Evaluation of the EU Occupational Safety and Health Directives
COUNTRY SUMMARY REPORT FOR LUXEMBOURG
VC/2013/0049
June 2015
This Report has been prepared for COWI under Service Contract VC/2013/0049. It was completed by Adrien Lantieri. Milieu was responsible for overall editing of the report.
The views expressed herein are those of the consultants alone and do not necessarily represent the official views of the European Commission.
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Evaluation of the EU Occupational Safety and Health Directives
TABLE OF CONTENTS
ABBREVIATIONS USED ...... 6 INTRODUCTION ...... 7 1 MAPPING QUESTION 1: STRUCTURAL COMPONENTS OF HEALTH AND SAFETY DIRECTIVES ...... 8 1.1 General legal framework ...... 8 1.2 General institutional framework ...... 18 1.2.1 Key policy documents ...... 19 1.2.2 Main authorities ...... 19 1.2.3 Coordination ...... 23 1.3 Legal coverage, observed discrepancies and more stringent measures .. 24 1.3.1 Observed discrepancies, more stringent and more detailed measures ...... 24 1.3.2 Options ...... 114 1.4 Interactions ...... 114 2 MAPPING QUESTION 2: GAPS IN CONTENT OR TIME ...... 118 2.1 Transitional periods ...... 118 2.2 Derogations ...... 119 3 MAPPING QUESTION 3: LEVEL OF COMPLIANCE BY DIFFERENT STAKEHOLDERS .... 135 3.1 Degree of compliance ...... 135 3.2 Approaches to compliance ...... 143 4 MAPPING QUESTION 4: ACCOMPANYING ACTIONS THAT SUPPORT THE RESPECT OF THE RULE ...... 149 4.1 Existing accompanying actions ...... 149 4.2 Use of accompanying actions ...... 161 4.3 Gaps ...... 162 5 MAPPING QUESTION 5: ENFORCEMENT ...... 165 6 MAPPING QUESTION 6: SPECIFIC GROUPS OF WORKERS ...... 174 7 MAPPING QUESTION 7: SMES AND MICRO-ENTERPRISES ...... 179 ANNEX I - BIBLIOGRAPHY ...... 183 ANNEX II – INTERVIEWS ...... 187 TABLE OF TABLES
Table 1- 1 General Legal Framework ...... 9 Table 1- 2 Directive 89/391/EEC (Framework Directive) – Observed discrepancies, more stringent and more detailed requirements ...... 26 Table 1- 3 Council Directive 89/654/EEC (workplace) - Observed discrepancies, more stringent and more detailed requirements ...... 35 Table 1- 4 Directive 2009/104/EC (work equipment) - Observed discrepancies, more stringent and more detailed requirements ...... 36 Table 1- 5 Council Directive 89/656/EEC (PPE) - Observed discrepancies, more stringent and more detailed requirements ...... 39 Table 1- 6 Council Directive 92/58/EEC (OSH signs) - Observed discrepancies, more stringent and more detailed requirements ...... 41 Table 1- 7 Directive 1999/92/EC (ATEX) - Observed discrepancies, more stringent and more detailed requirements ...... 42 Table 1- 8 Council Directive 90/269/EEC (manual handling of loads) - Observed discrepancies, more stringent and more detailed requirements ...... 44 Table 1- 9 Council Directive 90/270/EEC (display screen equipment) - Observed discrepancies, more stringent and more detailed requirements ...... 47 Table 1- 10 Directive 2002/44/EC (vibration) - Observed discrepancies, more stringent and more detailed requirements ...... 50 Table 1- 11 Directive 2003/10/EC (noise) - Observed discrepancies, more stringent and more detailed requirements ...... 55 Table 1- 12 Directive 2004/40/EC (electromagnetic fields) - Observed discrepancies, more stringent and more detailed requirements ...... 61 Table 1- 13 Directive 2006/25/EC (artificial optical radiation) - Observed discrepancies, more stringent and more detailed requirements ...... 65 Table 1- 14 Directive 2004/37/EC (carcinogens or mutagens) - Observed discrepancies, more stringent and more detailed requirements ...... 70 Table 1- 15 Council Directive 98/24/EC (chemical agents at work) - Observed discrepancies, more stringent and more detailed requirements ...... 74 Table 1- 16 Directive 2009/148/EC (asbestos) - Observed discrepancies, more stringent and more detailed requirements ...... 80 Table 1- 17 Directive 2000/54/EC (biological agents) - Observed discrepancies, more stringent and more detailed requirements ...... 84 Table 1- 18 Council Directive 92/57/EEC (temporary or mobile construction sites) - Observed discrepancies, more stringent and more detailed requirements ...... 89 Table 1- 19 Council Directive 92/104/EEC (surface and underground mineral-extracting industries) - Observed discrepancies, more stringent and more detailed requirements ...... 93 Table 1- 20 Council Directive 92/91/EEC (mineral-extracting industries through drilling) - Observed discrepancies, more stringent and more detailed requirements ...... 96 Table 1- 21 Council Directive 92/29/EEC (medical treatment on board vessels) - Observed discrepancies, more stringent and more detailed requirements ...... 99 Table 1- 22 Council Directive 93/103/EC (work on board fishing vessels) - Observed discrepancies, more stringent and more detailed requirements ...... 102 Table 1- 23 Council Directive 92/85/EEC (pregnant/breastfeeding workers) - Observed discrepancies, more stringent and more detailed requirements ...... 103 Table 1- 24 Council Directive 91/383/EEC (temporary workers) - Observed discrepancies, more stringent and more detailed requirements ...... 107 Table 1- 25 Council Directive 94/33/EC (young people at work) - Observed discrepancies, more stringent and more detailed requirements ...... 108 Table 1- 26 Options ...... 114
Table 2- 1 Transitional Periods ...... 118 Table 2- 2 Derogations ...... 120
Table 3- 1 Degree of compliance: Common processes and mechanisms (across Directives) 137 Table 3- 2 Degree of compliance: Common processes and mechanisms (individual Directives) ...... 141
Table 4- 1 Accompanying Actions ...... 158
Table 5- 1 Enforcement authorities ...... 165 Table 5- 2 Inspections statistical data ...... 167 Table 5- 3 Data on enforcement strategy ...... 168 Table 5- 4 Result table – type and level of sanctions ...... 169 Table 5- 5 Number of infringements and court cases ...... 172
Table 6- 1 Tools addressing risk factors for all vulnerable groups ...... 174
Table 7- 1 Overview of measures targeting SMEs and micro-enterprises ...... 179 Table 7- 2 Description of measures targeting SMEs and micro-enterprises ...... 180
ABBREVIATIONS USED
AAA Accident Insurance Association (Association d'assurance accident) ASTF Luxembourg Association for Occupational Health in the Financial Sector (Association pour la Santé au Travail du secteur Financier) CC Chamber of Commerce of Luxembourg (Chambre de commerce) CDM Chamber of Professions of Luxembourg (Chambre des metiers) CSL Chamber of Employees of Luxembourg (Chambre des salaries) DSAT Department of Occupational Health, Ministry of Health (Division de la santé au travail, Ministère de la Santé) GDR Grand-Ducal Regulation (i.e. a general reference to any such regulatory instrument and not to a specific one) ITM Labour and Mines Inspectorate (Inspection du Travail et des Mines) IFSB Institute for Sectorial Training in Construction (Institut de formation sectorial du bàtiment) LCGB Luxembourg Christian Confederation Trade Union (Confédération Luxembourgeoise des Syndicats Chrétiens) OGBL Luxembourg Independent Confederation Trade Union (Confédération Générale du Travail de Luxembourg) Repealed 1994 Law Loi du 17 juin 1994 concernant la sécurité et la santé des travailleurs au travail (as modified), incorporated in 2006 to the Labour Code SIST-FHL Inter-enterprises service for health at work of hospitals of Luxembourg (Service Interentreprises de Santé au Travail) STI Occupational Health Service for Industry (Service de Santé au Travail de l'Industrie) STM Multi-sector Occupational Health Service (Service de Santé au Travail Multisectoriel) STSP Occupational Health of the Public Sector (Division de la Santé au Travail du Secteur public)
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INTRODUCTION
General introduction to the report
This report presents a review of the main features of the practical implementation of 24 EU occupational safety and health (OSH) Directives in Luxembourg. The information in this report has been gathered between October 2013 and June 2014. This Country Summary Report, together with the Summary Reports prepared for each other Member States, aims at mapping the implementation of the OSH Directives in the EU as a whole. It is based on a desk-study and interviews with national stakeholders (see Annex II for details on interviews carried out) and will be one of the sources of information for the overall evaluation of the implementation. The Country Summary Reports will form an Appendix to the Final Report, which will compile the results of the evaluation and the associated recommendations.
This review is based on seven key mapping questions, which will inform the evaluation of the implementation of the OSH Directives in all Member States and the EU in general. The seven general Mapping Questions (MQs), which have been defined by the Commission and are answered in this Country Summary Report are the following:
Mapping question
MQ1: “Across the Member States, how are the different 'common processes' and 'mechanisms' foreseen by the Directives put in place and how do they operate and interact with each other?”
MQ2: “What derogations and transitional periods are applied or have been used under national law under several of the Directives concerned?”
MQ3: “What are the differences in approach to and degree of fulfilment of the requirements of the EU OSH Directives in private undertakings and public-sector bodies, across different sectors of economic activity and across different sizes of companies, especially for SMEs, microenterprises and self- employed?”
MQ4: “What accompanying actions to OSH legislation have been undertaken by different actors (the Commission, the national authorities, social partners, EU-OSHA, Eurofound, etc.) to improve the level of protection of health and safety at work and to what extent are they actually used by companies and establishments to pursue the objective of protecting health and safety of workers? Are there any information needs that are not met?”
MQ5: “What are the enforcement (including sanctions) and other related activities of the competent authorities at national level and how are the priorities set among the subjects covered by the Directives?”
MQ6: “What are the differences of approach across Member States and across establishments with regard to potentially vulnerable groups of workers depending on gender, age, disability, employment status, migration status, etc., and to what extent are their specificities, resulting in particular from their greater unfamiliarity, lack of experience, absence of awareness of existing or potential dangers or their immaturity, addressed by the arrangements under question?”
MQ7: “What measures have been undertaken by the Member States to support SMEs and microenterprises (e.g. lighter regimes, exemptions, incentives, guidance, etc.)?”
The template is structured according to these mapping questions.
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1 MAPPING QUESTION 1: STRUCTURAL COMPONENTS OF HEALTH AND SAFETY DIRECTIVES
This first section focuses on how the national legal and institutional frameworks have been designed to reflect the main common processes and mechanisms (CPMs) of each Directive. It includes:
A review of the national transposing legislation and the general structure of the legal framework; Mechanisms of coordination amongst the different authorities responsible for the implementation of the directives; The identification of any delays in transposing directives, focusing on most recent ones; Differences between the Directives’ requirements and the national ones, looking at observed discrepancies, more stringent and more detailed provisions; Interactions between CPMs as embedded in the legislation.
1.1 GENERAL LEGAL FRAMEWORK
A significant development of the framework legislation for OSH in Luxembourg took place with the adoption of two major laws of 17 June 1994 which transposed Directive 89/391/EEC and replaced the old framework dating back from 1924 and other scattered legislation. These are the Laws of 17 June 1994 on respectively the safety and health of workers at work and on occupational health services. As one stakeholder noted, the transposition of the Framework Directive had provided a clear boost to Luxembourg legislation and policy on OSH as it led to a regrouping of a number of preexising elements and added further requirements in other areas1. In particular, the transposition of the EU Directive triggered a stronger focus on preventive rather than remediation measures.
The remaining directives have been transposed mostly through secondary legislation, i.e. Grand-Ducal Regulations. Only Directive 92/29/EEC has been transposed through a specific law (the Law of 29 April 2000), together with an implementing Grand-Ducal Regulation. Finally, provisions transposing the three directives on specific groups of vulnerable workers (Directive 92/85/EEC on pregnant and breastgeeding workers, Directive 91/383/EEC on temporary workers and Directive 94/33/EC on young workers) are incorporated directely in the Labour Code.
In Luxembourg, the public sector is regulated by distinct laws and regulations, specific to public servants and employees of public establishements. Safety in the public sector was first regulated in Luxembourg by a 1979 Grand-Ducal Regulation (règlement grand-ducal modifié du 13 juin 1979 concernant les directives en matière de sécurité dans la fonction publique) and more largely implemented in a 1988 Law that created the public sector’s entity on prevention of occupational risks (loi modifiée du 19 mars 1988 concernant la sécurité dans la fonction publique). Pursuant to the transposition of the Framework Directive, these texts were revised by the OSH Public Sector Law of 1994 and complementing Grand-Ducal Regulations of 1995.
Several infringement cases were initiated against Luxembourg in relation to different OSH related directives: Directive 89/391/EEC (Framework Directive), Directive 2006/25/EC (artificial optical radiation), Directive 1999/92/EC (ATEX), Directive 2002/44/EC (vibrations), Directive 2003/10/EC (noise), and Directive 98/24/EC (chemical agents at work). All these cases are linked to late transposition and are now closed. There has also been an infringement case related to non-conformity with the Framework Directive.
The following table provides an overview of the approach to transposition, indicating whether there is one law covering all OSH issues (O) as opposed to transposition spread over different acts (S). It then
1 Interview with Representatives of employers.
Milieu Ltd Country Summary Report for Luxembourg / 8 Brussels lists transposing national legislation per directive, specifying whether there was legislation existing prior to transposition. Finally, it identifies any infringement proceedings, which were mentioned in an overview table provided by the Commission.
Table 1- 1 General Legal Framework
Legislation prior Infringement Directive O S Transposing National Legislation to transposition proceedings (Y/N) Legal instruments Yes Infringement cases (i) Labour Code (adopted in 20062), 1993/0368 on non- incorporating in particular: communication Law of 17 June 1994 on the safety and 1995/2138 on and health of workers at work (Loi non-conformity – du 17 juin 1994 concernant la cases closed sécurité et la santé des travailleurs au travail) as modified3 (Repealed 1994 Law4)
(ii) Law of 8 June 1994 1. Applying the Framework Directive 89/391/EEC of 12 June 1989 on the implementation of measures to encourage improvements in the safety and health of workers at work to legal entities of the public sector; 2. Amending and supplementing the Law of 19 March 1988 on safety in government and State services in public establishments and in Directive schools; 3. Amending and 89/391/EEC S supplementing the Law of 22 June (Framework 1963 laying down the pay of civil Directive) servants law (Loi du 8 juin 1994 1. portant application aux personnes morales du secteur public de la directive cadre 89/391/CEE du Conseil du 12 juin 1989 concernant la mise en oeuvre de mesures visant à promouvoir l'amélioration de la sécurité et de la santé des travailleurs au travail; 2. modifiant et complétant la loi du 19 mars 1988 concernant la sécurité dans les administrations et services de l'Etat, dans les établissements publics et dans les écoles; 3. modifiant et complétant la loi modifiée du 22 juin 1963 fixant le régime des traitements des fonctionnaires de l'Etat) (OSH Public Sector Law of 1994).
Regulatory instruments (iii) Grand-Ducal Regulation of 27
2 Loi du 31 juillet 2006 portant introduction d'un Code du Travail. 3 Loi du 13 janvier 2002 modifiant la loi du 17 juin 1994 concernant la sécurité et la santé des travailleurs au travail, telle que modifiée par la loi du 6 mars 1998. 4 The Law was repealed following its incoporation in the Labour Code.
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Legislation prior Infringement Directive O S Transposing National Legislation to transposition proceedings (Y/N) September 2004 on the establishment of training rules for safety representatives (Règlement grand-ducal du 27 septembre 2004 concernant la fixation des modalités de formation des délégués à la sécurité) (Safety representatives GDR).
(iv) Grand-Ducal Regulation of 9 June 2006 - determining the sufficient number of designated workers ; - categorising the companies in which the employer may himself assume the function of designated worker ; - on the capacity of designated workers ; - on training of designated workers (Règlement grand-ducal du 9 juin 2006– déterminant le nombre suffisant des travailleurs désignés;– catégorisant les entreprises dans lesquelles l’employeur peut assumer lui-même la fonction de travailleur désigné;– relatif aux capacités des travailleurs désignés;– relatif à la formation des travailleurs désignés) (Designated workers GDR).
(v) Ministerial Decree of 21 August 2013 determining the template of annual activity report of occupational health services (Arrêté ministériel du 21 août 2013 déterminant le modèle du rapport d'activité annuel des services de santé au travail).
(vi) Coordinated text of the November 3, 1995 of the Grand- Ducal Regulation of 13 June 1979 on guidelines for safety in the public service (Texte coordonné du 3 novembre 1995 du règlement grand-ducal modifié du 13 juin 1979 concernant les directives en matière de sécurité dans la fonction publique) (OSH Public Sector GDR I 1995).
(vii) Grand-Ducal Regulation of 6 October 1995 on 1. The adaptation to all State and the municipalities civil servants of the Grand-Ducal Regulation of 13 June 1979 on guidelines for safety in schools; 2. Continuation of the transposition into Luxembourg law for the public
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Legislation prior Infringement Directive O S Transposing National Legislation to transposition proceedings (Y/N) sector of EC directives relating to safety at work (Règlement grand- ducal du 6 octobre 1995 portant 1. adaptation à l'ensemble de la fonction publique de l'Etat et des communes du règlement grand- ducal du 13 juin 1979 concernant les directives en matière : de sécurité dans les écoles; 2. continuation de la transposition dans le droit luxembourgeois pour le compte du secteur public des directives communautaires afférentes à la sécurité au travail) (OSH Public Sector GDR II 1995).
(viii) Grand-Ducal Regulation of 5 March 2004 on health and safety and medical control in the public service (Règlement grand-ducal du 5 mars 2004 concernant la santé et la sécurité du travail et le contrôle médical dans la fonction publique) (OSH Public Sector GDR 2004). Regulatory instruments No Grand-Ducal Regulation of 4 November 1994 on the minimum Council safety and health requirements for Directive the workplace (Règlement grand- O 89/654/EEC ducal du 4 novembre 1994 (workplace) concernant les prescriptions minimales de sécurité et de santé pour les lieux de travail) (Workplace GDR). Regulatory instruments Yes5 Grand-Ducal Regulation of 4 November 1994 concerning the minimum safety and health Directive requirements for the use of work 2009/104/EC equipment by workers (Règlement O (work grand-ducal du 4 novembre 1994 equipment) concernant les prescriptions minimales de sécurité et de santé pour l'utilisation par les travailleurs au travail d'équipements de travail) as modified (WE GDR). Regulatory instruments No Council Grand-Ducal Regulation of 4 Directive O November 1994 concerning the 89/656/EEC minimum safety and health (PPE) requirements for the use by workers
5 Directive 2009/104/EC (work equipment) has not been transposed as such, given that this Directive only codifies the previous directives without bringing substantial changes to the legislative framework, and only the legislation existing prior to the adoption of the Directive applies. Nonetheless all changes on substance brought to the initial Directive 89/655/EC appear in the LU legislation.
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Legislation prior Infringement Directive O S Transposing National Legislation to transposition proceedings (Y/N) of personal protective equipment (Règlement grand-ducal du 4 novembre 1994 concernant les prescriptions minimales de sécurité et de santé pour l'utilisation par les travailleurs au travail d'équipements de protection individuelle) (PPE GDR). Regulatory instruments No Grand-Ducal Regulation of 28 March 1995 on the minimum Council requirements for the provision of Directive safety and / or health signs at work O 92/58/EEC (Règlement grand-ducal du 28 mars (OSH signs) 1995 concernant les prescriptions minimales pour la signalisation de sécurité et/ou de santé au travail) (OSH Signs GDR). Regulatory instruments No Infringement case Grand-Ducal Regulation of 21 2003/0702 on non- March 2005 on minimum communication – requirements for improving the case closed protection of safety and health protection of workers potentially at LU (C-333/04) : the Directive risk from explosive atmospheres EUCJ condemned 1999/92/EC O (Règlement grand-ducal du 21 mars Luxembourg for not (ATEX) 2005 concernant les prescriptions transposing minimales visant à améliorer la Directive protection en matière de sécurité et 1999/92/EC. The de santé des travailleurs transposing ATEX susceptibles d'être exposés au GDR was adopted risque d'atmosphères explosives) shortly after the (ATEX GDR). court’s ruling. Regulatory instruments No Grand-Ducal Regulation of 4 November 1994 concerning the minimum safety and health requirements for the manual Council handling of loads where there is a Directive risk, in particular of back injury, to 90/269/EEC O workers (Règlement grand-ducal du (manual 4 novembre 1994 concernant les handling of prescriptions minimales de sécurité loads) et de santé relatives à la manutention manuelle de charges comportant des risques, notamment dorso-lombaires, pour les travailleurs) (MHL GDR). Regulatory instruments No Council Grand-Ducal Regulation of 4 Directive November 1994 concerning the 90/270/EEC O minimum safety and health (display requirements for work equipment screen display screen (Règlement grand- equipment) ducal du 4 novembre 1994
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Legislation prior Infringement Directive O S Transposing National Legislation to transposition proceedings (Y/N) concernant les prescriptions minimales de sécurité et de santé relatives au travail sur les équipements à écran de visualisation) (DSE GDR). Regulatory instruments No Infringement case Grand-Ducal Regulation of 6 2005/0828 on non- February 2007 1. On the minimum communication – safety and health requirements case closed regarding the exposure of workers to the risks arising from physical agents (vibration) ; 2. Amending the Grand-Ducal Regulation of 17 June 1997 on the frequency of medical examinations in occupational Directive medicine (Règlement grand-ducal 2002/44/EC S du 6 février 2007 1. concernant les (vibration) prescriptions minimales de sécurité et de santé relatives à l'exposition des travailleurs aux risques dus aux agents physiques (vibrations); 2. portant modification du règlement grand-ducal du 17 juin 1997 concernant la périodicité des examens médicaux en matière de médecine du travail) (Vibration GDR). Regulatory instruments Yes6 Infringement case Grand-Ducal Regulation of 6 2006/0468 on non- February 2007 1. On the minimum communication – safety and health requirements case closed regarding the exposure of workers to the risks arising from physical agents (noise) ; 2. Amending the Grand-Ducal Regulation of 17 June 1997 on the frequency of medical Directive examinations in occupational 2003/10/EC S medicine (Règlement grand-ducal (noise) du 6 février 2007 1. concernant les prescriptions minimales de sécurité et de santé relatives à l'exposition des travailleurs aux risques dus aux agents physiques (bruit); 2. portant modification du règlement grand- ducal du 17 juin 1997 concernant la périodicité des examens médicaux en matière de médecine du travail) (Noise GDR). Directive This Directive was not transposed. No 2004/40/EC
(electromag netic fields)
6 Règlement grand-ducal du 26 février 1993 concernant la protection des travailleurs contre les risques dus à l'exposition au bruit pendant le travail.
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Legislation prior Infringement Directive O S Transposing National Legislation to transposition proceedings (Y/N) Regulatory instruments No Infringement case Grand-Ducal Regulation of 26 July 2010/0377 on non- 2010 1. Concerning the minimum communication – safety and health requirements case closed regarding the exposure of workers to the risks arising from physical agents (artificial optical radiation and solar radiation) 2. Amending the Grand-Ducal Regulation of 17 June 1997 on the frequency of Directive medical examinations in 2006/25/EC occupational medicine as (artificial S amended (Règlement grand-ducal optical du 26 juillet 2010 1. relatif aux radiation) prescriptions minimales de sécurité et de santé relatives à l'exposition des salariés aux risques dus aux agents physiques (rayonnements optiques artificiels et rayonnement solaire) 2. portant modification du règlement grand-ducal modifié du 17 juin 1997 concernant la périodicité des examens médicaux en matière de médecine du travail) (AOR GDR). Regulatory instruments Yes7 (i) Grand-Ducal Regulation of 30 July 2002 concerning the protection of workers against the risks related to exposure to carcinogens or mutagens at work (Règlement grand-ducal du 30 juillet 2002 concernant la protection des travailleurs contre les risques liés à l'exposition à des agents Directive cancérigènes ou mutagènes au 2004/37/EC travail) (Carcinogens or mutagens (carcinogens S GDR). or mutagens) (ii) Grand-Ducal Regulation of 8 February 2012 on inclusion of an active substance in Annex I of the Law of 24 December 2002 on biocidal products as modified (Règlement grand-ducal du 8 février 2012 portant inscription d'une substance active à l'annexe I de la loi modifiée du 24 décembre 2002 relative aux produits biocides). Council Regulatory instruments Yes9 Infringement case S Directive (i) Grand-Ducal Regulation of 30 2001/0341 on non-
7 Règlement grand-ducal du 4 novembre 1994 concernant la protection des travailleurs contre les risques liés à l'exposition à des agents cancérigènes au travail. 9 Règlement grand-ducal du 10 juillet 1995 relatif à la fixation de valeurs limites concernant la protection des travailleurs contre les risques liés à une exposition à des agents chimiques pendant le travail.
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Legislation prior Infringement Directive O S Transposing National Legislation to transposition proceedings (Y/N) 98/24/EC July 2002 concerning the protection communication – (chemical of the health and safety of workers case closed agents at against the risks related to chemical work) agents at work (Règlement grand- ducal du 30 juillet 2002 concernant la protection de la santé et de la sécurité des travailleurs contre les risques liés à des agents chimiques sur le lieu de travail) as modified8 (Chemical Agents GDR). Regulatory instruments Yes11 (i) Grand-Ducal Regulation of 15 July 1988 on the protection of workers against the risks related to Directive exposure to asbestos at work 2009/148/EC S (Règlement grand-ducal du 15 (asbestos) juillet 1988 concernant la protection des travailleurs contre les risques liés à une exposition à l'amiante pendant le travail) as modified10(Asbestos GDR). Regulatory instruments Yes13 (i) Grand-Ducal Regulation of 4 November 1994 on the protection of workers against the risks related to Directive exposure to biological agents at 2000/54/EC S work (Règlement grand-ducal du 4 (biological novembre 1994 concernant la agents) protection des travailleurs contre les risques liés à l'exposition à des agents biologiques au travail) as modified12 (Biological GDR). Council S Regulatory instruments No
8 Two modifications : Règlement grand-ducal du 31 octobre 2008 modifiant le règlement grand-ducal du 30 juillet 2002 concernant la protection de la santé et de la sécurité des travailleurs contre les risques liés à des agents chimiques sur le lieu de travail. Règlement grand-ducal du 28 juillet 2011 modifiant le règlement grand-ducal modifié du 30 juillet 2002 concernant la protection de la santé et de la sécurité des travailleurs contre les risques liés à des agents chimiques sur le lieu de travail. 10 Two modifications : Règlement grand-ducal du 21 avril 1993 modifiant le règlement grand-ducal du 15 juillet 1988 concernant la protection des travailleurs contre les risques liés à une exposition à l'amiante pendant le travail. Règlement grand-ducal du 4 juillet 2007 portant modification du règlement grand-ducal modifié du 15 juillet 1988 concernant la protection des travailleurs contre les risques liés à une exposition à l'amiante pendant le travail. 11 This Directive has not been transposed as such given that Directive 2009/148/EC only codifies the previous directives without bringing substantial changes to the legislative framework, and the legislation existing prior to the adoption of the Directive applies. The LU legislation was modified following the adoption of Directives 91/382/EC, 98/24/EC, 2007/30/EC, incorporating most modifications into LU legislation on asbestos. 12 Règlement grand-ducal du 8 juin 1999 portant modification et première adaptation au progrès technique du règlement grand-ducal du 4 novembre 1994 concernant la protection des travailleurs contre les risques liés à des agents biologiques au travail. 13 This Directive has not been transposed as such given that Directive 2000/54/EC only codifies the previous directives without bringing substantial changes to the legislative framework, and the legislation existing prior to the adoption of the Directive applies. The LU legislation was modified following the adoption of Directives 93/88/EC, 95/30/EC, 97/59/EC, 97/65/EC, incorporating most modifications into LU legislation on biological agents.
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Legislation prior Infringement Directive O S Transposing National Legislation to transposition proceedings (Y/N) Directive Grand-Ducal Regulation of 9 June 92/57/EEC 2006 - for appropriate training in (temporary relation to coordination of safety or mobile and health at temporary or mobile construction construction sites; - establishing sites) procedures for granting approval for the coordination of health and safety at temporary or mobile construction sites (Règlement grand-ducal du 9 juin 2006 - concernant la formation appropriée par rapport aux activités de coordination de sécurité et de santé sur les chantiers temporaires ou mobiles; - déterminant les modalités d'octroi de l'agrément en matière de coordination de sécurité et de santé sur les chantiers temporaires ou mobiles) (TMS GDR I).
Grand-Ducal Regulation of 27 June 2008 concerning the minimum safety and health to implement on temporary or mobile construction sites (Règlement grand-ducal du 27 juin 2008 concernant les prescriptions minimales de sécurité et de santé à mettre en oeuvre sur les chantiers temporaires ou mobiles) (TMS GDR II). Regulatory instruments No Grand-Ducal Regulation of 4 November 1994 concerning the minimum requirements for improving Council the protection of safety and health Directive of workers in surface and 92/104/EEC underground mineral-extracting (surface and O industries (Règlement grand-ducal underground du 4 novembre 1994 concernant les mineral- prescriptions minimales visant à extracting améliorer la protection en matière industries) de sécurité et de santé des travailleurs des industries extractives à ciel ouvert ou souterraines) (S&U Mining GDR). Regulatory instruments Council Grand-Ducal Regulation of 4 Directive November 1994 concerning the 92/91/EEC minimum requirements for improving (mineral- the protection of safety and health O extracting of workers in the extractive industries industries through drilling (Règlement grand- through ducal du 4 novembre 1994 drilling) concernant les prescriptions minimales visant à améliorer la
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Legislation prior Infringement Directive O S Transposing National Legislation to transposition proceedings (Y/N) protection en matière de sécurité et de santé des travailleurs des industries extractives par forage) (Drilling GDR). Legal instruments No Law of 29 April 2000 transposing Directive No. 92/29/EEC of 31 March 1992 on the minimum safety and health requirements for improved medical treatment on board vessels (Loi du 29 avril 2000 transposant la directive n° 92/29/CEE du Conseil du 31 mars 1992 concernant les prescriptions minimales de sécurité et de santé pour promouvoir une meilleure assistance médicale à Council bord des navires) (MTV Law). Directive 92/29/EEC Regulatory instruments (medical S Grand-Ducal Regulation of 22 June treatment on 2000 implementing the Law of 29 board April 2000 transposing Directive vessels) 92/29/EEC of 31 March 1992 on the minimum safety and health requirements for improved medical treatment on board vessels (Règlement grand-ducal du 22 juin 2000 portant exécution de la loi du 29 avril 2000 transposant la directive 92/29/CEE du Conseil du 31 mars 1992 concernant les prescriptions minimales de sécurité et de santé pour promouvoir une meilleure assistance médicale à bord des navires) (MTV GDR). Council This Directive was not transposed.14 Directive 93/103/EC
(work on board fishing vessels) Legal instruments Yes15 (i) Labour Code, esp. Art. L.331-1 to Council L.338-4 which incorporate Law of 1 Directive August 2001 on the protection of 92/85/EEC pregnant workers and workers who O (pregnant/br have recently given birth and who eastfeeding are breastfeeding (Loi du 1er août workers) 2001 concernant la protection des travailleuses enceintes, accouchées et allaitantes).
14 Only recreational vessels can be registered in the ship registry of Luxembourg. Consequently, the authorities considered that it was not necessary to transpose this Directive that specifically targets commercial fishing vessels. 15 Loi du 3 juillet 1975 concernant 1. la protection de la maternité de la femme au travail; 2. la modification de l'article 13 du code des assurances sociales modifié par la loi du 2 mai 1974.
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Legislation prior Infringement Directive O S Transposing National Legislation to transposition proceedings (Y/N) This Directive is not specifically N. transposed. 16
Legal instruments Labour Code, esp. Art. L.131-1 to L.134-4 which incorporate Law of 19 Council May 1994 on temporary workers (Loi Directive du 19 mai 1994 portant 91/383/EEC réglementation du travail intérimaire (temporary et du prêt de main d’œuvre), and workers) Article L.312-2(4) (3rd and 6th indents).
Regulatory instruments No specific GDR was adopted with regard to temporary workers. Legal instruments No Council (i) Labour Code, esp. Art. L.341-1 to Directive L.345-2 which incorporate Law of 23 94/33/EC O March 2001 on the protection of (young young workers (Loi du 23 mars 2001 people at concernant la protection des jeunes work) travailleurs).
1.2 GENERAL INSTITUTIONAL FRAMEWORK
This section presents key policy documents and describes the institutional structure together with roles and responsibilities of the main authorities and other stakeholders. It reviews all mechanisms and structures for coordination amongst those authorities in the framework of the transposition and implementation of the directives. Control and enforcement authorities will be covered under Section 5 below.
Luxembourg does not have an overall policy document on OSH, although the 2013 Governmental Declaration foresees the adoption of an Action Plan for OSH.
Competences over OSH in the private sector are divided between the Ministry of Health, in charge of coordinating occupational medicine services, and the Ministry of Labour and Employment, under which the Labour and Mines Inspectorate (ITM) is in charge of enforcing OSH legislation. For the public sector, the Ministry of Civil Service is the main authority, with two distinct departments in charge of, respectively, occupational medicine and safety at work.
OSH services are organised in a dual system. All private companies are providing occupational health services internally, through inter-company medical services managed by trade unions or the Multi- Sector Occupational Health Service (STM), a public body, under the Ministry of Health.
16 Under the obligation of equal treatment of workers, LU legislation obliges the employers to make all workers benefit at least from the same minimal OSH prescriptions. The Labour Code further specifies that temporary workers must be given appropriate introduction and instructions at the beginning of their assignment (literal transposition of the obligations laid down in Articles 3(2) and 4 of Directive 91/383/EC).
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Coordination is mainly ensured through general concertation committees such as the national tripartite coordination committee or the Economic and Social Committee, and one instance specific to OSH related issue, the High Council of Occupation health and safety. Regular meetings of implementation and enforcement bodies are also in place to ensure coordination. In general, given the small size of Luxembourg, most communication and coordination between stakeholders takes place informally.
1.2.1 Key policy documents
In Luxembourg there is no policy or strategy document on OSH.
The 2013 Luxembourg Governmental Declaration17 contains a specific section on occupational health with an emphasis on psycho-social diseases, mobbing, stress at work, toxic substances and noise. According to this Declaration, a national plan for occupational health and safety should be shortly drawn by the Ministry of Health and the Ministry of Labour and Employement with the involvement of employers and employees representatives. It should be based on the conclusions reached by the Occupational Health Audit carried out in 201218. To-date, this national plan has not been adopted.
1.2.2 Main authorities
Overall Structure
Ministries:
- Ministry of Health (Division de la Santé au travail (DSAT) - Department of Occupational Health) 19: has the general responsibility for health and safety issues in Luxembourg. It is responsible for the general coordination and control of the OSH system and in particular supervises company OSH services (see below), assesses the impacts of occupational hazards (notably by controlling the lists of workers and workplaces exposed to risks set up by employers) and ensures, jointly with the ITM, the implementation of OSH legislation. The DSAT is also the administration competent to decide on appeals against occupational medical services decisions. The DSAT provides medical expertise in case needed as Luxembourg has no Medical Inspection service.
- Ministry of Labour and Employment: is responsible for drafting and controlling the implementation of labour law and regulations on working conditions and the reduction of stress, mobbing, and harassment at the workplace. The Labour and Mines Inspectorate (ITM) 20, which is under the authority of the Ministry of Labour and Employment, controls the enforcement of OSH legislations in private companies and provides assistance to employers to fulfil their legal duties. The Inspectorate closely cooperates with the DSAT. The ITM is also responsible for answering all questions related to health and safety at work and labour legislation through its helpcentre.
- Ministry of Civil Service: The public sector has a complete and separate OSH system since 2004, managed by the National Service of Occupational Safety of the Public Sector (Service national de la sécurité dans la fonction publique) set up in 1988 and the Department of
17 Governmental Declaration (Programme Gouvernemental), 2013, http://www.gouvernement.lu/3322796/Programme- gouvernemental.pdf. 18 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012 http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/audit-sante-travail-luxembourg- 2012/audit-sante-travail-luxembourg-2012.pdf. 19 http://www.ms.public.lu/fr/direction/divisions-services/sante-travail/. 20 http://itm.lu/home.html.
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Occupational Health of the Public Sector (Division de la Santé au Travail du Secteur public) set up in 2004, which are both under the responsibility of the Ministry of Civil Service.
OSH Services:
- Multi-sector Occupational Health Service (STM) 21: is a public body under the authority of the Ministry of Health. It is the largest occupational health services covering half of the workers in Luxembourg. It is the ‘by default’ occupational health service and therefore is responsible for companies from a large range of sectors. In 2013, the STM covered approximately 41,000 affiliated enterprises with 235,000 employees.
- Other OSH services for private sector companies: Employers have to set up, in accordance with the Repealed 1994 Law which provisions can now be found in the Labour Code22, an occupational health service in their company, an inter-company medical service with other enterprises, or they have to join the Multi-sector Occupational Health Service (STM) created by the law. All company occupational health service are supervised by the Ministry of Health.
Four companies (ArcelorMittal, Dupont de Nemours, Luxembourg’s railway company, and Cactus) have established an in-house medical service.
Three intercompany services cover specific sectors. They are managed by trade unions.
1. Occupational Health Service for the Industry (STI) 23, managed by the Business Federation Luxembourg (FEDIL). In 2013, the STI dealt with approximately 550 affiliated enterprises with 52,000 employees 24. According to the 2012 Health Audit, this service deals with a high number of posts involving high risks 25. This sector accounted in 2012 and 2013 for over 40% of occupational accidents 26. 2. Association for Occupational Health in the Financial Sector (ASTF) 27 managed by the Luxembourg Bankers' Association (ABBL). In 2013, the ASTF covered approximately 500 affiliated enterprises with 45,000 employees 28. According to the 2012 Health Audit, professional risks present in the sector overseen by the ASTF include mostly psychosocal risks and stress29. 3. Intercompany occupational health service of the Association of hospitals in Luxembourg (SIST-FHL), managed by the Luxembourg Hospital Federation (FHL) 30.
OSH service for the public sector: The public sector has a separate occupational health system since 2004, managed by the Department of Occupational Health of the Public Sector (Division de la Santé au Travail du Secteur public) (STSP) 31, under the responsibility of the Ministry of Civil Service. More information on the OSH public sector below under this section.
21 http://www.stm.lu/. 22 Article L.322-1 of the Labour Code. 23 http://www.sti.lu/. 24 STI, Rapport d’activités 2013, available at : http://www.sti.lu/DetailRapport$4891. 25 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.15. 26 ITM, Rapports Annuels, available at : http://itm.lu/home/itm/rapport-annuel.html. 27 http://www.astf.lu/?lang=en. 28 ASTF, Rapport Annuel, available at : http://www.astf.lu/IMG/pdf/2013-3.pdf. 29 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.15. 30 http://www.fhlux.lu/web/. 31 http://www.fonction-publique.public.lu/fr/structure-organisationnelle/admin-services-medicaux/sante-travail/.
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Main stakeholders
- The Chamber of Employees of Luxembourg (CSL) 32, the Chamber of Commerce of Luxembourg (CC) 33 and the Chamber of Professions of Luxembourg (CDM) 34 are professional chambers established by the law. Their first mission is to safeguard and promote the interests of the professional groups they represent. They also provide legislative advice on the drafting, implementing and dispute settlements of OSH related matters. - The Business Federation Luxembourg (FEDIL) 35 is a multisectoral business federation representing the industry, construction and business services sectors. The FEDIL manages the STI. - The Artisans Federation (FdA) 36 is a multisectoral business federation representing handicraftsmanships. The FdA chairs the CDM. - The OGBL 37 and LCGB 38 are the main trade unions representing workers in Luxembourg. The OGBL, as the majority trade union in Luxembourg, chairs the CSL. - The Employers Union of Luxembourg (UEL) 39 represents private employers in Luxembourg (excepting the primary sector of the economy i.e. agriculture, forestry, fisheries and mining). The UEL represents over 24,000 enterprises, and brings together the CC, CDM, FEDIL and FdA as members.
In addition, the Accident Insurance Association (AAA), 40 which was for a long time limited to the strict implementation of the legislation on occupational accidents and diseases, has developed advisory and assistance activities to help companies setting up prevention strategies. These activities are being implemented since the reform of the accident insurance in 2010.
