On 28 September 2021, Bill 7890 (the Bill), which modifies the Labour Code to introduce a provision on the right to disconnect, was submitted to the Chamber of Deputies.
The Bill largely reflects the Economic and Social Council's opinion of 30 April 2021 on the right to disconnect.(1) It also intends to modify the Labour Code, most notably by introducing a new section (section 8) entitled "Respect for the right to disconnect" into the chapter devoted to the employer's obligations in terms of the protection, health and safety of employees.
The Bill would introduce new measures for:
- the obligation to define a specific scheme that ensures the right to disconnect is respected. When employees use electronic devices for their work, a scheme needs to be devised for the relevant company or sector that will ensure that the right to disconnect outside working hours is respected (new article 312-9, section 1 of the Labour Code);
- the specific scheme's content. This scheme should be adapted to the specific situation of the company or sector and, where applicable, define:
- the practical arrangements and technical measures for disconnecting from digital devices;
- measures to raise awareness and training as regards the right to disconnect; and
- compensation arrangements in the event of one-off exceptions from the right to disconnect (new article 312-9, section 1 of the Labour Code).
- the specific scheme's implementation. The scheme could be defined by way of a collective bargaining agreement or a subordinate agreement. Failing that, it should be defined at company level in accordance with the remit of the staff delegation, if there is one (new article 312-9, section 2 of the Labour Code).
- the staff delegation's expected involvement. The scheme that ensures that the right to disconnect outside working hours is respected can be introduced and modified only when the staff delegation (if there is one) has been informed and consulted, or by mutual agreement with the staff delegation in companies with at least 150 employees (new article 312-9, section 2; new article 414-3 (6) and new article 414-9, 8. of the Labour Code).
- penalties and transitional measures. Any breach of the above provisions would be liable to an administrative fine of between €251 and €25,000, which the director of the Labour Inspectorate could impose under new article 312-10 of the Labour Code. However, this measure would come into force one year after the Bill has been published in the Mémorial, and three years after that date for companies covered by a collective bargaining agreement or a subordinated agreement.
- compulsory negotiation in companies covered by a collective bargaining agreement or a subordinated agreement. The arrangements in place for the scheme to ensure that the right to disconnect outside working hours is respected would be added to the list of subjects for compulsory collective negotiations. The result of this must be recorded in the collective bargaining agreement or the subordinated agreement, if there is one (new article 162-12 (4), 5. of the Labour Code).
For further information on this topic please contact Dorothée David at Castegnaro by telephone (+352 26 86 82 1) or email ([email protected]). The Castegnaro website can be accessed at www.castegnaro.lu.
(1) Further information is available here.