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Legislative Reform on Leave – What to Expect?
Posted on 20 July 2017 in News > Employment, Pensions & Immigration

Following on from the recent reform of parental leave, the draft law 7060 dated 13 September  2016, on the reform of special leave (the “draft law”), proposes further modernisation of the law on special leave.

 

It has two objectives:

  • “a better balance between family life and professional life”, in particular for fathers; and
  • “to take better account of the current realities of our society”.

In practice, it concentrates on three categories of special leave:

  • leave for reasons of a personal nature;
  • postnatal leave; and
  • leave for family reasons.

In this phase of discussions, and at a time when the Council of State gave its opinion on the draft law (II.), it’s useful to take a look at the current regime of special leaves and the principal modifications suggested by the new text (I.). However, insofar as this reform falls under a more general European movement of improvement and harmonisation of social rights, the envisaged duration of paternity leave in the draft law could be modified again soon (III.)

 

CURRENT REGIME AND SUGGESTED MODIFICATIONS

 

DIFFICULTIES OF IMPLEMENTATIONS HIGHLIGHTED BY THE COUNCIL OF STATE

Although the Council of State seems rather favourable to this reform, and to the will of the authors of the draft law in making certain special leaves more flexible, some difficulties might arise in the practical implementation of some of the proposed measures, in particular in the event of a change of employer.

In fact, the Council of State criticised the authors of the draft law:

  • for not mentioning the methods of accounting:
  • of the days off for move, and 
  • especially of the days off for family reasons: in fact, insofar as it is necessary to manage them over several years, with possibilities of carry-forward in another proratisation and age bracket according to the duration of affiliation of the employee, the installation of a centralised management system is essential; and
  • for being vague on the term of affiliation within the framework of the accounting of the days off for family reasons: does the affiliation concerned cover only the periods of affiliation as an employee or also periods of unemployment?

For these reasons, the Council of State formally opposed the wording of the text concerning the leave for family reasons, so that the authors of the draft law will have to supplement it and specify it.

 

ONE REFORM WHICH LIES WITHIN THE SCOPE OF THE IMPROVEMENT AND THE SOCIAL RIGHT HARMONISATION OF LAWS AT THE EUROPEAN LEVEL

Although this point was not the subject of criticism by the Council of State, it seems that the authors of the draft law will be required to modify one of their most emblematic measures, namely the extension of the duration of paternity leave.

This evolution of this legislative falls under a more general European movement of improving harmonisation of social rights (European core of social rights). Within this framework, the European Commission adopted, on 26 April 2017, a draft directive on the balance between personal and professional life (COM (2017) 253), particularly aiming at introducing a right to paternity leave at European level which would be set up for a minimum duration of 10 days.

Following the adoption of this draft directive, one might question the point of maintaining a reform of paternity leave to 5 days in the draft law.

It is obviously the question the government, which has just decided to consult employers in September about a possible increase of paternity leave to 10 days within the framework of the draft law, also asked itself.

In any event, the increase in the days off provided for fathers after the birth of their child enables Luxembourg to finally get closer to the number of days granted by its European neighbours (14 days in France and 10 days in Belgium, for example).

This is therefore a reform that bears close watching and which we would expect to undergo major adjustments, all the more as on 13 July 2017, the Chamber of Trade (Chambre des métiers) opposed the increase of paternity leave to 10 days

 

 

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