The public sector’s situation 41
- The notion of public sector
The public sector covers the following entities: the Chamber of Deputies, the Council of State, government administration with all the services and agencies that depend on it, courts and tribunals, public establishements, municipalities and associations of municipalities.
The public sector is estimated to account for approximatively 30,000 civil servants 42, including 10,000 in the education sector. It should be noted moreover that this sector accounts for fields that may be excluded from certain provisions of EU Law, including in particular Article 2(2) of the Framework Directive, insofar as it concerns also, for instance, police and armed forces (approximately 2,000 police forces) .
32 http://www.csl.lu/. 33 http://www.cc.lu/. 34 http://www.cdm.lu/. 35 http://www.fedil.lu/. 36 http://www.fda.lu/. 37 http://www.ogbl.lu/. 38 http://lcgb.lu/. 39 http://uel.lu/. 40 http://www.aaa.lu/. 41 This section is based on : Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012. Available at: http://www.sante.public.lu/fr/catalogue-publications/impacts-milieu- vie/sante-travail/audit-sante-travail-luxembourg-2012/index.html; Gateway of the Public Sector, http://www.fonction- publique.public.lu/fr/; Interviews with LU OSH Services. 42 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.18.
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- Legal situation
The public sector relies on a different set of rules than the private sector. Therefore, in this study, analysis of implementation should be taken as referring exclusively to the private sector, unless expressly mentioned.
The development of rules specific to the public sector is linked to the concept of public administration and that of OSH: there is only one employer, the State, which sets out different rules and regulations to which civil servant must all abide. Moreover, administrative entities are required to cooperate with each other in the accomplishment of their respective missions, which means that they can discuss and advise each other, but that they cannot order one another. Therefore, approaches to compliance and enforcement, as well as cooperation, and as a result the practical implementation of OSH in the public sector are distinct to those applying to the private sector.
As mentioned above (see section 1), safety in the public sector was traditionally regulated separately, even before the transposition of the EU Directives. The main legislation is now the OSH Public Sector Law of 1994 and the OSH Public Sector GDRs I and II of 1995. It should be noted that posts involving high risks in the public service are very few, and that safety issues therefore mainly revolve around personal protective equipment. As described above, the National Service of Occupational Safety of the Public Sector, created in 1988 43, cannot for instance force workers to wear their personal protective equipment but in such cases its role is to ensure that the equipment is provided and adequate, and (re)explain the equipment’s importance and proper use if at all relevant. A The responsibility to ensure wear of personal protective equipment falls under the civil servant status that requires workers to ‘do everything to prevent their health’ (‘tout faire pour prévenir la santé’). As a result, the worker’s hierarchy can indicate malpractice by a worker and eventually order the worker to a disciplinary panel where a wide range of sanctions may be ordered. In any case, any criminal proceedings would not be avoided on the basis of the civil servants’ status. No statistics are maintained on enforcement of OSH in the public sector, however one stakeholder indicated that safety issues in the public sector were very few and that implementation of OSH requirements therein was very good. Apart from this generic competence on monitoring of the security of normal operation and the maintenance and control of installations and equipment of the public sector, the National Service of Occupational Safety of the Public Sector also carries out expertise in order to homologate public establishments facilities during their lifetime (implantation, construction, rental, refurbishments …) 44.
The Department of Occupational Health of the Public Sector was created in 2003 by the Law of 19 May 2003 reforming the general status of civil servants (Loi du 19 mai 2003 portant réforme du statut général des fonctionnaires de l’Etat) and it relies heavily on the implementing GDR of 5 March 2004 on health and safety at work, and medical surveillance in the public service (Règlement grand-ducal modifié du 5 mars 2004 concernant la santé et la sécurité du travail et le contrôle médical dans la fonction publique). These instruments are considered as providing for mutatis mutandis the same provisions on health surveillance than the private sector and the Framework Directive (for instance a visit to the occupational doctor is required prior to starting employment and in case of changes to the posts involving risks). However, as described above, this service’s role is not one of control, there is indeed no obligation to control ‘fit for work fiches’ (fiches d’aptitudes) in the administration contrary to the private sector. This service’s role in OSH implementation is therefore one of explanation through different reunions with the different administrative entities, enciting these entities to think about posts involving risks, and prevention in general. Of the 30,000 civil servants, activities have already been implemented with regard to 13,000 posts focusing on posts involving risks. The
43 This service existed before but its competencies were considerably extended by the Loi modifiée du 19 mars 1988 vise à assurer l’intégrité physique de tous les participants aux activités professionnelles et scolaires dans les établissements assujettis et à mettre en œuvre les moyens appropriés pour créer, dans les établissements concernés et à l’occasion des activités, les conditions de sécurité adéquates. 44 For additional information, please refer to http://www.fonction-publique.public.lu/fr/structure- organisationnelle/snsfp/index.html.
Milieu Ltd Country Summary Report for Luxembourg / 22 Brussels remaining 17,000 involve mainly administrative posts (desk tasks). Apart from these figures provided during interviews, no statistics on compliance rates are maintained for the public sector.
In addition to these legislation, the public sector also relies on some provisions of the Labour Code as specifities related to workers are addressed in application of the the public servant status (statut des fonctionnaires). For instance, with regard to pregnant women, the public servant status explicitely refers to the Articles of the Labour Code transposing Council Directive 92/85/EEC.
Finally, it should be noted that there are at least one Safety representative per administrative entity but no Designated workers in the public service.
1.2.3 Coordination
The social dialogue on economic and social issues is organised at national level by three main bodies with regard to the private sector:
- The National tripartite coordination committee, created in 1977 chaired by the Prime Minister, which main role is to build consensus on key issues; - The Economic and Social Committee, providing opinion on all legislations regarding or having an impact on labour; - The Economic Committee (Comité de Conjoncture), which was created in 1975 and is composed of three ministers and representatives from employers and workers, proposes adjustments to companies forced to resort to working time reduction, such as compensatory allowances for companies using partial unemployment.
Little social dialogue is established on health and safety at work issues, at either the national level or inside companies.
- At national level, social dialogue on OSH issues occurs in the High Council of Occupation health and safety45, that brings together representatives of employers (three individuals) and workers (three individuals including two trade unions representatives), representatives from the Ministry of Health (DSAT), three occupational physicians (STM, STI and ArcelorMittal), representatives of the ITM, and the AAA. The Council provides opinion on OSH legislations. The Council was ‘resurrected’ in late 2013 in accordance with the 2013 Governmental Programme 46. It was therefore difficult for stakeholders to assess its real efficiency or need for improvement. - The Coordinating Committee of the workplace national inspection system, set up in 2007 47 reunites the DSAT, ITM, AAA, Customs and the National Service of Occupational Safety of the Public Sector. This Committee meets at least once a month which was indicated as an efficient working schedule 48. Among occupational health services, only the Multi-sector Occupational Health Service (STM) has a tripartite organisation, involving representatives of trade unions in the Management Committee. Other company occupational health services are managed entirely by employers’ organisations. However, one stakeholder indicated that employers were the ones determining and paying for the STM’s
45 This institution is regulated under Articles L.324-1 and L.324-2 of the Labour Code. 46 Governmental Declaration (Programme Gouvernemental), 2013, http://www.gouvernement.lu/3322796/Programme- gouvernemental.pdf. 47 Loi du 21 décembre 2007 portant réforme de l’Inspection du travail et des mines, modification tu Titre Premier du Livre VI du Code du Travail, modification de l’article L.142-3 du Code du Travail, Article L.613-2 Labour Code, and on the ITM website : http://www.itm.lu/home/itm/relation-avec-dautres-organismes.html. 48 Interview with the Labour Inspectorates.
Milieu Ltd Country Summary Report for Luxembourg / 23 Brussels working fees (cotisations) and therefore holding substantial powers over this organisation in terms of management and capacity 49. This is in line with the findings of the 2012 Health Audit which indicates that the level of subventions in Luxembourg for the different OSH Services do not offer sustainability to the system 50. This element may also result in occupational medicine being considered as employers’ services rather than a neutral and independent medical activity 51. In companies employing more than 150 workers, health and safety is discussed in a Joint Committee (Comité Mixte) gathering representatives of management and employees. Health and safety seems however rather marginal in the discussions 52. In medium and small companies, health and safety is discussed with the occupational safety representatives or the Designated worker nominated by the employer (NB. in companies with 49 employees and less, the employer may fulfil the taks of designated worker him/herself under certain conditions). Health and safety in yet recognised as a secondary topic in companies’ joint committees. There are no obligations to set up a tripartite structure in companies dedicated to health and safety, comparable to the CHSCT in France or the CPPT in Belgium.
No other coordination mechanisms in Luxembourg were identified for this study or referred to by the stakeholders interviewed. However, it should be pointed out that in Luxembourg, as a small Member State, a large number of communication and coordination between stakeholders takes place informallyas clearly indicated in the 2012 Health Audit and confirmed during interviews 53.
Finally, one stakeholder referred to continuous exchange of information, participation in conferences, etc. with other countries such as Germany and in particular the different Länders neighbouring Luxembourg, as well as with Austria with regard to specific problematics, for instance psychosocial risks54.
In the public sector, there is no technical committee set up to organise coordination and social dialogue on OSH issues.
1.3 LEGAL COVERAGE, OBSERVED DISCREPANCIES AND MORE STRINGENT MEASURES
1.3.1 Observed discrepancies, more stringent and more detailed measures
The following tables describe observed discrepancies between the Directive’s requirements and the transposing legislation and cases where the national legislation provides for more stringent, broader or more detailed measures than the Directive’s ones. There is one table per directive.
Observed discrepancies between the Directive’s requirements and the transposing legislation cover instances where the text of the national transposing legislation is different from the transposed Directive’s provisions. This difference could lead to the non-application or partial application of the relevant CPM due to contradiction between the national provision and the corresponding one in the Directive. They are considered for each CPM, scoping requirements and limit values when relevant (tables 1-2 to 1-25).
49 Interview with Representatives of employees. 50 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.27. 51 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.32. 52 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012 http://www.sante.public.lu/fr/catalogue-publications/impacts-milieu-vie/sante-travail/audit-sante-travail- luxembourg-2012/index.html. 53 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.13. 54 Interviews with Representatives of employees.
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More stringent provisions set requirements which go beyond the requirements of the Directive e.g. more severe limit values. This review covers systematically the scope and relevant definitions as well as provisions setting limit values.
The identification of more specific requirements is different from more stringent measures, as it relates to the extent to which national law includes more detailed mechanisms for the implementation of the CPMs. In such cases, the main requirements of the Directive are fully and effectively transposed and the Member States have set up more detailed rules on e.g. procedures, responsibilities, etc.
In general, Luxembourg has transposed OSH-related EU Directives in a literal way with relatively few cases where the Luxembourg legislation sets more stringent or broader requirements. With regard to the scope of the legislation transposing Directive 89/391/EEC (Framework Directive), Luxembourg includes domestic servants. Additional requirements are set mainly in relation to organisational arrangements e.g. on the competencies of ‘designated workers’ or ‘safety representatives’, as well as health surveillance, where an internal service of occupational health is only compulsory for companies employing more than 5000 employees as well as those with than 3000 employees with at least 100 occupying a position with risks. Other smaller companies may use one of the four inter-enterprises services or join the Multi-sector Occupational Health Service (STM) or create their own internal service. The Luxembourg legislation also contains more detailed provisions on health surveillance, e.g. frequency of medical examinations.
More specifically, in relation to Directives 2002/44/EC (Vibration), 2003/10/EC (Noise), 2006/25/EC (artificial optical radiation), the national legislation sets more detailed requirements on risk assessment and health surveillance. With regard to the Noise Directive, the Luxembourg legislation has set a transitional period not foreseen by the Directive. The provisions of Article 7 of the Noise GDR on reduction of exposure were declared as not applicable to any workers until end of 2006. The legislation transposing the Artificial Optical Radiation Directive also covers natural optical radiation.
For both Directives 2004/37/EC (carcinogens and mutagens) and 98/24/EC (Chemical Agents), similar additional requirements in relation to health surveillance are set. The legislation transposing Directive 2004/37/EC also sets more stringent value for hardwood dust. In relation to Directive 98/24/EC, the Luxembourg legislation establishes additional limit values for nicotine and lead. The legislation transposing Directive 2009/148/EC (asbestos) sets more detailed requirements on training in terms of frequency in particular.
With regard to Directive 92/57/EEC (temporary or mobile construction sites), Luxembourg legislation sets further detailed requirements on coordinators for sites where at least two companies are operating. Few more stringent requirements have been established in the transposition of Directive 92/85/EEC (pregnant/breastfeeding workers) e.g. prohibition for dismissal extends to 12 weeks after birth or setting of additional safeguards on working times such as the inability for the employer to require overtime hours, and daily breaks for breastfeeding that count as working hours.
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Table 1- 2 Directive 89/391/EEC (Framework Directive) – Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Art.1 No observed discrepancies identified • Are specific public service activities (such 1. All sectors of activity, both public and as armed forces or police) included in private (industrial, agricultural, commercial, the scope of the legislation which are not administrative, service, educational, cultural, leisure, etc.). in the Directive? 2. Not be applicable where characteristics Y. Although Article L.312-1 of the Labour peculiar to certain specific public service Code is wide encompassing and does not activities, such as the armed forces or the expressly exclude any sector, the references police, or to certain specific activities in the to employee and employer are understood civil protection services inevitably conflict as excluding public service activities which with it. are regulated under a different set of rules as Art.3 explained in section 1.2.2.. To note that Apply to any person employed by an Article L.321-1(3) of the Labour Code employer, including trainees and expressly excludes the public service of the apprentices but excluding domestic requirement for employers to set up health surveillance, as the public sector has set up a Scope and servants; separate OSH Service in 2004 as described in definitions (Art.1 Employer: any natural or legal person who section 1.2.2 55. and 3) has an employment relationship with the worker and has responsibility for the To note however that the status of civil undertaking and/ or establishment; servants may refer to some provisions of the Labour Code. • Does the legislation include domestic servants in its scope? Y. The legislation does not expressly exclude domestic servants in its scope and defines employer in a correct manner through the interplay of several provisions (Article L.311-2 of the Labour Code refers to the definition contained in Article L.121-1 of the Labour Code which itself refers to an Article 1779(1°) of the Civil Code). Is the definition of employer broader than the Directive’s?
55 Interview with OSH Services.
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Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent N. Literal transposition • Other additional or more detailed requirements N.
Art.6 No observed discrepancies identified. Are the risks to be taken into account The employer must, taking into account the in the assessment described in a nature of the activities of the enterprise more specific manner than in the and/ or establishment evaluate the risks to Directive? the safety and health of workers, inter alia N. Literal transposition in the choice of work equipment, the chemical substances or preparations used, Is a more specific methodology for and the fitting-out of work places. risk assessment provided in the Art.9 legislation? The employer shall be in possession of an N. Literal transposition assessment of the risks to safety and health Are the sources of information and at work, including those facing groups of persons in charge of the risk workers exposed to particular risks. assessment described in the legislation in a more specific manner than in the Directive? Conducting a N. Literal transposition risk assessment Art. 6(3), 9(1)(a) Other additional or more detailed requirements Article L.312-2(4) (transposition of Article 6(3) of the Framework Directive) includes obligations relating to information and training of workers that transpose literally those of Articles 3(2) and 4 of Directive 91/383/EC on conducting risk assessments. The employer is also required to ‘take all measures to ensure and improve the protection of physical and mental health of employees, including providing conditions sufficient ergonomic workstations, avoiding as far as possible repetitive work, organising work appropriately and taking the necessary measures to ensure that employees are
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Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent effectively protected against fumes resulting from tobacco consumption of others’ (Article L.312-2(3) Labour Code).
Under Article L.312-5(2) of the Labour Code, a GDR may be adopted to detail the obligations contained in transposition of Article 9(3) on risk assessment of the Framework Directive (Article L.312-5(1) of the Labour Code). However, no such GDR was ever adopted 56. The employer shall designate one or more No observed discrepancies identified. Does the legislation define in more workers to carry out activities related to the specific terms who shall be designated? protection and prevention of occupational N. risks for the undertaking and/ or establishment. Are the conditions for resorting to external Designated workers may not be placed at services more specifically defined in the any disadvantage because of their legislation? activities related to the protection and N. prevention of occupational risks and shall Are the competences required from be allowed adequate time to enable them workers or external services defined in the Ensuring to fulfil their obligations. legislation? preventive and If such protective and preventive measures protective cannot be organized for lack of competent Y. The Designated workers GDR defines what services Art.7(1) personnel in the undertaking and/ or competences are required from workers in establishment, the employer shall enlist order to be designated (there are 9 such competent external services or persons. competences including defining a strategy He shall inform them of the factors known to for the company, undertaking regular visits, affect, or suspected of affecting, the safety maintaining registries, communicating with and health of the workers. the ITM, etc.). The GDR also deals with the In all cases (internal/external services), they specific courses included in the training of must have the necessary capabilities/ workers, and defines work experiences aptitudes and means and must be required in order to be designated. The sufficient in number to deal with the Designated workers GDR establishes categories by types of companies to this
56 Interview with OSH Services.
Milieu Ltd Country Summary Report for Luxembourg / 28 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent organization of protective and preventive effect. measures. MS must define the necessary Are criteria to define the resources capabilities and aptitudes and determine (number of persons designated) provided the sufficient number. in the legislation? The protection from, and prevention of, the Y. The Designated workers GDR classifies health and safety risks shall be the companies, defining where the employer responsibility of one or more workers, of one him/herself may assume the responsibility (i.e. service or of separate services whether from under Article 3 of the Designated workers inside or outside the undertaking and/ or GDR it is in companies with 49 employees or establishment. The worker(s) and/ or less), what constitutes the minimum number agency(ies) must work together whenever of Designated workers and the number of necessary. time allocated to designated workers in order MS may define, in the light of the nature of for them to fulfil their responsibilities. the activities and size of the undertakings, Other additional or more detailed the categories of undertakings in which the requirements employer, provided he is competent, may himself take responsibility. N. The employer shall ensure that workers No observed discrepancies identified. Does the legislation provide for specific receive all the necessary information conditions (e.g. size of the establishments) concerning the safety and health risks and in relation to workers information? protective and preventive measures and N. The legislation only provides for the activities in respect of the establishment applicability of the provisions without and each type of workstation. prejudice to other provisions of the Labour The employer shall take appropriate Code on employee representation. measures so that employers of workers from any outside undertakings and/ or Is the content or form of information to Information for establishments engaged in work in his workers further specified? workers Art.10 undertaking and/ or establishment receive N. Literal transposition. Labour Code similar information requirements are however applicable. The employer shall take appropriate Are there more detailed requirements measures so that workers with specific relating specifically to one of the functions in protecting the safety and individual directives? health of workers, or workers' N. Literal transposition. representatives with specific responsibility Other additional or more detailed for the safety and health of workers shall requirements have access to the risk assessment and N. protective measures, to the list of and
Milieu Ltd Country Summary Report for Luxembourg / 29 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent reports on occupational accidents and the information yielded by protective and preventive measures, inspection agencies and bodies responsible for safety and health. The employer shall ensure that each worker No observed discrepancies identified. Is more specific information on the scope receives adequate safety and health of training provided in the legislation? training during working hours, in particular in Y. In addition to that regarding Designated the form of information and instructions workers (see CPM ‘Ensuring preventive and specific to his workstation or job and protective services’), another GDR sets out adapted to any changes in technology or the modalities to follow to define the risks and repeated periodically if necessary. minimum training required to be a ‘Safety The employer shall ensure that workers from representative. Every security delegate must outside undertakings and/ or establishments follow a basic and a specific course. Basic engaged in work in his undertaking and/ or courses must not be longer than 8 hours. establishment have in fact received After five years, a one day refresher course appropriate instructions regarding health can (order) / must (labour code) be and safety risks. followed. A certificate is delivered to courses Workers' representatives with a specific role participants. in protecting the safety and health of Are there specific requirements as to the Training of workers shall be entitled to appropriate competence of trainers provided in the workers Art.12 training during working hours or in accordance with national practice either legislation? within or outside the undertaking and/ or N. the establishment. Are there more detailed requirements relating specifically to one of the individual directives? Y. Workers in risk groups must receive appropriate instructions and are subject to periodic refreshment training. Other additional or more detailed requirements Y.. Designated workers are also subject to periodic refreshment training (extended transposition of Art. 12(3), also see above under the CPM ‘Ensuring preventive and protective services’). This is both expressed as
Milieu Ltd Country Summary Report for Luxembourg / 30 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent a right in Article L.312-8(3) and a duty in Article L.312-8(4) of the Labour Code. The employer shall ensure that workers No observed discrepancies identified. Are there more detailed requirements receive health surveillance appropriate to relating specifically to one of the the health and safety risks they incur at To note that the part of the Labour Code on individual directives? work. health surveillance is not applicable to civil Y. This title of the Labour Code also provides These measures shall be such that each servants which have their own separate OSH for its alternative definition of ‘employee’, worker, if he so wishes, may receive health system (see section 1.2.2). adding different categories of unemployed surveillance at regular intervals. (for instance those following a training in the Health surveillance may be provided as scope of their job search), it also includes a part of a national health system. variety of young workers under different forms of stages and contracts, and young persons looking for work. An internal service of occupational health is only compulsory for companies employing more than 5000 employees as well as those with more than 3000 employees with at least Health 100 occupying a position with risks. Smaller surveillance companies may either use one of the four Art.14 inter-enterprises services (STM, STI, ASTF and SIST-FHL) or join the Multi-sector Occupational Health Service (STM). They may also create their own internal service, in which case this creation is subject to prior authorisation by the Ministry of Health. This authorisation may be withdrawn if the service does not comply with legal and regulatory requirements. At least one occupational doctor full time is required for any service. An occupational doctor cannot take in charge more than 5000 employees, but derogations may be granted by the Ministry of Health. The title includes a chapter containing 4 articles on training and functions of occupational doctors. Among other things, occupational doctors need to be licensed in
Milieu Ltd Country Summary Report for Luxembourg / 31 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent medicine, and they are to be independent from employers and employees, including his/her own employer. Occupational doctors may also not check whether a sick-leave is well-founded. Occupational doctors are to be allowed access to any work locations and installations, as well as to information on process, working norms, products, material and substances used or likely to be used. S/he must be consulted on any changes to process and working conditions likely to affect health or security of workers. Occupational doctors are required to draft an annual report at the beginning of each year for each of the enterprises under its responsibility/care. A template has been drawn by the Ministry of health to that use. Enterprises with less than 150 employees are only concerned by this requirement every three years. Any employee is subject to a health consultation/examination within two months of taking his/her post. Employees that will occupy positions with risks must abide with this requirement prior to taking the post. Positions with risk is defined in Article L.326-4, and each employer must establish a list or register of such positions together with the occupational doctor. The register and any updates to it are transmitted to the Ministry of Health. Additional requirements on compulsory, complementary and unsolicited medical examinations are also provided in the legislation, as well as the procedure to inform both employers and employees of individual
Milieu Ltd Country Summary Report for Luxembourg / 32 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent situations preventing occupation of a position. Medical occupational examinations is counted as working time. Other additional or more detailed requirements With regard to the conservation of records within the company, Article 7 of the GDR of 2 April 1996 on personnel, premises and equipment of health services at work requires these records to be kept either in a room accessible only to authorised persons of the health service at work, or centralised in a room of health service at work. Moreover, these records are submitted to the relevant doctor of the DSAT upon request. Finally, the worker, at his request, can access to his/her personal medical records.
It should be noted that OSH Services stakeholders consistently indicated that the notion of health surveillance was more detailed in the transposing legislation than in the Directive57.
The Labour Code provisions on health surveillance are not applicable to plane pilots as the Directorate of Civil Aviation has set up its own service for aviation medicine under the supervision of the DSAT. The DSAT therefore provides for the organisation and operation of aviation medicine in Luxembourg and examinations are performed by licensed doctors in aeronautics
57 Interview with OSH Services.
Milieu Ltd Country Summary Report for Luxembourg / 33 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent based on a separate legislation (5 for professional pilots (Class 1) and private pilot (Class 2), and 3 for air traffic controllers (Class 3)) 58. Employers shall consult workers and/ or their No observed discrepancies identified. Is balanced59 participation reflected in representatives and allow them to take part the national legislation? Are specific in discussions on all questions relating to criteria put in place? safety and health at work. Y & N. Literal transposition of Article 11 of the Workers' representatives with specific Directive. responsibility for the safety and health of workers shall have the right to ask the Are there more detailed requirements employer to take appropriate measures relating specifically to one of the and to submit proposals to him to that end individual directives? to mitigate hazards for workers and/ or to N. remove sources of danger. Other additional or more detailed They shall have adequate time off work, Consultation of requirements without loss of pay, and the necessary workers Art.11, N. means to enable them to exercise their 6(3)(c) rights and functions. Workers and/ or their representatives are entitled to appeal to the authority responsible for safety and health protection at work if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health at work. Workers' representatives must be given the opportunity to submit their observations during inspection visits by the competent authority. Limit values N/A N/A N/A Eg. List and reports regarding occupational No observed discrepancies identified. N. Other issues accidents, emergency measures, adequate identified controls and supervision, other protective
58 More information on the Ministry of Health website: http://www.sante.public.lu/fr/impacts-milieu-vie/sante-travail/092-controle-medicale-aviation-civile/index.html. 59 This covers balanced representation of groups or workers e.g. workers exposed to particular health or safety risks.
Milieu Ltd Country Summary Report for Luxembourg / 34 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent and precentive measures.
Articles 5(1), 6(4), 8, 9(1)(c)&(d) and 11(4) are transposed largely in a literal manner.
Table 1- 3 Council Directive 89/654/EEC (workplace) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive applies to workplaces, but No observed discrepancies identified. • Does the transposing legislation cover any excludes from its scope of application (a) of the elements that the Directive means of transport used outside the expressly excludes60? undertaking and/or the establishment, or N. Literal transposition of exclusion. workplaces inside means of transport, (b) Art 1(3) not transposed: not a problem as temporary or mobile construction sites, (c) Framework Directive transposed by Code extracting industries, (d) fishing boats, and and the transposition of this Directive is a Scope and (e) fields, woods and other land forming regulation (i.e. Code applies, unless more definitions part of an agricultural or forestry specific provisions provided by the Art. 1 and Art. 2 undertaking but situated away from the Regulation) undertaking's buildings. • Is the definition of ‘workplace’ in national ‘Workplace’ means the place intended to law broader than the required by the house workstations on the premises of the Directive? undertaking and/or establishment and any N. Literal transposition. other place within the area of the • Other additional or more detailed undertaking and/or establishment to which requirements the worker has access in the course of his N. employment. Conducting a N/A N/A N/A risk assessment Ensuring N/A N/A N/A preventive and protective services Information for Workers and/ or their representatives shall No observed discrepancies identified. Does the legislation provide for specific workers be informed of all measures to be taken conditions (e.g. size of the establishments)
60 Please note that points (b), (c) and (d) are regulated by specific legislation.
Milieu Ltd Country Summary Report for Luxembourg / 35 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Art. 7 concerning safety and health at the in relation to workers information? workplace N. Framework Directive applies. Is the content or form of information to workers further specified? N. • Other additional or more detailed requirements N. To note that Labour Code (i.e. Framework Directive) requirements applies. Training of N/A N/A N/A workers Health N/A N/A N/A surveillance Framework Directive applies. No observed discrepancies identified. • Are there more detailed requirements than in the Framework Directive? N. Consultation of • Other additional or more detailed workers requirements Art. 8 N. To note that Labour Code (i.e. Framework Directive) requirements applies. Limit values N/A N/A N/A The following Articles have been No observed discrepancies identified. N. transposed in a literal manner: 3, 4, 5 and Others Annexes I & II (minimum safety and health requirements)
Table 1- 4 Directive 2009/104/EC (work equipment) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Scope and The Directive relates to the use of work No observed discrepancies identified. • Any additional or more detailed definitions equipment by workers at work where work requirements Art. 1 and Art. equipment is defined as any machine, N. Art 1(2) is not transposed: this is not a 2(a) apparatus, tool or installation used at work. problem as the Framework Directive is transposed by the Code and the
Milieu Ltd Country Summary Report for Luxembourg / 36 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent transposition of this Directive is a regulation . Hence the Code applies, unless more specific provisions are provided by the Regulation. The employer must take measures to ensure No observed discrepancies identified. Are the risks to be taken into account in that the work equipment made available the assessment described in a more to workers is suitable for the work to be specific manner than in the Directive? carried out or properly adapted for that N. Literal transposition. purpose and may be used by workers Is the content of the risk assessment more without impairment to their safety or health. detailed than described in the Directive? In selecting the work equipment which he N. Literal transposition. proposes to use, the employer must pay Is a more specific methodology for risk Conducting a attention to the specific working conditions assessment provided in the legislation? risk assessment and characteristics and to the hazards N. Literal transposition. Art. 3 # which exist in the undertaking or Are the sources of information and persons establishment, in particular at the in charge of the risk assessment described workplace, for the safety and health of the in the legislation in a more specific manner workers, and any additional hazards posed than in the Directive? by the use of the work equipment in N. Literal transposition. question. • Other additional or more detailed requirements N. N/A N/A N/A Ensuring preventive and protective services Art. 5 +
Framework Directive applies. No observed discrepancies identified. Does the legislation provide for specific Where appropriate, written instructions conditions (e.g. size of the establishments) should be made avaialble to workers on in relation to workers information? Information for the work equipment used at work, including N. Literal transposition. workers information on (a) the conditions of use of • Other additional or more detailed Art. 8 work equipment; (b) foreseeable abnormal requirements
situations; and (c) the conclusions to be N. drawn from experience, where appropriate, in using work equipment.
Milieu Ltd Country Summary Report for Luxembourg / 37 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Framework Directive applies. No observed discrepancies identified. Is more specific information on the scope Workers given the task of using work of training provided in the legislation? equipment receive adequate training, N. Literal transposition. including training on any risks which such Are there specific requirements as to the Training of use may entail. competence of trainers provided in the workers Workers specifically designated to carry out legislation? Art. 9 repairs, modifications, maintenance or N. Literal transposition. servicing receive adequate specific • Other additional or more detailed training. requirements N. Health N/A N/A N/A surveillance Framework Directive applies. No observed discrepancies identified. Is balanced61 participation reflected in the national legislation? Are specific criteria put in place? Y to the first question: Article L.312-7 explicitly Consultation of refers to the ‘balanced participation’ of workers employees provided by rules on employees Art. 10 representation pursuant to the Labour Code. N to the second question. • Other additional or more detailed requirements N. Limit values N/A N/A N/A The following Articles have been transposed No observed discrepancies identified. The transposition of Article 4(3) of the in a literal manner: 3(1) (general obligation) Directive, by Article 4(3) of the WE GDR (NB. &(2) (minimising risks), 4 (minimum this provision was added in 1997) provides for Other issues requirements) 4(2) (maintenance), 6 the establishment through a specific GDR of identified (restriction of use), and 7 (ergonomics). the procedures required to attain the level of security corresponding to the objectives of Annex II . However, no such GDR has been identified. *Where appropriate, the existence of the earlier version (89/655/EEC) will be taken into account. # Employers are required to assess possible risks in selecting work equipment.
61 This covers balanced representation of groups or workers e.g. workers exposed to particular health or safety risks.
Milieu Ltd Country Summary Report for Luxembourg / 38 Brussels
+ Inspection (and testing) by competent persons.
Table 1- 5 Council Directive 89/656/EEC (PPE) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive applies to personal protective No observed discrepancies identified. • Does the transposing legislation cover PPE equipment (PPE) used by workers at work. used by emergency and rescue services? PPE as defined excludes (a) ordinary working N. clothes and uniforms not specifically • Does the transposing legislation cover any designed to protect the safety and health of of the other exclusions in the Directive? the worker; (b) equipment used by Y. All of them – literal transposition of the emergency and rescue services; (c) personal exclusions. protective equipment worn or used by the • Other additional or more detailed Scope and military, the police and other public order requirements definitions agencies; (d) personal protective equipment Y. GDR of 10 August 1992 details the Art. 1 and 2 for means of road transport; (e) sports modalities for ‘placing on the market, free equipment; (f) self-defence or deterrent movement within the Community and the equipment; (g) portable devices for essential safety requirements which PPE must detecting and signalling risks and nuisances. satisfy in order to protect the health and ensure the safety of users’. In this perspective, it expands the notion of PPE including e.g. the different components whether fixed or separable of protective devices. Exclusions are provided by types of PPE in the GDR’s Annex. Before choosing personal protective No observed discrepancies identified. • Any additional or more detailed equipment, the employer is required to requirements assess whether the personal protective Y. Literal transposition of the Directive’s equipment he intends to use satisfies requirements in GDR of 4 November 1994. certain requirements. To note that GDR of 10 August 1992 provides Conducting a This assessment shall involve (a) an analysis that the Labour and Mines Inspectorate risk assessment and assessment of risks which cannot be (thereafter ‘ITM’) must ensure that PPE that Art. 5* avoided by other means; (b) the definition do not comply safety requirements (Annex II of the characteristics which personal to the GDR) are not placed on the market. protective equipment must have in order This includes certification procedures, control to be effective against such risks, taking of PPE fabricated (‘CE’ quality standard) into account any risks which this equipment itself may create; (c) comparison of those
Milieu Ltd Country Summary Report for Luxembourg / 39 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent characteristics with the characteristics of the personal protective equipment available. The assessment shall be reviewed if any changes are made to any of its elements Ensuring N/A N/A N/A preventive and protective services Framework Directive applies No observed discrepancies identified. • Are there more detailed requirements Workers and/or their representatives shall than in the Framework Directive? Are Information for be informed of all measures to be taken there other additional or more detailed workers with regard to the health and safety of requirements Art. 7 workers when personal protective N. equipment is used by workers at work. The employer shall arrange for training and No observed discrepancies identified. Is more specific information on the scope shall, if appropriate, organize of training on PPE provided in the demonstrations in the wearing of personal legislation? protective equipment. N. Training of Personal protective equipment […] must be Are there detailed requirements on workers used in accordance with instructions. Such demonstrations to be organized in the Art. 4(8) and 4(9) instructions must be understandable to the wearing of PPE? workers. N. • Other additional or more detailed requirements N. Health N/A N/A N/A surveillance #
Framework Directive applies No observed discrepancies identified. • Are there more detailed requirements Consultation of than in the Framework Directive? Are workers there other additional or more detailed Art. 8 requirements N. Limit values N/A N/A N/A Other issues The following Articles have been transposed No observed discrepancies identified. Article 6 (rules for use) has been transposed identified in a literal manner: 4(1)(general provisions) in an almost literal manner, referring to an
Milieu Ltd Country Summary Report for Luxembourg / 40 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent and 5 (assessment of PPE). Annex IV on indications for the assessment of PPE (this Annex is not part of the Directive). It also refers to the GDR of 10 August 1992. * The Directive makes no provision for a risk assessment. The need for the use of PPE is presumably identified in addressing the findings of other risk assessments, relating to the hazard which the PPE is intended to protect against. There is however provision for an assessment of the PPE itself (Article 5) but this is not specifically a risk assessment. # Health surveillance is covered by the provisions of those directives covering the risks from which a specific item of PPE is intended to provide protection.
Table 1- 6 Council Directive 92/58/EEC (OSH signs) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive applies to safety and/or No observed discrepancies identified. • Any additional or more detailed health signs and excludes from its scope of requirements Scope and application signs for placing on the market N. Literal transposition. definitions of dangerous substances and preparations, Art. 1 and 2 products and/or equipment and signs used
for regulating road, rail, inland waterway, sea or air transport. Conducting a N/A N/A N/A risk assessment Ensuring N/A N/A N/A preventive and protective services Framework Directive applies. No observed discrepancies identified. • Are there more detailed requirements Workers and/or their representatives shall than in the Framework Directive? Information for be informed of all the measures to be taken N. Literal transposition. workers concerning the safety and/or health signs • Other additional or more detailed Art. 7 used at work. requirements N. Framework Directive applies. No observed discrepancies identified. • Are there more detailed requirements Workers must be given specific directions than in the Framework Directive? Training of concerning the safety and/or health signs N. Literal transposition. workers used at work, in particular the meaning of • Other additional or more detailed Art. 7(2) the signs, especially signs incorporating requirements words, and the general and specific N. behaviour to be adopted.
Milieu Ltd Country Summary Report for Luxembourg / 41 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Health N/A N/A N/A surveillance Framework Directive applies. No observed discrepancies identified. • Are there more detailed requirements than in the Framework Directive? Consultation of N. Literal transposition. workers • Other additional or more detailed Art. 8 requirements N. Limit values N/A N/A N/A The following Articles have been No observed discrepancies identified. N. Other issues transposed in a literal manner: 3(1), 4, 5 identified (minimum requirements for OHS signs)
Table 1- 7 Directive 1999/92/EC (ATEX) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive applies to the protection of No observed discrepancies have been Does the transposing legislation include62 : workers potentially at risk from explosive identified. areas used directly for and during the atmospheres as defined in Art. 2. It excludes medical treatment of patients? from its scope of application: (a) the areas However, references are provided to Articles N. Literal transposition of the exclusion. used directly for and during the medical of the Repealed 1994 Law rather than to the the manufacture, handling, use, treatment of patients; (b) the use of relevant provisions of the Labour Code. storage and transport of explosives or appliances burning gaseous fuels; (c) the chemically unstable substances? Scope and manufacture, handling, use, storage and N. Literal transposition of the exclusion. definitions transport of explosives or chemically • Other additional or more detailed Art. 1 and 2 unstable substances; (d) mineral extracting requirements industries; and (e) the use of transport N. subject to international agreements as specified. The Directive applies to the risk from explosive atmospheres, i.e. from mixtures with air, under atmospheric conditions, of flammable substances in the form of gases, vapours, mists or dusts in which, after
62 Please note that points (b), (d) and (e) are regulated by specific legislation.
Milieu Ltd Country Summary Report for Luxembourg / 42 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent ignition has occurred, combustion spreads to the entire unburned mixture. The employer shall assess the specific risks No observed discrepancies have been Is the risk assessment reviewed regularly arising from explosive atmospheres, taking identified. and in any event when any changes occur account at least of: in the conditions of the type of work — the likelihood that explosive atmospheres However, references are provided to Articles involved? will occur and their persistence, of the Repealed 1994 Law rather than to the N. Such explicit requirement is only required — the likelihood that ignition sources, relevant provisions of the Labour Code. for the explosion protection document of including electrostatic discharges, will be Article 8 of the Directive. present and become active and effective, Are the risks to be taken into account in the — the installations, substances used, assessment described in a more specific processes, and their possible interactions, manner than in the Directive? — the scale of the anticipated effects. N. Literal transposition. Conducting a Is the content of the risk assessment more risk assessment Explosion risks shall be assessed overall. detailed than described in the Directive? Art. 4(1) N. Is a more specific methodology for risk assessment provided in the legislation? N. Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. • Other additional or more detailed requirements N. Ensuring N/A N/A N/A preventive and protective services Information for N/A N/A N/A workers The employer must provide those working in No observed discrepancies identified. Is more specific information on the scope of Training of places where explosive atmospheres may training provided in the legislation? workers occur with sufficient and appropriate N. Literal transposition. Annex II, 1.1 training with regard to explosion protection. • Other additional or more detailed
Milieu Ltd Country Summary Report for Luxembourg / 43 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent requirements N. Health N/A N/A N/A surveillance Consultation of N/A N/A N/A workers Limit values N/A N/A N/A The following Articles have been transposed No observed discrepancies identified. N. in a literal manner: 3, 5, 7, and Annex II Other issues (prevention & protection against explosion), identified 6 (coordination), 8 (explosion protection document), and Annex II.1.2 (written instructions and permits to work).
