Since 1 January 2018, the Law of 15 December 2017 on employee special leave has modified the number of days for exceptional leave.
With regard to the numerous changes and the joint application of the new provisions to the Collective Bargaining Agreement, a summary of the number of exceptional leave days is provided hereafter:
* The additional post-natal leave for breastfeeding is cancelled by the Law of 15 December 2017
Specific procedure for paternity leave / leave for receiving a child younger than 16 years with the aim of adopting him/her
As a matter of principle, this leave should be set pursuant to the employee’s wishes, provided that this does not conflict with the company’s needs.
Unlike other types of exceptional leave, this leave may be applied for within the two months following the event.
This leave does not need to be taken all at once.
However, if the employee and employer do not make arrangements accordingly, the leave must be taken in whole and immediately following the birth of the child or the reception of a child younger than 16 years with the aim of adopting him/her.
As usual, the employee must inform the employer by notice of his intention to apply for this type of exceptional leave. The employee must submit his/her request to the employer in writing along with a copy of the medical certificate attesting to the anticipated delivery date or, as applicable, a supporting document attesting to the anticipated date of receiving a child younger than 16 years with the aim of adopting him/her.
Should notification not be provided within the statutory timeline, the employer may decide to reduce the leave to 2 days, respectively 3 days in view of the still applicable Collective Bargaining Agreement, by decision of the employer.
As of the 3rd day of special leave, the State takes over the responsibility for the leave. For illustrative purposes, for 10 days of leave, only 2 days are the employer’s responsibility against 3 days today.
The employer needs to request the salary reimbursement from the Ministry of Labour with supporting documents, under penalty of forfeiture, within 5 months following the date of birth or the receiving of a child younger than 16 years with the aim of adopting him/her.
Modifications to the definition of a dependent child
The above mentioned Law of 15 December 2017 amends not only the material conditions relating to leave for family reasons as regards the number of leave days to be granted, but also the personal conditions relating to leave benefits. Henceforth, “a dependent child shall be considered any child born within a marriage, any child born outside a marriage and any adopted child who, in the event of illness, would require the physical presence of one of the parents”.
Principle of non-retroactivity of the law
In accordance with Article 2 of the Luxembourg Civil Code and, more generally, a common legal principle, “the law solely makes provisions for the future and has no retroactive effect”, except for specific explicitly derogating legal provisions.
Thus, the Law of 15 December 2017 entered into force on 1 January 2018.
Nonetheless, any days of family leave already taken when the present law entered into force on the basis of the former legal provisions for the relevant age group need to be included in the deduction of the maximum number of days for family leave to be granted for the relevant age group.
Accordingly, the leave allowance per age group of an employee with a child will be reduced by the amount of days already taken for the corresponding reason.
Primacy of the favourable treatment principle
The principle of favourable treatment is a general principle pertaining to labour law and is applied throughout multiple provisions of the Luxembourg Labour Code.
For example, Article L162-12 (7) lays down that “any stipulation of an individual labour contract, any internal regulation and any generally arbitrary provision which runs contrary to the clauses of a collective agreement or of a subordinate agreement is nullified unless it is more favourable for employees”.
This principle also applies to family leave in Article L234- 50 of the Luxembourg Labour Code.
Consequently, the provisions which are more favourable for the employee take precedence in the event of a “conflict” between two regulations.
A denounced, yet still applicable, Collective Bargaining Agreement
In line with the Luxembourg Labour Code, and Article 2 of the Collective Bargaining Agreement, the agreement has been denounced by the all social partners within the time frame allotted.
The 2014-2016 Collective Bargaining Agreement for bank employees, as well as the 2017 addendum, remain valid until the entry into force of the new Collective Bargaining Agreement currently under negotiation (ABBL Member briefing, 4 December 2017, No 1).
In this case, it is necessary to determine, on a case-by-case basis, whether the provisions of the denounced, yet still applicable, Collective Bargaining Agreement or that of the Law of 15 December 2017 are more favourable for each employee.