on the application of the Convention and in its additional report on sexual harassment. The Committee also takes note of the enclosed documents. It requests the Government to provide information on the following points in its next report.

1. Article 1(1)(a) of the Convention. Sexual harassment. The Committee notes with interest the Act of 26 May 2000 on protection from sexual harassment in relations at work, which contains a definition of sexual harassment covering the notions of quid pro quo sexual harassment and "hostile working environment" sexual harassment, and which affords protection in all employment contracts including those of interns, apprentices and students. It also notes that the Act requires employers to put an immediate end to all sexual harassment that comes to their notice, regardless of the perpetrator. The Committee notes that according to the Government, most disputes involving sexual harassment are settled out of court. It requests the Government to provide information in its next report on the application of the Act in practice, including its impact in terms of preventing sexual harassment, and on the number of court and other decisions given under the Act.

2. Prohibition of discrimination. The Committee takes note of section 454 of the Penal Code and its definition of discrimination as "any distinction made between natural persons by reason of their origin, skin colour, sex, sexual orientation, family status, health, disability, customs, political or philosophical opinions, trade union activities, their membership or non-membership, whether true or alleged, of an ethnic group, nation, race, or specified religion". The Committee observes that the definition does not appear to cover indirect discrimination. It also takes note of the Act of 8 December 1981 on equal treatment between men and women, which prohibits direct and indirect discrimination in employment and occupation. The Committee notes the bills to transpose Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, and Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. The Committee observes that these bills cover direct and indirect discrimination in all areas of employment and occupation on the basis of religion, conviction, disability, age, sexual orientation, race and ethnic origin.

3. The Committee notes in this connection the draft Labour Code, which includes provisions on equality of opportunity and treatment between men and women. It observes that the draft Labour Code does not define or expressly prohibit direct and indirect discrimination on all the grounds established in the Convention in all areas of employment and occupation. It accordingly hopes that the Government will take advantage of the codification of labour legislation to incorporate such provisions. Meanwhile, it requests the Government to provide information on the application in practice of sections 454 et seq. of the Penal Code, and the legislation on equal treatment between men and women. Please also report to the Committee on developments in the process of enactment of legislation to incorporate the abovementioned European directives and of the Labour Code, and provide copies of the texts as soon as they are adopted.

4. Article 1(2). Inherent requirements of the job. The Committee notes that, under section 3(2) of the amended Act of 8 December 1981, the Government may, by a regulation of the Grand Duchy, after consultation of the relevant occupational chambers and the Committee on Women’s Work, establish the instances in which sex may be specified among the requirements for a job and where appropriate for training for the job or an occupational activity for which, owing to its nature or the circumstances in which it is performed, sex is a decisive requirement. The Government is asked to provide information on the measures taken under section 3(2) of the amended Act of 8 December 1981, and on their application in practice.

5. Article 1(3). Scope of the Convention. The Committee notes that section 455 of the Penal Code establishes penalties of imprisonment and/or fines for the forms of discrimination set forth in section 454 where they consist in hindering the normal performance of any economic activity, refusing to hire, sanctioning or dismissing a person, or subjecting a job offer to a requirement based on one of the grounds set out in section 454. The Committee notes that this provision does not cover discrimination in access to vocational training, access to occupation and conditions of employment. It requests the Government to indicate how discrimination based on race, colour, religion, political opinion, national extraction and social origin are prohibited in the areas of employment and occupation not dealt with in the Penal Code.

6. Article 2. Promotion of the national policy. The Committee notes the national action plan for employment and all the legislation giving effect to the principles of the Convention. It requests the Government to provide information on the activities conducted under the national policy to promote observance of the principles of equality of opportunity and treatment in respect of race, colour, sex, religion, political opinion, social origin and national extraction in employment and occupation, and on their impact in practice. The Committee would also be grateful if the Government would provide information on the activities of the Special Standing Committee on Racial Discrimination, the Committee on Women’s Work, the Inter-ministerial Committee on Equality Between Men and Women and the delegates in charge of equality, to promote the application of the Convention.

7. Article 3(a). Collaboration of the social partners. The Committee notes the adoption of the Act of 30 June 2004 on collective labour relations, and particularly section 20(4)(4), under which for framework agreements, employment and remuneration equality plans must be negotiated, with a view to applying the principle of equal treatment for men and women. The Committee would be grateful if the Government would provide information on the adoption of these equality plans and on their practical impact, and to send copies of them. It further requests the Government to indicate the measures taken or envisaged to obtain the cooperation of the social partners in order to encourage acceptance of the national policy in regard to the other grounds of discrimination set forth in the Convention.

8. Article 3(b). Information campaigns. The Committee notes that according to the Government’s report, in 2003 a campaign was organized to inform and sensitize public opinion about non-discrimination at work. The Committee requests the Government to provide information on the activities carried out in this campaign and their impact in practice. The Committee also notes that the Government’s report mentions the associations "MOBBING asbl" and "STRESS asbl", which have been created to inform the public about sexual harassment.

9. Article 3(d). Employment in the public sector. In the absence of any information from the Government on this matter, the Committee requests it to indicate in its next report how the principles of equality of opportunity and treatment in employment and occupation are applied to public sector or similar workers.

10. Article 3(e). Vocational training. The Committee requests the Government to provide information in its next report on the measures taken or envisaged to ensure application of the Convention’s principles in the activities of the vocational training and placement services under the direction of the national authority.

11. Article 4. Measures against persons suspected of activities prejudicial to the security of the State. The Committee requests the Government to provide information on the provisions that regulate the employment or occupational activity of the persons referred to in Article 4, and the means of redress available to these persons.

12. Article 5. Special measures. The Committee notes that section XXVII of the amended Act of 12 February 1999 on the implementation of the National Action Plan for Employment, 1998, allows positive action involving specific advantages to facilitate the exercise of an occupational activity by the sex that is under-represented or to prevent or compensate disadvantages in a career. The Committee would be grateful if the Government would provide information on the positive action taken under section XXVII.

13. Parts IV and V of the report form. Judicial decisions and statistical information. The Committee requests the Government to provide information in its next report on administrative and judicial decisions on cases of discrimination on the grounds set forth in the Convention. It also requests the Government to provide reports and statistical information, disaggregated by sex, race, ethnic origin and religion, in all areas of vocational training and employment, together with any information allowing the Committee to ascertain the manner in which the Convention is applied in practice.