Table 1- 8 Council Directive 90/269/EEC (manual handling of loads) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive relates to the manual No observed discrepancies identified. N. Literal transposition. handling of loads where there is a risk particularly of back injury to workers where manual handling is defined as any Scope and transporting or supporting of a load, by one definitions or more workers, including lifting, putting Art. 1 and 2 down, pushing, pulling, carrying or moving
of a load which, by reason of its characteristics or of unfavourable ergonomic conditions, involves a risk particularly of back injury to workers. Wherever the need for manual handling of No observed discrepancies identified. • Is the risk assessment reviewed regularly loads by workers cannot be avoided, the and in any event when any changes employer shall organize workstations in such occur in the conditions of the type of work Conducting a a way as to make such handling as safe involved? risk assessment and healthy as possible and: assess, in Y/N. Literal transposition ‘wherever’ (‘dans Art. 4(a) advance if possible, the health and safety tous les cas’) conditions of the type of work involved, and Are the risks to be taken into account in in particular examine the characteristics of the assessment described in a more
Milieu Ltd Country Summary Report for Luxembourg / 44 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent loads, taking account the reference factors specific manner than in the Directive, in provided for in Annex I to the Directive. particular are the reference factors provided in Annex I of the Directive further detailed? N. Is the content of the risk assessment more detailed than described in the Directive? N. Is a more specific methodology for risk assessment provided in the legislation? N. • Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. • Other additional or more detailed requirements N. Ensuring N/A N/A N/A preventive and protective services Framework Directive applies No observed discrepancies identified. Does the legislation provide for specific Workers and/or their representatives shall conditions (e.g. size of the establishments) be informed of all measures to be in relation to workers information? implemented, pursuant to this Directive, N. with regard to the protection of safety and Is the content or form of information to Information for of health. workers further specified? workers Employers must ensure that workers and/or N. Art. 6 their representatives receive general • Other additional or more detailed indications and, where possible, precise requirements information on: N. — the weight of a load, — the centre of gravity of the heaviest side when a package is eccentrically loaded. Training of Framework Directive applies No observed discrepancies identified. Is more specific information on the scope
Milieu Ltd Country Summary Report for Luxembourg / 45 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent workers Employers must ensure that workers receive of training provided in the legislation, in Art. 6 in addition proper training and information It should be noted that a reference is particular in relation to the reference and on how to handle loads correctly and the provided to an Article of the Repealed 1994 risk factors? risks they might be open to particularly if Law rather than to the relevant provisions of N. these tasks are not performed correctly, the Labour Code. • Other additional or more detailed having regard to the reference factors requirements provided for in Annex I to the Directive and N. the risk factors listed in Annex II to the Directive. Health N/A N/A N/A surveillance Framework Directive applies No observed discrepancies identified. Are there more detailed requirements than in the Framework Directive? Consultation of N. workers • Other additional or more detailed Art. 7 requirements N. Limit values N/A N/A N/A The following Articles have been transposed No observed discrepancies identified. N. Other issues in a literal manner: 3 (avoidance of manual identified handling and measures to reduce exposure), and 4 (organisation of workstation). Reference Factors: The manual handling of a load may present a risk particularly of back injury if it is too heavy or too large; unwieldy or difficult to grasp; unstable or has contents likely to shift; positioned in a manner requiring it to be held or manipulated at a distance from the trunk, or with a bending or twisting of the trunk; likely, because of its contours and/or consistency, to result in injury to workers, particularly in the event of a collision. Y. Literal transposition A physical effort may present a risk particularly of back injury if it is too strenuous; only achieved by a twisting movement of the trunk; likely to Annex I result in a sudden movement of the load; made with the body in an unstable posture. Y. Literal transposition The characteristics of the work environment may increase a risk particularly of back injury if there is not enough room, in particular vertically, to carry out the activity; the floor is uneven, thus presenting tripping hazards, or is slippery in relation to the worker's footwear; the place of work or the working environment prevents the handling of loads at a safe height or with good posture by the worker; there are variations in the level of the floor or the working surface, requiring the load to be manipulated on different levels; the floor or foot rest is unstable; the temperature, humidity or ventilation is unsuitable. Y. Literal transposition
Milieu Ltd Country Summary Report for Luxembourg / 46 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The activity may present a risk particularly of back injury if it entails over-frequent or over-prolonged physical effort involving in particular the spine; an insufficient bodily rest or recovery period; excessive lifting, lowering or carrying distances; a rate of work imposed by a process which cannot be altered by the worker. Y. Literal transposition Individual Risk Factors The worker may be at risk if he/she is physically unsuited to carry out the task in question; is wearing unsuitable clothing, footwear or other Annex II personal effects; does not have adequate or appropriate knowledge or training. Y. Literal transposition
Table 1- 9 Council Directive 90/270/EEC (display screen equipment) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive relates to work with display No observed discrepancies identified. • Does the transposing legislation cover any screen equipment as defined in Article 2, of the elements that the Directive an alphanumeric or graphic display screen, expressly excludes? regardless of the display process employed. Y. Literal transposition. The Directive does not apply to: • Is the definition of ‘display screen (a) drivers’ cabs or control cabs for vehicles equipment’ in national law broader than or machinery; required by the Directive? (b) (computer systems on board a means of N. Same scope, literal transposition. Scope and transport; • Other additional or more detailed definitions (c) computer systems mainly intended for requirements public use; N. (d) ‘portable’ systems not in prolonged use at a workstation; (e) calculators, cash registers and any equipment having a small data or measurement display required for direct use of the equipment; (f) typewriters of traditional design, of the type known as ‘typewriter with window’ Employers must perform an analysis of No observed discrepancies identified. • Is the risk assessment reviewed regularly Conducting a workstations in order to evaluate the safety and in any event when any changes risk assessment and health conditions to which they give occur in the conditions of the type of work Art.3 rise for their workers, particularly as regards involved? possible risks to eyesight, physical problems N.
Milieu Ltd Country Summary Report for Luxembourg / 47 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent and problems of mental stress. Are the risks to be taken into account in Employers must take appropriate measures the assessment described in a more to remedy the risks found, on the basis of specific manner than in the Directive? the evaluation of the safety and health N. Literal transposition. conditions, taking account of the Is the content of the risk assessment more additional and/or combined effects of the detailed than described in the Directive? risks so found. N. Literal transposition. Is a more specific methodology for risk assessment provided in the legislation? N. Literal transposition. Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. Literal transposition. • Other additional or more detailed requirements N. Ensuring N/A N/A N/A preventive and protective services Framework Directive applies. No observed discrepancies identified. Is the content or form of information to Workers shall receive information on all workers further specified? aspects of safety and health relating to N. Information for their workstation, in particular information • Other additional or more detailed workers on such measures applicable to requirements Art. 6 workstations as are implemented under N. Articles 3 (analysis of workstations), 7 (daily work routine) and 9 (protection of workers’ eyes an eyesight). Framework Directive applies. No observed discrepancies identified. Is more specific information on the scope Every worker shall receive training in use of of training provided in the legislation? Training of the workstation before commencing work N. workers with display screen equipment and Is the notion of ‘substantially modified’ Art. 6 whenever the organization of the further specified? workstation is substantially modified. N.
Milieu Ltd Country Summary Report for Luxembourg / 48 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent • Other additional or more detailed requirements N. Workers shall be entitled to an appropriate No observed discrepancies identified. Are the conditions in which eye and eye eye and eyesight test carried out by a sight test is required more specifically person with the necessary capabilities: described in the legislation? — before commencing display screen N. Literal transposition. work, at regular intervals thereafter, and Is the periodicity of eye and eye sight test — if they experience visual difficulties which provided in national law? may be due to display screen work. N. Workers shall be entitled to an • Other additional or more detailed ophthalmological examination if the results requirements Health such test show that this is necessary. N. surveillance If the results of the test or of the Art. 9* examination show that it is necessary and if normal corrective appliances cannot be used, workers must be provided with special corrective appliances appropriate for the work concerned. In no circumstances these measure may involve workers in additional financial cost. Protection of workers’ eyes and eyesight may be provided as part of a national health system. Framework Directive applies. No observed discrepancies identified. Are there more detailed requirements than in the Framework Directive? Consultation of N. Literal transposition. workers • Other additional or more detailed Art. 8 requirements N. Limit values N/A N/A N/A The following Articles have been transposed No observed discrepancies identified. N. Other issues in a literal manner: 4 and 5 (minimum identified requirements for wokstations), and 7 (daily routine) * The primary purpose of this requirement is to identify users who have deficiencies in their eyesight which require correction to enable them to carry out their work with DSE without risk to their health.
Milieu Ltd Country Summary Report for Luxembourg / 49 Brussels
Table 1- 10 Directive 2002/44/EC (vibration) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent This Directive shall apply to activities in No observed discrepancies identified. • Any additional or more detailed which workers are or are likely to be requirements exposed to risks from mechanical vibration Y. Companies that do not have working during their work. stations where one or more workers are likely hand-arm vibration’: the mechanical to be exposed to vibration are exempted of vibration that, when transmitted to the the written record of the risk assessment. A Scope and human hand-arm system, entails risks to the non-exhaustive indicative list of such working definitions health and safety of workers, in particular stations is provided in Annex to the GDR. This Art 1(2) and Art vascular, bone or joint, neurological or Annex includes for instance: office work, 2 muscular disorders; craft work, light manual work without using ‘whole-body vibration’: the mechanical machines. vibration that, when transmitted to the whole body, entails risks to the health and safety of workers, in particular lower-back morbidity and trauma of the spine. The employer shall assess and, if necessary, No observed discrepancies identified. Does the national legislation require measure the levels of mechanical vibrations employers to submit risk assessment to to which workers are exposed. national authorities whether on request or The data obtained shall be preserved in a automatically? suitable form to permit consultation at a Y. Competent services or authorities are able later stage. to access the data: the ITM, Medical doctors The employer shall give particular attention of the DSAT, the Designated workers (and to: personnel representatives if any), as well as Conducting a - the level, type and duration of exposure, any workers directly concerned. risk assessment including any exposure to intermittent Does the national legislation require that Art.4 vibration or repeated shocks; practical guidelines for the determination - the exposure limit values and the exposure and assessment of risk must be action values developed? - any effects concerning the health and N. safety of workers at particularly sensitive risk Are the risks to be taken into account in - any indirect effects on worker safety the assessment described in a more resulting from interactions between specific manner than in the Directive? mechanical vibration and the workplace or N. other work equipment Is the content of the risk assessment more
Milieu Ltd Country Summary Report for Luxembourg / 50 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent - information provided by the manufacturers detailed than described in the Directive? of work equipment Y. The risk assessment is required to be in - the existence of replacement equipment writing and to contain: designed to reduce the levels of exposure - A description of the workstation; to mechanical vibration - A description of the exposure; - the extension of exposure to whole-body vibration beyond normal - The items listed in Article 4(4) of the - working hours under the employer's Directive; responsibility - A justification by the employer to argue that - specific working conditions such as low the nature and extent of he risks associated temperatures with mechanical vibrations do not justify a - appropriate information obtained from more comprehensive risk assessment; health surveillance, including published - Measures taken to avoid risks or minimise information, as far as possible the risks from mechanical vibration; The employer must be in possession of the risk assessment - Measures taken to reduce risks, particularly The risk assessment shall be recorded on a at their source; suitable medium; it may include a - The date of the assessment or date of the justification by the employer that the nature last update; and extent of the risks related to - The name, title and qualification of the mechanical vibration make a further person who carried out the risk assessment detailed risk assessment unnecessary. and their signature; The risk assessment shall be kept up-to-date - The signature of the employer. on a regular basis, particularly in case of Is a more specific methodology for risk significant changes. assessment provided in the legislation? N. Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. • Other additional or more detailed requirements Y. Data must be kept on paper for at least 30 years. If the employer ceases to exist, the data must be delivered to the AAA (Accident Insurance Association) which
Milieu Ltd Country Summary Report for Luxembourg / 51 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent keeps it for 30 years at least. Ensuring N/A N/A N/A preventive and protective services Exposed workers and/or their No observed discrepancies identified. Does the legislation provide for specific representatives must receive information conditions (e.g. size of the establishments) and training on the outcome of the risk in relation to workers information? assessment in particular: N. - measures taken to eliminate or reduce to a Is the content or form of information to minimum the risks from mechanical workers further specified? vibration; N. Literal transposition. Information for - the exposure limit values and the exposure • Other additional or more detailed workers action values requirements Art. 6 - the results of the assessment and N. measurement and the potential injury arising from the work equipment in use; - why and how to detect and report signs of injury; - circumstances in which workers are entitled to health surveillance - safe working practices to minimise exposure. Same as above No observed discrepancies identified. Is more specific information on the scope of training provided in the legislation? N.
Training of Are there specific requirements as to the workers competence of trainers provided in the Art. 6 legislation? N. • Other additional or more detailed requirements N. Health surveillance of workers measures No observed discrepancies identified. Does the national legislation require health Health with reference to the risk assessment surveillance prior to exposure to vibration? surveillance outcome where it indicates a risk to their Y. In accordance with national law, medical Art. 8 health. health is monitored on a periodic basis. This
Milieu Ltd Country Summary Report for Luxembourg / 52 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Health surveillance is intended to prevent includes a medical exam at least within the and diagnose rapidly any disorder linked first two months of employment (earlier in with exposure to mechanical vibration. case of hazardous position). In case a new Such surveillance shall be appropriate position is taken, the occupational doctor will where: be informed and decide whether a new - workers’ exposure to vibration is such that a examination is required. The occupational link can be established with an identifiable doctor determines during the first illness or harmful effects on health, examination whether periodic examination - it is probable that the illness or the effects needs to be organised and under which occur in a worker's particular working frequency. Periodic examinations are conditions, and compulsory for hazardous positions. - there are tested techniques for the Hazardous positions are determined by the detection of the illness or the harmful effects employer in collaboration with the on health. occupational doctor (L.326-4(3) Labour Workers exposed to mechanical vibration in Code). excess of the values shall be entitled to Does the national legislation oblige appropriate health surveillance. employers to set health surveillance Individual health records are required and requirements after the end of exposure? kept up-to-date. N. However, when an employee changes Health records to contain a summary of the position, s/he may be subject to a new results of the health surveillance and kept in examination. a suitable form to permit any later Does the national legislation oblige consultation, taking into account any employers in case where, as a result of confidentiality. health surveillance, a worker is found to Where a worker is found to have an have an identifiable disease or adverse identifiable disease or adverse health health effect which is considered to be effect, considered by a doctor or the result of exposure to mechanical occupational health-care professional to vibration at work, to review the risk be the result of exposure to mechanical assessment and the measure to eliminate vibration at work: or reduce risk? - The worker shall be informed of the result N. However, prior to discharging an employee which relates to him personally and, in from work, the occupational doctor is particular, information and advice required to visit the workplace (L.326-9 Labour regarding any health surveillance which he Code). S/he may moreover decide to should undergo following the end of undertake ad hoc examinations of any exposure; worker (L.326-5 Labour Code). Finally, if an - The employer shall be informed of any employee’s health is found to be gravely
Milieu Ltd Country Summary Report for Luxembourg / 53 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent significant findings from the health endangered, the ITM will be informed, which surveillance, taking into account any may lead to a reevaluation of the risk medical confidentiality. assessment and eventually enforcement - Arrange continued health surveillance and proceedings. provide for a review of the health status of Are the arrangements for health any other worker who has been similarly surveillance records specified in the exposed. The competent doctor/authority legislation, in particular in terms of or occupational health care professional content? may propose that exposed persons Y/N Not in terms of content, but their drafting undergo a medical examination. and the different recipients are specified. Are the conditions in which health surveillance is required more specifically described in the legislation? Y. As described above. Is the periodicity of health surveillance provided in national law? Y. As described above Other additional or more detailed requirements Framework Directive applies No observed discrepancies identified. Are there more detailed requirements than in the Framework Directive? Consultation of N. Literal transposition workers • Other additional or more detailed Art. 7 requirements N. The Directive provides for a set of exposure No observed discrepancies identified. Does the transposing legislation set more limit values and exposure action values in stringent values? respect of the daily vibration exposure N. Literal transposition. levels. • Other additional or more detailed Hand-arm vibration: requirements Limit values - Daily exposure limit value standardised to N. Art.3 an eight-hour reference period: 5 m/s2; - Daily exposure action value standardised to an eight-hour reference period: 2,5 m/s2. For whole-body vibration: - Daily exposure limit value standardised to an eight-hour reference period: 1,15 m/s2
Milieu Ltd Country Summary Report for Luxembourg / 54 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent or, at the MS’s choice, a vibration dose value of 21 m/s1,75; - Daily exposure action value standardised to an eight-hour reference period: 0,5 m/s2 or, at the MS’s choice, a vibration dose value of 9,1 m/s1,75. The following Articles have been No observed discrepancies identified. N. Other issues transposed in a literal manner: 3 (exposure identified limit values), and 5 (measures to avoid and reduce exposure).
Table 1- 11 Directive 2003/10/EC (noise) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Directive shall apply to activities in which No observed discrepancies identified. • Any additional or more detailed workers are or are likely to be exposed to requirements risks from noise as a result of their work. N. - daily noise exposure level (LEX,8h) (dB(A) re. 20 μPa): time weighted average of the Scope and noise exposure levels for a nominal; definitions - weekly noise exposure level (LEX,8h ): time- Art 1 and Art 2 weighted average of the daily noise exposure levels for a nominal week of five eight-hour working days as defined by international standard ISO 1999:1990, point 3.6 (note 2). The employer shall assess and, if necessary, No observed discrepancies identified. Does the national legislation require measure the levels of noise to which employers to submit risk assessment to workers are exposed, giving particular national authorities whether on request or attention, to: automatically? Conducting a - the level, type and duration of exposure, Y. Competent services or authorities are able risk assessment including any exposure to impulsive noise; to access the data: the ITM, Medical doctors Art.4 - the exposure limit values and the exposure of the DSAT, the Designated workers (and action values; personnel representatives if any), as well as - any effects concerning the health and any workers directly concerned. safety of workers belonging to particularly Does the national legislation require that
Milieu Ltd Country Summary Report for Luxembourg / 55 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent sensitive risk groups; practical guidelines for the determination - as far as technically achievable, any effects and assessment of risk must be on workers' health and safety resulting from developed? interactions between noise and work- N. related toxic substances, and between Are the risks/factors to be taken into noise and vibrations; account in the assessment described in a - any indirect effects resulting from more specific manner than in the interactions between noise and warning Directive? signals or other sounds that need to be N. observed in order to reduce the risk of Is the content of the risk assessment more accidents; detailed than described in the Directive? - information on noise emission provided by Y. The risk assessment is required to be in manufacturers of work equipment in writing and to contain: accordance with relevant EU directives; - A description of the workstation; - the existence of alternative work equipment - A description of the exposure; designed to reduce the noise emission; - the extension of exposure to noise beyond - The items listed in Article 4(6) of the normal working hours under the employer's Directive; responsibility; - A justification by the employer to argue that - appropriate information from health the nature and extent of he risks associated surveillance, including published with noise do not justify a more information, as far as possible; comprehensive risk assessment; - the availability of hearing protectors with - Measures taken to avoid risks or minimise adequate attenuation characteristics. the risks from noise as described in in Article 5 The employer shall be in possession of the of the Directive; risk assessment. The risk assessment shall be recorded on a - Measures taken to reduce risks, particularly suitable medium, according to national law at their source; and practice. - The date of the assessment or date of the The risk assessment shall be kept up to date last update; on a regular basis, particularly in case of - The name, title and qualification of the significant changes which could render it person who carried out the risk assessment out of date, or when the results of health and their signature; surveillance show it to be necessary. - The name and signature of the Designated worker; - The signature of the employer or of the person who can commit for the employer.
Milieu Ltd Country Summary Report for Luxembourg / 56 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Is a more specific methodology for risk assessment provided in the legislation? N. Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. • Other additional or more detailed requirements Y. Data from the assessment and/or measurement of the level of noise exposure shall be kept by the employer in the form of paper for a period of at least 30 years. If the employer ceases to exist, and data retention can not be guaranteed, these data are transmitted to the AAA that retains the data for a period of 30 years at least. Ensuring The assessment and measurement shall be No observed discrepancies identified. • Any additional or more detailed preventive and planned and carried out by competent requirements protective services at suitable intervals N. services Art 4(4) Workers exposed at work at or above the No observed discrepancies identified. Does the legislation provide for specific lower exposure action values, and/or their conditions (e.g. size of the establishments) representatives, receive information and in relation to workers information? training relating to risks resulting from N. exposure concerning, in particular: Is the content or form of information to - the nature of such risks; workers further specified? Information for - the measures taken to implement this N. Literal transposition. workers Directive in order to eliminate or reduce to a • Other additional or more detailed Art. 8 minimum the risks from noise, requirements - the exposure limit values and the exposure N. action values - the results of the assessment and measurement together with an explanation of their significance and potential risks
Milieu Ltd Country Summary Report for Luxembourg / 57 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent - the correct use of hearing protectors - why and how to detect and report signs of hearing damage - the circumstances in which workers are entitled to health surveillance and the purpose of health surveillance - safe working practices to minimise exposure to noise Training of Same as above No observed discrepancies identified. Is more specific information on the scope workers of training provided in the legislation? Art. 8 N. Health surveillance of workers where the No observed discrepancies identified. Does the national legislation require health results of the assessment/measurement surveillance prior to exposure to noise? show a risk to their health. Y. In accordance with national law, medical A worker whose exposure exceeds the health is monitored on a periodic basis. This upper exposure action values shall have includes a medical exam at least within the the right to have his/her hearing checked first two months of employment (earlier in by a doctor or by another suitably qualified case of hazardous position). In case a new person under the responsibility of a doctor, position is taken, the occupational doctor will Preventive audiometric testing shall also be be informed and decide whether a new available for workers whose exposure examination is required. The occupational exceeds the lower exposure action values, doctor determines during the first where the risk assessment indicates a risk to examination whether periodic examination Health health. needs to be organised and under which surveillance The objectives of these checks are to frequency. Periodic examinations are Art. 10 provide early diagnosis of any hearing loss compulsory for hazardous positions. and preserve hearing function. Hazardous positions are determined by the Individual health records are made and employer in collaboration with the kept up to date. occupational doctor (L.326-4(3) Labour Health records shall contain a summary of Code). the results of the health surveillance carried Does the national legislation oblige out. employers to set health surveillance They shall be kept in a suitable form to requirements after the end of exposure? permit consultation, taking into account N. However, when an employee changes any confidentiality. position, s/he may be subject to a new Copies of the appropriate records shall be examination. supplied to the CA on request. The Are the arrangements for health
Milieu Ltd Country Summary Report for Luxembourg / 58 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent individual worker shall, at his or her request, surveillance records specified in the have access to health records relating legislation, in particular in terms of personally to him/her. content? Where, as a result of surveillance, a worker Y. Not in terms of content but the documents is found to have identifiable hearing are required to be recorded into the medical damage, a doctor, or a specialist if the record as described in Article 7 of the GDR of doctor considers it necessary, shall assess if 2 April 1996 on personnel, premises and the damage is likely to be the result of equipment of health services at work. This exposure at work. If this is the case: provision requires these records to be kept - the worker shall be informed by the doctor either in a room accessible only to authorised or other suitably qualified person of the persons of the health service at work, or result which relates to him or her personally; centralised in a room of health service at The employer shall: work. Moreover, these records are submitted - review the risk assessment to the relevant doctor of the DSAT upon - review the risk mitigation measures taking request. Finally, the worker, at his request, can into account the advice of the access to his/her personal medical records. occupational healthcare professional or Are the conditions in which health other suitably qualified person or the CA in surveillance is required more specifically implementing any measures required to described in the legislation? eliminate or reduce risk and, including the N. possibility of assigning the worker to Is the periodicity of health surveillance alternative work where there is no risk of provided in national law? further exposure; and Y. As described above. - arrange systematic health surveillance and • Other additional or more detailed provide for a review of the health status of requirements any other worker who has been similarly Y. As described above exposed. Framework Directive applies No observed discrepancies identified. Are there more detailed requirements than in the Framework Directive? Consultation of N. Literal transposition workers • Other additional or more detailed Art. 9 requirements N. For the purposes of this Directive the No observed discrepancies identified. Does the transposing legislation set more Limit values exposure limit values and exposure action stringent values? Art.3 values in respect of the daily noise exposure N. levels and peak sound pressure are fixed at: • Other additional or more detailed
Milieu Ltd Country Summary Report for Luxembourg / 59 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent (a) exposure limit values: LEX,8h = 87 dB(A) requirements and ppeak = 200 Pa (1) respectively; Y. The GDR further specifies for the values of (b) upper exposure action values: LEX,8h 85 Article 3(1)(a) that 'Ppeak = 200Pa is dB(A) and ppeak = 140 Pa (2) respectively; equivalent to 140dB(C) in relation to 20μPa’ (c) lower exposure action values: LEX,8h = 80 (‘Pcrête= 200Pa équivaut à 140dB(C) par dB(A) and ppeak = 112 Pa (3) respectively. rapport à 20μPa'. Similar specifications are When applying the exposure limit values, provided as ‘Ppeak = 140Pa is equivalent to the determination of the worker's effective 137dB(C) in relation to 2μPa’ ('Pcrête=140Pa exposure shall take account of the équivaut à 137dB(C) par rapport à 20μPa') attenuation provided by the individual for (b) and as ‘Ppeak = 112Pa is equivalent to hearing protectors worn by the worker. 135dB(C) in relation to 20μPa’ ('Pcrète=112Pa The exposure action values shall not take équivaut à 135dB(C) par rapport à 20μPa') account of the effect of any such for (c). protectors. The following Articles have been A observed discrepancy has been identified. Article 3(3) transposed in a literal manner: 6 (individual The provisions of Article 7 of the Noise GDR LU did not use the option of Article 3(3) of the hearing protectors), 5 & 7 (measures to on reduction of exposure were declared as Directive. avoid and reduce exposure), 14 (code of not applicable to any workers until Article 5 conduct) 31.12.2006 in Luxembourg as a transitional The GDR provides that during the design, period. No such transitional period is allowed construction and/or realisation of new under the Directive. facilities (new factories, plant or machinery, substantial extensions or modifications of existing plants or facilities, replacement of Other issues plant or machinery), the exposure limit values identified defined in Article 3, Section a) cannot be exceeded for permanent workstations regardless of the attenuation provided by the individual hearing protectors worn by the worker. Article 14 A code of conduct is required to be adopted and made available to the public by 15 February 2008. This code of conduct is available online.
Milieu Ltd Country Summary Report for Luxembourg / 60 Brussels
Table 1- 12 Directive 2004/40/EC (electromagnetic fields) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Directive lays down minimum requirements Old Directive: • Does the national legislation cover for the protection of workers from risks from No references to NIE provided on EurLex suggested long-term effects? exposure to electromagnetic fields (0 Hz to References to NIE on Legilux (legislation • Does the national legislation address the 300 GHz) during their work. portal in LU) refers to: risks resulting from contact with live It refers to the risk to the health and safety a) two abrogated GDR on the classification conductors? of workers due to known short-term adverse of installations with regard to their • Other additional or more detailed effects in the human body caused by the environmental impacts. Most recent GDR requirements circulation of induced currents and by with this list only contains a reference to two energy absorption as well as by contact types of installations (radars) that produce currents. electromagnetic field classified under It does not address suggested long-term headings 500100. These installations are effects, nor the risks resulting from contact categorised either under 'class 1' (most with live conductors. stringent environmental permitting electromagnetic fields’: static magnetic requirements) or 'class 3' (a simple and time-varying electric, magnetic and declaration procedure), and no additional electromagnetic fields with frequencies up requirements is indicated in this list (for Scope and to 300 GHz; instance, impact assessment, risk assessment, definitions industrial emissions, etc.). Art 1 and Art 2 Therefore these lists do not contain requirements applicable to health and safety at work. b) a sectorial plan on mobile communication which provides for the setting up and demolition of antennas andauthorisation procedure thereof, and for the instauration of a monitoring commission in charge of the sectoral plan. Therefore this instrument do not contain requirements applicale to health and safety at work
New Directive No references to NIE provided on EurLex. No references to NIE on Legilux (legislation portal in LU).
Milieu Ltd Country Summary Report for Luxembourg / 61 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent
To note however that general requirements of Articles L.351-1 to L.351-5 of the Labour Code may be applicable, they however do not refer to electromagnetic field and mainly required GDR to be adopted in order to detail requirements.
It therefore results that neither the old nor the new Directive can be considered as transposed in LU with regard to health and safety at work. The employer shall assess and, if necessary, Does the national legislation require measure and/or calculate the levels of employers to submit risk assessment to electromagnetic fields to which workers are national authorities whether on request or exposed. automatically? On the basis of this assessment, if the action Are the risks to be taken into account in values are exceeded, s/he shall assess and, the assessment described in a more if necessary, calculate whether the specific manner than in the Directive? exposure limit values are exceeded. Is the content of the risk assessment more Assessment, measurement and/or detailed than described in the Directive? calculations need not be carried out in Is a more specific methodology for risk workplaces open to the public provided assessment provided in the legislation? Conducting a that an evaluation has already been Are the sources of information and persons risk assessment undertaken in accordance with Council in charge of the risk assessment described Art.4 Recommendation 1999/519/EC. in the legislation in a more specific manner The data obtained shall be preserved in a than in the Directive? suitable form to permit consultation at a • Other additional or more detailed later stage requirements The employer shall give particular attention, when carrying out the risk assessment, to: - level, frequency spectrum, duration and type of exposure; - the exposure limit values and action values; - any effects concerning workers at particular risk; - any indirect effects.
Milieu Ltd Country Summary Report for Luxembourg / 62 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The employer shall be in possession of a risk assessment. The risk assessment shall be recorded on a suitable medium. It may include a justification by the employer that the nature and extent of the risks related to electromagnetic fields make a further detailed risk assessment unnecessary. The risk assessment shall be updated on a regular basis, particularly if there have been significant changes which could render it out of date, or when the results of health surveillance show it to be necessary. Ensuring Assessment, measurement and/or • Any additional or more detailed preventive and calculations shall be planned and carried out requirements protective by competent services or persons at suitable • Other additional or more detailed services intervals, requirements Art 4(4) The employer shall ensure that exposed Does the legislation provide for specific workers and/or their representatives receive conditions (e.g. size of the establishments) any necessary information/training relating to in relation to workers information? the outcome of the risk assessment, in Is the content or form of information to particular on: workers further specified? - measures taken to implement this Directive; - values and concepts of the exposure limit values and action values and the Information for associated potential risks workers - the results of the assessment, measurement Art. 6 /calculations of the levels of exposure to electromagnetic fields - how to detect adverse health effects and to report them; - circumstances in which workers are entitled to health surveillance; - safe working practices to minimise risks from exposure Training of Same as above Is more specific information on the scope
Milieu Ltd Country Summary Report for Luxembourg / 63 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent workers of training provided in the legislation? Art. 6 • Other additional or more detailed requirements Framework Directive applies Does the national legislation require health In any event, where exposure above the surveillance prior to exposure to limit values is detected, a medical electromagnetic fields? examination shall be made available to the Does the national legislation oblige worker(s) concerned. employers to set health surveillance If health damage resulting from exposure is requirements after the end of exposure to detected, the employer must carry out a electromagnetic fields? reassessment of the risks Are the arrangements for health Health The employer shall take appropriate surveillance records specified in the surveillance measures to ensure that the doctor and/or legislation? Art. 8 the medical authority responsible for the Are the conditions in which health health surveillance has access to the results surveillance is required more specifically of the risk assessment described in the legislation? The results of health surveillance shall be Is the periodicity of health surveillance preserved in a suitable form to permit provided in national law? consultation at later date, taking account • Other additional or more detailed of confidentiality requirements. Individual requirements workers shall, at their request, have access to their own personal health records Framework Directive applies Are there more detailed requirements Consultation of than in the Framework Directive? workers • Other additional or more detailed Art. 7 requirements Exposure limit values are as set out in the Does the transposing legislation set more Limit values Annex, Table 1. stringent values? Art.3 Action values are as set out in the Annex, • Other additional or more detailed Table 2. requirements Other issues identified
Milieu Ltd Country Summary Report for Luxembourg / 64 Brussels
Table 1- 13 Directive 2006/25/EC (artificial optical radiation) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent It lays down minimum requirements for the No observed discrepancies identified. • Any additional or more detailed protection of workers from risks to their requirements health and safety arising or likely to arise Y. The transposition also includes natural from exposure to artificial optical radiation optical radiation. during their work. It refers to the risk to the health and safety of workers due to adverse effects caused by exposure to artificial optical radiation to the eyes and to the skin. optical radiation: any electromagnetic radiation in the wavelength range between 100 nm and 1 mm. The spectrum of optical Scope and radiation is divided into ultraviolet radiation, definitions visible radiation and infrared radiation: Art 1 and Art 2 (i) ultraviolet radiation: optical radiation of wavelength range between 100 nm and 400 nm. The ultraviolet region is divided into UVA (315-400 nm), UVB (280-315 nm) and UVC (100-280 nm); (ii) visible radiation: optical radiation of wavelength range between 380 nm and 780 nm; (iii) infrared radiation: optical radiation of wavelength range between 780 nm and 1 mm. The infrared region is divided into IRA (780-1 400 nm), IRB (1 400-3 000 nm) and IRC (3 000 nm-1 mm); The employer shall assess and, if necessary, No observed discrepancies identified. Does the national legislation require measure and/or calculate the levels of employers to submit risk assessment to exposure to optical radiation to which national authorities whether on request or Conducting a workers are likely to be exposed automatically? risk assessment The data obtained shall be preserved in a N. Art.4 suitable form to permit their consultation at Are the risks to be taken into account in a later stage. the assessment described in a more The employer shall give particular attention, specific manner than in the Directive?
Milieu Ltd Country Summary Report for Luxembourg / 65 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent when carrying out the risk assessment, to N. the following: Is the content of the risk assessment more - the level, wavelength range and duration of detailed than described in the Directive? exposure; Y. The risk assessment is required to be in - the exposure limit values writing and to contain: - any effects concerning the health and - A description of the workstation; safety of workers belonging to particularly - A description of the exposure; sensitive risk groups; - any possible effects resulting from - Evaluation and/or measures of the exposure workplace interactions between optical level to artificial optical radiation; radiation and photosensitising chemical - The items listed in Article 4(3) of the substances; Directive; - any indirect effects e.g. temporary blinding, - Measures taken to avoid risks or minimise explosion or fire; the risks from noise as described in in Article 5 - the existence of replacement equipment of the Directive; designed to reduce the levels of exposure to artificial optical radiation; - Measures taken to reduce risks, particularly - appropriate information obtained from at their source; health surveillance, including published - The date of the assessment or date of the information, as far as possible; last update; - multiple sources of exposure; - The name, title and qualification of the - a classification applied to a laser as defined person who carried out the risk assessment in accordance with the relevant IEC and their signature; standard and, in relation to any artificial - The name and signature of the Designated source likely to cause damage similar to worker; that of a laser of class 3B or 4, any similar classification; - The signature of the employer or of the person who can commit for the employer. Is a more specific methodology for risk assessment provided in the legislation? N. Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. • Other additional or more detailed requirements
Milieu Ltd Country Summary Report for Luxembourg / 66 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Y. Data from the assessment and/or measurement of the level exposure shall be kept by the employer in the form of paper for a period of at least 30 years. If the employer ceases to exist, and data retention can not be guaranteed, these data are transmitted to the AAA that retains the data for a period of 30 years at least.
To note that the assesment is not required to include a justification by the employer that the nature and extent of the risks make a further detailed risk assessment unnecessary (which is an option under the Directive). Ensuring The assessment, measurement and/or No observed discrepancies identified. • Any additional or more detailed preventive and calculations referred to in paragraph 1 shall requirements protective be planned and carried out by competent N. services services or persons at suitable intervals Art 4(2) The employer shall ensure that workers No observed discrepancies identified. Does the legislation provide for specific exposed to risks from artificial optical conditions (e.g. size of the establishments) radiation at work and/or their in relation to workers information? representatives receive necessary N. information and training relating to the Is the content or form of information to outcome of the risk assessment in particular: workers further specified? - measures taken to implement this Directive; N. - the exposure limit values and the associated • Other additional or more detailed Information for potential risks; requirements workers - the results of the assessment, measurement N. Art. 6 and/or calculations with an explanation of their significance and potential risks; - how to detect adverse health effects of exposure and how to report them - circumstances in which workers are entitled to health surveillance; - safe working practices to minimise risks from exposure;
Milieu Ltd Country Summary Report for Luxembourg / 67 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent - proper use of appropriate personal protective equipment Same as above No observed discrepancies identified. Is more specific information on the scope of training provided in the legislation? N. Are there specific requirements as to the Training of competence of trainers provided in the workers legislation? Art. 6 N. • Other additional or more detailed requirements N. Health surveillance is carried out by a No observed discrepancies identified. Does the national legislation require health doctor, an occupational health surveillance prior to exposure to artificial professional or a medical authority optical radiation? responsible for health surveillance Y. In accordance with national law, medical Individual health records are made and health is monitored on a periodic basis. This kept up to date. includes a medical exam at least within the Health records shall contain a summary of first two months of employment (earlier in the results of the health surveillance and be case of hazardous position). In case a new kept in a suitable form to permit later position is taken, the occupational doctor will consultation, taking into account any be informed and decide whether a new confidentiality. examination is required. The occupational Health Copies of the appropriate records shall be doctor determines during the first surveillance supplied to the competent authority on examination whether periodic examination Art. 8 request, taking into account any needs to be organised and under which confidentiality. frequency. Periodic examinations are Doctor, the occupational health compulsory for hazardous positions. professional or the medical authority Hazardous positions are determined by the responsible for the health surveillance, has employer in collaboration with the access to the results of the risk assessment occupational doctor (L.326-4(3) Labour where such results may be relevant to the Code). health surveillance. Does the national legislation oblige Individual workers shall, at their request, employers to set health surveillance have access to their own personal health requirements after the end of exposure to records artificial optical radiation? When exposure above limit values is N. However, when an employee changes
Milieu Ltd Country Summary Report for Luxembourg / 68 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent detected, a medical examination shall be position, s/he may be subject to a new made available to the worker(s) examination. concerned. Are the arrangements for health In both cases, when limit values are surveillance records specified in the exceeded or adverse health effects (incl. legislation? diseases) are identified: Y. The documents are required to be - the worker shall be informed of the result recorded into the medical record as which relates to him personally and receive described in Article 7 of the GDR of 2 April information and advice regarding any 1996 on personnel, premises and equipment health surveillance which he should of health services at work. This provision undergo following the end of exposure; requires these records to be kept either at in a - the employer shall be informed of any room in the company accessible only to significant findings of the health surveillance, authorized persons of the health service at taking into account any medical work, or centralised in a room of health confidentiality; service at work. Moreover, these records are - the employer shall: submitted to the relevant doctor of the DSAT o review the risk assessment upon request. Finally, the worker, at his o review the measures taken to eliminate or request, can access to his/her personal reduce risks medical records. o take into account the health professional Are the conditions in which health advice in implementing such measures surveillance is required more specifically o arrange continued health surveillance described in the legislation? and provide for a review of the health N. status of any other worker who has been Is the periodicity of health surveillance similarly exposed. In such cases, the provided in national law? competent health professional may Y. As described above. propose that the exposed persons • Other additional or more detailed undergo a medical examination. requirements Y. Additional points have been added to those of Article 8(4)(c) whereby the employer is required to inform the ITM and AAA. Framework Directive applies No observed discrepancies identified. Are there more detailed requirements than in the Framework Directive? Consultation of N. workers • Other additional or more detailed Art. 7 requirements N.
Milieu Ltd Country Summary Report for Luxembourg / 69 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Exposure limit values for non-coherent No observed discrepancies identified. Does the transposing legislation set more radiation, other than that emitted by stringent values? Limit values natural sources of optical radiation, are set N. Art.3 out in Annex I. • Other additional or more detailed Exposure limit values for laser radiation are requirements set out in Annex II. N. The following Articles have been No observed discrepancies identified. The LU transposition includes an additional transposed in a literal manner: 5 (measures Article on personal protective equipment to avoid and reduce exposure) It refers to the GDR of 4 November 1994 which provisions are described in table 1.5. These equipments must be chosen to reduce Other issues skin and eyes exposure as far as possible. identified The employer must keep a list of the employees that must wear a PPE against artificial optical radiation, and indicating which specific tasks require wearing this PPE. The employer is required to ensure PPE is worn and that the measures taken are efficient.
Table 1- 14 Directive 2004/37/EC (carcinogens or mutagens) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent This Directive shall apply to activities in No observed discrepancies identified. Does the transposing legislation also cover which workers are or are likely to be reprotoxic substances (1A and 1B)? exposed to carcinogens or mutagens as a N. Scope and result of their work • Other additional or more detailed definitions Carcinogens requirements Art 3(1) read in Substance category 1 or 2 carcinogens N. conjunction Annex VI to Directive 67/548/EEC with Art 2 Mutagens: Substance category 1 or 2 mutagens Annex VI to Directive 67/548/EEC nature, degree and duration of workers' No observed discrepancies identified. Does the transposing legislation oblige Conducting a exposure shall be determined in order to employers to supply the authorities with risk assessment make it possible to assess any risk to the information automatically and not on Art. 3 workers' health or safety and to lay down request?
