“Wrongly classified senior executives” case: a legal victory

The issue of wrongly classified senior executives” in the financial sector has become since 2017 ALEBA’s hobbyhorse. The first union in the financial sector called on the employees concerned to have their status analyzed and to assert their rights in court, if necessary. Recently ALEBA has reaped the fruits of its labor.

As a reminder, we speak of “false executive”, when an employee has been hired or promoted within a company, under the status of senior executive, a statute which excludes him from the scope of the collective labor agreement. of his sector, without meeting the conditions provided for by the law in force to be considered a senior executive.

Article L.162-8 of the Luxembourg Labour Code defines a senior executive as follows:

“[…] The following are considered as senior executives within the meaning of this title: employees having

  •  significantly higher salary than that of employees covered by a collective labour agreement or based on another salary scale, taking account of the time needed to perform their duties,
  • if this salary is paid in consideration for the exercise of real and effective management powers or where the nature of the tasks involves a clearly defined authority,
  • wide-ranging autonomy in the organisation of work and
  • a high degree of freedom as regards working hours, and no constraints as regards such hours […]”.

The four aforementioned criteria are cumulative and therefore if one of the conditions is not met, the status of senior executive is questionable within the meaning of the law.

Why should employees challenge their senior executive status, if they are not? By being excluded from the collective labor agreement, they don’t benefit from its advantages, such as the payment of overtime and June bonuses (loyalty bonus), the right to days of rest (8.5 days in the Bank CLA for example), etc.

In 2018, the results of the survey conducted by ALEBA among delegates prove that 27.84% of employees in the financial sector, or 7,385 people, are “wrongly classified senior executives”. An appeal was launched to the employees concerned to seek help and assistance from our union in order to assert their rights in court. Indeed, the action in payment of remuneration is prescribed by three years. Several cases were thus brought before the Labor Court.

Recently, ALEBA won the case for one of its members who was employed at Caceis Bank Luxembourg S.A.

Thanks to the evidence provided by our member, the Court recognized that he did not have the quality of a senior executive within the bank and that the collective agreement of bank employees was applicable to him. He was thus able to obtain payment for overtime and a June bonus.

Four salaried members of the Banque de Rothschild were also reinstated in the CLA following an agreement reached with the Management. Together and supported by ALEBA and his lawyer, they confronted their employer to assert their rights.

ALEBA is proud of this victory which condemns the employer to take responsibility and respect the law. Other cases are still pending or awaiting judgment.

In addition, ALEBA noted that some employers have taken advantage of the new method of classification groups in banks to reintegrate employees into the Bank CLA. Hundreds of “false executives” have thus been reinstated.

Those who have senior management status, but who believe they do not meet the four conditions as provided by law, can contact ALEBA for an analysis of their contract. For any information request, the Legal department is at their disposal: legal@aleba.lu

 

Press release of October 13, 2020.

 

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