Labour and Employment Law with Industrial Relations

Transcription

1 Labour and Employment Law with Industrial Relations INTRODUCTION TO SWEDISH LAW

2 Industrial Relations (Fahlbeck) a set of arrangements together forming the labour market, its organisation and way of functioning and the ideas underlying these arrangements. The prime concern of any IR-system is to arrive at rules and arrangements that enable labour and capital to meet and work together. the IR-system is an interplay between three actors, employers, employees and society. the ingredients of an IR-system [ ] are the norms and customs concerning conditions of work, the procedures for arriving at these and the underlying spirit.

3 The Nordic Welfare Regime Keynesianism; Ideals of redistribution; Political alliance between working class and middle class; Expanding public sector; Universal social insurance schemes; Individual taxation and individual benefits.

4 The Swedish model from abroad An American journalist in 1930s; Combining US capitalist political economy and Soviet Union socialist ideology.

5 The Swedish Model of labour market regulation High union density (70 %); Unified unionism not competing trade unions; Self-regulation programmatic passivity of legislator; No statutory minimum wage central role of collective bargaining; High coverage of collective agreement 85 % of labour market; Interplay between legislation and contractual regulation; Social responsibility of labour market parties; Compromise between labour and capital; Spirit of mutual understanding ; Nordic Model to a certain extent.

6 Chronological overview Absence of legislation general private law instead; The Compromise of December 1906 employer prerogatives & unionism/bargaining; The Saltsjöbaden or General Agreement 1938 bargaining before action and spririt of co-operation ; Programmatic Passivity on behalf of legislator primacy of autonomy labour market parties; Legislative expansion during the 1970 s securing the achievements; Europeanization in the 1990 s key changes in the model; Decentralisation trajectory since 1990s.

7 Swedish Trade Unionism Late industrialisation late emergence of trade union movement and conflictual attitude in first phases; No (or limited) trade union pluralism; LO (1898, Landsorganisationen i Sverige) blue-collar workers ; TCO (1948, Tjänstemännens Centralorganisation) white-collar workers ; SACO (1947, Sveriges Akademikens Centralorganisation) academics and graduate professionals; Only LO has a political affiliation with the Social-Democratic Party; Confederations / sectoral federations / local branches; Transversal coalitions in private and public sectors; SAC (1910, Sveriges Arbetares Centralorganisation) anarchosyndacalism ideology and activism in marginal sectors and migrant workers.

8 Swedish Employers Associations SN (1902 as SAF - Svenska Arbetsgivareföreningen, from 2011, Svenskt Näringsliv); Swedish Agency for Government Employees (Arbetsgivareverket); Swedish Association of Local Authorities and Regions (Sveriges Kommuner och Landsting). Neo-corporatism centralized and coordinated bargaining between the peak organizations of labour and capital;

9 Structure of Swedish labor law Collective labor law: Co-Determination Act (SFS 1976:580 Lag om medbestämmande i arbetslivet); Trade Union Representatives Act (SFS 1974:358 Lag om facklig förtroendemans ställning på arbetsplatsen); Individual employment law: Employment Protection Act (SFS 1982:80 Lag om anställningsskydd); The intersection between labor law and public law: Work environment/health and safety (SFS 1977:1160 Arbetsmiljölag); Equal treatment policy; Anti-discrimination law: Discrimination Act (SFS 2008:567 Diskrimineringslag).

10 Key features of collective labour law Freedom of trade union association and right to organise; Right to negotiate; Collective agreement as primary source of employment regulations derogation from legislation (semicompelling legislation); Complementary levels of collective bargaining; Industrial action and sympathy actions; Social peace obligations; Co-determination.

11 Freedom of association and right to organise Set in the 1906 December Compromise and 1938 General Agreement contractual origin; Implicit clause of collective agreements; Ratified in the 1974 Instrument of Government; Section 7 of 1976 Co-determination Act right to join an organisation / right to exercise membership and benefit from / right to participate to internal activites; Reciprocal recognition for employees and employers, but protection of weaker party; Negative freedom of trade union association.

12 Right to negotiate Section 10 of 1976 Co-Determination Act covering all unions; For trade unions right to negotiate with the employer on any matters concerning employed members; For employers obligation to negotiate with the union; No right / duty to achieve collective agreement; Employers decides in case of disagreement managerial prerogative.

13 Collective agreement (Kollektivavtal) Private law contract between private parties, but a de facto public statutory character ; Source of regulation in the employment sphere; Written contract between trade union and employer or employers association on employment conditions formal requirements (Sect. 23 Co-det Act); Obligatory function and normative function; Binding the parties and their members inderogability (Sec. 27 of Co-det Act).

14 Collective agreement (Kollektivavtal) Insiders / outsiders: Insider employer v. outside employee application of the terms of collective agreement (or damages for trade union, Sect. 54 Co-det Act) but no employee s claim on the ground of collective agreement; Outside employer v. outside employee freedom of contract; Outside employer is subject to industrial action for accession agreement key of the Swedish system!

15 Industrial action and social peace Sections of Co-Det Act All industrial actions are lawful if not banned (Strike / Lockout / Blockade / Picketing / Boycott); Collective entitlement; Disputes on rights v. disputes on interests; Absence of collective agreement exposure to industrial actions; Entry into force of collective agreement social peace obligation; Sympathy (secondary) actions always possible if primary action is lawful; Avoiding conflicts and providing climate of cooperation for company negotiations and co-determination; Encouraging the employer to sign collective agreement.