Milieu Ltd Country Summary Report for Luxembourg / 70 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent the measures to be taken. N. On request by the ITM. The assessment shall be renewed regularly Are the risks to be taken into account in and in any event when any change occurs the assessment described in a more in the conditions which may affect workers' specific manner than in the Directives? exposure to carcinogens or mutagens. N. The employer shall supply the authorities at Is the content of the risk assessment more their request with the information used for detailed than described in the Directives? making the assessment. N. When assessing the risk, account shall be Is a more specific methodology for risk taken of all other routes of exposure, such assessment provided in the legislation? as absorption into and/or through the skin. N. Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directives? N. • Other additional or more detailed requirements N. Ensuring N/A N/A N/A preventive and protective services Appropriate measure to ensure that: No observed discrepancies identified. Does the Directive set additional Workers and/or any workers' representatives information requirements, including on: in the undertaking can check that this o relevant activities and industrial Directive is applied or can be involved in its processes, including reasons why application in particular for: carcinogens mutagens and o the consequences for workers' safety and reprotoxins are used; Information for health of the selection, wearing and use of o quantities of substances and workers Art.12 protective clothing and equipment, preparations manufactured or used without prejudice to the employer's that contain CMR responsibility for determining the o numbers of workers exposed effectiveness of protective clothing and o replacement by another product equipment; o negative impacts on fertility o the measures in case of foreseeable N. Literal transposition. exposure Does the legislation provide for specific
Milieu Ltd Country Summary Report for Luxembourg / 71 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Workers and/or their representatives are conditions in relation (e.g. size of the informed as quickly as possible of abnormal establishments) to workers information? exposures including foreseeable ones or the N. cause and of the measures taken or to be Is the content or form of information to taken to rectify the situation workers further specified? The employer keeps an up-to-date list of N. the workers engaged in the activities in • Other additional or more detailed respect of which the results of the requirements assessment reveals a risk to workers and N. indicating if available their exposure Doctors and/or competent authorities have access to this list. Each worker has access to the information about him Workers and/or workers representatives have access to anonymous collective information Sufficient and appropriate training on the No observed discrepancies identified. Is more specific information on the scope basis of all available information on: of training provided in the legislation? o Potential risks to health including the N. Literal transposition. additional risks due to tobacco Are there specific requirements as to the Training of consumption competence of trainers provided in the workers Art.11 o Precautions to be taken to prevent legislation? exposure N. • Other additional or more detailed requirements N. Health surveillance prior exposure and at No observed discrepancies identified. • Does the national legislation set health regular intervals thereafter surveillance requirements after the end of If a workers suffer from an abnormality exposure? Health suspected to be the result of exposure the N. surveillance doctor or relevant authority may require • Are the arrangements for health Art.14 and other workers who have been similarly surveillance records specified in the ANNEX II exposed to undergo health surveillance. In legislation? that even a reassessment of the risk must be N. carried out. • Are the conditions in which health Medical records must be kept and doctors surveillance is required more specifically
Milieu Ltd Country Summary Report for Luxembourg / 72 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent must propose any protective or preventive described in the legislation? measures to be taken in respect of any N. individual worker. • Is the periodicity of health surveillance Advice must be given to workers on health provided in national law? surveillance after the end of exposure Yes, pursuant to the Labour Code: in Workers have accees to the result of health accordance with national law, medical surveillance that concern them health is monitored on a periodic basis. This Workers/employers may request a review of includes a medical exam at least within the the results of the health surveillance first two months of employment (earlier in case of hazardous position). In case a new position is taken, the occupational doctor will be informed and decide whether a new examination is required. The occupational doctor determines during the first examination whether periodic examination needs to be organised and under which frequency. Periodic examinations are compulsory for hazardous positions. Hazardous positions are determined by the employer in collaboration with the occupational doctor (L.326-4(3) Labour Code). • Other additional or more detailed requirements Y. All identified cases of cancer, in accordance with national legislation and/or practice in Luxembourg, as a result of exposure to a carcinogen or mutagen agents must be notified to the competent authority. Framework Directive applies No observed discrepancies identified. Are there more detailed requirements than in the Framework Directive? Consultation of N. workers Art.13 • Other additional or more detailed requirements N. Limit values Limit values on Benzene, Vinyl chloride No observed discrepancies identified. • Does the transposing legislation set more
Milieu Ltd Country Summary Report for Luxembourg / 73 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Art 16 and monomer, hardwood dusts stringent limit values? Annex III Y. Hardwood dust limit values is set at 2,00 instead of 5,00 mg/m3. • Does the legislation set binding limit values on other carcinogens and mutagens (e.g. N.N-dimethylacetamid, refractory ceramic fibres and lead and its compound? N. • Other additional or more detailed requirements N. The following Articles have been transposed No observed discrepancies identified. N. The following Articles have been Other issues in a literal manner: 4 & 5(2)-(4) (Three tiered transposed in a literal manner: 4 & 5(2)-(4) identified approach), 5(5), 7(2) & 10(1) (measures (Three tiered approach), 5(5), 7(2) & 10(1) limiting workers exposure) (measures limiting workers exposure)
Table 1- 15 Council Directive 98/24/EC (chemical agents at work) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The requirements of this Directive apply where No observed discrepancies identified. • Is the scope broader than the directive’s hazardous chemical agents are present or for: may be present at the workplace, without Chemical agent? prejudice to the provisions for chemical agents N. to which measures for radiation protection Hazardous chemical agent? apply pursuant to Directives adopted under N. the Treaty establishing the European Atomic • Other additional or more detailed Scope and Energy Community. requirements definitions Chemical agent is defined as any chemical Y. The LU transposition also includes a Art. 1 and 2 element or compound, on its own or admixed, definition of the notion of competent as it occurs in the natural state or as produced, authority, albeit referring to the Repealed used or released, including release as waste, 1994 Law. by any work activity, whether or not produced intentionally and whether or not placed on the market. Hazardous chemical agent is defined as o any chemical agent which meets the criteria
Milieu Ltd Country Summary Report for Luxembourg / 74 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent for classification as a dangerous substance according to the criteria in Annex VI to Directive 67/548/EEC, whether or not that substance is classified under that Directive, other than those substances which only meet the criteria for classification as dangerous for the environment; o any chemical agent which meets the criteria for classification as a dangerous preparation within the meaning of Directive 88/379/EEC, whether or not that preparation is classified under that Directive, other than those preparations which only meet the criteria for classification as dangerous for the environment; o any chemical agent which, whilst not meeting the criteria for classification as dangerous in accordance with (i) and (ii), may, because of its physico-chemical, chemical or toxicological properties and the way it is used or is present in the workplace, present a risk to the safety and health of workers, including any chemical agent assigned an occupational exposure limit value under Article 3 of the Directive. The Directive requires a risk assessment to be No observed discrepancies identified. Does the national legislation require carried out by employers which must employers to submit risk assessment to determine whether any hazardous chemical national authorities whether on request agents are present at the workplace. If so they or automatically? Conducting should assess them taking into account, inter Y. The risk assessment must be kept at the a risk alia, their hazardous properties; level, type and disposal of CA during inspections. assessment duration of exposure; the circumstances of Are the risks to be taken into account in Art. 4(1), (2) work involving such agents; occupational the assessment described in a more and (4) exposure limit values or biological limit values; specific manner than in the Directive? effect of preventive measures taken or to be N. taken; conclusions to be drawn from any Is the content of the risk assessment health surveillance. more detailed than described in the
Milieu Ltd Country Summary Report for Luxembourg / 75 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent In case of activities involving exposure to Directive? several agents, the risk must be assessed taking N. into account all chemical agents in Is a more specific methodology for risk combination. assessment provided in the legislation? The risk assessment must be documented. The N. employer must be in possession of the risk Are the sources of information and assessment. persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. • Other additional or more detailed requirements N.
To note that the assesment is not required to include a justification by the employer that the nature and extent of the risks make a further detailed risk assessment unnecessary (which is an option under the Directive). Ensuring N/A N/A N/A preventive and protective services The employer must ensure that workers are No observed discrepancies identified. • Does the transposing legislation set any provided with: additional information requirements? o Data obtained from the risk assessments N. o Information on the hazardous chemical • Does the legislation provide for specific agents occurring in the workplace (e.g. conditions (e.g. size of the establishments) Information relevant occupational exposure limit values) in relation to workers information? for workers o Training and information on appropriate N. Art.8 precautions and actions to be taken • Is the content or form of information to o Safety data sheet workers further specified? Y. It may only be in writing. • Other additional or more detailed requirements N.
Milieu Ltd Country Summary Report for Luxembourg / 76 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent
To note that the LU transposition includes the option of Article 8(3) of the Directive. CA may take these measures. The employer must ensure that workers are No observed discrepancies identified. Is more specific information on the scope provided with: of training provided in the legislation? o Training and information on appropriate N. Training of precautions and actions to be taken Are there specific requirements as to the workers competence of trainers provided in the Art.8 legislation? N. Other or more detailed requirements? N. The employer shall provide health surveillance No observed discrepancies identified. Does the transposing legislation require of workers for whom the results of the health surveillance to be provided for assessment of the hazardous chemical agents other workers than those for which the reveal a risk to health. assessment of the hazardous chemical Individual health and exposure records shall be agents revealed a risk to health? made and kept up-to-date and contain a N. summary of the results of health surveillance Does the transposing legislation oblige and of any monitoring data representative of employers to supply the authorities with the exposure of the individual. information automatically and not on Copies must be supplied on request to the request? authorities N. Health Are the arrangements for health surveillance surveillance records specified in the Art.10 legislation? N. Are the conditions in which health surveillance is required more specifically described in the legislation? N. Is the periodicity of health surveillance provided in national law? Medical health is monitored on a periodic basis. This includes a medical exam at least within the first two months of employment
Milieu Ltd Country Summary Report for Luxembourg / 77 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent (earlier in case of hazardous position). In case a new position is taken, the occupational doctor will be informed and decide whether a new examination is required. The occupational doctor determines during the first examination whether periodic examination needs to be organised and under which frequency. Periodic examinations are compulsory for hazardous positions. Hazardous positions are determined by the employer in collaboration with the occupational doctor (L.326-4(3) Labour Code). An additional point has been added at the end of the Article, whereby the employer is required to inform the ITM of any measures adopted.
Other additional or more detailed requirements? N. Framework Directive applies No observed discrepancies identified. • Are there more detailed requirements than in the Framework Directive? Consultation N. of workers • Other additional or more detailed Art.11 requirements N. Exposure limit values and biological limit values No observed discrepancies identified. Does the transposing legislation set more stringent limit values? N. The indicative limit values set out in Directive 91/322/EEC, Directive 2000/39/EC, Limit values Directive 2006/15/EC and Directive Art 3 and 2009/161/EC for the application of Article 3 6(4) and (5) of the Chemicals Directive are almost literally transposed in the Chemical Agents GDR as modified in 2011. Are the limit values binding or indicative?
Milieu Ltd Country Summary Report for Luxembourg / 78 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent They are binding (des valeurs limites contraignantes). • Other additional or more detailed requirements Y. The list includes Nicotine (0.5mg/M3 for 8 hours / skin) and lead (metal and compounds) (0.15mg/m3). No observed discrepancies identified. The following Articles have been transposed in a literal manner: 6 (specific protection and prevention measures), 7 (procedures for accidents, incidents & emergencies), 9 + Annex III (prohibitions)
Transposition of Article 6(2) does not include the last indent on guidelines.
Transposition of Article 6(5) does not include the penultimate indent on work equipment and protective systems (this could be considered covered by more specific legislation on these issues, including Other issues transposition of the work equipment, PPE identified and ATEX Directives – see tables above).
Article 9: Transposition does not include the option for systems of individual authorisations.
Annex III: The list of prohibited professional activities includes the further elements: ‘The use of asbestos at work or products containing asbestos fibers is prohibited with the exception of demolition activities, sanitation and maintenance, as well as activities directly related to the aforementioned work (analysis, transportation).
Milieu Ltd Country Summary Report for Luxembourg / 79 Brussels
Table 1- 16 Directive 2009/148/EC (asbestos) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive covers health and safety risks No observed discrepancies identified. • Any additional or more detailed arising or likely to arise from exposure to requirements asbestos at work where asbestos is defined as N. any one of six fibrous silicates: Scope and - asbestos actinolite, CAS No 77536-66-4 ( 1 ); definitions - asbestos grunerite (amosite), CAS No 12172- Art.1 and 2 73-5 ( 1 ); - asbestos anthophyllite, CAS No 77536-67-5 ( 1 ) - chrysotile, CAS No 12001-29-5 ( 1 ); - crocidolite, CAS No 12001-28-4 ( 1 ); - asbestos tremolite, CAS No 77536-68-6 ( 1 ). In the case of activity likely to involve a risk No observed discrepancies identified. Are the risks to be taken into account in of exposure to dust arising from asbestos or the assessment described in a more materials containing asbestos, this risk must specific manner than in the Directive? be assessed to determine the nature and N. degree of the workers’ exposure. Is the content of the risk assessment more detailed than described in the Directive? N. Is a more specific methodology for risk Conducting a assessment provided in the legislation? risk assessment N. Art.3(2) Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. • Other additional or more detailed requirements N. Ensuring Sampling shall be carried out by suitably No observed discrepancies identified. • Any additional or more detailed preventive and qualified personnel. The samples taken shall requirements protective be subsequently analysed, in laboratories N. services equipped for fibre counting. Art.7(4)
Milieu Ltd Country Summary Report for Luxembourg / 80 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Art.4(4): Workers must have access to the No observed discrepancies identified. Does the transposing legislation set any documents used in the documentation additional information requirements? system N. Art.17: Workers must receive adequate Does the legislation provide for specific information on: conditions (e.g. size of the establishments) - potential risks to health from exposure to in relation to workers information? dust arising from asbestos or materials N. containing asbestos; Is the content or form of information to - existence of statutory limit values and the workers further specified? need for the atmosphere to be monitored; N. - hygiene requirements, including the need to • Other additional or more detailed refrain from smoking; requirements - precautions to be taken as regards the N. Information for wearing and use of protective equipment workers and clothing; Art.4(4) Art.17 - special precautions designed to minimise exposure to asbestos. Workers must have access to the results of asbestos-in-air concentration measurements and can be given explanations of the significance of those results. if the results exceed the limit value, the workers concerned are informed as quickly as possible of the fact and the reasons for it and the workers are consulted on the measures to be taken or, in an emergency, are informed of the measures which have been taken. Appropriate training must be given for all No observed discrepancies identified. Is more specific information on the scope workers who are, or are likely to be, of training provided in the legislation? exposed to dust from asbestos or materials Y. The training must also include information containing asbestos. Such training must be on asbestos legislation. Training of provided at regular intervals and at no cost Are there specific requirements as to the workers Art.14 to the workers. competence of trainers provided in the The content of the training must be easily legislation? understandable for workers. It must enable N. them to acquire the necessary knowledge Are there more detailed requirements on
Milieu Ltd Country Summary Report for Luxembourg / 81 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent and skills in terms of prevention and safety, the content of training than in the particularly as regards: Directive? - properties of asbestos and its effects on Y. An official of the company that performs health; disassembly work of sheets of asbestos - types of products or materials likely to cement roofs or exterior walls must be trained contain asbestos; 8 hours. Any other type of work requires 20 - operations that could result in asbestos hours of training. In both cases, a control of exposure and the importance of preventive knowledge is undertaken by the trainer and controls to minimise exposure; the ITM, and a certificate is received by the - safe work practices, controls and protective worker. equipment; Are there more detailed requirements on - appropriate role, choice, selection, the regularity of training than in the limitations and proper use of respiratory Directive? equipment; Y. The training must also be provided before - emergency procedures; the start of any work exposing to asbestos. - decontamination procedures; Moreover, any type of work other than - waste disposal; disassembly work of sheets of asbestos - medical surveillance requirements cement roofs or exterior walls must be renewed annually for at least 4 hours. • Other additional or more detailed requirements N. Assessment of each worker’s health must No observed discrepancies identified. Do these health surveillance requirements be available prior to the beginning of also apply if worker exposure is sporadic exposure to dust arising from asbestos or and of low intensity, and is clear from the materials containing asbestos at the place results of the risk assessment that the of work. It must include a specific exposure limit for asbestos will not be examination of the chest. exceeded? Health A new assessment must be available at N. Article 3(3) derogations are applicable. surveillance least once every 3 years for as long as Does the national legislation oblige worker Art.18 and exposure continues. to continue medical surveillance after ANNEX I Individual health record to be established exposure to asbestos? for each worker N. Same phrasing as in the Directive. The doctor or responsible authority shall Are the arrangements for health advise on individual protective/preventive surveillance records specified in the measures to be taken or determine such legislation? measures, including where appropriate the N. The legislation provides that an individual
Milieu Ltd Country Summary Report for Luxembourg / 82 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent withdrawal of the worker from all exposure medical record is required to be established to asbestos. with the competent occupational health Information and advice must be given to service. workers on any assessment of their health Are the conditions in which health which they may undergo following the end surveillance is required more specifically of exposure. described in the legislation? The doctor may indicate that medical N. surveillance must continue after the end of Is the periodicity of health surveillance exposure for as long as he/she considers it provided in national law? necessary to safeguard the health N. The worker concerned or the employer • Other additional or more detailed may request a review of the assessments requirements These measures do not apply if worker N. exposure is sporadic and of low intensity, and is clear from the results of the risk assessment that the exposure limit for asbestos will not be exceeded (See Article 3(3) Art.3(5): risk assessment is subject to worker No observed discrepancies identified. Does the national legislation set additional consultation worker consultation requirements? Art.7(3): sampling is carried out after worker N. consultation Are more specific criteria put in place? Art.12: workers must be consulted on N. measures to be taken in case of activities • Other additional or more detailed such as demolition, asbestos removal work, requirements repairing and maintenance where it is Y. The requirements of Article 12 of the Consultation of foreseeable that the limit values will be Directive are transposed instead of those of workers Art.3(5) exceeded, before the activities start. Article 10 of the Directive albeit for any and 7(3) and 12 activities. As a result, any activities where it is foreseeable that the limit values will be exceeded (rather than when they are exceeded) are subject to the transposed requirements of Article 12 of the Directive. This includes activities such as demolition, asbestos removal work, repairing and maintenance. Limit values Employers shall ensure that no worker is No observed discrepancies identified. • Does the transposing legislation set more
Milieu Ltd Country Summary Report for Luxembourg / 83 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Art.8 exposed to an airborne concentration of stringent limit values? asbestos in excess of 0,1 fibres per cm3 as N. an 8-hour time-weighted average (TWA). • Other additional or more detailed requirements N. No observed discrepancies identified. The following Articles have been transposed in a literal manner: 3(3) (exclusion of some work), 4 (notification system), 5 (prohibition of use), 6 (measures to reduce exposure), 7 (regular measurement of exposure), 8 (maximum exposure limit), 11 (identifying asbestos containing material)
Article 3(4) (guidelines) The LU legislation provides that guidelines Other issues may be provided in Annexes to the GDR. identified Annex III to the GDR relates to the organisation of friable or flocking asbestos removal work. Articles 10 (cessation of work) and 12 (exceeding exposure limit) As explained above, Article 10 has not been transposed as such. Rather, the LU legislation transposes Article 12 by enlarging its scope to include Article 10 in its remit, resulting in a more stringent transposition of both Articles.
Table 1- 17 Directive 2000/54/EC (biological agents) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive covers risks, arising or likely to No observed discrepancies identified. • Is the scope of the national legislation arise from exposure to biological agents at broader than the Directive? Scope and work. N. definitions ‘biological agents’: micro-organisms, • Other additional or more detailed Art. 1 and 2 including those which have been requirements genetically modified, cell cultures and N.
Milieu Ltd Country Summary Report for Luxembourg / 84 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent human endoparasites, which may be able to provoke any infection, allergy or toxicity; The nature, degree and duration of workers' No observed discrepancies identified. Does the national legislation require exposure must be determined. employers to submit risk assessment to In the case of activities involving exposure national authorities automatically? to several groups of biological agents, the N. risk shall be assessed on the basis of the Does the national legislation require that danger presented by all hazardous agents practical guidelines for the determination present. and assessment of risk must be The assessment must be renewed regularly developed? and in any event when any change occurs N. in the conditions which may affect workers' Are the risks to be taken into account in exposure the assessment described in a more The employer must supply the CAs, at their specific manner than in the Directive? request, with the information used for N. making the assessment. Is the content of the risk assessment more The assessment is conducted on the basis detailed than described in the Directive? of all available information: N. Conducting a - classification of biological agents which are Is a more specific methodology for risk risk assessment or may be a hazard to human health assessment provided in the legislation? Art. 3, 7(1) - recommendations from a CA which N. indicate that the biological agent should be Are the sources of information and persons controlled to protect workers' health when in charge of the risk assessment described workers are or may be exposed to such a in the legislation in a more specific manner biological agent as a result of their work than in the Directive? - information on diseases which may be N. contracted as a result of the work of the • Other additional or more detailed workers requirements - potential allergenic or toxigenic effects as a N. result of the work of the workers; - knowledge of a disease from which a worker is found to be suffering and which has a direct connection with his work Where the assessment reveals risk to workers' health or safety, employers shall, when requested, make available to the CA appropriate information on:
Milieu Ltd Country Summary Report for Luxembourg / 85 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent - the results of the assessment; - the activities in which workers have been exposed or may have been exposed; - the number of workers exposed; - the name and capabilities of the person responsible for OSH, - the protective and preventive measures taken; - an emergency plan for the protection of workers from exposure to a group 3 or 4 biological agent which might result from a loss of physical containment. Ensuring N/A N/A N/A preventive and protective services Employers shall provide written instructions No observed discrepancies identified. Does the information to be provided to and, if appropriate, display notices which the CAs need to be available to the shall, include the procedure to follow in the workers independently of their request? case of: N. - a serious accident or incident involving the Does the legislation provide for specific handling of a biological agent; conditions (e.g. size of the establishments) - handling a group 4 biological agent. in relation to workers information? Employers shall inform the workers of any N. accident/incident which may have resulted Is the content or form of information to in the release of a biological agent and workers further specified? Information for could cause severe human infection N. workers Art.10 and/or illness. • Other additional or more detailed Employers shall inform the workers as quickly requirements as possible when a serious accident or N. incident occurs, of its causes and the remedial measures taken or to be taken. Each worker shall have access to the information on the list of exposed workers which relates to him personally. Workers or their representatives shall have access to anonymous collective
Milieu Ltd Country Summary Report for Luxembourg / 86 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent information. Employers shall provide workers and/or their representatives, at their request, with the information for CAs (see Article 7) Workers receive training concerning: No observed discrepancies identified. Is more specific information on the scope - potential risks to health; of training provided in the legislation? - precautions to be taken to prevent N. exposure; Are there specific requirements as to the - hygiene requirements; competence of trainers provided in the - wearing and use of protective equipment legislation? Training of and clothing; N. workers Art.9 - steps to be taken in case of incidents and to • Other additional or more detailed prevent them. requirements Training shall be: N. - given at the beginning of work involving contact with biological agents, - adapted to new or changed risks, and repeated periodically if necessary Each worker can undergo, if appropriate, No observed discrepancies identified. Does the national legislation set more relevant health surveillance prior to stringent requirements on health exposure and at regular intervals surveillance (e.g. individual medical When necessary, effective vaccines should records must be kept more than 10 years)? be made available for workers who are not N. already immune to the biological agent to Are the arrangements for health which they are exposed. surveillance records specified in the A worker is found to be suffering from an legislation? Health infection and/or illness which is suspected N. surveillance to result from exposure, the doctor or Are the conditions in which health Art.14 and responsible authority shall offer such surveillance is required more specifically ANNEX IV surveillance to other workers similarly described in the legislation? exposed. In that event, a reassessment of N. the risk of exposure shall be carried out Is the periodicity of health surveillance In cases where health surveillance is carried provided in national law? out, an individual medical record shall be N. kept for at least 10 years following the end • Other additional or more detailed of exposure. requirements In the special cases of infection [referred to N.
Milieu Ltd Country Summary Report for Luxembourg / 87 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent in Article 11(2) second subparagraph], an individual medical record shall be kept for an appropriately longer time up to 40 years following the last known exposure. The doctor or responsible authority shall propose protective or preventive measures in respect of any individual worker. Information and advice must be given to workers on health surveillance they may undergo after the end of exposure. Workers shall have access to the results of the health surveillance which concern them, and they or the employer may request a review of these results. All cases of diseases or death identified from occupational exposure to biological agents shall be notified to the CA Framework Directive applies No observed discrepancies identified. Are there more detailed requirements than Consultation of in the Framework Directive? workers Art.12 N. Limit values N/A N/A N/A
No observed discrepancies identified. N. The following Articles have been transposed in a literal manner: 5 (substitution), 6 (measures to avoid and reduce exposure), 7(1) (information for the CA), 7(2) (information for the CA re incidents and Other issues accidents), 11 (list of exposed workers), 13 identified (prior notification to CA), 15(2) (measures in health and veterinary care facilities), 16 (special measures for industrial processes, laboratories and animal rooms), and the classification of biological agents in groups 2- 4.
Milieu Ltd Country Summary Report for Luxembourg / 88 Brussels
Table 1- 18 Council Directive 92/57/EEC (temporary or mobile construction sites) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive applies to the health and No observed discrepancies identified. • Is the scope of the national legislation safety of workers at temporary or mobile broader than the Directive? Scope and construction sites, i.e. any construction site N. definitions at which building or civil engineering works Art. 1, 2 and are carried out (a non-exhaustive list of 10(1) and (2) works is provided in Annex I). It does not apply to drilling and extractive industries*.
Conducting a N/A N/A N/A risk assessment Ensuring N/A N/A N/A preventive and protective services Framework Directive applies. No observed discrepancies identified. Does the legislation provide for specific Workers and/or their representatives must conditions (e.g. size of the establishments) be informed of all the measures to be taken in relation to workers information? concerning their safety and health on the N. construction site. Is the content or form of information to The information must be comprehensible to workers further specified? the workers concerned. Y. Rather than referring to Article 10 of the Framework Directive, the provision refers to several Articles of the Labour Code relevant Information for to personnel representatives explaining it workers must not cause prejudice to them. The first Art.11 one requires information to be provided to security delegates in a more detailed manner than that of Article 10 of the Framework Directive (L.414-2(6) Labour Code): ‘The head of the institution shall consult and inform the Safety Officer on : 1. The assessment of the risks to safety and health at work, including those facing groups
Milieu Ltd Country Summary Report for Luxembourg / 89 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent of employees with specific risks ; 2 protective measures to be taken and , if necessary, the protective equipment to use; 3 statements to be submitted to the ITM under Article L. 613-1; 4 any measure which may substantially affect safety and health; 5 Appointment of employees designated to carry out activities of protection and prevention activities of occupational risks to the company or institution; 6 Measures taken in first aid, the fight against fire and evacuation of employees, measures necessary, adapted to the nature of activities and the size of the undertaking and / or establishment, and given other persons present; 7 Measures to organize the necessary contacts with external services, particularly as regards first aid, emergency medical care, rescue and fight against fire; 8. Use of competence in the company or institution outside expertise to the company or institution to organize activities for the protection and prevention; 9. Adequate training provided to each employee in the interest of health and safety. The safety representatives have the right to ask the employer to take appropriate measures and to submit proposals in this direction in order to mitigate any risk to employees or to remove sources of danger.’ • Other additional or more detailed requirements N.
To note that the other Articles of the Labour
Milieu Ltd Country Summary Report for Luxembourg / 90 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Code referred to above – i.e. the provisions relevant to personnel representatives and explaining it must not cause prejudice to them – concern information given to delegates on the “life of the enterprises” (L.414-4), and prohibition of the dismissal of delegates (L.415-11(1)). Training of N/A N/A N/A workers Health N/A N/A N/A surveillance Framework Directive applies. No observed discrepancies identified. • Are specific criteria put in place for The consultation of workers must be coordination of workers consultation e.g. coordinated, whenever necessary, based on the size of the work site? Consultation of between workers and/or workers' Y. Same answer as row on information of workers representatives carrying out their activities workers. Art. 12 at the workplace, having regard to the • Other additional or more detailed degree of risk and the size of the work site. requirements N. Limit values N/A N/A N/A No observed discrepancies identified. The following Articles have been transposed in a literal manner: 3(3) (prior notification), 7(2) (employer responsibility), 9(a) and Annex IV (measures in line with the minimum requirements)
• Article 3 (appointment of coordinators) Y. The client shall appoint one or more Other issues coordinators for safety and health identified requirements for any site where at least two companies intervene. For this purpose, the client can either make use of third party or itself exercise this function if it is so authorised. The client is not required to appoint a coordinator for safety and health in emergencies determined by a case of force majeure. The ITM shall be informed without
Milieu Ltd Country Summary Report for Luxembourg / 91 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent delay of this situation. This information must include the reasons for the force majeure.
The designation of health and safety coordinators - project as well as the safety and health coordinators - site is subject to a contractual agreement between the client and said coordinators. Said agreement shall specify in particular : Tasks that coordinators are required to perform; The beginning and end of the mission of the coordinator; The obligations of the client and or contractors.
For the purpose of fulfillment of its mission the coordinator : must be involved at all stages of activities related to project development activities and milestones relating to the execution of the work ; must receive the program of any meeting on design and construction ; must be invited to all meetings on design and construction ; must receive, and if necessary may require, all documents & studies necessary to the performance of its tasks studies ; must deliver at the end of the mission a coordination diary; must submit, at the end of the mission, with acknowledgment of receipt, the file adapted to the characteristics of the work ; shall keep for a period of five years from
Milieu Ltd Country Summary Report for Luxembourg / 92 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent the date of receipt of the work a copy of the coordination diary.
Finally, no person shall perform the function of safety and health coordinator - project or the safety and health coordinator - site if s/he does not hold a license issued by the Minister.
• Article 33(2) (drawing up a health plan) The safety and health coordinator – project must ensure that a risk assessment is drafted as required under Annex II to the GDR. Specific plans of health and safety from every employer working on the site must be integrated into the general plan of safety and health in the same site. * The Council Decision 74/326/EEC, to which the Directive refers for a definition of "drilling and extracting industries" has been repealed by the Council Decision setting up an Advisory Committee on Safety and Health at Work.
Table 1- 19 Council Directive 92/104/EEC (surface and underground mineral-extracting industries) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive applies to surface and No observed discrepancies identified. • No Is the scope of the national legislation Scope and underground mineral-extracting industries broader than the Directive? definitions (excluding extraction by drilling which is N. Art. 1 and 2 subject to a separate directive). The employer shall ensure that a document No observed discrepancies identified. Does the national legislation require concerning safety and health and covering employers to submit risk assessment to the relevant requirements on risk assessment national authorities whether on request or of the Framework Directive is drawn up and automatically? Conducting a kept up to date. The safety and health N. risk assessment document shall demonstrate in particular Are the risks to be taken into account in Art. 3.2 that the risks to which workers at the the assessment described in a more workplace are exposed have been specific manner than in the Directive? determined and assessed. N. Is the content of the risk assessment more
Milieu Ltd Country Summary Report for Luxembourg / 93 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent detailed than described in the Directive? N. Is a more specific methodology for risk assessment provided in the legislation? N. Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. Does the national legislation include more specific information on the content of the ‘health and safety document’ as provided for by the Directive for the part related to the risk assessment? N. • Other additional or more detailed requirements N. Ensuring N/A N/A N/A internal and/or external preventive and protective services Framework Directive applies No observed discrepancies identified. Does the legislation provide for specific Workers and/or their representatives shall conditions (e.g. size of the establishments) be informed of all measures to be taken However, Article 6 of the Directive in relation to workers information? concerning safety and health at (communication, warning, and alarm system) N. workplaces, and in particular of those is not included in the information to workers Is the content or form of information to Information for relating to the implementation of Articles 3 requirement. Also, no reference is provided workers further specified? workers (general obligations), 4 (protection from to Article 10 of the Framework Directive or its N. Art. 7 fire, explosions and health-endangering transposition. • Other additional or more detailed atmospheres), 5 (Escape and rescue requirements facilities) and 6 (communication, warning N. and alarm systems). The information must be comprehensible to
Milieu Ltd Country Summary Report for Luxembourg / 94 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent the workers concerned. Workers must be given the necessary No observed discrepancies identified. Is more specific information on the scope information, instructions, training and re- of training provided in the legislation? training to ensure their health and safety. N. Training of The employer must ensure that workers Are there specific requirements as to the workers receive comprehensible instructions so as competence of trainers provided in the Art. 10 (Annex, not to endanger their safety and health or legislation? Part 1.5 and 1.6) those of other workers. N. • Other additional or more detailed requirements N. To ensure that workers receive health No observed discrepancies identified. • Does the transposing legislation require surveillance appropriate to the health and health surveillance if workers experience safety risks they incur at work, measures However, this Article of the Directive has not health problems that can be attributed to shall be introduced in accordance with been transposed. There are therefore no the performance of the activities covered national law and/or practices. requirements related to health surveillance in by the Directive? The measures shall be such that each the transposing GDR. Other elements of the N. There are no requirements related to worker shall be entitled to, or shall undergo, national law and/or practices, now part of health surveillance in the transposing GDR. health surveillance before being assigned the Labour Code (including inter alia Are the arrangements for health to duties related to the activities covered Framework Directive requirements), are surveillance records specified in the by the Directive and subsequently at however not excluded and would be legislation? regular intervals. applicable. N. There are no requirements related to Health Health surveillance may be provided as health surveillance in the transposing GDR. surveillance part of a national health system. Are the conditions in which health Art. 8 surveillance is required more specifically described in the legislation? N. There are no requirements related to health surveillance in the transposing GDR. Is the periodicity of health surveillance provided in national law? N. There are no requirements related to health surveillance in the transposing GDR. • Other additional or more detailed requirements N. There are no requirements related to health surveillance in the transposing GDR. Consultation of Framework Directive applies No observed discrepancies identified. • Are there more detailed requirements
Milieu Ltd Country Summary Report for Luxembourg / 95 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent workers than in the Framework Directive? Art. 9 However, this Article of the Directive has not N. There are no requirements related to been transposed. There are therefore no consultation of workers in the transposing requirements related to consultation of GDR. workers in the transposing GDR. Other • Other additional or more detailed elements of the national law and/or requirements practices, now part of the Labour Code N. There are no requirements related to (including inter alia Framework Directive consultation of workers in the transposing requirements), are however not excluded GDR. and would be applicable. Limit values N/A N/A N/A No observed discrepancies identified. The following Articles have been transposed in a literal manner: 3(4) (reporting to the CA), 4 (protection from fire, explosions and health endangering atmospheres), 5 (escape and rescue facilities), 6 (communication, warning and alarm systems), 10 (minimum Other issues requirements for safety and health). identified NB. Re Article 10(2) of the Directive: the delay indicated in the LU transposition is up until 31 December 2001. The exclusion from scope of Article 12 of the Directive is not explicitly provided for in the transposing GDR (mineral extraction by dregging).
Table 1- 20 Council Directive 92/91/EEC (mineral-extracting industries through drilling) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive applies to the safety and No observed discrepancies identified. • Is the scope of the national legislation health protection of workers in mineral broader than the Directive? Scope and extracting industries; i.e. industries practising N. definitions extraction of minerals through drilling by Art. 1 and 2 boreholes, prospection with a view to such
extraction and/or preparation of extracted materials for sale, excluding activities of
Milieu Ltd Country Summary Report for Luxembourg / 96 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent processing the materials extracted.
A ‘safety and health document’, covering No observed discrepancies identified. Does the national legislation require the relevant requirements of the Framework employers to submit risk assessment to Directive is drawn up and kept up to date. national authorities whether on request or It shall demonstrate in particular that the automatically? risks incurred by the workers at the work N. place have been determined and Are the risks to be taken into account in assessed. the assessment described in a more specific manner than in the Directive? N. Is the content of the risk assessment more detailed than described in the Directive? N. Is a more specific methodology for risk Conducting a assessment provided in the legislation? risk assessment N. Art.3(2) Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. Does the national legislation include more specific information on the content of the ‘health and safety document’ as provided for by the Directive for the part related to the risk assessment? N. • Other additional or more detailed requirements N. Ensuring N/A N/A N/A preventive and protective services Information for Framework Directive applies No observed discrepancies identified. Does the legislation provide for specific workers Workers and/or their representatives shall conditions (e.g. size of the establishments)
Milieu Ltd Country Summary Report for Luxembourg / 97 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Art. 7 be informed of all measures to be taken However, no reference is provided to Article in relation to workers information? concerning safety and health at 10 of the Framework Directive or its N. workplaces, and in particular those relating transposition. Is the content or form of information to to the implementation of Articles 3 (general workers further specified? obligations), 4 (protection from fire, N. explosions and health-endangering • Other additional or more detailed atmospheres), 5 (Escape and rescue requirements facilities) and 6 (communication, warning N. and alarm systems). The information must be comprehensible to the workers concerned. Workers must be given the necessary No observed discrepancies identified. Is more specific information on the scope information, instructions, training and of training provided in the legislation? retraining to ensure their health and safety. N. Training of The employer must ensure that workers Are there specific requirements as to the workers receive comprehensible instructions so as competence of trainers provided in the Art. 10 (Annex not to endanger their safety and health or legislation? Part A 2.5)) those of other workers. N. • Other additional or more detailed requirements N. To ensure that workers receive health No observed discrepancies identified. Does the transposing legislation require surveillance appropriate to the health and health surveillance if workers experience safety risks they incur at work, measures health problems that can be attributed to shall be introduced in accordance with the performance of the activities covered national law and/or practices. by the Directive? The measures shall be such that each N. Literal transposition. worker shall be entitled to, or shall undergo, Are the arrangements for health Health health surveillance before being assigned surveillance records specified in the surveillance to duties related to the activities covered legislation? Art. 8 by the Directive and subsequently at N. regular intervals. Are the conditions in which health Health surveillance may be provided as surveillance is required more specifically part of a national health system described in the legislation? N. Is the periodicity of health surveillance provided in national law?
Milieu Ltd Country Summary Report for Luxembourg / 98 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent N. • Other additional or more detailed requirements N. Framework Directive applies No observed discrepancies identified. Are there more detailed requirements than in the Framework Directive? Consultation of N. workers • Other additional or more detailed Art. 9 requirements N. Limit values N/A N/A N/A No observed discrepancies identified. N. The following Articles have been transposed in a literal manner: 3(1)(a) as well as 10 and Annex (safe worplaces), 3(1)(b) as well as the Annex (supervision of a person in charge), 3(2) and (3(4)(2nd indent) (safety Other issues and health document), 3(3) (coordination identified between employers), 3(4) (reporting to the CA), 4 and Annex part A.6.2 & A.6.3(protection from fire, explosions, etc.), 5 as well as 6 and Annex A.7 (escape and rescue facilities and warning systems).
Table 1- 21 Council Directive 92/29/EEC (medical treatment on board vessels) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive applies to workers on board a No observed discrepancies identified Does the national legislation require a sick vessel, i.e. any vessel flying the flag of a MS bay for vessels board under conditions Scope and or registered under the plenary jurisdiction that go beyond the conditions set by the definitions of a MS, seagoing or estuary-fishing, directive? Art. 1 and publicly or privately owned, excluding N. 2(a) and(b), inland navigation vessels, warships, pleasure Does the national legislation require Art 2(3) and boats used for non-commercial purposes having a doctor responsible for medical (4) and not manned by professional crews and care on board under conditions that go
tugs operating in harbour areas. beyond the conditions set by the It applies to workers, excluding port pilots directive?
Milieu Ltd Country Summary Report for Luxembourg / 99 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent and shore personnel carrying out work on N. board a vessel at the quayside. • Other additional or more detailed Vessels of more than 500 gross registered requirements tonnes with a crew of 15 or more workers N. and engaged in voyage of more than three days are required to have a sick bay. Vessels with a crew of 100 or more workers and engaged in international voyage of more than 3 days are required to have a doctor responsible for medical care on board. Conducting N/A N/A N/A a risk assessment Ensuring N/A N/A N/A preventive and protective services Each Member State shall take the measures No observed discrepancies identified Does the national legislation set additional necessary to ensure that: information requirements? 1. medical supplies are accompanied by N. one or more guides to their use, including Does the legislation provide for specific instructions for use of at least the antidotes conditions (e.g. size of the establishments) required in Annex II section III; in relation to workers information? 2. all persons receiving professional maritime N. training and intending to work on board ship Is the content or form of information to Information have been given basic training in the workers further specified? for workers medical and emergency measures to be N. Art. 5 taken immediately in the event of an • Other additional or more detailed accident or serious medical emergency; requirements 3. the captain and any worker or workers to N. whom he delegates the use of the medical supplies pursuant to Article 4 (1) (b) have received special training updated periodically, at least every five years, taking into account the specific risks and needs
Milieu Ltd Country Summary Report for Luxembourg / 100 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent connected with the different categories of vessel and in accordance with the general guidelines set out in Annex V’ Same as above. No observed discrepancies identified. Is more specific information on the scope of training provided in the legislation (general training for person likely to command a vessel? N. Training of Are there specific requirements as to the workers competence of trainers provided in the Art. 5 legislation? N. • Other additional or more detailed requirements N. Health N/A N/A N/A surveillance Consultation N/A N/A N/A of workers Limit values N/A N/A N/A No observed discrepancies identified. The following Articles have been transposed in a literal manner: 2(1) (minimal requirements as regards mecial supplies), and 2(2) (minimal requirements as regards watertight medicine chest), 2(3) (sick bays), 2(4) (doctor on board), 3 (antidotes), 4(1) (responsibility of the owner and of the captain), 5 (information and training), 6 (inspection), Annex II and IV Other issues (list of medical supplies). identified
To note that the Directive is transposed in the relevant law, and the Annexes in the GDR. References to the Annexes in the law are made through a generic reference to the GDR.
