Since the onset of the global health crisis and the restrictive measures taken by the government to stem the spread of COVID 19, companies whose activities were compatible with teleworking, have been encouraged to use this work organisation method.
From a minority practice within Luxembourg companies, in particular because of its implications in terms of social security and taxation for cross-border workers, teleworking has become in a few weeks an essential way of organizing work.
Even beyond the crisis, many companies are rethinking their ways of working in order to maintain a certain level of teleworking in the long term.
However, the legal framework for teleworking in force until now, which results from a 2006 convention concluded between the social partners and extended on several occasions, was no longer well adapted to the evolution of technologies and to the needs of companies and employees.
Driven by the current context, the social partners have initiated discussions with a view to modifying the existing legal regime and signed on October 20, 2020 a new inter-professional convention on the legal regime for teleworking (hereinafter the "New Convention").
Far from constituting an in-depth reform, the New Convention aims to modernize the pre-existing framework by adjusting on certain points the rules of the previous convention deemed too rigid and not really adapted to the reality of teleworking practices within Luxembourg companies.
The main contributions of the New Convention are as follows:
A more precise definition of teleworking and a wider scope
The New Convention defines teleworking as “a form of organization or performance of work, generally using information and communication technologies, so that the work, which would normally have been performed on the premises of the employer, is carried out outside these premises”.
The definition no longer specifically mentions the employee's home as a place of telework.
The following are expressly excluded from the scope of the New Convention : (i) posting abroad, (ii) the transport sector in the broad sense (excluding administration), (iii) sales representatives, (iv) “co-working”, i.e. the work performed in a satellite office of the company, (v) “smart-working”, in the sense of occasional interventions by smartphone or laptop outside the usual place of work or place of telework and (vi) all services provided outside the company to customers.
Introduction of the concept of occasional teleworking
The former convention of 2006 only applied to regular and habitual teleworking, therefore excluding occasional teleworking, without defining these concepts. The New Convention leaves no room for interpretation since it introduces the notion of occasional teleworking, which it defines as “teleworking carried out to deal with unforeseen events or when teleworking represents less than ten percent on average of the teleworker's normal annual working time”. The reference period for the calculation of the threshold of less than 10% is the calendar year.
Teleworking is considered as regular in other cases. Thus, in the case of a company policy allowing teleworking one day per week, it will be deemed regular teleworking.
Consequences are attached to this distinction, occasional teleworking being subject to a more flexible legal framework on certain points mentioned below.
Implementation of teleworking
The social partners agreed that teleworking is neither a right nor an obligation and requires an agreement between the parties. The form of the written agreement is however less formal and depends on the situation:
The social partners ask the legislator to modify the Labor Code so as to expressly provide that the adoption of an agreement on teleworking within the company must be subject to the information and consultation of the staff delegation in companies with less than 150 employees, or must be agreed with the staff delegation (co-decision) in companies as from 150 employees.
Modalities of teleworking
The organization of working time follows the rules applicable within the company. As before, the New Convention provides that:
The New Convention adds that any provision relating to the right to disconnect applicable to a traditional worker also applies to the teleworker. A right to disconnect is not foreseen as such, being a topic which concerns all employees and not only those teleworking, and will be the subject of specific legislation in the future.
For regular teleworking, the employer remains under the obligation to provide the necessary work equipment for teleworking and to bear the costs directly generated by teleworking (for example in the form of a monthly lump sum agreed between the parties). On the other hand, no particular obligation is imposed on the employer concerning occasional teleworking.
The principle of equal treatment between teleworkers and workers on site is maintained, and in particular that of compensation for benefits in kind to which the employee would normally have been entitled to in the event of work in the premises of the company.
The New Convention now specifies that this principle of compensation does not apply to the benefits closely linked to the presence on site, such as access to a canteen, a parking space or a gym.
Health and safety at the teleworking place
There is no longer any obligation for the employer to check the electrical installations at the employee's home (de facto an impracticable provision) and the right to carry out on-site inspection visits is abolished. However, the employee has the option of requesting a visit from the occupational health service, the Labor and Mines Inspectorate and/or the company’ health and safety delegate.
Transition or return to the classic working formula
The New Convention does not resume the previous provisions on the adaptation period.
From now on, the teleworker or the employer can at any time request a transfer or a return to the classic working formula. When teleworking is regular, the terms for returning to the classic working arrangement are to be mutually agreed in writing between the employer and the employee when the employee starts teleworking.
The New Convention is concluded for a renewable period of 3 years. It has been sent to the Minister of Labor with a view to its declaration of general obligation by way of a grand-ducal regulation in the coming weeks. It will then come into force and will apply to all Luxembourg companies in the private sector.
Please contact the members of our Employment team should you need any assistance.
Partner, Avocat à la Cour au Barreau de Luxembourg, PwC Legal
Tel: +352 26 48 42 35 13
Managing Partner, Avocat à la Cour au Barreau de Luxembourg, PwC Legal
Tel: +352 26 48 42 35 45