Fixed-term employment contracts in Luxembourg
| Autor | Christian Deprez |
| Páginas | 38-44 |
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In 2010, temporary contracts represent 9.2% of the total number of contracts, (4.8% directly concluded with the employer, and 3.5% through agencies). This rate has increased during the period 2006-2010 of two percentage points.
The fields were temporary contracts are the most widespread are administrative services and support, education, services activities in general, healthcare and building sector.1
It is, in fact, possible to hire employees using temporary employment contracts in Luxembourg. However, as such contracts derogate from the general principle of employment contract of permanent duration as the general form of employment relations, the use of a temporary employment contract is only permitted under certain conditions and with certain limitations2.
The rules authorizing temporary employment contracts rise to the level of public policy provisions; thus, they are mandatory and cannot be modified, even through mutual agreement of the parties.3
In Luxembourg, temporary employment is only contemplated in two specific situations:4
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An employer enters into a fixed-term employment contract directly with the employee; or
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An enterprise asks a third party (i.e., an employment agency) to temporarily make one or more members of its staff available to him. Only specific employment agencies (‘les entreprises de travail temporaire’) are authorized5to make staff available to such enterprise for a limited period, and the provision thereof must be undertaken pursuant to a so-called mission contract ("contrat de mission"). Thus, the employer is the agency, and the enterprise using the services of the agency’s employee is the "using enterprise" ("entreprise utilisatrice").
- Temporary employment contracts are contemplated by Luxembourg’s Labor Code but collective bargaining agreements may also regulate an enterprise’s use of short-term employment through authorized agencies.6
Regardless of which of the two authorized temporary employment arrangements is used, the employer may only use short-term employment contracts for a specific and temporary task ("tâche précise et non durable")7such as temporarily replacing an existing employee, seasonal activities, an exceptional one-time increase in workload. In addition, this framework contemplates the recruitment of specific categories of workers (e.g., disabled persons, recently-released prisoners 8 ), or recruitment intended to help unemployed persons reenter the workforce9, or provide professional training.
- Moreover, regardless of the type of authorized temporary arrangement, short-term employment contracts must comply with all other regulations that apply to every
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standard employment contract,10including provisions establishing the form thereof and mandatory information to be included therein.
Finally, every short-term employment contract must satisfy certain additional formal requirements specifically adapted to them. For example, it must include a statement that it is for a defined period, justifications for using a fixed-term contract, and specify its precise duration (including end date) as well as any trial period.11
A failure to state, within the contract, the limited duration of the employment or the temporary task which is the object thereof, results in said contract being irrefutably deemed to be an employment contract for an unspecified duration,12subject to all employee rights and benefits attributable thereto.
If, on the one hand, the short-term employment contract is entered into directly with the enterprise, it may be extended twice for a maximum aggregate extension of 24 months.1...
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