To note that the STM is the competent OSH
Milieu Ltd Country Summary Report for Luxembourg / 101 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Service for vessels 63.
Table 1- 22 Council Directive 93/103/EC (work on board fishing vessels) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive applies to any new or existing This Directive is not transposed in Luxembourg. fishing vessels with a length between Only recreational vessels can be registered in Scope and perpendiculars of 15 meters or over (which the ship registry of Luxembourg. definitions on or after 23 November 1995 furthermore Consequently, the authorities considered that Art. 1 and 2(b) satisfied the conditions specified therein) or it was not necessary to transpose this Directive and(c) with a length of 18 metres or over that specifically targets commercial fishing respectively. vessels. Conducting a N/A N/A N/A risk assessment Ensuring N/A N/A N/A preventive and protective services Information for The framework Directive applies. workers The information must be comprehensible to Art.8 the workers concerned. Art.9 Workers shall be given suitable training, in particular in the form of precise, comprehensible instructions, on safety and health on board vessels and on accident Training of prevention workers The training shall cover in particular Art.9 Art.10 firefighting, the use of life-saving and
survival equipment and, for the workers concerned, the use of fishing gear and hauling equipment and the use of various types of signs including hand signals Such training shall be subject to the
63 Interview with OSH Services.
Milieu Ltd Country Summary Report for Luxembourg / 102 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent necessary updating where this is required by changes in the activities on board Art.10 Any person likely to command a vessel shall be given detailed training on: - the prevention of occupational illness and accidents on board and the steps to be taken in event of accident; - stability and maintenance of the vessel under all foreseeable conditions of loading and during fishing operations; - radio navigation and communication, including procedures. Health N/A N/A N/A surveillance Consultation of The framework Directive applies • workers Art.11 Limit values N/A N/A N/A Other issues identified
Table 1- 23 Council Directive 92/85/EEC (pregnant/breastfeeding workers) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent The Directive applies to pregnant workers No observed discrepancies identified. • Any additional or more detailed and workers who have recently given birth or requirements Scope and who are breastfeeding. However, while the Labour Code refers to This corpus of the Labour Code applied definitions pregnant worker shall mean a pregnant 'workers who have given birth', the LU entirely to female workers both of the private Art. 1 and 2 worker who informs her employer of her legislation does not provide for a definition of and the public sector. To note that this is the condition, in accordance with national 'worker who has recently given birth'. only part of the Labour Code that applies legislation and/or national practice; entirely to public and private workers alike. worker who has recently given birth shall Indeed, the civil servant status law merely
Milieu Ltd Country Summary Report for Luxembourg / 103 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent mean a worker who has recently given birth refers to the relevant provisions of the within the meaning of national legislation Code64. and/ or national practice and who informs her employer of her condition, in The employer is required to be informed of - accordance with that legislation and/or pregnancy, birth, and breast feeding with a practice; medical certificate sent via recommended worker who is breastfeeding shall mean a mail. worker who is breastfeeding within the meaning of national legislation and/or A worker is considered to be 'a worker who is national practice and who informs her breastfeeding' when the child is being employer of her condition, in accordance breastfead beyond the 8 weeks postbirth with that legislation and/or practice. maternity leave.
The LU legislation contains two additional definitions: - 'female worker' meaning any worker concerned by the provisions transposing the Directive - 'prematured birth' understood as birth occuring before the completion of the 37th week of pregnancy, giving extra rights to workers concerned (such as an extended postbirth maternity leave). For all activities liable to involve a specific risk No observed discrepancies identified. Does the national legislation go beyond of exposure to the agents, processes or the Directive by prohibiting exposure of working conditions of which a non-exhaustive agent listed in Annex I without carrying out list is given in Annex I, the employer shall a risk assessment? N. Conducting a assess the nature, degree and duration of Does the national legislation require risk assessment exposure, in the undertaking and/or employers to submit risk assessment to Art. 4 establishment concerned in order to: national authorities whether on request or - assess any risks to the safety or health and automatically? any possible effect on the pregnancy or N. breastfeeding of workers Are the risks to be taken into account in - decide what measures should be taken the assessment described in a more
64 Interview with OSH Services.
Milieu Ltd Country Summary Report for Luxembourg / 104 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent specific manner than in the Directive? N. Is the content of the risk assessment more detailed than described in the Directive? N. Is a more specific methodology for risk assessment provided in the legislation? N. Are the sources of information and persons in charge of the risk assessment described in the legislation in a more specific manner than in the Directive? N. • Other additional or more detailed requirements Y. The employer must ensure the collaboration of the occupational doctor in the realisation of the risk assessment. Ensuring N/A N/A N/A preventive and protective services Pregnant workers, workers who have recently No observed discrepancies identified. Does the legislation provide for specific given birth, workers who are breastfeeding in conditions (e.g. size of the establishments) the undertaking and/or establishment However, information is on the list of works in relation to workers information? concerned shall be informed of the results of that pregnant and breastfeeding workers N. the assessment and of all measures to be cannot accomplish, not on 'the results of the Is the content or form of information to Information for taken concerning health and safety at work. risk assessment'. workers further specified? workers N. Art.4(2) • Other additional or more detailed requirements Y. Recipients of the information are detailed as any worker who is a female, to the mixed company comity and to personel and equality delegates if any. Training of N/A N/A N/A workers
Milieu Ltd Country Summary Report for Luxembourg / 105 Brussels
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Health N/A N/A N/A surveillance Consultation of N/A N/A N/A workers Limit values N/A N/A N/A Art. 6 No observed discrepancies identified. The following Articles have been transposed in a literal manner: 5 (three tiered approach), 6 (case in which exposure is prohibited).
Article 6 of the Directive: The LU legislation requires the employer to determine which activities include an exposure risk to agents or working conditions that endanger pregnant or breastfeeding worker. In light of the prohibition, the three- tiered approach is reduced to a two-halves approach withholding the first tier on temporary adjustment and avoidance of the risk. The workers concerned therefore need to be either moved or granted leave. Other issues identified Article 8 of the Directive: Maternity leave in Luxembourg is of at least 16 weeks (8 weeks prior to the presumed date of birth and 8 weeks postbirth). If birth occurs before the presumed due date, days of the prebirth leave are automatically added to the postbirth leave period. If birth occurs after the due date, prebirth leave is prolongated until the actual birth date. In case of prematured birth or multiple birth, as well as for breastfeeding workers, the postbirth leave is of 12 weeks.
Article 10 of the Directive: Prohibition for dismissal extends to 12 weeks
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Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent after birth.
The LU legislation includes additional safeguards on working times such as the inability for the employer to require overtime hours, and daily breaks for breastfeeding that count as working hours.
Table 1- 24 Council Directive 91/383/EEC (temporary workers) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent This Directive shall apply to: These Directive provisions have not been o employment relationships governed by transposed specifically. Under the obligation a fixed-duration contract of of equal treatment of workers, LU legislation employment concluded directly obliges the employers to make all workers between the employer and the worker, benefit at least from the same minimal OSH where the end of the contract is prescriptions. References to temporary Scope and established by objective conditions workers in the section on OSH in the Labour definitions such as: reaching a specific date, Code were found only in Article L.312-2(4) Art 3(1) read in completing a specific task or the (3rd and 6th indents) which actually conjunction occurrence of a specific event; correspond to the transposition of Article 6(3) with Art 2 o temporary employment relationships of the Framework Directive. These indents between a temporary employment includes obligations relating to information business which is the employer and the and training of workers that transpose literally worker, where the latter is assigned to those of Articles 3(2) and 4 of Directive work for and under the control of an 91/383/EC on conducting risk assessments. undertaking and/or establishment making use of his services. N/A N/A N/A
NB. Article L.312-2(4) (transposition of Article Conducting a 6(3) of the Framework Directive) includes risk assessment obligations relating to information and training of workers that transpose literally those of Articles 3(2) and 4 of Directive 91/383/EC on conducting risk assessments.
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Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Ensuring Protective and prevention services are to preventive and be informed about the assignment of protective workers with temporary or fixed-duration services contracts Art. 6 In addition to the general requirements with regard to workers’ information, temporary Information for workers shall be informed of special workers Art.3 occupational qualifications or skills or (and 7) special medical surveillance and about increased risks that the job may entail. In addition to the general requirements regarding training, each temporary worker Training of must receive sufficient training appropriate workers Art.4 to the particular characteristics of the job, account being taken of his qualifications and experience. Workers who are used for particularly Health dangerous work which requires special surveillance medical surveillance must be provided with Art.5(2) appropriate special medical surveillance. Consultation of N/A N/A N/A workers Limit values N/A N/A N/A Other issues identified
Table 1- 25 Council Directive 94/33/EC (young people at work) - Observed discrepancies, more stringent and more detailed requirements
Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent Scope and The Directive applies to any person under No observed discrepancies identified. Does the transposing legislation cover definitions 18 years of age (defined as a ‘young occasional or short-term work in domestic Art. 2(1) in person’) having an employment contract service in a private household or work not conjunction or an employment relationship. considered to be harmful, damaging or with Art. 3 dangerous to young people in a family Art. 2(2) It provides for the optional exclusion of undertaking?
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Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent occasional or short-term work in domestic Y. The conditions applicable to the work of service in a private household or of work young persons employed in domestic service, not considered to be harmful, damaging or agriculture and viticulture may be specified dangerous to young people in a family by GDR adopted upon advice of the Council undertaking. of State and consent of the Conference of Presidents of the Chamber of deputies. Not such GDR has been identified. • Other additional or more detailed requirements N. The employer shall implement the measures No observed discrepancies identified. Does the transposing legislation provide for necessary to protect the safety and health a risk assessment to be conducted on a of young people on the basis of an regular basis (i.e. every year) assessment of the hazards to young people independently of any major changed in in connection with their work. working conditions? N. The assessment must be made before Does the national legislation require young people begin work and when there employers to submit risk assessment to is any major change in working conditions national authorities whether on request or and must pay particular attention to the automatically? following points: N. (a) the fitting-out and layout of the Are the risks to be taken into account in Conducting a workplace and the workstation; the assessment described in a more risk assessment (b) the nature, degree and duration of specific manner than in the Directive? Art. 6(2) exposure to physical, biological and N. chemical agents; Is the content of the risk assessment more (c) the form, range and use of work detailed than described in the Directive? equipment, in particular agents, machines, N. apparatus and devices, and the way in Is a more specific methodology for risk which they are handled; assessment provided in the legislation? (d) the arrangement of work processes and N. operations and the way in which these are Are the sources of information and persons combined (organization of work); in charge of the risk assessment described (e) the level of training and instruction given in the legislation in a more specific manner to young people. than in the Directive? Where this assessment shows that there is a N. risk to the safety, the physical or mental • Other additional or more detailed
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Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent health or development of young people, requirements an appropriate free assessment and Y. The requirements of Article 6(2)(2nd indent) monitoring of their health shall be provided include 'psychic, moral and social' in addition at regular intervals without prejudice to to 'physical and mental' provided in the Directive 89/391/EEC. Directive. The free health assessment and monitoring may form part of a national health system. The employer shall involve the protective No observed discrepancies identified. Does the national legislation set any and preventive services referred to in specific/detailed rules on the way and Article 7 of Directive 89/391/EEC in the extent of the involvement of protective Ensuring planning, implementation and monitoring and preventive services in the planning, preventive and of the safety and health conditions implementation and monitoring of the protective applicable to young people. safety and health conditions applicable to services young people? Art. 6(4) N. • Other additional or more detailed requirements N. The employer shall inform young people of No observed discrepancies identified. Is the content or form of information to possible risks and of all measures adopted young workers/legal representatives of concerning their safety and health. children further specified? Furthermore, he shall inform the legal Y. Information is required to be in writing. Information for representatives of children of possible risks • Other additional or more detailed workers Art. and of all measures adopted concerning requirements 6(3) children's safety and health. Y. Delivery of information must occur before signing the employment, training or stage contract, or at least before the young persons start providing their services. The employer shall implement the measures No observed discrepancies identified. • Does the transposing legislation provide for necessary to protect the safety and health mandatory training of young workers of young people on the basis of an (according to the Directive, the level of Training of assessment of the hazards to young people training given must be taken into account workers Art.6 in connection with their work. in assessing any hazards although there is (2) no explicit requirement to provide any The assessment must be made before such training)? young people begin work and when there N. is any major change in working conditions Is more specific information on the scope
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Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent and must pay particular attention to the of training provided in the legislation in following points: relation to young workers? N. (e) the level of training and instruction given • Other additional or more detailed to young people. * requirements N. Where the assessment shows that there is a No observed discrepancies identified. • Besides night work and cases where an risk to the safety, the physical or mental assessment of the hazards to young health or development of young people, people in connection with their work was an appropriate free assessment and shown that there is a risk to the safety, the monitoring of their health shall be provided physical or mental health or development at regular intervals without prejudice to of young people, does the transposing Directive 89/391/EEC. legislation provide for a free health assessment of young workers in other The free health assessment and monitoring circumstances? may form part of a national health system. N. Are the arrangements for health Prior to any assignment to night work and at surveillance records specified in the regular intervals thereafter, adolescents legislation? Health shall be entitled to a free assessment of N. surveillance Art. their health and capacities, unless the work Are the conditions in which health 6(2) and 9(3) they do during the period during which surveillance is required more specifically work is prohibited is of an exceptional described in the legislation? nature. N. Is the periodicity of health surveillance provided in national law? N. • Other additional or more detailed requirements Y. The derogation relating to the exceptional nature of the work has not been transposed in LU.
It was indicated by stakeholders that the
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Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent public service would not hire individuals under 18 years of age65. Five to ten workers may however exercise temporary summer jobs within the administration, in which case the occupational service competent would be the STM. As a result, the STSP does not deal with young workers. Consultation of N/A N/A N/A workers Limit values N/A N/A N/A No observed discrepancies identified. The following Articles have been transposed in a literal manner: 7 (vulnerability of young people – prohibition of work)
The following articles have been transposed in an effective manner through the interplay of provisions: 1(1) & 4 (prohibition of work by children), 5 (work in cultural or similar activities), 8 (working time), 9 (night work), 10 (rest periods), 12 (breaks).
Article 5: Other issues Prior authorisation is granted by the Minister identified of Labour upon opinion from the Director of the ITM or his/her delegate, the Minister of Education, Professional Training and Family, and a physician. A second doctor may be required to produce an opinion upon request by the ITM.
Article 10(2): Where justified, the minimum rest period for a seven day period may be reduced, but never below 48 consecutive hours. Where justified, the minimum daily rest period
65 Interview with OSH Services.
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Main provisions Observed discrepancies More detailed or broader requirements,
including more stringent may be reduced, but never below 10 and only for specific work including armed forces, hotel/restaurant/etc., hospitals, and socio- educative. * The level of training given must be taken into account in assessing any hazards although there is no explicit requirement to provide any such training.
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1.3.2 Options
This sub-section considers the options provided by the directives to the Member States to exercise their legislative powers beyond what is strictly required by the Directives. In this case, Member States can ultimately set more stringent measures than those required by the Directive. The analysis here reviews whether these options have been used, contributing to the identification of more stringent measures.
Luxembourg has not made use of any of the options considered. Directive 91/383/EEC has not been explicitly transposed in Luxembourg legislation.
Table 1- 26 Options
Directive Y/N Legal references and brief description Directive 2000/54/EC on biological agents N The Annex is transposed verbatim. - Annex I Directive 91/383/EEC on temporary workers N/A - - Art. 5(1) Directive 91/383/EEC on temporary workers N/A - - Art. 5(3) Directive 91/383/EEC on temporary workers N/A - - Art. 7(2) second indent
1.4 INTERACTIONS
This section aims at identifying synergies provided in the national legislation for the transposition of CPMs across Directives.
For each of the CPMs, the Labour Code contains the general requirements e.g. on risk assessment that is completed by each of the specific OSH GDR or specific section of the Labour Code with regard to the relevant individual Directives´ requirements.
The results of the analysis are presented in table 1-27 below.
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Table 1- 27 Interactions between CPMs across OSH Directives
Risk assessment Preventive and Information for Training of workers Health Consultation of protective workers surveillance workers services Directive 89/391/EEC L.312-2(4) & L. 312- L.312-3 Labour L.312-6 Labour L.312-8 Labour L.321-1 to L.327-1 L.312-7 Labour (Framework Directive) 5 Labour Code Code Code Code Labour Code Code Council Directive 89/654/EEC / / Art. 7 Workplace / / Art. 8 Workplace (workplace) GDR GDR Directive 2009/104/EC (work Art. 3 WE GDR / Art. 6 WE GDR Art. 7 WE GDR / Art. 8 WE GDR equipment) Council Directive 89/656/EEC Art. 5 PPE GDR / Art. 7 PPE GDR Art. 8 PPE GDR / Art. 8 PPE GDR (PPE) Council Directive 92/58/EEC / / Art. 7 OSH Signs Art. 8 OSH Signs / Art. 8 OSH Signs (OSH signs) GDR GDR GDR Art. 4 ATEX GDR / / Annex II, 1.1ATEX / / Directive 1999/92/EC (ATEX) GDR Council Directive 90/269/EEC Art. 4(a) MHL GDR / Art. 6 MHL GDR Art. 6 MHL GDR / Art. 7 MHL GDR (manual handling of loads) Council Directive 90/270/EEC Art. 3 DSE GDR / Art. 6 DSE GDR Art. 6 DSE GDR Art. 9 DSE GDR Art. 8 DSE GDR (display screen equipment) Art. 4 Vibration / Art. 6 Vibration Art. 6 Vibration Art. 8 Vibration Art. 7 Vibration Directive 2002/44/EC (vibration) GDR GDR GDR GDR GDR Art. 4 Noise GDR Art. 4(4) Noise Art. 8 Noise GDR Art. 8 Noise GDR Art. 10 Noise GDR Art. 9 Noise GDR Directive 2003/10/EC (noise) GDR Directive 2004/40/EC N/A66 N/A N/A N/A N/A N/A (electromagnetic fields) Directive 2006/25/EC (artificial Art. 4 AOR GDR Art. 4(2) AOR GDR Art. 7 AOR GDR Art. 7 AOR GDR Art. 9 AOR GDR Art. 8 AOR GDR optical radiation)
66 N/A refers to “not applicable because the Directive has not been transposed in national legislation”. The acronym of N/A will be used consistently throughout the remainder of the tables.
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Risk assessment Preventive and Information for Training of workers Health Consultation of protective workers surveillance workers services Art. 3 Carcinogens / Art. 12 Art. 11 Art. 14 Art. 13 Directive 2004/37/EC or mutagens GDR Carcinogens or Carcinogens or Carcinogens or Carcinogens or (carcinogens or mutagens) mutagens GDR mutagens GDR mutagens GDR mutagens GDR Art. 4(1), (2) & (4) / Art. 8 Chemical Art. 8 Chemical Art. 10 Chemical Art. 11 Chemical Council Directive 98/24/EC Chemical Agents Agents GDR Agents GDR Agents GDR Agents GDR (chemical agents at work) GDR Art. 3(2) Asbestos Art. 7(3) Asbestos Art. 4(3) & 13 Art. 11bis Asbestos Art. 14 & Annex II Art. 3(4), 7(2), & 12 Directive 2009/148/EC (asbestos) GDR GDR Asbestos GDR GDR Asbestos GDR Asbestos GDR Art. 3(3) & / Art. 10 Biological Art. 9 Biological Art. 14 Biological Art. 12 Biological Directive 2000/54/EC (biological 7(1)Biological Agents GDR Agents GDR Agents GDR Agents GDR agents) Agents GDR / / Art. 17 TMS GDR II / / Art. 18 TMS GDR II (also refer to (also refer to Council Directive 92/57/EEC Labour Code’s Labour Code’s (temporary or mobile provision on provision on construction sites) designation of designation of workers) workers) Council Directive 92/104/EEC Art. 3(2) S&U / Art. 7 S&U Mining Art. 8 (Annex 1.5 & / / (surface and underground Mining GDR GDR 1.6) S&U Mining mineral-extracting industries) GDR Council Directive 92/91/EEC Art. 3(2) Drilling / Art. 7 Drilling GDR Art. 10 (Annex Part Art. 8 Drilling GDR Art. 9 Drilling GDR (mineral-extracting industries GDR A 2.5) Drilling GDR through drilling) Council Directive 92/29/EEC / / Art. 5 MTV Law Art. 5 MTV Law / / (medical treatment on board vessels) Council Directive 93/103/EC N/A N/A N/A N/A N/A N/A (work on board fishing vessels) Council Directive 92/85/EEC L.334-2 Labour / L.334-1 Labour / / / (pregnant/breastfeeding Code Code
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Risk assessment Preventive and Information for Training of workers Health Consultation of protective workers surveillance workers services workers) Council Directive 91/383/EEC N/A N/A N/A N/A N/A N/A (temporary workers) L.343-2 (1), (2) & L.343-2 (5)Labour L.343-2 (4)Labour L.343-2 (1), (2) & L.343-2 (1), (2) & / Council Directive 94/33/EC (3) Labour Code Code Code (3) Labour Code (3), and L.344-15 (young people at work) (3) Labour Code
The Labour Code The Labour Code The Labour Code The Labour Code The Labour Code The Labour Code contains a contains a contains a contains a contains a contains a general general general general general general requirements on requirements on requirements on requirements on requirements on requirements on risk assessment preventive and information for training of workers health surveillance consultation of that is completed protective services workers that is that is completed that is completed workers that is by each of the that is completed completed by by each of the by each of the completed by Conclusions on interactions specific OSH GDR by each of the each of the specific OSH GDR specific OSH GDR each of the between Directives or specific section specific OSH GDR specific OSH GDR or specific section or specific section specific OSH GDR of the Labour or specific section or specific section of the Labour of the Labour or specific section Code with regard of the Labour of the Labour Code with regard Code with regard of the Labour to the relevant Code with regard Code with regard to the relevant to the relevant Code with regard individual to the relevant to the relevant individual individual to the relevant Directives´ individual individual Directives´ Directives´ individual requirements Directives´ Directives´ requirements requirements Directives´ requirements requirements requirements
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2 MAPPING QUESTION 2: GAPS IN CONTENT OR TIME
This section aims at determining whether the Member State has applied or used derogations and transitional periods when provided for by the Directives. Provisions setting options are covered under MQ1, in section 1.3.
2.1 TRANSITIONAL PERIODS
Transitional periods: these are periods of time where a derogation applies with extended deadlines for the implementation of particular provisions of the Directives. It is noteworthy that most of the transitional periods are not applicable anymore as the dates by which provisions in question had to be implemented at latest have already passed. However, these periods should be taken into consideration to explain delays in implementation of certain Directives.
Such transitional periods can be found in eight Directives as listed below. For all these Directives, Luxembourg has set transitional periods with the exception of Directive 93/103/EC (work on board fishing vessels), which is not transposed.
Table 2- 1 Transitional Periods
Directive Transitional Transitional period respected Date of end of periods application of the applied transitional period Directive 90/270/EEC (display screen Yes Yes 30.12.1996 equipment) No Late transposition is due to the fact that there are no drilling Directive 92/91/EC (mineral-extracting Yes extractions in Luxembourg, and 20.11.1999 industries through drilling) that the government did not believe it was necessary to transpose the Directive 67. Directive 92/104/EC (surface and Yes Yes (more stringent) 31.12.2001 underground mineral extracting industries) Directive 93/103/EC (work on board fishing N/A N/A N/A vessels) Directive 1999/92/EC (ATEX) Yes Yes 30.06.2006 06.07.2010 & Directive 2002/44/EC (vibration) Yes Yes (more stringent re 2nd indent) 06.07.2011 31.10.2010 & Directive 2003/10/EC (noise) Yes Yes (more stringent re para 1) 15.02.2008 31.12.1996 & Directive 2009/104/EC (work equipment) Yes Yes 05.12.2002
Moreover, it should be noted that the provisions of Article 7 of the Noise GDR on reduction of exposure were declared as not applicable to any workers until 31.12.2006 in Luxembourg as a transitional period. However, no such transitional period is allowed under Directive 2013/10/EC on noise.
67 Interview with the Labour Inspectorates.
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2.2 DEROGATIONS
Derogations: these are provisions, which explicitly permit Member States to derogate from certain requirements contained in the Directive. All derogations are accompanied by conditions which need to be fulfilled before and/or after derogation is permitted. The following table shows which derogations have been used and whether or not the conditions attached are adequately reflected in the transposing legislation.
Luxembourg transposing legislation reflects all derogations and, as a rule, the conditions attached to them. The only derogations which have not been used are the possibility to allow for contribution of workers towards the costs of some personal protective equipment (Directive 98/656/EEC on personal protective equipment) and the derogation set in Directive 2004/40/EC (electromagnetic fields) as it has not been transposed.
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Table 2- 2 Derogations
Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation Directive Art.4.6, Member States’ N Luxembourg did not The derogation applies in N Luxembourg did not transpose 89/656/EEC on second legislation may allow transpose this derogation. circumstances where use this derogation. personal indent for contribution of of the equipment is not protective workers towards the exclusive to the workplace equipment costs of some personal protective equipment. Directive Art. 3.2 Derogation from the Y Derogation transposed to The derogation does not Y Literal transposition in Article 5 92/57/EEC on obligation to draw up its maximum, i.e. safety cover work involving TMS GDR temporary or a health and safety and health plan only particular risks as listed in mobile plan required if fits this Annex II. construction sites Directive's condition (or the one below). Prior requirement to consult management and workforce is not transposed. Derogation transposed to The derogation does not Y Literal transposition in Article 5 its maximum, i.e. safety cover work for which prior TMS GDR and health plan only notice is required pursuant required if fits this to paragraph 3 of this Directive's condition (or Article. the one above). Prior requirement to consult management and workforce is not transposed. Directive Art. 6.2. Derogation from the Y Literal transposition. Alternative measures Y Literal transposition. 92/58/EEC on application of Annex guaranteeing the same safety and/or VIII, section 2 level of protection laid health signs at down. work Derogation from the Y Literal transposition. Alternative measures Y Literal transposition. application of Annex guaranteeing the same IX, section 3 level of protection laid
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation down Directive Art.11.4 Member States may Y The Directive provides for The worker concerned Y This contestation can only be 92/85/EEC on make entitlement to the possibility for MS to shall fulfil the conditions of exercised against decisions breastfeeding benefits conditional make entitlement to eligibility for such benefits concerning the implementation workers benefits pursuant to the laid down under national of Article 4(1) (assessment of transposition of Articles 5 legislation. specific risk of exposure), 5 (temporary adjustment (actions further to this following three tiered assessment) and 7 (night work) approach), 6 (prohibition of Directive 92/85/EEC. of exposure) and 7 (night The transposed derogation work) condition. therefore does not seem to Under LU Law, inter alia, cover Article 6 (prohibition of workers may: exposure) and Article 8 - obtain temporary (maternity leave) of Directive adjustments to their 92/85/EEC. work station or be These conditions may N Article L.337-3 of the Labour granted leave under under no circumstances Code provides that, when a transposition of Article 5 provide for periods of femal worker is employed under of the Directive in Article previous employment in an indefinite contract including L.334-3 Labour Code, or excess of 12 months a trial period, this trial period is - be transferred to immediately prior to the suspended from the notification daytime work or be presumed date of of the pregnancy when a granted leave in confinement. prohibition to be fired starts. This transposition of Article 7 period resumes at the end of in Articles L.333-1 to this prohibition period, i.e. 12 L.333-4 Labour Code. weeks after birth. However, in order for a worker to obtain these adjustments, transfer or leave to be granted, the occupational doctor is first legally required to deliver a favourable opinion. These entitlements to benefits are therefore first conditional to the agreement of the occupational doctor, and
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation secondly these entitlements are conditional to the employer’s agreement as s/he may contest the occupational doctor’s opinions through hierarchical review with appeal to a social insurance arbitral council. A second appeal may then be brought to the social insurance high council. To note that the worker herself may also contest these opinions in the same manner. Directive Art.5.3 Derogation from the Y Employment of 'children' In the case of children of Y Children's participation in 94/33/EC on the requirement to (understood as any minor at least 13 years of age, audiovisual, culturel, artistic, protection of receive a prior under the age of 15) is Member States may sport, advertisement or fashion young people at authorisation for the expressly prohibited by authorise, by legislative or activities are not prohibited work employment of Article L.342-1 subject to regulatory provision, in either (i) when this participation children for the the conditions of Articles accordance with is non lucrative and done in the purposes of L.342-2 to L.342-4. conditions which they shall framework of associative performance of determine, the activities, or (ii) upon children in cultural Articles L.342-2 and L.342-3 employment of children authorisation by the Labour and similar activities describe what is for the purposes of Ministry. understood as 'children performance in cultural, work'. Article L.342-4(1) artistic, sports or In this last instance, request must reiterates the global advertising activities. be issued by the organiser of the prohibition including with activity and accompanied by regards to audiovisual, the concerned child's legal culturel, artistic, sport, guardian's authorisation. The advertisement or fashion head of the ITM, the Education activities. Article L.342-4(2) Ministry, and the family's doctor and following provides for are required to deliver an exceptions to this rule, opinion on the request. The their remit, and their Labour Ministry may further
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation implementation. request another doctor's opinion. Authorisation granted by the Labour Ministry is individual. head of the ITM may require the child undergoes a psycho-socio-educative interview with an accompanying doctor. Children's participation may not interfere with their education.
No authorisation may be delivered for variety and cabaret shows (L.342-4(3)).
Under Article L.342-4(4), children may only participate in any of the activity concerned by Article L.342-3 when: - they are above six years of age (a further authorisation may be obtained in a case similar to the one described above (Article L.342-4(5))) ; - the activities do not take place after 11pm ; - they enjoy an uninterrupted 14 hours rest between two participations to any activity ; - compensation to the child must be wired to a blocked account in the child's name. Art. 7.3. Derogation from the Y Article L.343-3 of the Derogations indispensable N This requirement is transposed in prohibition of Labour Code transposes for their vocational a literal manner by Article L.343- employment of the requirements of Article training 3(4). However, Article L.343-3(3) young people for 7 of Directive 94/33/EC in also provides for written works listed in Article an almost literal manner. derogations without this 7.2 in the case of requirement.
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation adolescents Protection of their safety Y Literal transposition in second and health is ensured by indent of Article L.343-3(3) and the fact that the work is Article L.343-3(4). Article 7 of the performed under the Framework Directive is supervision of a transposed by Article L.312-3 of competent person within the Labour Code. the meaning of Article 7 of Directive 89/391/EEC Protection afforded by Y Whilst the Labour Code does Framework Directive is not refer to the 'protection guaranteed afforded by the Framework Directive', it does refer to protection of the young persons' physical, psychic, mental, moral, spiritual and social development. Moreover, the delegate to security and/or young employees is also added to the surveillance together with a competent person within the meaning of Article L.312-3 of the Labour Code. Art. 8.5 Derogations from Y Article L.344-9 and L.344- Derogation is justified by Y Article L.344-9(2) transposes this limits on the working 10 introduce deorgations way of exception requirement as an 'exceptional' hours of children to the provisions of Article occurence, whilst Article L344-10 specified in Article 8(1)(a) and 8(2) of refers to a 'striclty exceptional' 8.1.(a). Directive 94/33/EC. occurence. Article L.344-9 provides for Or Derogation is used Y Article L.344-9(2) transposes this derogation concerning because objective requirement as 'objective arrangements to regular grounds are provided grounds', whilst Article L.344-10 working times, whilst refers to a force majeure or the Article L344-10 is existence or security of the concerned with extra company'. working hours. Member States shall, by Y Additional requirements are legislative or regulatory provided under both Articles: provision, determine the - Article L.344-9 conditions, limits and Working hours can be arranged procedure for if a collective branch
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation implementing such agreement or upon written derogations. authorisation by the Labour Minister. Arrangements must be made in such a manner than the original time requirements of 40 hours per week and eight hours a day are respected on an average spread upon 4 weeks time periods. In any case, working hours cannot exceed nine hours a day, or 10% of the applicable normal maximum working time in the company, or 44 hours per week.
- Article L.344-10 Extra working hours can only be requested insofar as necessary to avoid serious hindrance to the normal execution of the company. Extra working hours must not be unsustainable.
Employers may only require extra working hours when the employer cannot legally request adult employees to do it and upon respect of the conditions of Article L.344-1 (i.e. non- exploitation, non interference with the young persons' physical, psychic, mental, moral, spiritual and social development, and non compromission of education, orientation or professional
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation training). Finally, the employer must inform the head of the ITM and indicate the reasons of the decisions. Art.9.2 Article 9 (2) a Y The Labour Code contains Work by adolescents in Y Work derogations is only Member States may, a general prohibition of specific areas of activity authorised when it is undertaken by legislative or adolescents’ work during in the framework of official regulatory provision, the night in Article L.344- professional trainings organised authorize work by 15(1). The night is a period and monitored by competent adolescents in of at least 12 hours public authorities. specific areas of including the 8pm to 6am activity during the interval. Work is authorised In addition to the fields period in which night until 10pm in enterprises mentioned in Article 9.2.b work is prohibited as and services requiring second indent, the Labour referred to in continuous operation. Code refers to the socio- paragraph 1 (b). educational field, hotel and The Labour Code restaurants, and bakeries (L.344- transposes both 15(2)(1st indent)(2), (3) and (5)). derogations of Article 9.2 Supervision of the Y The employer is required to state a and 9.2 b second indent adolescent by an adult in the derogation request which together, making the where such supervision is adult person ensures the different conditions of necessary for the adolescent surveillance (L.344- both articles applicable to adolescent's protection. 15(2)(4th indent)). any such derogation. Work shall continue to be Y L.344-15(2)(3rd indent) provides prohibited between for this prohibition. Derogations are issued in midnight and 4 a.m. writing by the Labour To note that hotel and Ministry. A request must be restaurant work is in any case issued by the employer. limited to 10pm L.344-15(2)(2nd The ITM, the Education indent). Ministry, and the occupational doctor are required to deliver an opinion on the request. Children's participation may not interfere with their education.
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation Article 9 (2) b Y The Labour Code contains Objective grounds for so Y L.344-15(2)(5th indent) provides second indent a general prohibition of doing for this condition. Derogation from adolescents’ work during and provided that Y L.344-15(2)(5th indent) provides prohibition of night the night in Article L.344- adolescents are allowed for this condition, requiring this work for adolescents 15(1). suitable compensatory rest time to be allowed in a short for: rest time time frame (délai rapproché) — work performed in Derogations are which cannot exceed 12 days. the shipping or authorised in certain The authorisation to derogate fisheries sectors; fields when it is must establish the length of this — work performed in undertaken in the rest time and the time frame the context of the framework of official within which it has to be taken. armed forces or the professional trainings and that the objectives Y The derogation must not police; organised and monitored set out in Article 1 are not interfere with the security, health — work performed in by competent public called into question: and young persons' physical, hospitals or similar authorities. Apart from psychic, mental, moral, spiritual establishments; the fields mentioned and social development. It — cultural, artistic, above, other fields further must not compromise sports or advertising include: their school attendance and activities. - work performed in the participation in professional context of the armed orientation/training (L.344- forces or the police; 15(2)(6th indent). - work performed in hospitals or similar establishments; The rules described above in the context of Article 9(a) are applicable to these derogations, including the different conditions
Moreover, these fields also include cultural, artistic, sports or advertising activities. In this case, the Labour Code refers to the applicability of Article
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation L.342-4 described above concerning Article 5.3 of Directive 94/33/EC. Art.10.3 Derogation from the Y Derogations are not minimum rest allowed for children but periods for ore allowed for interruption in the adolescents, however no case of activities reference is made to involving periods of activities involving periods work that are split up of work that are split up over the day or are over the day or are of of short duration. short duration, but to objective technical or organisational grounds which can be considered as similar.
Under Article L.344- 12(2)(2nd indent), these derogations can only concern the seven day rest period (Article 10(2) of Directive 94/33/EC). These rest periods are required to be of two consecutive days that include in principle Sundays.
Derogations cannot make the resting period inferior to 44 hours (i.e. only 4 hours of work may be allowed during these resting periods). Art. 10.4 Derogations from Y Two derogations have Objective grounds are Y 1. Derogation to resting periods rest periods in been put in place under provided and provided (Article L.344-12) respect of the Labour Code in this that they are granted adolescents for context. appropriate - Respect the conditions of
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation (a) work performed compensatory rest time Article L.344-1 (i.e. non- in the shipping or 1. Derogation to resting and that the objectives exploitation, non interference fisheries sectors; periods (Article L.344-12) set out in Article 1 are not with the young persons' (b) work performed called into question physical, psychic, mental, in the context of the Under Article L.344-12(3), moral, spiritual and social armed forces or the derogations may be development, and non police; granted from resting compromission of education, (c) work performed periods. in writing by the orientation or professional in hospitals or similar Labour Minister upon training) (Article L.344-12(3)(1st establishments; request. The ITM, the indent)). (d) work performed Education Ministry, and in agriculture; the occupational doctor - Objective grounds must justify (e) work performed are required to deliver an this derogation and rest time in the tourism opinion on the request must be allowed in a short time industry or in the (Article L.344-12(3)(1st frame (délai rapproché) which hotel, restaurant indent)). cannot exceed 12 days. The and café sector; authorisation to derogate must (f) activities involving This derogation can only establish the length of this rest periods of work split be granted for work time and the time frame within up over the day. undertaken in the which it has to be taken (Article framework of official L.344-12(3)(2nd indent)). professional trainings organised and monitored - The derogation must not by competent public interfere with the security, health authorities that is either in and young persons' physical, the context of the armed psychic, mental, moral, spiritual forces or the police, and social development. It hospitals or similar further must not compromise establishments, socio- their school attendance and educational field, or hotel participation in professional and restaurants (Article orientation / training (Article L.344-12(3)(1st indent) (1), L.344-12(3)(3rd indent)). (2), (3), and (4)). - In case of interruption to the 2. Long derogations to daily rest (Article 10(1)(b) of Sundays and bank Directive 94/33/EC), the resting holidays (Article L.344- period cannot be made inferior 13(3)) to 10 hours (i.e. only 2 hours of
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation work may be allowed during As mentioned above, these resting periods) (L.344- Sundays are by principle 12(3)(4th indent). included in the seven day resting period. As a result, N 2. Long derogations to Sundays the Labour Code expressly and bank holidays (Article L.344- prohibit adolescents’ work 13(3)) on Sundays and bank holidays (L.344-13). - Respect the conditions of However, derogations Article L.344-1 (i.e. non- may be granted to these exploitation, non interference prohibitions in writing by with the young persons' the Labour Minister upon physical, psychic, mental, request. The ITM, the moral, spiritual and social Education Ministry, and development, and non the occupational doctor compromission of education, are required to deliver an orientation or professional opinion on the request training). (Article L.344-12(3)(1st indent)). The authorisation - adolescents must be exempt must include the duration of working every other Sunday, of the derogation. except for hotel and restaurants during the month of july and This derogation can only august. be granted for work undertaken in hotel and - Within twelve days of working restaurants, cafés, on a Sunday or bank holiday, beverage room (salons de compensatory rest time must be consummation), clinics, allowed (Article L.344-13(4)). health institute or seniors and dependent persons There is therefore no expressed care, child home and requirement relating to institutions active in the objective grounds for this field of education and derogation. child care. Note that these last sectors are not included in the Directive’s list.
