What are the procedures for appointing staff representatives?

Companies with 100 or more employees

The full and alternate staff representatives are elected by the employees of the company, on lists of candidates presented:

• by a union that has overall national representation;
• by a trade union with sector representation in the sector where its representativeness is recognized;
• by another trade union organisation representing an absolute majority of the members of the outgoing delegation;
• by a number of employees of the company representing at least 5% of the total workforce, without however cannot exceed 100.

Voting shall be by secret ballot at the ballot box, in accordance with the rules of proportional representation.

Each list may not include more candidates than there are regular and alternate mandates to be awarded.

No candidate on a list shall be elected unless the list obtains at least 5% of the votes cast.

Companies with less than 100 employees

The full and alternate staff representatives are elected by the employees of the company, from among the candidates presented:

• by a union that has overall national representation;
• by a trade union with sector representation in the sector where its representativeness is recognized;
• by another trade union organisation representing an absolute majority of the members of the outgoing delegation;
• by five voters.

Voting shall be by relative majority.

The rules of the ballot and the electoral disputes are outlined in a grand-ducal regulation.

What are the requirements for voting by mail?

At the request of the head of the company or of the outgoing delegation, the Minister of Labour may authorise, under the conditions and according to the terms that he shall set, vote by mail of employees absent from the company on the day of the ballot for reasons inherent to work organisation or due to illness, work accident, maternity or leave.

Can the number of candidates be the same as the positions to be filled?

If the number of candidatures submitted does not exceed the number of regular representatives and alternates to be elected and if the candidates agree on the designation of the regular representative(s) and alternate(s) and on the order in which the alternate(s) are to replace the regular representative(s), this person shall be declared elected automatically.

What occurs when no candidacies are put forward?

If no candidates are presented, the head of the company or his representative shall draw up a report which he shall send, at the latest on the date set for the elections, to the Director of the Inspectorate of Labour and Mines, who shall carry out an enquiry within the company.

On the proposal of the director of the Inspectorate of Labour and Mines, the regular representatives and, if necessary, the alternate representatives are then appointed automatically by order of the Minister of Labour from among the eligible employees of the company, within two months following the date of the elections.

What is the term of office of the representatives?

The members of the delegations are appointed for a period of five years and may be re-elected.

When is the staff delegation renewed?

The normal situation

The delegations are renewed in full between 1 February and 31 March of each calendar year on a date fixed for all renewals by the Minister of Labour and published in the Mémorial.

Extraordinary situations

• The Minister of Labour may, on the advice of all the trade unions enjoying general or sector representation on a national level and which are represented in the elected delegation, arrange for the complete renewal of a staff delegation outside the period referred to above, as soon as there are no longer any full members on a list and there are no more alternate members to fill the vacant seat or seats.
• Similarly, elections must be held outside the period referred to above when the company’s workforce reaches the minimum number of employees required for establishing a staff delegation.

The term of office of a newly established or renewed delegation shall expire with those of the delegations established normally, unless its term of office is less than one year because of this setting up; in the latter case, its term of office shall be extended for a further period of five years.

The delegation that has been set up shall continue to exercise its functions, until the expiry of its mandate, in the composition given to it by the elections, notwithstanding any change in the number of staff.

What about the specific case of a transfer of business ownership?

In the case of a transfer of business ownership, a company or part of an enterprise or company within the meaning of Book I, Title II, Chapter VII of the Labour Code, the status and function of the staff delegation remain insofar as the establishment or the transferred undertaking retains its autonomy.

If a company, an establishment, a part of the company or a part of the establishment does not keep its autonomy, the members of the staff delegation will automatically be part of the staff delegation of the entity which receives the transferred employees.

The enlarged delegation will appoint a chairman, a vice-chairman, a secretary, and a bureau within a month of the transfer. The exceptional composition of the staff delegation will end at the time of its first renewal.

If the employees of a company, establishment, a part of a company or the part of an establishment which does not retain its autonomy are integrated into an entity which does not have a staff delegation, the staff delegation of the transferred entity acts as a joint delegation.

What conditions apply to the electorate?

Active Voting

All employees, regardless of nationality, aged 16 and over, who work in the company under a contract of employment or apprenticeship and who have been employed in the company for at least six months on the day of the election, may take part in the election of the staff representatives.

Passive vote

To be eligible as a staff representative, employees must meet the following conditions:

• be at least 18 years old on the day of the election;
• have been continuously employed for the 12 months preceding the first day of the month in which the elections are posted;
• be either a Luxembourger or be authorized to work in the territory.

Note: Parents and relatives up to the fourth degree of the head of the company, managers, directors and the person in charge of the personnel department of the company cannot be elected as full or alternate members of a staff delegation. Apprentices cannot be elected as staff representatives either.
Employees who work part-time simultaneously in several companies are eligible only in the company in which they work the longest hours per week; where they have equal working hours, they are eligible in the company in which they have the longest service.

If the company in which the employee is eligible does not fall within the scope of the legal obligation to set up delegation, the employee is eligible in the company subject to this obligation.
Temporary employees and employees on secondment may not exercise the right to vote or to stand for election as a staff representative in the company they work in.

Note: Notwithstanding, temporary employees and employees on secondment may exercise the right to submit claims, the right to consult the staff representatives and the right to access personal files concerning them in the user company.