16 Mediation Seven days notice before industrial action (Sect. 45 of Co-det Act); Mediation Office (governamental agency) (Sect Co-det Act); Postponing industrial action for two weeks (Sect. 49 of Co-det Act).

17 The established trade union and codetermination The union signing a collective agreement applied in the company becomes established ; Rights at company level limiting managerial prerogative; Primary right to negotiate obligation for employer to discuss changes in the activity (Sect. 11 Co-det Act); Enhanced right to negotiate further negotiations on conditions of employed members (Sect. 13 Co-det Act); Information and consulation rights on personnel policies (recourse to temporary staff and subcontractors); Right to veto and right to priority interpretation; Co-determination agreement on work organisation; Boosting representation role and activites encouraging employees to join the established trade union.

18 Employment law Hiring subject to freedom of contract as basic principle, but limits; Eployer s right to hire at will, but limits; Anti-discrimination law; Reciprocal obligation: Employer s right to allocate work; Employee s duty to perform work; Wages set in collective and individual agreements; Protection from termination of employment.

19 Contracts of employment 3 types of contracts in 1982 Employment Protection Act: Permanent contract: open-ended (tillsvidareanställning, literally, until further notice ); Fixed-term contract (tidsbegränsad anställning): ending according to time limit (not more than 24 months within 5 years) / including substitutive employment, seasonal work, 67yo or older employees; Probation employment (provaanställning): max 6 months. Temporary agency work illegal until 1993! EU membership.

20 Termination of employment Termination for reasons related to the employee: No notice only for glossy neglected obligations (Sect. 18 EPA); With notice for just cause or personal grounds (Sect. 7 EPA); Employer s obligation to consider alternative employment; Dismissal is the last resort ; No general rule but case law; Damages in case of missed reintergation after a invalid dismissal.

21 Termination of employment Termination for reasons related to the undertaking: Shortage of work and collective redundancies employer prerogative; Law sets rules (seniority, last-in-first-out, employee s age, possible re-employment), but local collective agreement can derogate; Right to re-employment (temporary, 9 months); Violation of rules brings about damages but not reemployment.

22 The Labour Court Establsished in 1928 by statutory act recognising the autonomy of the parties; Ruling on application and interpretation of collective agreement disputes of rights; Tripartite composition representatives of labour market parties as lay judges; First and only instance, but second instance in case of employees not supported by a trade union.

23 The Europeanisation of the Swedish model: the Laval case May 2004: Laval, a Latvian company, posts workers to Sweden for providing the construction of a school building; June 2004: negotiations with Swedish trade unions of construction sector start; September - October 2004: Laval, instead, enters into collective agreement with the Latvian trade union; November 2004: Swedish trade unions take collective action by blocking the building site;

24 The Europeanisation of the Swedish model: the Laval case December 2004: Swedish Trade union of electrician workers joins the action by sympathy strike; December 2004: Laval files a lawsuit before the Swedish labour court petitioning an interim decision declaring unlawful the actions dismissed by the court because of lawfulness of the actions; March 2005: Laval refers to the labour court on the basis of EU law; April 2005: the Swedish labour court refers to the CJEU (Art. 267 TFEU).

25 The Laval case: the legal evolution December 2007: ruling of the CJEU; December 2009: Laval ruling returs to Sweden Ruling of the Swedish labour court; April 2010: new Swedish legislation on posting of workers; October 2013: the European Committee of Social Rights found Swedish legislation not in compliance with European Social Charter; February 2014 / November 2015: proposals for a new legislation on posting of workers.

26 The questions referred and the decision of the CJEU 1. Is the collective action compatible with EU provisions on freedom to provide services and PWD, considering the lack of erga omnes system for collective agreements? Yes, collective action has been in breach of EU law concerning freedom to provide services; 2. Is Swedish legislation in compliance with EU provisions on freedom to provide services (nondiscrimination on the basis of nationality)? Yes, Swedish law was discriminatory towards foreign undertakings posting temporarily workers to Sweden.

27 The Laval case and the Swedish labour court Pursuant the CJEU ruling, a right to be compensated for unlawful collective action is identified by the Swedish labour court; The horizontal direct effect determines the application of EU provision on provision of services to the relationship between trade unions and the company Laval; Trade unions condemned to pay punitive damages for breaching of EU law liability of trade unions on the basis of EU law; Trade unions condemned to pay around 55,000 ; 3 out of 7 judges dissented.

28 Sweden and Lex Laval Lex Laval (2010) replaces Lex Britannia (1991) in Co- Determination Act (1976); Collective agreements requested to foreign undertakings may only regulate matters covered by Art. 3.1 PWD no collective action asking for other matters; Collective agreements may only contain rules on minimum wage and minimum conditions no collective action asking for higher conditions than the minimum set in national collective agreements; Foreign undertakings can show the respect to minimum conditions by individual employment contract no collective action at all.

29 Summary No minimum wage legislation wide autonomy of labour market parties; Collective agreements primary source of norms collective bargaining as key process; Self-regulation of labour market parties; Managerial prerogatives and established trade union; (Still) strong employment protection; Europeanization of Swedish Model.

30 Thanks for your attention! QUESTIONS? COMMENTS? REMARKS?