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation
This may impact on the seven day resting period and is therefore subject to conditions described in the box on explanations on the right. Art. 13 Member States may, Y As mentioned above, Work is of a temporary Y The Labour Code refers to an by legislative or Sundays are by principle nature and must be ‘exceptional authorisation’ and regulatory provision, included in the seven day performed immediately ‘solely insofar as necessary to authorize derogations resting period. As a result, avoid serious hindrance to the from Article 8 (2), the Labour Code expressly normal execution of the Article 9 (1) (b), prohibit adolescents’ work company’ which reflects this Article 10 (1) (b) and, on Sundays and bank condition. in the case of holidays (L.344-13). Adult workers are not Y Requirement transposed in adolescents, Article However, derogation to available Article L.344-13(2) 12, for work under this prohibition can be Adolescents are allowed Y Requirement transposed in force majeure allowed in a case of force equivalent compensatory Article L.344-13(4). Within twelve majeure or danger to the rest time within the days of working on a Sunday or existence or security of the following three weeks. bank holiday, compensatory company. rest time must be allowed.
The head of the ITM must be informed immediately. Directive Art. 9.2 Derogations from Y Literal transposition of the Exposure of workers to Y Literal transposition of this 98/24/EC on and 9.3 prohibition of the use derogations and chemical agents must be condition in Article 9(2) of the chemical agents of certain chemical conditions in Article 9(2) prevented, via single Chemical Agents GDR at work agents and activities and (3) of the Chemical closed systems, from involving chemical Agents GDR. which the chemical agents in the Derogations are granted agents may be removed following by the ITM. only to the extent circumstances: necessary to monitor the - for the sole purpose process or service the of scientific research system. and testing, including Member States may N It is not expressly said that analysis, provide for systems of authorisations are collective but - for activities individual authorisations. it is assumed. intended to eliminate The competent authority Y Literal transposition of this
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation chemical agents that shall request the employer condition in Article 9(3) of the are present in the to submit the information Chemical Agents GDR. form of by-products listed in Article 9.3. or waste products, The LU transposition adds ‘risk - for the production analysis’ at the end of the list of of the chemical information to be submitted. agents referred to in paragraph 1 for use as intermediates, and for such use. Directive Art. 10.1 Derogation from the Y Literal transposition of this In duly justified Y Literal transposition of this 2002/44/EC on obligation to comply derogation in Article 9(1) circumstances with condition in Article 9(1) of the vibration with exposure limit of the Vibration GDR. respect to whole-body Vibration GDR. values in the case of vibration where, given the sea and air transport, Derogations are granted state of the art and the by the Labour Ministry. specific characteristics of workplaces, it is not possible to comply with the exposure limit value despite the technical and/or organisation measures taken. The derogation must be Y Literal transposition of this accompanied by condition in Article 9(3) of the conditions which Vibration GDR. guarantee that the resulting risks are reduced The ‘two side of the industry’ are to a minimum and that referred in the LU transposition the workers concerned as a consultation of the workers, are subject to increased and two compulsory opinions: health surveillance, and one by the occupational doctor must be reviewed every and one by the ITM. four years and withdrawn as soon as the justifying circumstances no longer obtain. (Art.10.3) Art. 10.2 Derogation from the Y Literal transposition of this The exposure value Y Literal transposition of this obligation to comply derogation in Article 9(2) averaged over 40 hours condition in Article 9(2) of the
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation with exposure limit of the Vibration GDR. must be less than the Vibration GDR. values in a case exposure limit value and where the exposure Derogations are granted There must be evidence Y Literal transposition of this of a worker to by the Labour Ministry to show that the risks from condition in Article 9(2) of the mechanical vibration upon written request. the pattern of exposure to Vibration GDR. is usually below the the work are lower than exposure action those from exposure at values but varies the exposure limit value markedly from time The derogation must be Y Literal transposition of this to time and may accompanied by condition in Article 9(3) of the occasionally exceed conditions which Vibration GDR. the exposure limit guarantee that the value resulting risks are reduced The ‘two side of the industry’ are to a minimum and that referred in the LU transposition the workers concerned as a consultation of the workers, are subject to increased and two compulsory opinions: health surveillance, and one by the occupational doctor must be reviewed every and one by the ITM. four years and withdrawn as soon as the justifying circumstances no longer obtain. (Art.10.3) Directive Art.11.1 Derogations from the Y Literal transposition of this Guarantee, taking into Y Literal transposition of this 2003/10/EC on and provisions of Articles 6 derogation in Article account the special condition in Article 11(2) of the noise 11.2 (1)(a) and (b) and 7. 11(1)&(2) of the Noise circumstances, that the Noise GDR. in exceptional GDR. resulting risks are reduced situations where, to a minimum and that because of the Derogations are granted the workers concerned nature of the work, by the Labour Ministry are subject to increased the full and proper upon written request. The health surveillance. use of individual ‘two side of the industry’ hearing protectors are referred in the LU Review every four years Y Literal transposition of this would be likely to transposition as a and withdrawn as soon as condition in Article 11(2) of the cause greater risk to consultation of the the justifying Noise GDR. health or safety than workers, and two circumstances no longer not using such compulsory opinions: one obtain. protectors by the occupational doctor and one by the
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Directive Article Use of derogation Y/N Explanation Conditions reflected Y/N Explanation ITM. Directive Art.4.6 The risk assessment N/A Not transposed. 2004/40/EC on may include a electromagnetic justification by the fields employer that the nature and extent of the risks related to electromagnetic fields make a further detailed risk assessment unnecessary.
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3 MAPPING QUESTION 3: LEVEL OF COMPLIANCE BY DIFFERENT STAKEHOLDERS
The question consists of two separate, but intertwined questions: the degree of compliance and approaches to compliance.
3.1 DEGREE OF COMPLIANCE
The question aims to ascertain the extent to which establishments in Member States comply with the key requirements of the 24 OSH Directives and to what extent differences exist between public/private sector; different sizes of establishments: micro/SMEs/large enterprises and different sectors of economic activity.
The results are summarized in tables 3.1 and 3.2. Table 3.1 outlines the range of compliance with the common processes and mechanisms (CPMs) across all 24 OSH Directives. Table 3.2 complements the previous table by addressing the level of compliance with the CPMs at the level of individual Directives.
As regards key requirements which do not constitute CPMs, a detailed overview is provided in Table 3.3.
For estimating the degrees of compliance, the following basic breakdown can be used : (5) very high degree of compliance: indicators above 80% (4) high degree of compliance: indicators 60-79% (3) medium degree of compliance: indicators 40-59% (2) low degree of compliance: indicators 20-39% (1) very low degree of compliance: indicators below 20%.
In the case of Luxembourg, the only data available is the ESENER Survey. Although some stakeholders referred to a general trend of improvement with regard to compliance, they also acknowledged that further progress is still needed68. The stakeholders interviewed did not know of any statistical data on compliance rates for the period 2007-201269. The lack of data on compliance rates was pointed out as a key problem by several interviewees. Lack of resources was highlighted repeatedly as a key reason for the lack of data on OSH issues in general. A supplementary stumbling block laid on the need for uniform or standardised filling of the different documents by e.g. doctors and OSH Services annual reports 70. In the absence of possible triangulation, it is not possible to give an overall estimation of the degree of compliance.
With regard to the ESENER data reported upon in the below table, it should be noted that ESENER data are based on a relatively small sample size (interviews were carried out in only 28,649 establishments in 31 European countries) and composition (enterprises up to 10 employers were not involved). Moreover, this information is based on managers’ responses and the ESENER average response rate is around a third as only some 20 per cent answered in five out of the EU's six largest countries (Germany, Spain, Italy, Poland and the UK).71 The post-test of the ESENER survey noted that “it is important to mention that companies participating in the survey are likely to be the
68 Interview with Labour Inspectorates and Representatives of employers. 69 Interview with Labour Inspectorates, Representatives of employees, and OSH services. 70 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.39. 71 EU-OSHA, European Survey of Enterprises on New and Emerging Risks - Managing safety and health at work, 2010, p.95
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72 EU-OSHA, Qualitative post-test evaluation of ESENER: National overview report, 2013
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Table 3- 1 Degree of compliance: Common processes and mechanisms (across Directives)
Common Criteria/indicator to Assessment of the An explanation of how the assessment was Differences between the different types of Processes and guide the assessment degree of made (including references to data sources sectors, size of establishment mechanisms compliance when available) (micro/SMEs/large) and sectors of (across Directives) economic activity and the rationale Risk assessment % of establishments - While risk assessment is required under the Stakeholders underlined that small which perform regular73 legislation for all types of works, risk companies rarely undergo a proper risk risk assessment assessment are carried out systematically assessment and rare were those which set % of establishments that only for highly risky works in practice. In other up rectifying measures in view of this carry out risk cases, risk assessments are only carried out assessment’s outcomes75. management activities following a request from the ITM, resulting from the risk occupational doctors or business assessment federations74.
According to The ESENER1 survey suggests that most of the The ESENER survey76 shows the following ESENER1 data: workplaces (52.95%) are regularly checked differences according to enterprise size 52.95% of for health and safety as part of a risk and sectors: workplaces are assessment or similar measure. regularly checked Company Size 77: for health and Yes No safety as part of RA 10-19 45.72% 51.93% 20-49 52.55% 46% 50-249 63.6% 35.08% 250-499 88.55% 11.45% 500 + 85.19% 14.81%
Sector Type 78: Yes No Production 60.36% 37.8% Private 48.35 49.47% % Public 58.6% 49.47%
73 Is the risk assessment reviewed regularly and in any event when any changes occur in the conditions which may affect workers exposure? 74 Interview with Representatives of employers. 76 ESENER1, question MM161 76 ESENER1, question MM161 77 Idem. 78 Idem.
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Common Criteria/indicator to Assessment of the An explanation of how the assessment was Differences between the different types of Processes and guide the assessment degree of made (including references to data sources sectors, size of establishment mechanisms compliance when available) (micro/SMEs/large) and sectors of (across Directives) economic activity and the rationale Ensuring protective % of establishments According to ESENER1 2009 asks about different forms of Data based on company size showed a and preventive having ensured ESENER1: 14.9% – service79. Occupational Health Physician, general trend for greater usage in larger services protective and 85.29% 85.29%; Safety specialist, 47.28%; Psychologist companies- except in regards to the preventive services 14.9%; Ergonomist, 16.67%; Health & Safety occupational health physician specialty Consultant, 33.11%. where all company sizes were more or less equal. For sectors there was a general pattern of more use of each speciality within public services. Again, the only exception was seen with the occupational health physician speciality where all sectors were more or less equal. Furthermore, the use of these specialties in the public services and the production sectors were generally close to being equal. Information for % of establishment Data not available workers which provide information to workers Training of workers % of establishment Data not available which provide training to workers
79 https://osha.europa.eu/sub/esener/en/front-page/106/005 (MM150).
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Common Criteria/indicator to Assessment of the An explanation of how the assessment was Differences between the different types of Processes and guide the assessment degree of made (including references to data sources sectors, size of establishment mechanisms compliance when available) (micro/SMEs/large) and sectors of (across Directives) economic activity and the rationale Making available % of establishments According to The ESENER1 Survey suggests that the health The ESENER1 survey81 shows the following health surveillance which provide health ESENER1 data: of workers is monitored in most of the differences according to enterprise size surveillance to workers health of workers is workplaces (77%)80. and sectors: monitored in 77% of Company Size82: the workplaces Yes No 10-19 73.02% 26.09% 20-49 78.61% 21.39% 50-249 81.72% 17.62% 250-499 74.1% 25.09% 500 + 90.74% 9.26%
Sector Type83: Yes No Production 89.52% 10.48% Private 71.01% 28.22% Public 78.56% 21.44%
Consultation of % of establishments with According to ESENER1 2009 asked separately about The data showed an increasing trend workers appointed worker rep ESENER1 data: different forms of consultation.85 Companies according to company size with a small % of establishments 53.56%84 have a were least likely to have a health and safety dip in percentage for companies with which consult workers health and safety committee and most likely to have a health 250-499 employees. In terms of sectors, on risk assessment representative. and safety representative. The categories the private sector was least likely to have
80 ESENER1 Survey, question MM154. 81 ESENER1, Question MM154. 82 Idem. 83 Idem. 84 Values as reported by ESENER MM 351-355-358. 85 https://osha.europa.eu/sub/esener/en/front-page/219/005?group_by=sec3
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Common Criteria/indicator to Assessment of the An explanation of how the assessment was Differences between the different types of Processes and guide the assessment degree of made (including references to data sources sectors, size of establishment mechanisms compliance when available) (micro/SMEs/large) and sectors of (across Directives) economic activity and the rationale % of establishments are not mutually exclusive. a health and safety representative. which consult workers - Health and safety representative: 53.56% on measures (production sector: 64.06%; private services: 47.5%; public services: 59.75%)86
86 ESENER1, questions MM355
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Table 3- 2 Degree of compliance: Common processes and mechanisms (individual Directives)
As explained above, no data is available on the degree of compliance for individual directives.
Common Processes Criteria/indicator to guide Directive nr. Assessment of The rationale upon which the Differences between the different types and mechanisms the assessment the degree of assessment has been made of sectors, size of establishment (individual Directives) compliance (including references to data (micro/SMEs/large) and sectors of sources when available) economic activity and the rationale Risk assessment % of establishments which Data not perform regular87 risk available assessment Ensuring protective and % of establishments Data not preventive services having ensured available protective and preventive services Information for workers % of establishment which Data not provide information to available workers Training of workers % of establishment which Data not provide training to available workers Making available % of establishments which Data not health surveillance provide health available surveillance to workers Consultation of workers % of establishments with Data not appointed worker rep available % of establishments which consult workers on risk assessment % of establishments which consult workers on measures
87 Is the risk assessment reviewed regularly and in any event when any changes occur in the conditions which may affect workers exposure?
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Table 3- 3 Degree of compliance: Key requirements
As explained above, no data is available on the degree of compliance for individual directives.
Directive Key Estimate of An explanation of how the assessment was made (including Differences between the different types of requirement degree of references to data sources when available) sectors, size of establishment (Directive compliance (micro/SMEs/large) and sectors of specific) economic activity and the rationale for those differences Data not Data not Data not Data not available Data not available available available available
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3.2 APPROACHES TO COMPLIANCE
The second question complements the first sub-question in that aims to answer the question of to what extent can potential differences in the degrees of compliance observed as between private undertakings and public sector bodies, various sizes of companies, etc. be attributed to different approaches to compliance.
In Luxembourg, there is no specific approach to compliance set in legislation or policy. Therefore, compliance depends a lot on the degree of awareness and commitments of the different stakeholders and primarily the companies themselves. The lack of human and financial resources is seen as a serious barrier to compliance, especially in relation to SMEs. While the transposition of the OSH- related Directives has fostered a change towards a preventive approach, the lack of details of the legal requirements, their complexity in the case of newer directives, the lack of occupational doctors impedes proper implementation and compliance with the new requirements.
The ITM is undertaking a supportive approach to improve compliance in companies, notably through the provision of in-situ advice or through various tools and guidelines.
Table 3- 4 Approaches to compliance
Question Answer Observed differences between the different types of sectors, size of establishment (micro/SMEs/large) and sectors of economic activity
What approach There is no specific approach set out in As a general rule, different has been the legislation or in policy, which was stakeholders indicated that OSH issues 88 adopted? Is it confirmed by several stakeholders . are often better managed and in a systematic? more systematic manner by larger An important element of Luxembourg companies100. Moreover, visits in SMEs OSH legislation is the requirement for proves difficult (whether by the Labour employers to set up, in agreement with inspectorates or Occupational the Occupational doctor, an inventory doctors) due to their sheer numbers of post involving risks and to transmit and lack of human resources and in this inventory to the DSAT. This addition SMEs have less resources and obligation is the only explicit less structured social dialogue101. requirement resting on the general duty for employers to protect employees’ The structure of social dialogue was health and safety, as indicated in the highlighted by stakeholders as a main 2012 Health Audit89 and during factor for lack of systematic interviews. However, the compliance in SMEs, highlighting the implementation of this requirement industry sector’s larger companies’ remains vague and time consuming comité mixte as a counterexample despite accompanying documents (see below). Moreover, industry provided by the different stakeholders companies often hire external to employers and employees. consultants to control their compliance which SMEs often do not for lack of A lack of clear standards/legal resources. Furthermore, Safety motivation is therefore identified, and, representatives are not required in as pointed out by stakeholders, a lack smaller enterprises, and often the role of adequate control especially in SMEs, of Designated workers is filled in by the leaving compliance largely dependent employer in these enterprises. This point on the company actors’ own will90. In together with the need for Designated
88 Interview with Labour Inspectorates, Representatives of employers, Representatives of employees, and OSH Services. 89 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.19. 90 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.30 and interview with Representatives of employees.
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Question Answer Observed differences between the different types of sectors, size of establishment (micro/SMEs/large) and sectors of economic activity addition, the 2012 Health Audit workers to be effectively trained and indicates that social dialogue on health collaborate with Occupational doctors and safety in companies is in general is also highlighted in the 2012 not commensurate to the challenge91. Luxembourg Health at Work Audit 102. The Auditing team in this respect One stakeholder indicated that industry wondered whether this lack of companies lacked vision in setting up collaboration was not due to the OSH documents, particularly preventive separation between the authorities measures. Companies would usually responsible for each actor, namely the have documents required under other Ministry of Health and the Ministry of legal requirements (e.g. list of Labour. It is therefore interesting to substances or chemical registry), and note the pending reform of the co- some under OSH legislation (for management model that should be instance assessment of posts involving adopted by 2015 as a positive step risks), but these documents would be forward. This reform as presently very basic and the companies would discussed would require, inter alia, not use, organise and prioritise these companies to appoint Safety documents with an OSH management representatives as soon as there are at perspective, e.g. the type and nature least 15 employees in the company103. of documents required for compliance during controls by customs, as well as According to a stakeholder, the size of the company and number of companies that are members of individuals responsible for OSH business federations tend to be more management. Finally, this stakeholder compliant than those which are not. also addressed ignorance of employers Some companies clearly have and their lack of vision on OSH, in exemplary approaches which largely particular with regard to complex depend on the priorities set by the tools92. employer104. The following examples can be highlighted: As a result, the implementation is rather - Organisation of a monthly one due to sensibilisation of the public hour meeting on general and concerned, and advice given by the specific OSH issues. stakeholders either upon request by - Constant consultation of employers or during formal visits by employees on the equipment and occupational doctors or the labour choice of new equipment, as well inspectorate93. In this regard, ITM plays as on formation relating to new an important role in informing, advising equipments (such as machines) or undertaking an informal mediation - Specific training organised by the role. In particular, the ITM seeks to aid construction federation which enterprises to rationalise or simplify the include a module on OSH issues: administrative charges of employers members of the federation can around OSH issues. This is done first of all send their employees to be trained through oral explanations to - Collaboration among business companies, but also through more federations and other stakeholders specific measures available throughout such as the AAA in the their website such as preliminary development of tailored advices to health and safety recommendations that are OSH
100 Interview with Labour Inspectorates, Representatives of employers, Representatives of employees, and OSH Services. 101 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.31 and interview with Representatives of employees and OSH Services. 91 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.25 92 Interview with OSH Services. 93 Interview with Labour Inspectorates.
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Question Answer Observed differences between the different types of sectors, size of establishment (micro/SMEs/large) and sectors of economic activity coordinators on temporary specific. construction sites94, online simulation tool to find out the relevant number of A specific section of the ITM deals with Designated workers required in each high risk enterprises in which Coaching enterprises95, setting up of e-learning in enterprises intervenes (1-2 weeks). tools for Designated workers in collaboration with the CC, as well as For some construction companies with through the elaboration of tailored high risks, the mission of coaching is evaluation methods for companies96. further shared between three coaches The CDM, CC, and the different OSH from the Sectoral building training Services are also here to inform and institute (‘Institut de Formation Sectoriel advise within their respective du Bâtiment’) recruited under the activities97. SCIPRISC project (Coaching Innovative System for the Prevention of Some stakeholders also indicated as a Occupational Risks in the Construction good practice the existence of specific sector, ‘Système de coaching OSH Services, allowing these services innovate pour la prevention des risques better reactivity, proximity and services professionals dans le secteur de la to the affiliated enterprises98. construction’).
Finally an important element to foster compliance is the yearly forum organised in spring by the AAA where the different stakeholders are present. The Forum provides a platform for companies to share experiences, best practices and learn about new developments in risk prevention. Main stakeholders, including the Labour Inspectorates and OSH Services, chair and organise these workshops 99. What are the key In a general manner, there is a need to In larger companies designated characteristics of adapt each approach to the workers can be engineers while in SMEs 105 the approach? interlocutor’s formation and needs . it would often be the employers who may come from very diverse Moreover, companies may request educational field)110. assistance from the safety side or the health side, but not consistently for With regard to SMEs, historically, both. One stakeholder therefore interest had been cleary indicated that when the approach was demonstrated by SMEs after the
102 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.28. 103 Access to the legislative documents and discussions in the Chambers of representatives are available at : http://www.chd.lu/wps/portal/public/!ut/p/b1/04_Sj7QwMjcwNDQxMNaP0I_KSyzLTE8syczPS8wB8aPM4l2MXMKCPE2 MDNzNA00MjLxcvcxDg_2M3S3NgAoigQqMLCyCg9wdfV0tLUOdDDwNnA2DXQOdjAw8jYjTb4ADOBrg02_hbgzVj0 cBAfv9PPJzU_Vzo3Lc3CwcFQF23bGE/dl4/d5/L2dJQSEvUUt3QS80SmtFL1o2X0QyRFZSSTQyMEc3UTQwMkpFSjdV U04zOEcz/. 104 Interview with Representatives of employers. 94 http://www.itm.lu/home/securite---sante/construction/avis-prealables.html 95 http://www.itm.lu/home/securite---sante/acteurs-securite/formulaire-de-calcul.html. 96 Interview with Labour Inspectorates. 97 Interview with Labour Inspectorates and Representatives of workers. 98 Interview with OSH Services. 99 http://www.securite-sante.lu/ 105 Interview with Labour Inspectorates. 110 Interview with Labour Inspectorates and Representatives of employers.
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Question Answer Observed differences between the different types of sectors, size of establishment (micro/SMEs/large) and sectors of economic activity exclusively medical, limits were often transposition of the Framework found citing as example the fact that Directive. This was especially the case without an inventory of posts (general within more familial structures, as the management / safety) there could be change to a preventive approache no risk assessment (safety and indicated that companies could do medical). As a result, some ‘something’ to improve OSH rather stakeholders organise/participate in than wait for what were construed as trainings provided by other inevitable incidents and accidents. stakeholders (for instance: STI acting in However, older Directives and their trainings provided by the Trade and transposition were considered as Industry Chamber, or STM providing vague, and as a result it was not clear formations in large enterprises of ‘group enough what companies could C’ on ergonomy and psychosocial risks effectively do111. This situation was not issues106. improved with later Directives which to the contrary proved too complicated. The 2012 Health Audit identifies a real This factor was enhanced by the lack problem of resources, both financial of occupational doctors, OSH Services and human in all aspects of health and having pointed out that they lack the safety, but highlights in particular this time to properly address SMEs. No problem with regard to the hiring of specific approach or action had been occupational doctors. Indeed, developed, OSH Services acted mainly according to this Audit, the when SMEs employers/OSH managers requirement of Article L.322-3 of the contacted them directly, which would Labour Code whereby occupational usually only happen when an doctors should be in charge of a emergency (e.g. an accident) had maximum of 5,000 employees is by occured112. Therefore, a stakeholder large not complied with 107. This results qualified implementation of OSH in in occupational doctors giving priority Luxembourg SMEs to have been ‘really to certain missions over others: a really slow’113. number of regular medical exams being legally required, there is often few times left for more global prevention activities 108.
The Audit also points out to the lack of proactivity among the different actors of health and safety in companies. For instance, a number of employees do not present themselves to occupational doctor’s regular convocations. Many designated workers and employers are not concerned by health and safety issues and do not collaborate well with occupational doctors, let alone provide the DSAT with their annual or triannual reports as legally required. Finally, health and safety mechanisms
106 Interview with OSH Services. 107 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.29. 108 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.39 and interview with OSH Services.
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Question Answer Observed differences between the different types of sectors, size of establishment (micro/SMEs/large) and sectors of economic activity are implemented once problems have occurred 109. What are the A large part of compliance is due to One stakeholder indicated that in criteria upon which employers and therefore depends on 2013, the OSH Service had contacted 114 priorities for their own initiative , whether with approximately half of SMEs of that compliance respect to: sector (accounting for approximately measures are set? - the sensibilisation to OSH measures of 150 companies) with which they had employers, therefore their not had contact in previous years. The understanding of respect with legal OSH Service send these companies an norms and willingness to protect their invitation letter, proposing to discuss employees adequately ; OSH issues. Only 3 companies - the clarity of the message delivered answered this invitation positively115. by the employer through OSH measures: clear instructions and clear enterprise culture around OSH measures lead to greater respect of the measures and therefore greater compliance ; - involvement of the hierarchical chain: the more actors involved, the greater the compliance Are stakeholders There are two main bodies representing See previous column (employees and workers at the workplace: their - Staff delegation, directly elected by representatives) the employees except in involved in the establishments with fewer than 15 forming of the employees compliance - Joint committee (comité mixte), approach and its legally required in companies further employing more than 150 people, development? appointed by the members of the staff delegation.
The presence of unions in the workplace is not regulated by law in Luxembourg. However, their influence on the system is guaranteed by the rights that are granted with respect to their elections and operations of staff delegations.
Staff delegations consist exclusively of employees. The Joint Committee is a joint body consisting of an equal number of representatives of the employer and employees, aiming at providing a forum where employers and staff can work together to improve labour relations in the workplace. The
111 Interview with Representatives of employers. 112 Interview with OSH Services. 113 Interview with Representatives of employers. 109 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012. 114 Interview with Labour Inspectorates and Representatives of workers. 115 Interview with OSH Services.
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Question Answer Observed differences between the different types of sectors, size of establishment (micro/SMEs/large) and sectors of economic activity employer is obliged to inform and consult with the joint committee on any decision that could have a significant impact on production methods, the introduction of new equipment and hiring workers on a part time or temporary basis. Finally, on some issues including measures relating to health and safety at work, the Joint Committee takes the final decision 116. However, as indicated in the 2012 Health Audit, OSH issues seem rather marginal in joint committees 117.
116 Labour Code, Articles L.423-1 and L.261-1. 117 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.33.
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4 MAPPING QUESTION 4: ACCOMPANYING ACTIONS THAT SUPPORT THE RESPECT OF THE RULE
The following types of accompanying documents/actions relating to OSH legislation are covered: Guidance documents (through decisions and other soft measures, guidelines); Awareness-raising campaigns; Support tools (possibly IT based); and Financial incentives i.e. tax benefits or possibility to offer reduction of insurance premium to reward organisations for going beyond the legal requirements Education and training actions.
Please note that accompanying measures targeted specifically at SME and micro-enterprises are also covered under Section 7.
In Luxembourg, there are many accompanying actions, in particular guidance documents, which strive to support companies in implementing OSH requirements in an efficient manner. Among those, some are considered by stakeholders as particularly useful, namely practical guides on security, step by step guides such as the 2012 guide ‘Occupational Health in Luxembourg’ developed by the Ministry of Health which summarises the applicable legislation and relevant case-law and provides practical implementation guidelines on all issues covered by the EU OSH Framework. AAA recommendations (generic and sectoral) and typical conditions prepared by the ITM were also mentioned by stakeholders as effective tools.
One financial incentive also praised by stakeholders is an AAA led programme, which targets entreprises using the security management systems : ‘Sécher & Gesond mat system’, OHSAS 18001, VCA norm, security certification scheme MASE. The AAA labelling program (‘Sécher & Gesond mat system’ which means ‘working in security’) has also been praised, in particular in relation to SMEs.
The Maitrisk tool, which acquisition is partly financed by the AAA but still represents a cost, is considered as a useful tool. It is an IT application developed by AAA, STI and Lineheart&Soft and aimed at facilitating the management of different aspects of security and health in enterprises.
The public sector relies on documents prepared by the STSP (Occupational Helath of the Public Sector). The STSP also participates in training through the National Institute for Public Service (Institut National d’Administration Publique), for instance they have developed classes on ergonomy, as well as for Safety representatives.
4.1 EXISTING ACCOMPANYING ACTIONS
This sub-section identifies and briefly describe the relevant accompanying documents/actions as mentioned above.
The following documents have been identified:
Directive 89/391/EEC (Framework Directive) ‘La santé au travail au Luxembourg’ (‘Occupational Health in Luxembourg’) is a guide drafted by the Ministry of Health in 2012 intended as a practical guide for all actors of the occupational health and safety sector. The guide summarises the applicable legislation, relevant case-law and practical implementation guidelines on all issues covered by the EU OSH Framework. http://www.sante.public.lu/publications/impacts-milieu-vie/sante- travail/sante-travail-luxembourg-csl/sante-travail-luxembourg-csl-2012.pdf
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‘Inventaire des Postes à Risques – Guide Pratique’ (‘Inventory of Posts involving Risks – A Practical Guide’) is a 2013 inventory of high-risk positions provided by the Ministry of Health. It offers guidelines to employers so as to help them complying with their legal obligations with regards to health protection and surveillance in particular concerning high- risk positions. The guide contains a detailed explanation on how to complete the legally required inventory of all risks encountered at work. http://www.ms.public.lu/fr/activites/sante-travail/020-def-inventaire-risques/Inventaire-poste- a-risques-guide-2013-v-avril.pdf ‘Guide pratique du délégué à la sécurité – agir au quotidien au côté des salariés’ (‘Practical guide for Safety representatives - daily activities next to workers’) is a 2011 CSL practical guide for Safety representatives. The guide summarises the role of these representatives in companies, the knowledge (including behavioural) they should possess, who they should work with as well as how to organise their duty. http://www.csl.lu/component/rubberdoc/doc/954/raw ‘Guide pratique du délégué à la sécurité – agir au quotidien au côté des salariés – La prevention des risques psychosociaux’ (‘Practical guide for Safety representatives - daily activities next to workers – prevention of psychosocial risks’) is a 2014 CSL practical guide for Safety representatives. The guide summarises the role of these representatives in relation to the prevention of psychosocial risks, including how to act within companies, which judicial proceedings may be initiated and contains different tools to assist Safety representatives in their daily tasks. http://www.csl.lu/component/rubberdoc/doc/2092/raw ‘Vaincre le stress’ (‘Beat Stress’) is a guidance document published by the trade union OGBL and the medical social league (Ligue Médico-Sociale) on the effects of stress and actions to be taken in order to prevent, reduce and overcome stress at work. It is intended mostly for workers. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/vaincre- stress/vaincre-stress-fr.pdf ‘Le Stress au Travail’ (‘Stress at Work’) is a study carried out by the Economical and Social Council of Luxembourg in 2006. It provides a general overview of the causes and consequences of stress at work, as well as measures to be taken by employers to prevent and reduce stress of workers. http://www.ces.public.lu/fr/avis/droits-salaries/2006-stress-au- travail.pdf The AAA provides for extensive information, guidelines and recommendations on all OSH issues through an online portal. There are generic recommendations118 as well as recommendations arranged, inter alia, by sectors and types of installations concerned119. ‘Sécurité & Santé au Travail’ (‘Security and Health at Work’) is a website compiling the relevant publications and intended to work as a forum for exchange of best practices between employers. http://www.securite- sante.lu/index.php?option=com_eventlist&view=toolboxes&Itemid=59 ‘L’Assurance Accident – Guide de l’Assuré’ (‘Accident Insurance – Guide of the Insured’) is a guide published by the AAA in 2007. It was reedited in 2010 to comply with new regulatory norms. They provide advices and information to workers (addressing specific groups of workers – independent workers and farmers) with regards to accidents at work. http://www.aaa.lu/fileadmin/file/aaa/publication/guide_assure/Guide_assure_reforme.pdf ‘Pas à pas vers l’évaluation et la gestion des risques’ (‘ Step by step towards risk assessment and management’) is a guideline for employers and prevention advisors provided by the AAA in 2008 which, beside explaining the legislative and regulatory framework, presents different tools for assessing occupational risk. http://www.aaa.lu/fileadmin/file/aaa/publication/gestion_risque/brochure_pas_a_pas.pdf ‘Guide de Sécurité’ (‘Security Guide’) of 2005 provides a detailed overview of the employer’s obligations related to occupational health.
118 Interview with Representatives of employers, http://www.aaa.lu/publications/recommandations-de-prevention/ 119 Interview with Labour Inspectorates. http://www.recommandations.aaa.lu/
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http://www.aaa.lu/fileadmin/file/aaa/publication/guide_secu/guide_AAA_complet.pdf ‘Guide Pratique pour l’Employeur’ (‘An Employer’s practical guide’) is a document issued by the STM in 2010 summarising the employer’s obligations with regard to occupationial health and safety. http://www.sante.public.lu/publications/impacts-milieu-vie/sante- travail/guide-pratique-employeur-stm/guide-pratique-employeur-stm-fr.pdf ‘Guide d’auto-évaluation et de bonnes pratiques’ (‘Auto-assessment and good practices guide’) is a short guide drafted in 2004 by numerous stakeholders (AAA, ITM, Road Security, OGBL, LCBG, Consumers Union) on measures to take to prevent accidents on the way to work. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/guide-auto- evaluation-bonnes-pratiques/guide-auto-evaluation-bonnes-pratiques-fr.pdf ‘Guide des bonnes pratiques dans les crèches’ (‘Guide on good practices in nurseries’) adopted in 2003 by the STM to address specific health and security issues encountered by the personnel working in nurseries. http://www.sante.public.lu/publications/impacts-milieu- vie/sante-travail/guide-bonnes-pratiques-creches/guide-bonnes-pratiques-creches-fr.pdf ‘Alcool et lieu de travail, guide pour les responsables d’entreprise, cadres supérieurs, gestionnaires de ressources humaines, membres des comités d’entreprises et des delegations du personnel’(‘Alcohol and workplace, a guide for business leaders, executives, human ressources managers, members of work councils and employees’delegations’) is a publication of the Health Ministry of 2000 which addresses the issue of alcohol at work and provides information and general recommendations to deal with this problem. http://www.sante.public.lu/publications/rester-bonne-sante/alcool-dependances/alcool-lieu- travail/alcool-lieu-travail-fr.pdf ‘Travailler en sécurité’(‘Working in security’) was issued by the AAA in 2005 and aims at informing workers on their occupational accidents, PPE, use of machinery, etc. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/travailler- securite/travailler-securite.pdf ‘Journée mondiale sécurité au travail – Ateliers’ (‘World Day of Occupational Health - Workshop’). Under the initiative of the Union of Enterprises of Luxembourg, a day of workshops on occupational health was organised in 2009. See output document : http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/dossier-securite- sante-travail/dossier-securite-sante-travail.pdf ‘Dialogue social à l’intérieur des entreprises’ (‘Social dialogue inside enterprises’) is a brochure of LCGB intended to explain consultation mechanisms inside enterprises. http://lcgb.lu/wp-content/uploads/import/wysiwyg/2010/Borchure%20Cogestion%20FR.pdf ‘Formations’ (‘Trainings’). The LCGB offers every year a series of trainings for workers representatives related to the application of employment law, including OSH aspects. http://lcgb.lu/wp-content/uploads/2012/12/LCGB_Formation_2013.pdf ‘Promouvoir la santé et le bien-être’ (‘Promoting Health and Well-Being’) is a brochure by the Association for Occupational Health in the Finance Sector intended for employers. http://www.abbl.lu/sites/abbl.lu/files/ASTF-pr%C3%A9sentationfr.pdf ‘Guichet Luxembourg - Sécurité et santé des salariés’ (‘Counter Luxembourg - Safety and health of employees ’) is an online state portal detailing the employer’s obligations, with direct links to online forms to register for external health surveillance services, to be affiliate to social security institutions. It also contains precise guidance on the designation of workers’representatives, inventory of high risk positions, and declaration template of work accidents. http://www.guichet.public.lu/entreprises/fr/sante-securite/index.html ‘Clip – Comment déclarer son incapacité de travail?’ (‘Video – How to notify a working incapacity ?’) is a short video from 2011 broadcasted by the National Health Fund (Caisse Nationale de Santé) explaining the steps to be taken by workers when they are facing a situation of work incapacity. http://www.sante.public.lu/fr/catalogue-publications/impacts- milieu-vie/sante-travail/index.html ‘Comment déclarer son incapacité de travail’(‘How to notify a working incapacity ?’) is an informative letter of 2011 by the National Health Fund (Caisse Nationale de Santé) explaining
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the steps to be taken by workers when they are facing a situation of work incapacity. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/declarer-incapacite- travail/declarer-incapacite-travail-fr-pt.pdf ‘La santé au travail au Luxembourg’ (‘Health at work in Luxembourg’) is a 2011 brochure by the Ministry of Health providing general information to employers and employees on health surveillance. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/sante- travail-luxembourg/sante-travail-luxembourg-2011.pdf ‘Violence et harcèlement moral au travail : agir pour prévenir. Un guide pratique’ (‘Violence and moral harassment at work : acting to prevent. A practical guide’) is a practical guide published in 2010 by the Employees’s Chamber of Luxemburg (Chambre des Salariés Luxembourg) with the purposes of raising awareness among workers and employers. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/violence- harcelement-moral-travail/violence-harcelement-moral-travail-fr-de.pdf ‘La Surveillance médicale des salariés’(‘Health surveillance of employees’) is a 2008 information leaflet listing the compulsory and optional health inspection for employees prepared by the Industry Health Surveillance Service (Service de Santé au Travail de l’Industrie asbl) in 2008. http://www.sante.public.lu/publications/impacts-milieu-vie/sante- travail/surveillance-medicale-salarie/surveillance-medicale-salarie.pdf ‘Sida et le lieu de travail’ (‘Aids and the workplace’) is a 2007 brochure by the Ministry of Health aiming at raising awareness. http://www.sante.public.lu/publications/rester-bonne- sante/sida-prevention/sida-lieu-travail-2007/sida-lieu-travail-2007.pdf ‘Santé et épanouissement au travail au Luxembourg : un ressenti différent entre les seniors et leurs cadets’ (‘Health and development work in Luxembourg: a different feeling between ageing and younger workers’) is a 2012 CEPS publication aimed at drawing attention on the situation of ageing workers at work. http://www.sante.public.lu/publications/impacts-milieu- vie/sante-travail/sante-epanouissement-travail-luxembourg/sante-epanouissement-travail- luxembourg.pdf ‘Soignez en protégeant votre dos’(‘Caring and protecting your back’) is a handbook published as part of the 2007 awareness-raising campaign and workshops organised by the STM. The summary of the handbook is publicly available and provides recommendation to health sector personel (homecare) aimed at preventing back injuries. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/soignez-protegeant- dos/soignez-protegeant-dos-sommaire-extrait-fr.pdf ‘Travailleur désigné - Formulaire de calcul’(‘Designated worker - Calculation form’). ITM provides an online IT tool for the calculation of the number of hours that Designated workers must dedicate to the representation of workers. http://www.itm.lu/home/securite--- sante/acteurs-securite/formulaire-de-calcul.html ‘Travail isolé’ (‘Isolated work’) is a 2014 brochure by STM on the preventive measures to be taken by the employer to ensure security of isolated workers (mostly in the construction sector). http://www.stm.lu/wp-content/files/Fiche_travail_isole-01avr2014.pdf ‘Promotion de la santé – formations’ (‘Promoting health – Training’) is a training service provided by STM to enterprises aimed at raising awareness among employers and training them so as to comply with their legal obligations. http://www.stm.lu/formations/promotion-de- la-sante/ ‘Formation ergonomie’ (‘Ergonomy training’) is a series of training and awareness raising actions provided by STM to employers on the topic of ergonomy at work (including noise, vibrations, DSE, etc). http://www.stm.lu/formations/ergonomie/ ‘Formation psychologie et bien-être au travail’ (‘Psychology and well-being at work training’) is a series of training, awareness raising actions and workshops provided by STM to enterprises and workers on the topic of psychological pressures and well-being at work (including stress, burn-out, alcohol, tobacco, etc). http://www.stm.lu/formations/ergonomie/ ‘Formation – Prévendos’ (‘Back prevention – Training’) is a series of training, awareness raising actions and workshops provided by STM and the Prévendos Centre to enterprises and
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workers on the topic of the prevention of back pain. http://www.stm.lu/formations/prevendos/ ‘Formation – Premiers secours’ (‘First aid – Training’) is a training service provided by STM to enterprises and to their appointed first-aid rescuer workers. http://www.stm.lu/formations/1er-secours/ ‘Systèmes de management de la sécurité’ (‘Security Management System’) is a financial incentive programme led by the AAA for entreprises which use the following security management systems : ‘Sécher & Gesond mat system’, OHSAS 18001, VCA norm, security certification scheme MASE. http://www.aaa.lu/prevention/aides-financieres/systemes-de- management-de-la-securite/ ‘Maitrisk’ is an IT tool developed by AAA, STI and Lineheart&Soft. Its objective is to facilitate management of different aspects of security and health in enterprises (high-risk positions, drafting of the risk inventory, management of hazardous products, declarations of accidents, etc). http://www.maitrisk.lu/ ‘Maitrisk – Financial incentives’ is a program run by AAA in order to incentivise companies to invest in Maitrisk. The financial incentive consists in a partial reimbursement of the costs related to acquiring Maitrisk. http://www.aaa.lu/prevention/aides-financieres/maitrisk/ ‘Formations spécialisées AAA’ (‘Specialised AAA Trainings’) are provided by the AAA on a wide range of topics : training for safe driving gear (construction equipment, hoists, motor trucks , mobile elevating platforms people), electrical certification, installation and control of scaffolds, forestry work (chain saw and logging), training for drivers (Drive Safe, Driving Force, Defensive and Ecological Driving). http://www.aaa.lu/prevention/formations/ ‘Acquisition de matériel didactique’ (‘Acquisition of learning material’). The AAA provides financial incentives (partial or total reimbursement) for the acquisition of material (DVD, posters, etc) related to promoting safety and health at work. The reimbursement procedure is triggered by filling in the online form available on the website of the AAA. http://www.aaa.lu/prevention/aides-financieres/acquisition-de-materiel-didactique/ ‘Formations Qualité Sécurité Environnement – Sécurité et santé au travail’ (‘Training Quality Security Environment – Safety and Health at Work’) is a series of trainings provided by the Luxembourg School of Commerce for Designated workers and Safety coordinators in the sector of Commerce, services, transportations, finances and insurances, and industry. http://www.lsc.lu/rechercher-une-formation/formation-professionnelle- continue/?user_formations_pi4%5Baction%5D=search&user_formations_pi4%5Bcategory%5 D=112 ‘Formations continues - CDM’ (‘Training – CDM’). The Chamber of Trade (CDM) provides for technical trainings (for craft enterprises only) and management trainings for Designated workers with respect to safety and health at work in the following sectors : catering, horeca, mechanics, arts, communication, construction, and health. http://www.cdm.lu/formation- continue ‘IFSB Trainings’.The Institute for Sectorial Training in Construction (‘IFSB’) is the institute in charge with providing trainings to the construction sector, in so included safety related trainings (general safety, Designated workers, work in height, first-aid trainings, asbestos, PPE, etc). Most trainings take place upon request. http://www.ifsb.lu/fr/formations.php?domaine=2 ‘CSST Trainings’. The Centre for Safety and Health at Work provides trainings on all topics related to safety and health at work (Designated workers, security in buildings, first aid, hazardous products, transportation, burn-out, etc) including tailored trainings upon requests. http://www.csst.lu/index.html ‘The handicapped worker’, 2012 is a guide drafted by the CSL informing on the definition of handicapped workers, orientation of handicapped workers in the labour market and towards protected workshops, as well as facilitations concerning handicapped workers revenue and professional trainings. http://www.csl.lu/index.php?option=com_rubberdoc&view=doc&id=1648&format=raw
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Council Directive 89/654EEC (workplace) ‘Prescriptions de prevention des accidents’ (‘Accidents prevention prescription’) is a guide drafted by the AAA in 2007 containing recommendations on requirements for machinery, tools, facilities, products and substances work and obligations for the business owner and the insured. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/prescriptions- prevention-accidents/prescriptions-prevention-accidents-fr.pdf ‘Prescriptions de sécurité types – Chantiers de construction et de démolition’ (‘Generic security prescriptions - Construction and demolition sites’) belongs to the series of publications by the ITM on generic security prescriptions. 2005. http://www.itm.lu/files/securite- sante/Conditions%20types/old/cl29-7.pdf ‘Prescriptions de sécurité types – La prévention dans le bâtiment et le génie civil – conception, construction, exploitation’ (‘Generic security prescriptions - Prevention in buildings and civil engineering – conception, construction, exploitation’) belongs to the series of publications by the ITM on generic security prescriptions, 1996. http://www.itm.lu/files/live/sites/Itm/files/securite-sante/Conditions%20types/old/cl97-2.pdf ‘Prescriptions de sécurité types – Aide-mémoire concernant la sécurité et la santé des chantiers temporaires ou mobiles’ (‘Generic security prescriptions –Memo on security and health on temporary and mobile work sites’) belongs to the series of publications by the ITM on generic security prescriptions, 1996. http://www.itm.lu/files/live/sites/Itm/files/securite- sante/Conditions%20types/old/am142.pdf ‘Prescriptions de sécurité types – Guide pour l’intégration de la sécurité dans l’organisation des travaux sur les chantiers compte tenu du plan de sécurité et santé’(‘Generic security prescriptions – Guide for the integration of security in the organisation of works on worksite given the plan on security and health’) belongs to the series of publications by the ITM on generic security prescriptions, 1996. http://www.itm.lu/files/live/sites/Itm/files/securite- sante/Conditions%20types/old/am149-1.pdf ‘Agissons contre les TMS en cuisine’ (‘Acting against musculoskeleton disorders in kitchens’) is a guide from the STM and AAA aiming at preventing musculoskeleton disorders in HORECA workers, 2013. http://www.stm.lu/wp-content/files/Horesca_manuel-FR-Extrait.pdf
Council Directive 2009/104/EC (work equipment) ‘Travail en espace confiné’ (‘Work in confined spaced’) is a 2014 brochure by STM detailing the measures to be taken by the employers to ensure the safety of workers in confined working environments. It includes PPE, collective protection and intervention measures. http://www.stm.lu/wp-content/files/Fiche_travail_espace_confin-01avr2014.pdf
Council Directive 89/656/EEC (PPE) ‘Travail en espace confiné’ (‘Work in confined spaced’) is a 2014 brochure by STM detailing the measures to be taken by the employers to ensure the safety of workers in confined working environments. It includes PPE, collective protection and intervention measures. http://www.stm.lu/wp-content/files/Fiche_travail_espace_confin-01avr2014.pdf ‘Le harnais de sécurité et les systêmes d’arrêt de chutes’ (‘The safety harness and fall arrest systems’) is a 2011 joint publication by AAA, ITM, CDEC and IFSB on PPE. It contains precise guidelines on how to select appropriate and secured PPE. http://www.aaa.lu/fileadmin/file/aaa/publication/harnais_securite/Harnais.pdf
Council Directive 92/58/EEC (OSH signs) ‘Organisation et signalisation des chantiers routiers’(Organisation and signalisation of road works’) is a 2009 publication by the Ministry of Transport which contains a detailed overview of the applicable legislative framework along with case-by-case description of the measures to be taken while conducting road works. http://www.aaa.lu/fileadmin/file/aaa/publication/chantiers_routiers/Signalisation_des_chantier s.pdf
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Council Directive 90/269/EEC (manual handling of loads) ‘Formations spécialisées AAA’ (‘Specialised AAA Trainings’) are provided by the AAA on a wide range of topics. Some of these trainings are part of the School of gestures and postures/manual handling which addresses manual handling and postures in the following sectors : administrative, industrial, nurseries, horesca, health and care. http://www.aaa.lu/prevention/formations/ecole-de-manutention-manuelle/
Council Directive 90/270/EEC (display screen equipment) ‘Ergonomie – Poste Informatique : variables ergonomiques à considérer’ (‘Ergonomy – Desk station : ergonomics aspects to take into consideration’) is a brochure provided in 2009 by the Ministry of Health which contains a series of practical recommendations for workers and employers with regard to desk work. http://www.sante.public.lu/publications/impacts-milieu- vie/sante-travail/ergonomie-poste-informatique/ergonomie-poste-informatique-fr.pdf ‘Calendrier – En forme sur le lieu du travail’ (‘Calendar – Keep fit at work’) is a document of 2008 prepared by the AAA which presents exercises for office workers working on computers. http://www.aaa.lu/fileadmin/file/aaa/publication/calendrier/Calendrier_F.pdf
Directive 2002/44/EC (vibration) ‘Exposition des travailleurs aux vibrations’ (‘Workers exposure to vibrations’) is a joint publication of the Ministry of Health , AAA and ITM of 2006. It is mainly informative and provides an overview of the legislation and risks related to vibrations. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/exposition- travailleurs-vibrations/exposition-travailleurs-vibrations.pdf In many instances there are references in official governmental websites to UN, EU, FR, or DE documents. This is an example : Practical guides on body-wide vibrations (Guide de bonnes pratiques en matière de vibrations globales du corps), COM, 2006, http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/guide-bonnes- pratiques-vibrations-globales-corps/guide-bonnes-pratiques-vibrations-globales-corps.pdf
Directive 2003/10/EC (noise) ‘La musique : plaisir ou source de bruit?’ (‘Music : pleasure or source of noise?’) is a 2009 brochure from the AAA establishing a new code of conduct on the protection of workers against noise. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/musique-plaisir- source-bruit/musique-plaisir-source-bruit.pdf ‘Exposition des salariés au bruit’ (‘Employees exposure to noise’) is a 2009 joint publication by the AAA, the Ministry of Health and ITM presenting the new legislative and regulatory provisions related to noise protection. http://www.aaa.lu/fileadmin/file/aaa/publication/expo_bruit/bruit.pdf
Directive 2004/40/EC (electromagnetic fields) ‘Réseau Wifi’ (‘Wifi network’) is a 2013 brochure by the Ministry of Health on health effects and precautionary measures to be taken with regard to wifi network. It is intended for both employers and employees. http://www.sante.public.lu/publications/impacts-milieu-vie/sante- environnement/depliant-wifi/depliant-wifi.pdf
Directive 2006/25/EC (artificial optical radiation) ‘Exposition des salaries aux rayonnements optiques artificiels’ (‘Exposure of employees to artificial optical radiation’) is a joint publication by the Ministry of Health, AAA and ITM of 2014 presenting the legislative framework as well as different types of preventive measures (collective, individuals, awareness raising and health surveillance). http://www.stm.lu/wp- content/files/Exposition_salaries_rayonnements_optiques_artificiels.pdf
Council Directive 98/24/EC (chemical agents at work) ‘Produits de nettoyage’ (‘Cleaning Products’) is a 2013 brochure by the Ministry of Health on the effects of cleaning products on workers’health and provides for some recommendations
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for workers. http://www.sante.public.lu/publications/impacts-milieu-vie/sante- environnement/depliant-produits-nettoyage/depliant-produits-nettoyage.pdf ‘Acide picrique’(‘Picric acid’) is a short information document by ITM on the properties and measures to be taken when dealing with picric acid. http://www.itm.lu/files/securite- sante/Produits%20dangereux/Produits%20chimiques/Acide%20Picrique.pdf
Directive 2009/148/EC (asbestos) ‘Méthodes standardisées’ (‘Standardised methods’) for removal of asbestos are provided by ITM on its website : 2009, 2013, 2013, http://www.itm.lu/home/securite---sante/produits- dangereux/amiante.html ‘L’amiante – ciment’ (‘Asbestos-cement’) is a guide for employers and workers in the construction and demolition sectors with a summary of the legislation and practical recommendations provided by ITM in collaboration with the Ministry of Employment. http://www.itm.lu/files/live/sites/Itm/files/securite- sante/Produits%20dangereux/amiante/publications/001.pdf ‘L’amiante dans le bâtiment’(‘Asbestos in buildings’) is a joint publication by AAA, ITM, CDEC, and IFSB aimed at informing employers and workers active in the construction sector of the risk related to asbestos and the best prevention practices. http://www.aaa.lu/fileadmin/file/aaa/publication/amiante/Brochure_amiante.pdf
Directive 2000/54/EC (biological agents) General information and contact points on ITM website: http://www.itm.lu/home/securite--- sante/produits-dangereux/agents-biologiques.html
Council Directive 92/57/EEC (temporary or mobile construction sites)120 ‘Prescriptions de sécurité types – La prévention dans le bâtiment et le génie civil – conception, construction, exploitation’ (‘Generic security prescriptions - Prevention in buildings and civil engineering – conception, construction, exploitation’) belongs to the series of publications by the ITM on generic security prescriptions, 1996. http://www.itm.lu/files/live/sites/Itm/files/securite-sante/Conditions%20types/old/cl97-2.pdf ‘Prescriptions de sécurité types – Aide-mémoire concernant la sécurité et la santé des chantiers temporaires ou mobiles’ (‘Generic security prescriptions –Memo on security and health on temporary and mobile work sites’) belongs to the series of publications by the ITM on generic security prescriptions, 1996. http://www.itm.lu/files/live/sites/Itm/files/securite- sante/Conditions%20types/old/am142.pdf ‘Prescriptions de sécurité types – Guide pour l’intégration de la sécurité dans l’organisation des travaux sur les chantiers compte tenu du plan de sécurité et santé’(‘Generic security prescriptions – Guide for the integration of security in the organisation of works on worksite given the plan on security and health’) belongs to the series of publications by the ITM on generic security prescriptions, 1996. http://www.itm.lu/files/live/sites/Itm/files/securite- sante/Conditions%20types/old/am149-1.pdf ‘Conseils de sécurité : bâtiments et travaux publics’ (‘Security advices : buildings and public works’) is a comprehensive compilation of practical advices for employers active in the construction sector. It was issued in 1993 by the AAA. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/conseils-securite- batiment-travaux-publics/conseils-securite-batiment-travaux-publics-fr-pt.pdf
Council Directive 92/85/EEC (pregnant/breastfeeding workers) ‘La grossesse dans le secteur des soins en institutions. Quels risques? Quelle prevention?’ (‘Pregnancy as a worker in the health sector, risks and prevention’) is a 2013 informative document published by the STM on risks and preventive measures intended for workers in the
120 The Directive is not transposed in Luxembourg. However these actions refer to this specific area and accompany the application of the general legislative framework to temporary and mobile construction sites.
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health sector. http://www.sante.public.lu/publications/sante-fil-vie/grossesse- maternite/grossesse-secteur-soins-institution/grossesse-secteur-soins-institution.pdf ‘Allaiter et travailler, c’est un droit!’ (‘To breastfeed and work is your legal right!) is a 2013 brochure published by the Ministry of Health aimed at raising awareness/informing breastfeeding workers. http://www.sante.public.lu/publications/sante-fil-vie/grossesse- maternite/allaiter-travailler-droit-fr-lb-de-hrv/allaiter-travailler-droit-fr-lb-de-en-pt-hrv.pdf ‘Demande d’avis pour aménagement de poste, changement d’affectations, dispense de travail ou dispense de travail de nuit d’une salariée enceinte ou allaitante’ (‘Request for an opinion for post change, change of assignments, exemption from work or waiver of night work for pregnant or breastfeeding employee’) is a form available on the website of STM at the intention of pregnant or breastfeeding employees. http://www.stm.lu/formulaires- documentation/formulaires/
Council Directive 94/33/EC (young people at work) ‘Guide pour l’accueil des jeunes travailleurs en entreprise’ (‘Guide on young workers in enterprises’) is an information guide of 2006 published by the AAA and is intended for employers. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/guide- accueil-jeunes-travailleurs-entreprise/guide-accueil-jeunes-travailleurs-entreprise.pdf ‘Les jeunes travailleurs et les produits dangereux : ce que vous devez savoir sur les produits dangereux’ (‘Young workers and hazardous products, what you need to know’) is a 2006 joint publication by the Ministry of Employment and ITM. Its aims is to provide information and recommendations to young workers and employers. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/jeunes-travailleurs- produits-dangereux/jeunes-travailleurs-produits-dangereux.pdf ‘Le premier jour de travail: ce qu’il faut savoir sur la sécurité et la santé au travail’ (‘First day at work: what you need to know on occupational health and safety’) is an introductory presentation designed for young workers by the Ministry of Employment and ITM in 2006. http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/premier-jour-travail- securite-sante/premier-jour-travail-securite-sante.pdf
Inputs from interviews with stakeholders121
Beside these documents, the website of the Ministry of Health provides a series of links to relevant publications by international institutions such as the Office for Official Publications of the European Communities, the WHO or the OECD122.
Moreover, the ITM has developed over 200 typical conditions (conditions types) in response to company’s demande for clearer instructions compared to the very general UE legislation and transposing measures. These different documents are freely available on the ITM’s website: http://www.itm.lu/home/autorisation-etablissement-class/conditions-types.html and are systematically referred to during visits by labour inspectors when available. To note that in most cases, these documents must be abided to as their implementation falls on the basis of the classified establishments regime that transposes in particular IED, EIA, and other such EU environmental requirements.
For each identified document/action, the table indicates: The name of the action The type of accompanying action: guidance (G)/awareness-raising programme (AR)/support tool (IT) financial incentive (FI)/ education and training actions (ET); The entity who initiated it: authorities (A)/social partners (SP);
121 Interview with Labour Inspectorates. 122 http://www.sante.public.lu/fr/catalogue-publications/impacts-milieu-vie/sante-travail/index.html.
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The target groups of the action: specific sectors, specific groups, SMEs.
Table 4- 1 Accompanying Actions
Name Type Initiated by (date) Target groups* Directive 89/391/EEC (Framework Directive) Occupational Health in Luxembourg G A, 2012 All Inventory of High-Risk Positions G / IT A, 2013 Employers Practical guide for Safety representatives - daily activities next to G SP, 2011 Safety Representatives workers Practical guide for Safety representatives - daily activities next to G SP, 2014 Safety Representatives workers – prevention of psychosocial risks Stress at Work G A, 2006 Employers Beat Stress G SP, 2008 Workers AAA – portal IT/G SP, 2013 Employers, workers Security & Health at Work – portal & G/IT A, ? Employers forum Accident Insurance – Guide of the G SP, 2007 Workers Insured Step by step towards risk assessment and G SP, 2008 Employers management Security Guide G SP, 2005 Employers An Employer’s practical guide G A, 2010 Employers Auto-evaluation and good practices Employers, workers, prevention G SP, 2004 guide advisors Guide on good practices in nurseries Employees (personel of G A, 2003 nurseries), and employers (nurseries) Alcohol and workplace, a guide for business leaders, executives, human G A, 2000 Employers ressources managers, members of work councils and employees’delegations Working in security G SP, 2005 Workers World Day of Occupational Health - ET/A SP, 2008 Employers Workshops R Social dialogue inside enterprises G SP, ? Employers Trainings ET SP, 2013 Workers’representatives Promoting Health and Well-Being Employers of the financial G SP, ? sector Counter Luxembourg - Safety and health IT A, 2013 Employers, employees of employees Health and safety representation – EU G SP, 2013 Employees Gateway Video - How to notify a working G SP, 2011 Employees incapacity ? How to notify a working incapacity ? G SP, 2011 Employees Health at work in Luxembourg G A, 2011 Employers, employees Violence and moral harassment at work : acting to prevent. A practical G SP, 2011 Employers, employees guide’ Health surveillance of employees G SP, 2008 Employers, employees Aids and the workplace G A, 2007 Employees Health and development work in Luxembourg: a different feeling G SP, 2012 Employers between ageing and younger workers Caring and protecting your back Employees (home care G/AR SP, 2007 services) Designated worker - Calculation form IT A, ? Employers,
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Name Type Initiated by (date) Target groups* workers’representatives Isolated work G SP, 2014 Employers (construction) Promoting health – Training ET/ SP, 2014 Employers and workers AR Ergonomy - Training ET/ SP, 2014 Employers and workers AR Psychology and well-being at work - ET/ SP, 2014 Employers and workers Training AR Back prevention - Training ET/ SP, 2014 Employers and workers AR First aid - Training ET/ SP, 2014 Employers and workers AR Security Management System FI SP, ? Employers Maitrisk IT SP, ? Employers Maitrisk – Financial incentives FI SP, ? Employers Specialised AAA Trainings ET SP, 2014 Workers Acquisition of learning material FI SP, ? Employers Training Quality Security Environment – Workers, Designated workers, ET SP, 2014 Safety and Health at Work safety coordinators Training – CDM Workers, Designated workers – ET SP, 2014 special trainings for craft enterprises IFSB Trainings ET SP, 2014 Workers (construction) CSST Trainings ET SP, 2014 Workers, Designated workers Employers, Handicapped The handicapped worker G SP, 2012 workers Council Directive 89/654/EEC (workplace) Accidents prevention prescription G SP, 2007 Employers Generic security prescriptions - G A, 2005 Employers (construction) Construction and demolition sites Generic security prescriptions - Prevention in buildings and civil G A, 1996 Employers (construction) engineering – conception, construction, exploitation Generic security prescriptions –Memo on security and health on temporary and G A, 1995 Employers (construction) mobile work sites Generic security prescriptions – Guide for the integration of security in the G A, 1996 Employers (construction) organisation of works on worksite given the plan on security and health Acting against musculoskeleton G SP, 2013 Employers, workers disorders in kitchens Directive 2009/104/EC (work equipment) Work in confined spaced Employers (construction – G SP, 2014 confined space) Council Directive 89/656/EEC (PPE) Work in confined spaced Employers (construction – G SP, 2014 confined space) The safety harness and fall arrest systems G SP, 2011 Workers (construction) Council Directive 92/58/EEC (OSH signs) Organisation and signalisation of road Employers (public, G A, 2009 works construction) Directive 1999/92/EC (ATEX) No accompanying action has been identified Council Directive 90/269/EEC (manual handling of loads) Specialised AAA Trainings ET SP, Workers (sector specific) Council Directive 90/270/EEC (display screen equipment)
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Name Type Initiated by (date) Target groups* Ergonomy – Desk station : ergonomics Employers, workers (office G A, 2009 aspects to take into consideration work) Calendar – Keep fit at work G SP, 2008 Workers (office work) Directive 2002/44/EC (vibration) Workers exposure to vibrations G A/SP, 2007 Employers Practical guides on body-wide vibrations G A, 2006 Employers, employees Directive 2003/10/EC (noise) Music: pleasure or source of noise? G/AR A/SP, 2009 Employers, employees Employees exposure to noise G A/SP, 2009 Employers, employees Directive 2004/40/EC (electromagnetic fields) Wifi Network Employers, employees (office G A, 2013 work) Electromagnetic fields charter G A, 2011 Directive 2006/25/EC (artificial optical radiation) Exposure of employees to artificial G A, SP, 2014 Employers, employees optical radiation Directive 2004/37/EC (carcinogens or mutagens) No accompanying action identified Council Directive 98/24/EC (chemical agents at work) Cleaning products G A, 2013 Employees (cleaning activities) Picric acid G A, ? Employers REACH helpdesk Luxembourg ST (IT)/ A, ? Employers G Directive 2009/148/EC (asbestos) Standardized methods Employers (construction – G A, 2009 demolition) Standardized methods Employers (construction – G A, 2013 demolition) Standardized methods Employers (construction – G A, 2013 demolition) Asbestos-cement Employers (construction – G A, ? demolition) Asbestos in buildings Employers and workers G SP, 2013 (construction – demolition) Directive 2000/54/EC (biological agents) Website G A Employers, employees Council Directive 92/57/EEC (temporary or mobile construction sites)123 Generic security prescriptions - G A, 2005 Employers Construction and demolition sites Generic security prescriptions - Prevention in buildings and civil G A, 1996 Employers engineering – conception, construction, exploitation Generic security prescriptions –Memo on security and health on temporary and G A, 1995 Employers mobile work sites Generic security prescriptions – Guide for the integration of security in the G A, 1996 Employers organisation of works on worksite given the plan on security and health Security advices : buildings and public G SP, 1993 Employers works Council Directive 92/104/EEC (surface and underground mineral-extracting industries) No accompanying action identified Council Directive 92/91/EEC (mineral-extracting industries through drilling)
123 The Directive is not transposed in Luxembourg. However these actions refer to this specific area and accompany the application of the general legislative framework to temporary and mobile construction sites.
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Name Type Initiated by (date) Target groups* No accompanying action identified Council Directive 92/29/EEC (medical treatment on board vessels) No accompanying action identified Council Directive 93/103/EC (work on board fishing vessels) N/A Council Directive 92/85/EEC (pregnant/breastfeeding workers) Pregnancy as a worker in the health Pregnant workers (health G A, 2013 sector, risks and prevention sector) To breastfeed and work is your legal Pregnant and breastfeeding G A, 2013 right! workers Request for an opinion for post change, change of assignments, exemption from Pregnant and breastfeeding ST SP, ? work or waiver of night work for workers pregnant or breastfeeding employee Council Directive 91/383/EEC (temporary workers) N/A Council Directive 94/33/EC (young people at work) Guide on young workers in enterprises G SP, 2006 Employers Young workers and hazardous products, G A, 2006 Employers what you need to know First day at work: what you need to know G A, 2006 Young workers on occupational health and safety
4.2 USE OF ACCOMPANYING ACTIONS
This sub-section assess to what extent the accompanying actions are actually used by establishments to pursue the objective of protecting health and safety of workers.
Inputs from interviews with stakeholders124
The interviews with different stakeholders gave a mixed picture as to the actual use of accompanying actions. - According to interviewees from Labour Inspectorate, about half of the companies are prone to use the documents after an intervention by the ITM, or after an accident, or after media coverage on the issue at stake, while the other half are still reluctant to change, out of convenience, or because of a belief that accidents ‘only happen to others’, as well as because of a lack of proper sensibilisation to OSH issues (for instance through training). - Stakeholders representatives of employees referred to a ‘medium’ use of accompanying documents due to the large potential left to company culture. In particular in SMEs where control and sensibilisation on OSH issues was identified as being lesser than in larger companies. For instance, a framework agreement was reached on moral harassment but this topic is more likely to be taboo in smaller companies and people may not to be aware of this agreement.
OSH Services indicated that use of accompanying measures was low but that shorter documents would usually touch upon a wider audience. Documents that were presented in the yearly SST forum organised by the UEL would likely reach approximately 20,000 persons.
Among the documents mostly used, were identified: - general documents such as step by step guides, and practical guides on security, In particular, the document ‘La santé au travail au Luxembourg’ (‘Occupational Health in Luxembourg’) was identified by two stakeholders as a large but useful practical guide as well as the ‘Inventory of Posts involving Risks – A Practical Guide’, - AAA recommendations (generic and sectoral),
124 Interviews with Labour Inspectorates, OSH Services, Representatives of employers and Representatives of employees.
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- typical conditions of the ITM.
At a sectoral level, the documents designed to be used on construction sites, in particular for safety and health coordinators seemed to be the most used. One stakeholder also pointed out to the ‘Guide on good practices in nurseries’ and to a guide on musculoskeletal trouble in professional kitchens.
Stakeholders consistently identified the AAA labelling program (‘Sécher & Gesond mat system’ which means ‘working in security’) as a tool at the disposal of companies that had been particularly useful in helping them implement OSH requirements, also reducing the costs/burdens related to this implementation.
With regard to softwares, stakeholders referred to the Maitrisk tool which acquisition is partly financed by the AAA, as a useful tool in particular with regard to elaborating the inventory of posts involving risks tailored to each company.
To note finally that no documents have been developed and published by the public sector, and the administration therefore relies on documents drafted by the STSP. The STSP also participates in training through the National Institute for Public Service (Institut National d’Administration Publique), for instance they have developed classes on ergonomy, as well as for Safety representatives.
4.3 GAPS
This sub-section aims at determining whether there are any information needs that are not met.
Inputs from interviews with stakeholders125
Various stakeholders identified different information needs, as follows:
- Specific sectors
Several stakeholders were of the opinion that the hospital sector, which counts approximately 5,000 employees in 13 different establishments, required more attention: no specific accompanying measures or documents have been devised by this sector’s OSH Service (the Intercompany occupational health service of the Association of hospitals).
The transport sector was indicated as accounting for many migrants who may be badly informed and for which control is especially difficult. This is true both for the Labour inspectorates: workers are often scattered throughout the EU, and for the occupational doctors as this sector is not specifically regulated and therefore falls under the responsibility of the STM126.
- Specific risks
Several stakeholders from OSH Services and Representatives of employees identified psychosocial risks as particularly relevant in Luxembourg. The 2012 Health Audit confirms this tendency and indicates that the legal framework do not provide for these specific risks apart from a single law on sexual harassment at work 127. For instance, in the industry sector, psychsocial risks are the first cause of consultation with the occupational doctor 128. Moreover, 2012/2013 statistics on workers’
125 Interviews with Labour Inspectorates, Representatives of employers, OSH Services and Representatives of employees. 126 Interview with Representatives of employees. 127 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.31. 128 STI, Rapport d’activités 2013, available at : http://www.sti.lu/DetailRapport$4891.
Milieu Ltd Country Summary Report for Luxembourg / 162 Brussels perception indicated that workers believe their level of stress to be particularly high129. According to a stakeholder, this statistic can be explained by the fact that a lot of workers in Luxembourg are office workers. In this perspective, there is a gap in the recent works on stress in Luxembourg: a 2012 study on well-being at work ends up by concluding on the need for sensibilisation but no document has been adopted to complement and exemplify which type of measures can be adopted to sensibilise enterprises130. One stakeholder therefore recommended that psychosical risks assessment should in particular be integrated to more global risks assessments. The 2012 Health Audit indicates that legislation is still too oriented on more ‘traditional’ risks at the workplace 131.
With regard to emerging risks, the general consensus was that, as a small country, ‘Luxembourg does not weigh enough’ and therefore had to wait for other larger countries to take initiative. However, some stakeholders also identified the likely need in the future of actions on nanoparticles and psychosocial risks (in particular mental health).
In addition, one stakeholder from OSH Services highilighted the specific case of the cleaning sector for which its organisation is preparing a guidance document for the coming year. Specific attention is given to illustration or didactic approach considering the potential lack of education of the personnel at stake. Other documents under preparation related to bitumen and silica, and are developed in collaboration with other stakeholders.
- Specific type of obligation
Nearly all the different categories of stakeholders referred to the need for more guidance on the identification of risks positions, through a global tool to realise the inventory of such positions - but that no State budget was available to that end132, or through an updating of the current guidance133.
Finally, no stakeholders were aware of monitoring methods/evaluation studies at the disposal of companies that had been particularly useful in helping them implement OSH requirements134.
- Specific group of workers
Several stakeholder indicated that they are currently developing a guide for young workers, and that, among emerging problems, the ageing of the population may require specific consideration in the future in light of changes to retirement laws (NB. for the moment most workers entire retirement at age 57 in Luxembourg135).
Representatives of employees also referred to information need for atypic contracts such as interim and precarious positions136.
Moreover, several stakeholders agreed that OSH issues were not given sufficient consideration in educational activities, including professional training137. One stakeholder also noted that not even occupational doctors, or other doctors, were being trained specifically on OSH issues. This stakeholder indicated that training cursus should further emphasize the issue of prevention, for instance with
129 CSL, Contribution à une étude sur le bien-être au travail au Luxembourg, 2012, available at : http://www.statistiques.public.lu/fr/publications/thematique/population-emploi/bienetre-travail/bien-etre-au-travail.pdf. 130 CSL, Contribution à une étude sur le bien-être au travail au Luxembourg, 2012. 131 Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (‘Audit de la santé au travail au Luxembourg’), Health Ministry, 2012, p.31. 132 Interview with Representatives of employers. 133 Interview with Representatives of employees, Labour inspectorates and OSH Services. 134 Interview with Labour Inspectorates, Representatives of employers, Representatives of employees and OSH Services. 135 Interview with Labour Inspectorates and OSH Services. 136 Interview with Representatives of employees. 137 Interview with OSH Services.
Milieu Ltd Country Summary Report for Luxembourg / 163 Brussels regard to infectious risks of certain exposed professions138.
No stakeholders were aware of cost-benefit analyses carried out in Luxembourg on the implementation of OSH requirements139.
138 Interview with OSH Services. 139 Interview with Labour Inspectorates, Representatives of employers, Representatives of employees and OSH Services.
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5 MAPPING QUESTION 5: ENFORCEMENT
The following section provides information on enforcement of the 24 directives. It describes the structure in place for enforcement.
In Luxembourg, the main authority in charge of OSH legislation enforcement is the Labour and Mine Inspectorate (ITM), which covers all directives but only in the private sector. The ITM is under the responsibility of the Ministry of Labour and Employment. There is no inspection as such for the public sector, as the Departments in charge of OSH are tasked with ensuring compliance with OSH requirements in the public sector. However, the National Service of Occupational Safety of the Public Sector is vested with generic competence on monitoring the security of normal operation and the maintenance and control of installations and equipment of the public sector. Moreover, it carries out expertise in order to homologate public establishments facilities during their lifetime. This service is therefore competent to inspect equipments but not personnel.
In terms of statistical information on inspections, it should be noted that apart from the number of inspectors, no information is available. In addition, no strategy for inspection was identified or referred to by the stakeholders, although it seems that priorities depends on the level of risks at stake with the ITM tending to pay more visits to the companies where there are the higher health and safery risks.
Criminal sanctions for infringement to OSH legislation include fines and imprisonment. The inspectors may also impose administrative sanctions, in particular emergency measures to stop non- compliance.
Structure for enforcement
The table below provides a list of the bodies in charge of enforcement in the Member State, by Directive if applicable.
Table 5- 1 Enforcement authorities
Name Type of authority Directive 89/391/EEC (Framework Directive) - Coordination of occupational medicine services. Occupational medicine services send yearly reports on their activities to the Ministry. Ministry of Health – Department for occupational health - Review body (DSAT) For employees and employers against the opinion of occupational health doctors. - Recording authority Record and evaluate the inventory risk positions of Luxembourg companies. The National Service of Occupational Safety of the Public Sector is competent to: - Monitor the implementation of laws and regulations in all institutions, especially when implanted, under construction, Ministry of Civil Service – National Service of occupation, acquisition or rental, on the Occupational Safety of the Public Sector occasion of important refurbishments, as well as to check the equipment of such establishments. In this context, it carries out or expertise for the registration of establishments in operation or under construction.
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Name Type of authority - Monitor the security of normal operation - maintain and control facilities and equipment. - Compliance role: Inform, give advice, or intervene at the request of the parties concerned, assume a function of informal mediation. ITM - Repressive role: Control the implementation of the legislation on OSH, put an end to situations inconsistent with various provisions relating to safety and health at work Council Directive 89/654/EEC (workplace) See Framework Directive Directive 2009/104/EC (work equipment) See Framework Directive Council Directive 89/656/EEC (PPE) See Framework Directive Council Directive 92/58/EEC (OSH signs) See Framework Directive Directive 1999/92/EC (ATEX) See Framework Directive Council Directive 90/269/EEC (manual handling of loads) See Framework Directive Council Directive 90/270/EEC (display screen equipment) See Framework Directive Directive 2002/44/EC (vibration) See Framework Directive Directive 2003/10/EC (noise) See Framework Directive Directive 2004/40/EC (electromagnetic fields) N/A Directive 2006/25/EC (artificial optical radiation) See Framework Directive Directive 2004/37/EC (carcinogens or mutagens) See Framework Directive Council Directive 98/24/EC (chemical agents at work) See Framework Directive Directive 2009/148/EC (asbestos) See Framework Directive Directive 2000/54/EC (biological agents) See Framework Directive Council Directive 92/57/EEC (temporary or mobile construction sites) See Framework Directive Council Directive 92/104/EEC (surface and underground mineral-extracting industries) See Framework Directive Council Directive 92/91/EEC (mineral-extracting industries through drilling) See Framework Directive Council Directive 92/29/EEC (medical treatment on board vessels) See Framework Directive Council Directive 93/103/EC (work on board fishing vessels) N/A Council Directive 92/85/EEC (pregnant/breastfeeding workers) See Framework Directive Council Directive 91/383/EEC (temporary workers) N/A Council Directive 94/33/EC (young people at work) See Framework Directive
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The ITM counted 103 staff members in 2013, including 22 inspectors140. An important reform of the Inspectorate structure took place in 2011 whereby the three regional agencies became decentralised regional offices, hence loosing their relatively independent status. The main objective was to allow inspectors in regional offices to specialise by economic sectors at the national level rather than focus on a specific territory141.
In addition, information is provided on any interactions between the enforcement bodies listed above.
A Coordination Committee of the national labour inspection structure (Comité de coordination du système national d’inspection du monde du travail) has been set up by the Law of 21 December 2007 on the reform of the Labour Inspectorate. The Committee includes representatives of the ITM, the Department of Occupational Health of the Ministry of Health, the Customs Administration, the National service of safety in public administration (Service national de la sécurité dans la function publique) and the AAA. It is responsible for coordinating and ensuring synergies between the competent bodies to ensure a common enforcement, prevention and organisation policy.
In addition, these services cooperate on a day-to-day basis. For example, the DSAT and the ITM closely coordinate, in particular in relation to employees exposed to biological agents, chemical carcinogens or mutagens at work. Moreover, OSH services may inform the minister when the health of employees is seriously endangered, the Minister would then inform the ITM142. The ITM may also be contacted directly in extraordinary circumstances143.
Inspections
Statistical Information
The table below provides information on the statistical data available in relation to inspections in order to gain an understanding of the level of enforcement activities in the Member State.
Table 5- 2 Inspections statistical data
Number Comments of Number of Number inspecti workers of labour ons Frequency of inspections per labour inspectors per inspector 100.000 workers ESENER1 survey results 2009 : The ITM Question MM170 : Has a Health and inspectors are Safety Inspector visited this workplace responsible for Average in the last 3 years in order to check OSH related of 23.8 for health and safety conditions? 145 matters but the period ‘No ‘No info’ also for Data 2007-2012 info’ in in the NIR Yes – 37.11% enforcing the accordin the NIR No – 59.02% implementatio g to the DK/NA (spontaneous) – 3.87% n of labour NIR144. legislation. Sector: Yes No N/A
140 ITM, Annual Report 2013, http://www.itm.lu/files/live/sites/Itm/files/Itm/Rapports%20Annuels/07.pdf 141 Idem 142 Labour Code, Article L.326-5 (2nd indent). 143 Interview with OSH Services. 144 See the Ministry of Health, Luxembourg National Implementation Report regarding Directive 89/391/EEC, its specific Directives and Directives 2009/148/EC, 91/383/EEC, 92/29/EEC and 94/33/EC, 2014, Part A, Section I, 1.1. 145 https://osha.europa.eu/sub/esener/en/front-page/140/023.
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Number Comments of Number of Number inspecti workers of labour ons Frequency of inspections per labour inspectors per inspector 100.000 workers Production 48.21 % 47.26 % 4.52 % Private 36.23 % 59.43 % 4.34 % Public 20.57 % 78.72 % 0.70 %
Size: Yes No N/A 10-19 38.00 % 59.00 % 3.00 %
20-49 35.53 % 61.79 % 2.68 %
50-249 35.26 % 57.80 % 6.94 %
250- 58.84 % 37.35 % 3.82 % 499 500 + 42.13 % 45.37 % 12.50 %
Strategies for inspection
No strategic document for enforcement was identified or referred to by stakeholders during interviews. Hence, the Table 5.3 is left empty. However, the ITM statement on strategic objectives146 highlights the need to develop a prevention and cooperation culture in companies, as well as raising awareness on OSH issues through a stronger presence of ITM in the field and relevant communication. It emphasises the importance of a regular and early action, as well as the ITM’s goal to increase its advisory and cooperation role with companies and employees.
Table 5- 3 Data on enforcement strategy
Priorities set in terms of size of sectors groups or other criteria companies workers targeted No data Priorities set on the basis of risk assessment result of Others inspections No data
Generally, the approach taken by the Labour inspectorates was described as depending on the type of risk at stake, which dictated whether the inspectors would visit the premises prior to the next regular visit (these visits’ frequency may depend on a number of requirements pertaining to each specific company, e.g. environmental factors, type and nature of permit, etc.)147.
146 ITM, Statement on strategic objectives, undated, http://www.itm.lu/files/live/sites/Itm/files/Itm/miss_val_vis_obj/objectifs.pdf 147 Interview with Labour inspectorates.
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The ESENER1 Survey provides additional information on this basis as indicated above. To question MM170: Has a Health and Safety Inspector visited this workplace in the last 3 years in order to check health and safety conditions?, only 37.11% of the respondents answered positively. This is particularly true for the public services where 20.57% answered yes. Similarly, according to ESENER1, inspections are more frequent in larger companies (approximately 58.84% of companies between 250 to 499 employees answered yes and 42.13% of companies of 500 or more employees)148.
Collaboration/coordination among the stakeholders takes place through informal communication between the national authorities, and decisions can be taken through the National tripartite coordination committee described in section 1.2.3 if necessary. In any case, should a matter be referred to a Public Prosecutor, the initiation of judicial proceedings would be left out to his/her appreciation.
Sanctions
The table below presents the type and level of sanctions provided by law for infringements as defined in the national legislation for each of the Directive covered in the study for both criminal and administrative sanctions. Only the maximum sanctions are provided.
Table 5- 4 Result table – type and level of sanctions
Criminal sanctions (and quasi- Offence under national Administrative sanctions – Types criminal when relevant) – Types legislation and levels of penalties and levels of penalties Directive 89/391/EEC (Framework Directive) Art. L.314-4 (1st indent) Labour Art. L.314-4 (1st indent) Labour Pursuant to a 2007 reform of the Code Code ITM 149, administrative sanctions Any infringement on different - 8 days to 6 month may be imposed by labour provisions transposing the imprisonment inspectorates in the private Framework Directive (inter alia, - EUR 251 to 25,000 fine sector, in particular ordering Art. 5, 6, 7, 8, 9, 12, and 15) , as emergency measures for the well as any GDR adopted in Art. L.314-4 (2nd indent) Labour purposes of regulation or application of these provisions. Code terminated violation of labour - EUR 251 to 3,000 law in the following Art. L.314-4 (2nd indent) Labour circumstances: Code Art. L.327-2 Labour Code Any infringement on the - 8 days to 6 month - Article L.614-5 Labour Code: provisions transposing Article 13 imprisonment Immediate cessation of work of of the Framework Directive, as - EUR 251 to 25,000 fine the employee concerned when well as any GDR adopted in Reoffending within 2 years of the the inspectors see a blatant application of these provisions. first infringement can lead to breach of the law, regulations or doubling these sanctions collective agreements on Art. L.327-2 Labour Code maximum. minimum age for work, working - Any employer who hires an time and night work, employee who did not compliance with the weekly rest, subject to mandatory statutory holidays, protecting medical eximinations rules on the conditions of - Any employer who hires an employment of pregnant employee in spite of women, breastfeeding and occupational doctors young workers. interdiction - Any employer which health - Article L.614-6 Labour Code: surveillance service is not in When labour inspectors may conformity with legal have reasonable cause to requirements, or who did not believe that a situation
148 ESENER1, Question MM170. 149 Loi du 21 décembre 2007 portant réforme de l’Inspection du travail et des mines, modification tu Titre Premier du Livre VI du Code du Travail, modification de l’article L.142-3 du Code du Travail.
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Criminal sanctions (and quasi- Offence under national Administrative sanctions – Types criminal when relevant) – Types legislation and levels of penalties and levels of penalties organise such a service. constitute a threat to the safety - Any employer, member of a or health of employees, they business association, which have the right to order expertise health surveillance service is such as a technical check of not in conformity with legal machiniries, order to bring about requirements. the necessary changes to fix - Any employer who refuse or defects or work methods, to have occupational doctors order mmediate measures for a refuse the lawful exercise of period of 48 hours renewable their duties. This include such as work stoppage of precluding free access to threatened persons and premises and employees, evacuation of the premises. free access to information on work, workplaces, work - Article L.614-8 Labour Code: conditions and methods Where the safety or health of (etc.), sample products, employees are seriously substances or materials, and compromised, or are likely to be not consulting with this in the conditions under which doctor when process and they work, operate or work conditions are manufacture, the ITM Director affected in a manner likely may, after hearing the employer to impact on employees or his representative, order the health and safety. immediate stoppage of work, - Any employer or evacuation and closure of the occupational doctor which threatened work premises for as directly or indirectly screens long as the situation is not for the for HIV/AIDS virus. deemed to have been remedied. Council Directive 89/654/EEC (workplace) See above for Art. L.314-4 (1st indent) Labour Code: Article L.314-2 provides for the adoption of specific GDR to detail the application of the framework’s directive See Framework Directive See Framework Directive transposed provision with regard to certain issues. This Article in included in the list of provisions of Art. L.314-4 (1st indent) Labour Code Directive 2009/104/EC (work equipment) See above for Art. L.314-4 (1st See Framework Directive See Framework Directive indent) Labour Code Council Directive 89/656/EEC (PPE) See above for Art. L.314-4 (1st See Framework Directive See Framework Directive indent) Labour Code Council Directive 92/58/EEC (OSH signs) See above for Art. L.314-4 (1st See Framework Directive See Framework Directive indent) Labour Code Directive 1999/92/EC (ATEX) See above for Art. L.314-4 (1st See Framework Directive See Framework Directive indent) Labour Code Council Directive 90/269/EEC (manual handling of loads) See above for Art. L.314-4 (1st See Framework Directive See Framework Directive indent) Labour Code Council Directive 90/270/EEC (display screen equipment) See above for Art. L.314-4 (1st See Framework Directive See Framework Directive indent) Labour Code
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Criminal sanctions (and quasi- Offence under national Administrative sanctions – Types criminal when relevant) – Types legislation and levels of penalties and levels of penalties Directive 2002/44/EC (vibration) Art. L.351-5 Labour Code Art. L.338-4 Labour Code: Any infringement on the general - 8 days to 6 month provisions of the chapter on imprisonment employees protection against - EUR 251 to 50,000 fine exposition to chemical, physical - Possible forfeiture of the and biological agents. This agents or objects See Framework Directive includes any GDR adopted in concerned application of these provisions as Reoffending within 2 years of the provided for under Article L.351- first infringement can lead to 3 Labour Code. doubling these sanctions maximum. Directive 2003/10/EC (noise) See above for Art. L.351-5 Labour Code See Framework Directive See Framework Directive
Directive 2004/40/EC (electromagnetic fields) N/A Directive 2006/25/EC (artificial optical radiation) See above for Art. L.351-5 See Framework Directive See Framework Directive Labour Code Directive 2004/37/EC (carcinogens or mutagens) See above for Art. L.351-5 See Framework Directive See Framework Directive Labour Code Council Directive 98/24/EC (chemical agents at work) See above for Art. L.351-5 See Framework Directive See Framework Directive Labour Code Directive 2009/148/EC (asbestos) See above for Art. L.351-5 See Framework Directive See Framework Directive Labour Code Directive 2000/54/EC (biological agents) See above for Art. L.351-5 See Framework Directive See Framework Directive Labour Code Council Directive 92/57/EEC (temporary or mobile construction sites) See above for Art. L.314-4 (1st See Framework Directive See Framework Directive indent) Labour Code Council Directive 92/104/EEC (surface and underground mineral-extracting industries) See above for Art. L.314-4 (1st See Framework Directive See Framework Directive indent) Labour Code Council Directive 92/91/EEC (mineral-extracting industries through drilling) See above for Art. L.314-4 (1st See Framework Directive See Framework Directive indent) Labour Code Council Directive 92/29/EEC (medical treatment on board vessels) See above for Art. L.314-4 (1st See Framework Directive See Framework Directive indent) Labour Code Council Directive 93/103/EC (work on board fishing vessels) N/D Council Directive 92/85/EEC (pregnant/breastfeeding workers) Art. L.338-4 Labour Code: Art. L.338-4 Labour Code: Infringement on provisions - 8 days to 6 month related to maternity leave, night imprisonment See Framework Directive work, length of work, and the - EUR 251 to 25,000 fine prohibition of dismissal. Council Directive 91/383/EEC (temporary workers) N/A N/A N/A Council Directive 94/33/EC (young people at work) Art. L.345-2 Labour Code: Art. L.338-4 Labour Code: See Framework Directive
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Criminal sanctions (and quasi- Offence under national Administrative sanctions – Types criminal when relevant) – Types legislation and levels of penalties and levels of penalties Infringement on provisions - 8 days to 6 month related to the prohibition of imprisonment children and teenage work and - EUR 251 to 25,000 fine conditions for derogations to this prohibition (Art 4 of the Directive), to keep a registry of teenage who work, or related to work on Sundays, bank holidays or night work as well as those transposing Art 6, 7, 8, 10, 12.
Inspectors can ask companies to comply within deadlines. When this compliance is not effective, companies can be ordered (mise en demeure / injunction) to comply and eventually be brought to court. As an indication: - in 2013, 5 mise en demeure and one general warning on security were delivered. - in 2012, no mise en demeure were issued, however, two closing orders and partial closing orders were issued, as well as thirteen general warnings on security, two warnings related to hygiene and two warnings related to hazardous products were delivered. - in 2011, three closing orders and ten partial closing orders were issued, 27 general warnings on security were issued including 20 for construction sites, nine construction sites were closed, two warnings related to hygiene, two warnings related to machines and three warnings related to hazardous products were issued150.
Evidence from the ITM would then be based on the official inspection documents (procès verbal d’inspection).
Enforcement actions
Table 5- 5 Number of infringements and court cases
Total number of infringement which resulted in Average of 101.25 for the period 2008-2011 (no legal action info on the years 2007 and 2012) 151 Other data on the number of court cases specific No data to OSH issues in the period 2007-2012
150 ITM, Rapports Annuels, available at : http://itm.lu/home/itm/rapport-annuel.html. 151 See the National Implementation Report 2013.
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Inputs from interviews with stakeholders152
One stakeholder identified several ways through which cases related to OSH could reach courts:
- Criminal courts: employers being sued for non-compliance with OSH requirements.
All stakeholders indicated that the need for enforcement actions was rare and that there would not be many153. Mixed views were expressed to explain this belief, in particular, in its capacity of occupational doctor, one stakeholder had referred a matter to the ITM three times in its career. No follow-up was delivered to him on these instances. Other stakeholders indicated that there would be no more than two or three cases per year.
As indicated above, when OSH services suspect the health of employees to be seriously endangered, this service may inform the Ministry of Health, which would then inform the ITM.
- Employment tribunals: employees fired for non-compliance with OSH requirements.
In this instance, the matter will most likely not be known by the stakeholders interviewed. It was suggested that more employers dared firing employees for non-compliance with OSH requirements. Indeed employers become increasingly aware of their responsibility under OSH legislation and case- law ascertained their right to act in this respect.
- Social security cases: refusal by the AAA to recognise a ‘work accident’ as such resulting in no compensation
These cases may be brought to the attention of occupational doctors for reassessment but no statistics seemed available. One stakeholder indicated that the intervention or direct involvement of OSH Services in such situation would be seldom, and only one case was reported in which an employee had requested access to a health consultation fiche and to the personal dossier.
- Denunciation
Finally, one stakeholder also referred to the possibility of denunciation to the ITM or the police.
In all of these cases, no duty of information exists between the different categories of stakeholders. Additionnally, no statistics seem to be maintained by the National authorities, whether the Ministry of Health, ITM or Ministry of Justice, or other stakeholders on these different categories of proceedings. Therefore, enforcement actions results cannot be assessed154.
152 Interviews with Labour inspectorates, Representatives of employers, Representatives of workers and OSH Services. 153 Interview with Labour inspectorates, Representatives of employers, Representatives of workers and OSH Services. 154 Interview with Labour inspectorates, OSH Services and Representatives of workers.
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6 MAPPING QUESTION 6: SPECIFIC GROUPS OF WORKERS
No specific approaches to vulnerable groups are taken in Luxembourg beyond the requirements set out in the transposed Directives. In particular, it remains under the law the “employer’s duty to ensure any employee’s health and safety in every aspects of linked to work”. However, some guidance documents address specific vulnerable groups, namely young workers, pregnant and breastfeeding workers, ageing workers and workers with disabilities. It should be noted that legislation on ageing workers is currently being considered in Luxembourg.
The table 6-1 below provides an overview of the documents, including legislation, strategies, guidelines, roadmaps or plans, as well as other documents addressing the question of vulnerable groups.
Table 6- 1 Tools addressing risk factors for all vulnerable groups
-
lnesseses lnesseses
capabilities
of occupational occupational of
work activities work
-
barriers
term or chronic il chronic or term
time jobs; Precarious Precarious jobs; time
-
-
the with familiarity of Lack environment working
Document
Target group (if any) (if group Target Breastfeeding Pregnancy; Menopause disorders; Menstrual physical Reduced non Additional Part contract physical of deterioration Natural capacities mental and time recovery Longer occupational to exposure Longer hazards developing of risk Increased long disabilities or disabled by faced risks Different workers risks Combined factors risk risks the of awareness Less workers new amongst long of awareness of Lack diseases occupational latency arrangements Work Language authorities of Fear training OSH of Lack Legislation – Labour Code – Young X X X Young workers155 workers Guidance - Young workers Young and hazardous products, workers X X X X X what you need to know156* Guidance - First day at work: Young X X X what you need to know on workers
155 Labour Code, Art. L.341-1 to L.345-2, Title IV – Young workers. 156 Ministry of Employment and ITM, 2006, http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/jeunes-travailleurs-produits-dangereux/jeunes-travailleurs-produits- dangereux.pdf
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-
lnesseses lnesseses
capabilities
of occupational occupational of
work activities work
-
barriers
term or chronic il chronic or term
time jobs; Precarious Precarious jobs; time
-
-
the with familiarity of Lack environment working
Document
Target group (if any) (if group Target Breastfeeding Pregnancy; Menopause disorders; Menstrual physical Reduced non Additional Part contract physical of deterioration Natural capacities mental and time recovery Longer occupational to exposure Longer hazards developing of risk Increased long disabilities or disabled by faced risks Different workers risks Combined factors risk risks the of awareness Less workers new amongst long of awareness of Lack diseases occupational latency arrangements Work Language authorities of Fear training OSH of Lack occupational health and safety157* Guidance - Guide on young Young X X X workers in enterprises158* workers Legislation – Labour Code - Pregnant and Pregnant, given birth and breastfeeding X X X breastfeeding workers159 workers Guidance - Pregnancy as a Pregnant worker in the health sector, workers X risks and prevention160* (health sector) Guidance - To breastfeed Pregnant and work is your legal /breastfeedin X right!161* g workers Form - Request for an opinion Pregnant for post change, change of /breastfeedin X X X assignments, exemption from g workers work or waiver of night work
157 Ministry of Employment and ITM, 2006, http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/premier-jour-travail-securite-sante/premier-jour-travail-securite-sante.pdf 158 AAA, 2006, http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/guide-accueil-jeunes-travailleurs-entreprise/guide-accueil-jeunes-travailleurs-entreprise.pdf 159 Labour Code, Article L.331-1 to L. 338-4, Title III, Employment of pregnant, given birth and breastfeeding workers. 160 STM, 2013, http://www.sante.public.lu/publications/sante-fil-vie/grossesse-maternite/grossesse-secteur-soins-institution/grossesse-secteur-soins-institution.pdf 161 Ministry of Health, 2013, http://www.sante.public.lu/publications/sante-fil-vie/grossesse-maternite/allaiter-travailler-droit-fr-lb-de-hrv/allaiter-travailler-droit-fr-lb-de-en-pt-hrv.pdf
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-
lnesseses lnesseses
capabilities
of occupational occupational of
work activities work
-
barriers
term or chronic il chronic or term
time jobs; Precarious Precarious jobs; time
-
-
the with familiarity of Lack environment working
Document
Target group (if any) (if group Target Breastfeeding Pregnancy; Menopause disorders; Menstrual physical Reduced non Additional Part contract physical of deterioration Natural capacities mental and time recovery Longer occupational to exposure Longer hazards developing of risk Increased long disabilities or disabled by faced risks Different workers risks Combined factors risk risks the of awareness Less workers new amongst long of awareness of Lack diseases occupational latency arrangements Work Language authorities of Fear training OSH of Lack for pregnant or breastfeeding employee162* Guidance - Health and Ageing development at - a different workers X X X feeling between seniors and cadets163 Guidance - Moral and sexual Women harassment 164# Legislation – Income of Workers with X X disabled workers165 disabilities Legislation – Labour Code – Workers with Employment of disabled disabilities X X people166 Guidance - Service for Workers with workers with limited work disabilities X X ability167 Ageing
162 STM, http://www.stm.lu/formulaires-documentation/formulaires/ 163 ‘Santé et épanouissement au travail au Luxembourg un ressenti différent entre les séniors et le cadets’, CEPS/INSTEAD, 2012, http://www.sante.public.lu/publications/impacts-milieu- vie/sante-travail/sante-epanouissement-travail-luxembourg/sante-epanouissement-travail-luxembourg.pdf 164 ‘Harcèlement moral et sexuel’, Promoculture, 2010, http://librairiepromoculture.lu/web/produit/harcelement-moral-et-sexuel/ 165 Law of 12 September 2003 on the incomes of disabled people, http://www.legilux.public.lu/leg/a/archives/2014/0015/2014A0149A.html; GDR of 7 October 2004 implementing the law of 12 September 2003 on the incomes of disabled people, http://www.legilux.public.lu/leg/a/archives/2004/0167/index.html. 166 Labour Code, Title VI, Employment of disabled people. 167 ‘Le service des travailleurs à capacité de travail réduite’, Ministry for Employment, 2006, http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/service-travailleurs- capacite-reduite/service-travailleurs-capacite-reduite.pdf
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-
lnesseses lnesseses
capabilities
of occupational occupational of
work activities work
-
barriers
term or chronic il chronic or term
time jobs; Precarious Precarious jobs; time
-
-
the with familiarity of Lack environment working
Document
Target group (if any) (if group Target Breastfeeding Pregnancy; Menopause disorders; Menstrual physical Reduced non Additional Part contract physical of deterioration Natural capacities mental and time recovery Longer occupational to exposure Longer hazards developing of risk Increased long disabilities or disabled by faced risks Different workers risks Combined factors risk risks the of awareness Less workers new amongst long of awareness of Lack diseases occupational latency arrangements Work Language authorities of Fear training OSH of Lack workers Guidance - Service for Workers with X X disabled workers168 disabilities Legislation – Labour Code169 Ageing X workers * documents listed under ‘Accompanying actions’ in MQ4. For the full reference of the document, please see MQ4. # documents which are not freely available.
168 ‘Le service des travailleurs handicapés’, Ministry for Employment, 2006, http://www.sante.public.lu/publications/impacts-milieu-vie/sante-travail/service-travailleurs-handicapes/service- travailleurs-handicapes.pdf 169 Labour Code, Art. L. 551-1 and seq. regulate internal and external reclassification procedures for workers who are not recognised as invalid – as defined in the Social Security Code, art.187 – but who are unable to take up their former job in consequence of a disease or accident.
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Inputs from interviews with stakeholders170
No specific approaches to vulnerable groups are taken in Luxembourg beyond the requirements set out in the transposed Directives. In particular, it remains under the law the “employer’s duty to ensure any employee’s health and safety in every aspects of linked to work” 171.
Two visions were expressed as the basis of this generic approach: - A professional activity perspective whereby risks will depend on the company’s sector, type of business, and each workers working station ; - A medical approach that considers that anyone is potentially vulnerable, whether or not they belong to a ‘vulnerable group’, and whereby risk is therefore viewed as inherent to each individual and his/her own specificities.
As a result of this generic approach, exception made of rules on pregnancy and young workers, each workers’ specificities (whether inherent to the activity or the person at stake), rather than that of a specific ‘vulnerable group’, are declared as both the responsibility of the employer and an important element of consideration addressed by the Labour inspectors and Occupational doctors during visits (whether periodical or ad hoc). This was in particular pointed out when enquiries were made about the situation of temporary workers in consideration of the lack of specific transposition of some Articles of Directive 91/383/EEC (see table 1.24 in Section 1.3.1).
This situation also means they are no specific statistics on the share of vulnerable workers in Luxembourg. When asked for statistics stakeholders consistently referred to the State Statistics Agency (STATEC). However, STATEC statistics appear to be presented in an insufficient way i.e. are very general, and regularly and often use a limited division between ‘frontier workers and residents’. A stakeholder also referred to the CDM key facts studies and statistics, and indicated that in 2012, 72,335 workers were in the craftsman sector, of which 77% were male, 15% were Luxembourg residents, 37% foreign residents in Luxembourg, and 48% frontier worker. Finally, a third stakeholder indicated the belief that the numbers of request to occupational medicine for issues related to pregnancy was on the rise172. This situation was also confirmed in the public sector where an estimated 50-60 requests are made every year173.
Despite this generic approach, a specific weakness was identified concerning possibilities for evacuation of disabled personnel where efforts could be made174. It should be pointed out that while no specific legislation exists for disabled workers of the private sectors, disabled workers of the public service (approximately 750 workers) are offered specific consideration under the public servant status (statut des fonctionnaires)175. The situations of disabled workers as well as that of ageing workers in general is weak and improvement should in particular stem from active policy initiatives according to stakeholders176. A stakeholder also indicated that workers of the tertiary economic sectors appeared regularly less informed. Some stakeholders expressed the opinion that not legislating in the area of vulnerable groups allowed for more flexibility which was perceived as beneficial insofar as health was concerned. Nevertheless, legislation for ageing workers is being discussed at the Luxembourg Chamber of deputies. Another stakeholder indicated that a workable solution could be entering into retirement progressively the last three or five years of activity.
170 Interview with Labour inspectorates, Representatives of employers, Representatives of employees, and OSH Services. 171 Labour Code, Article L.312-1. 172 Interview with OSH Services. 173 Interview with OSH Services. 174 Interview with Labour inspectorates. 175 Interview with OSH Services. 176 Interview with Representatives of employees.
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7 MAPPING QUESTION 7: SMEs AND MICRO-ENTERPRISES
This question focuses on the identification of measures adopted by Member States in order to assist SMEs and micro-enterprises in the implementation of OSH requirements. Measures provided by other actors, such as social partners, are not included. The concept of ‘measures’ is considered as covering national legislation and soft measures, i.e. incentives. Other measures such as guidance are included in section 4.
Three elements should be checked for each Directive: Exemptions: are there thresholds of number of employees to be exempted from certain key requirements? If so, what are the thresholds? To what requirements does it apply? Lighter regime: are certain norms/ regulatory standards provided by law differentiated for SMEs? Incentives: have financial measures/tax reductions been adopted to support SMEs?
The results are summarised in Table 7-1 and then detailed in Table 7-2. It should be taken into account that the SME measures laid down in the national legislation transposing the Framework Directive are equally applicable to all of the transpositions of the other OSH individual Directives.
Luxembourg has only set up a lighter regime as to the requirement to organise an internal service of occupational health is compulsory only for larger companies. In addition the AAA has set up a labelling programme on occupational safety for SMEs with less than 50 employees. Apart from these, the rules are general and applied to all enterprises regardless of their size. As mentioned by the National Implementation Report for Luxembourg, ‘The measures taken by the competent authorities are the same for all enterprises in Luxembourg and do not depend on size’177. However, given the high proportion of SMEs in Luxembourg, they are indeed the primary recipient of all documents and measures on OSH.
Table 7- 1 Overview of measures targeting SMEs and micro-enterprises
Exemptions Lighter regime Incentives Directive 89/391/EEC (FW) (non-financial) Directive 89/654/EEC (workplace) - - - Directive 2009/104/EC (work equipment) - - - Council Directive 89/656/EEC (PPE) - - - Council Directive 92/58/EEC (OSH signs) - - - Directive 1999/92/EC (ATEX) - - - Council Directive 90/269/EEC (manual handling of loads) - - - Council Directive 90/270/EEC (display screen equipment) - - - Directive 2002/44/EC (vibration) - - - Directive 2003/10/EC (noise) - - - Directive 2004/40/EC (electromagnetic fields) N/A N/A N/A
177 See the Ministry of Health, Luxembourg National Implementation Report regarding Directive 89/391/EEC, its specific Directives and Directives 2009/148/EC, 91/383/EEC, 92/29/EEC and 94/33/EC, 2014, Part A, Section 2.7
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Exemptions Lighter regime Incentives Directive 2006/25/EC (artificial optical radiation) - - - Directive 2004/37/EC (carcinogens or mutagens) - - - Council Directive 98/24/EC (chemical agents) - - - Directive 2009/148/EC (asbestos) - - - Directive 2000/54/EC (biological agents) - - - Council Directive 92/57/EEC (temporary or mobile construction sites) - - - Council Directive 92/104/EEC (surface and underground mineral-extracting industries) - - - Council Directive 92/91/EEC (mineral-extracting industries through drilling) - - - Council Directive 92/29/EEC (medical treatment on board vessels) - - - Council Directive 93/103/EC (work on board fishing vessels) N/A N/A N/A Council Directive 92/85/EEC (pregnant/breastfeeding workers) - - - Council Directive 91/383/EEC (temporary workers) N/A N/A N/A Council Directive 94/33/EC (young people at work) - - - Council Directive 98/24/EC (chemical agents) - - -
Table 7- 2 Description of measures targeting SMEs and micro-enterprises
Exemptions Lighter regime Incentives Directive 89/391/EEC (FW) Under Art. L. 322-1 of the Non-financial incentive: Labour Code, the AAA is leading a labelling organisation of an program incentivising internal service of SMEs to use a security occupational health is management system only compulsory for (‘Sécher & Gesond mat companies employing system’ which means more than 5000 working in security)178*. employees as well as This label is for companies those with more than with less than 50 3000 employees with at employees and aims at least 100 occupying a demonstrating legal position with risks. Smaller conformity of the companies may either company, and therefore use one of the four inter- presents the advantage enterprises services (STM, of allowing the company STI, ASTF and SIST-FHL) or to know where it stands join the Multi-sector with regard to OSH Occupational Health issues179 and to enhance Service (STM). the companies’ reputation180.
178 AAA, http://www.aaa.lu/prevention/aides-financieres/systemes-de-management-de-la-securite/ and http://www.label- sgs.lu/ 179 Interview with Representatives of employers. 180 Interview with Labour inspectorates.
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Exemptions Lighter regime Incentives Directive 89/654/EEC (workplace) - - - Directive 2009/104/EC (work equipment) - - - Council Directive 89/656/EEC (PPE) - - - Council Directive 92/58/EEC (OSH signs) - - - Directive 1999/92/EC (ATEX) - - - Council Directive 90/269/EEC (manual handling of loads) - - - Council Directive 90/270/EEC (display screen equipment) - - - Directive 2002/44/EC (vibration) - - - Directive 2003/10/EC (noise) - - - Directive 2004/40/EC (electromagnetic fields) - - - Directive 2006/25/EC (artificial optical radiation) - - - Directive 2004/37/EC (carcinogens or mutagens) - - - Council Directive 98/24/EC (chemical agents) - - - Directive 2009/148/EC (asbestos) - - - Directive 2000/54/EC (biological agents) - - - Council Directive 92/57/EEC (temporary or mobile construction sites) - - - Council Directive 92/104/EEC (surface and underground mineral-extracting industries) - - - Council Directive 92/91/EEC (mineral-extracting industries through drilling) - - - Council Directive 92/29/EEC (medical treatment on board vessels) - - - Council Directive 93/103/EC (work on board fishing vessels) - - - Council Directive 92/85/EEC (pregnant/breastfeeding workers) - - - Council Directive 91/383/EEC (temporary workers) N/A N/A N/A Council Directive 94/33/EC (young people at work) - - - Council Directive 98/24/EC (chemical agents) - - -
* indicates that the action is listed under “Accompanying actions” in MQ 4.
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Inputs from interviews with stakeholders181
No specific measures (legal, regulatory, or otherwise), support schemes, funding programmes, targeted campaign or other tools and instruments were identified as specifically designed for SMEs.
However, it was indicated that most initiatives and documents in Luxembourg should in any case be especially useful to SMEs, as there are only 12 very large enterprises and 50 large sized enterprises in Luxembourg182. Other interesting measures in this respect included the UEL yearly forum, usually around spring including workshops, exposition, information stands, and conference presentations (http://www.securite-sante.lu/).
Moreover, no studies carried out analysing OSH and SMEs were indicated by the stakeholders, with some stakeholder pointing out that they would appreciate to have such studies.
181 Interview with Labour inspectorates, Representatives of employers, Representatives of employees, and OSH Services 182 To note that these size references seem to be based on the Luxembourg legal definition on the division of sizes of enterprises set out in the GDR of 16 March 2005 (available at: http://www.legilux.public.lu/leg/a/archives/2005/0038/a038.pdf#page=2). Under this definition, SMEs are all enterprises with less than 250 employees, and small enterprises employ less than 50 employees.
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ANNEX I - BIBLIOGRAPHY
Reports
Association for health at work of the financial sector (Association pour la santé au travail du secteur financier) (ASTF), Annual report (Rapport annuel), 2013. Available at : http://www.astf.lu/IMG/pdf/2013.pdf Association for health at work of the financial sector (Association pour la santé au travail du secteur financier) (ASTF), Annual report (Rapport annuel), 2012. Available at : http://www.astf.lu/IMG/pdf/ASTF_RA_2012-3.pdf Association for health at work of the financial sector (Association pour la santé au travail du secteur financier) (ASTF), Annual report (Rapport annuel), 2011. Available at : http://www.astf.lu/IMG/pdf/ASTFRA2011.pdf Association for health at work of the financial sector (Association pour la santé au travail du secteur financier) (ASTF), Annual report (Rapport annuel), 2010. Available at : http://www.astf.lu/IMG/pdf/RA2011FR.pdf Association for health at work of the financial sector (Association pour la santé au travail du secteur financier) (ASTF), Annual report (Rapport annuel), 2009. Available at : http://www.astf.lu/IMG/pdf/ASTF_RA_FR.pdf EU OSHA – European Agency for Safety and Health at Work, Qualitative post-test evaluation of ESENER (ESENER Post-Test). Luxembourg, 2013. Labour and Mines Inspectorate (Inspection du travail et des mines) (ITM), Annual report (Rapport annuel), 2013. Available at : http://itm.lu/files/live/sites/Itm/files/Itm/Rapports%20Annuels/07.pdf Labour and Mines Inspectorate (Inspection du travail et des mines) (ITM), Annual report (Rapport annuel), 2012. Available at : http://itm.lu/files/live/sites/Itm/files/Itm/Rapports%20Annuels/08.pdf Labour and Mines Inspectorate (Inspection du travail et des mines) (ITM), Annual report (Rapport annuel), 2011. Available at : http://itm.lu/files/live/sites/Itm/files/Itm/Rapports%20Annuels/09.pdf Labour and Mines Inspectorate (Inspection du travail et des mines) (ITM), Annual report (Rapport annuel), 2010. Available at : http://itm.lu/files/live/sites/Itm/files/Itm/Rapports%20Annuels/10.pdf Labour and Mines Inspectorate (Inspection du travail et des mines) (ITM), Annual report (Rapport annuel), 2009. Available at : http://itm.lu/files/live/sites/Itm/files/Itm/Rapports%20Annuels/11.pdf Multi-sector Occupational Health Service (Service de santé au travail multisectoriel) (STM), Overall Activity Report (Rapport global d’activitié), 2013. Available at : http://www.stm.lu/download/68/ Multi-sector Occupational Health Service (Service de santé au travail multisectoriel) (STM), Overall Activity Report (Rapport global d’activitié), 2012. Available at : http://www.stm.lu/download/45/ Multi-sector Occupational Health Service (Service de santé au travail multisectoriel) (STM), Overall Activity Report (Rapport global d’activitié), 2011. Available at : http://www.stm.lu/download/40/ Multi-sector Occupational Health Service (Service de santé au travail multisectoriel) (STM), Overall Activity Report (Rapport global d’activitié), 2010. Available at : http://www.stm.lu/download/39/ Multi-sector Occupational Health Service (Service de santé au travail multisectoriel) (STM), Overall Activity Report (Rapport global d’activitié), 2009. Available at : http://www.stm.lu/download/8/ Occupational Health Service for Industry (Service de santé au travail de l’industrie ASBL)
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(STI), Activity Report of the STI 2013 (Rapport d’activité du STI 2013), 2nd April 2014. Available at : http://www.sti.lu/DetailRapport$4891 Occupational Health Service for Industry (Service de santé au travail de l’industrie ASBL) (STI), Activity Report of the STI 2012 (Rapport d’activité du STI 2012), 14th March 2013. Available at : http://www.sti.lu/DetailRapport$4570 Occupational Health Service for Industry (Service de santé au travail de l’industrie ASBL) (STI), Activity Report of the STI 2011 (Rapport d’activité du STI 2011), 15th November 2012. Available at : http://www.sti.lu/DetailRapport$4506 Occupational Health Service for Industry (Service de santé au travail de l’industrie ASBL) (STI), Activity Report of the STI 2010 (Rapport d’activité du STI 2010), 1st January 2010. Available at : http://www.sti.lu/DetailRapport$2936 Occupational Health Service for Industry (Service de santé au travail de l’industrie ASBL) (STI), Activity Report of the STI 2009 (Rapport d’activité du STI 2009), 1st January 2009. Available at : http://www.sti.lu/DetailRapport$2819
Strategies
Governmental Declaration (Programme Gouvernemental), 2013. Available at : http://www.gouvernement.lu/3322796/Programme-gouvernemental.pdf Labour and Mines Inspectorate (Inspection du travail et des mines) (ITM), Statement on strategic objectives (Les objectives stratégiques de l’Inspectiond u travail et des mines), undated. Available at: http://www.itm.lu/files/live/sites/Itm/files/Itm/miss_val_vis_obj/objectifs.pdf
Studies
Accident Insurance Association (Association d’Assurance Accidents), Security advice : buildings and works in the public sector (Conseils de sécurité : bâtiments et travaux publics), January 1993. Available at: http://www.sante.public.lu/publications/impacts-milieu-vie/sante- travail/conseils-securite-batiment-travaux-publics/conseils-securite-batiment-travaux-publics- fr-pt.pdf Chamber of Employees Luxembourg (Chambre des Salariés Luxembourg) (CSL), Contribution to a study on well-being at work in Luxembourg (Contribution à une étude sur le bien-être au travail au Luxembourg), 2012. Available at : http://www.statistiques.public.lu/fr/publications/thematique/population-emploi/bienetre- travail/bien-etre-au-travail.pdf. Department of Occupational Health, Ministry of Health (Division de la santé au travail, Ministère de la Santé), Inventory of Risk Positions – First results of the 2003-2006 campaign (Inventaires des postes à risques – Premiers résultats de la campagne 2003-2006), 11th June 2007. Available at : http://www.sante.public.lu/publications/impacts-milieu-vie/sante- travail/inventaire-postes-risques-conference-presse/inventaire-postes-risques-conference- presse.pdf Luxembourg Association of Social Security Organisms (Association Luxembourgeoise des organismes de la sécurité sociale) (ALOSS), Professional sicknesses (Les maladies professionnelles) in Luxembourg Bulletin on Social Issues (Bulletin Luxembourgeois des Questions Sociales), Volume 16, 2004. Available at: http://www.mss.public.lu/publications/blqs/blqs016/blqs_16.pdf Mairiaux, P., Levêque, A., Pichault, F., Occupational Health Audit (Audit de la santé au travail au Luxembourg) Health Ministry (Ministère de la Santé), 2012. Available at : http://www.ms.public.lu/fr/activites/sante-travail/audit-version-electronique-imprimable.pdf Ministry of Health, Luxembourg National Implementation Report regarding Directive 89/391/EEC, its specific Directives and Directives 2009/148/EC, 91/383/EEC, 92/29/EEC and 94/33/EC, 2014
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Luxembourg Christian Confederation Trade Union (Lëtzebuerger Chrëschtleche Gewerkschafts-Bond) (LCGB), Social dialogue inside enterprises (Le dialogue social à l’intérieur des entreprises), 2010. Available at : http://lcgb.lu/wp- content/uploads/import/wysiwyg/2010/Borchure%20Cogestion%20FR.pdf Putz J.L., Practical Guide – Moral and sexual harassment (Guide pratique – Harcèlement moral et sexuel), 2010, http://librairiepromoculture.lu/web/produit/harcelement-moral-et- sexuel/
Websites
Accident Insurance Association (Association d’Assurance Accidents) (AAA), Security management systems (Systèmes de management de la sécurité), http://www.aaa.lu/prevention/aides-financieres/systemes-de-management-de-la-securite/ Accident Insurance Association (Association d’Assurance Accidents) (AAA), Prevention Recommendations (Recommendations de prévention), online application http://www.recommandations.aaa.lu/ Association for health at work of the financial sector (Association pour la santé au travail du secteur financier) (ASTF), http://www.astf.lu/spip.php?lang=fr Civil Service portal (Portail de la Fonction publique), http://www.fonction- publique.public.lu/fr/ Chamber of Employees Luxembourg (Chambre des Salariés Luxembourg) (CSL), http://www.csl.lu/ ESENER Survey, https://osha.europa.eu/fr/esener-enterprise-survey/enterprise-survey-esener Label Working in Security (Label Sécher & Gesond mat system) http://www.label-sgs.lu/ Labour and Mines Inspectorate (Inspection du travail et des mines) (ITM), http://itm.lu/home.html Labour and Mines Inspectorate (Inspection du travail et des mines) (ITM), Online calculation form on Designated Workers (Formulaire de calcul en ligne sur les Travailleurs désignés), http://www.itm.lu/home/securite---sante/acteurs-securite/formulaire-de-calcul.html Labour and Mines Inspectorate (Inspection du travail et des mines) (ITM), Relations with other organisms (graph), http://www.itm.lu/home/itm/relation-avec-dautres-organismes.html Luxembourg Christian Confederation Trade Union (Lëtzebuerger Chrëschtleche Gewerkschafts-Bond) (LCGB), http://lcgb.lu/ Luxembourg Chamber of Deputies, List of cases (Chambre des deputes du Grand-Duché du Luxembourg, Rôle des affaires), http://www.chd.lu/wps/portal/public/!ut/p/b1/04_Sj7QwMjcwNDQxMNaP0I_KSyzLTE8sycz PS8wB8aPM4l2MXMKCPE2MDNzNA00MjLxcvcxDg_2M3S3NgAoigQqMLCyCg9wdfV0 tLUOdDDwNnA2DXQOdjAw8jYjTb4ADOBrg02_hbgzVj0cBAfv9PPJzU_Vzo3Lc3CwcFQ F23bGE/dl4/d5/L2dJQSEvUUt3QS80SmtFL1o2X0QyRFZSSTQyMEc3UTQwMkpFSjdVU0 4zOEcz/ Ministry of Civil Service, National Service of Occupational Safety of the Public Sector (Ministère du Service Publique, Service national de la sécurité dans la fonction publique) http://www.fonction-publique.public.lu/fr/structure-organisationnelle/snsfp/index.html Ministry for Employment (Minstère de l’emploi), The service for handicapped workers (Le service des travailleurs handicapés), 2006, http://www.sante.public.lu/publications/impacts- milieu-vie/sante-travail/service-travailleurs-handicapes/service-travailleurs-handicapes.pdf Multi-sector Occupational Health Service (Service de santé au travail multisectoriel) (STM), http://www.stm.lu/ Multi-sector Occupational Health Service (Service de santé au travail multisectoriel) (STM), Affiliation forms (Formulaires d’affiliation), http://www.stm.lu/formulaires- documentation/formulaires/ Ministry of Health, Department of Occupational Health, http://www.fonction- publique.public.lu/fr/structure-organisationnelle/admin-services-medicaux/sante-travail/
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Ministry of Health, Health at work webpage (Ministère de la Santé, la santé au travail page web), http://www.ms.public.lu/fr/direction/divisions-services/sante-travail/ and http://www.sante.public.lu/fr/catalogue-publications/impacts-milieu-vie/sante- travail/index.html Ministry of Health, Health at work, webpage on civil aviation medical controls (Ministère de la Santé, la santé au travail, page web sur le contrôle médical dans l’aviation civile),http://www.sante.public.lu/fr/impacts-milieu-vie/sante-travail/092-controle-medicale- aviation-civile/index.html Occupational Health Service for Industry (Service de santé au travail de l’industrie ASBL) (STI), http://www.sti.lu/index.html Safety and health at work, Enterprises forum (Sécurité et santé au travail, forum entreprises), http://www.securite-sante.lu/
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ANNEX II – INTERVIEWS
How many … in total … with national … with labour … with workers’ … with employers’ … with research interviews… authorities inspectorates representatives representatives institutes, academia, OSH professional bodies, etc.
Contacted Completed Contacted Completed Contacted Completed Contacted Completed Contacted Completed Contacted Completed
LU 23 12 1 1 1 2 6 4 6 1 9 4
This table details all the interviews that were completed with Luxembourg stakeholders, and includes as well the number of stakeholders contacted for these interviews. A further distinction is made on the basis of the category of stakeholders.
The Luxembourg expert has dedicated a considerable amount of time in contacting several times the OSH stakeholders. However, many stakeholders showed reluctance in participating in the interviews and did not indicate an alternative interviewee. In addition, some stakeholders decided to work together and provide just one polished response the interview questions. One of the main employers’ organisation postponed the interview until agreeing a common response amongst all members – but never came back to the expert. As a result only one interview could be held with employers’ representatives. Finally, the contacted academics did not feel qualified to answer OSH-related questions. In sum, the expert has contacted each stakeholder at least three times and has made all possible attempts to attain 20 interviews.
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