Labour and Employment Law with Industrial Relations

Transcription

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

2 Bases of the Swedish Welfare State Keynesianism; Redistribution of wealth towards the margins and protection of vulnerable subjects; Political alliance between social classes Solidarity and consensus; Social-democratic egemony; Universalism of social rights; Mix of market economy and universality and decommodification of welfare rights.

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

4 The Swedish model of labour market regulation Basic features High trade union density (70%) on the employers side too (82%); Unitary trade unionismim (Industriförbundsprincipen); No statutory mimimum wage; High rate of collective agreement coverage (85%); Interaction between law and collective bargaining (semi-compelling legislation); Social partnership between Industrial Relations actors; Compromise between capital and labour.

5 Historical moments December Compromise (Decemberkompromissen) 1906 Reciprocal recognition of mutual rights; General Agreement (Saltsjöbadenavtalet) recognition of collective labour rights; Establishment of Labour Court 1928; Programmatic Passivity on behalf of legislator primacy of autonomy labour market parties; Legislative expansion during the 1970 s securing the achievements; Constitution (Instruments of Government) 1974; Co-determination Act 1976; Europeanization in the 1990 s key changes in the model; Decentralisation trajectory since 1990s.

6 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).

7 Labour rights in Sweden Legal bases Constitution: Personal, economic and cultural welfare of individuals as aim of public activity (Ch. 1 Art 2) Freedom of association to associate with others for public and private purposes (Ch. 2 Art 1); Right to industrial action for trade union and employer or employers association (Ch. 2 Art 14) unless otherwise provided in an act of law or under an agreement. Co-determination Act: Right to trade union association; Right to negotiate; Right to collective action and strike.

8 Labour rights in Sweden Legal bases Employment contract: Right to be paid but...a series of obligations; Legislation on Employment: Right to rest and leisure time (Working Time Act 1982); Right to annual vacation (Annual Holiday Act 1977); Right to leaves in several situations (sickness, injury pregnancy, parenthood, study, participation in trade union matters); Protection against dismissal (Employment Protection Act 1982); Protection against discrimination (Discrimination Act 2008); Right to a safe and healty working environment (Working Environment Act 1977; Collective Agreements: Right to negotiated working and employment conditions.

9 Swedish trade union model - LO (1898, Landsorganisationen i Sverige) blue-collar workers ; - 14 federations & 1.3 milion members.

10 Swedish trade union model - TCO (1948, Tjänstemännens Centralorganisation) white-collar workers ; - 14 federations & 1 milion members.

11 Swedish trade union model - SACO (1947, Sveriges Akademikens Centralorganisation) Accademics & graduated professionals; - 23 federations & 600k members - SAC (1910, Sveriges Arbetares Centralorganisation; - Anarcho-syndacalist ideology & strategy of conflict. - Active among migrant workers, students, unempoloyed & public sector.

12 Swedish trade union model Limited trade union pluralism; Weak political affiliation Only LO has explicit affiliation with the social-democratic party (SAP); Verticistic organisation: Confederations / Sectoral federations / Local branches at workplace; Transversal coalitions for negotiations on general issues. Employers associations: SN Private sector Agency for government s employees Agency for employees of local and regional authorities

13 The Swedish model of Industrial Relations Swedish model defined the archetypal case of corporatism, marked by centralized and coordinated bargaining between the peak organizations of labour and capital Baccaro & Howell, A Common Neoliberal Trajectory: The Transformation of Industrial Relations in Advanced Capitalism (2011) 39 Politics & Society, ) Coordinated market economy (Hall & Soskice, Varieties of Capitalism. The Institutional Foundations of Comparative Advantage (2001); Strong unions & centralization of collective bargaining & coordination between levels of negotiations; Contractual origin & exclusionary feature; Cooperation between Industrial Relations actors; Critical points?

14 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.

15 The established trade union and codetermination rights The union that signs a collective agreement with the employer has a series of rights for protecting its members before the employer (Co-determination Act):» Obbligation for the employer to discuss changes in the business activity;» Right to negotiate changes in the individual conditions of its members;» Right to information and consultation on personnel policy (temporary work and subcontractors);» Right of veto;» Right to priority interpretation of the collective agreement;» Negotiations for co-determination agreement on business organisation; No collective agreement All unions having members in the company; Strenghtening trade union workplace representation; Strenghtening collective agreement as instrument of labour market regulation.

16 The collective bargaining system Historically centralised system and coordination of negotiating levels; Basic Agreements and sectoral agreements and company negotiations; Collective agreement as «the code of the sector»; Codified normative effects and inderogability (Co-determination Act); Wide application ensured by union density; Progressive and coordinate decentralisation.

17 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.

18 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).

19 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!

20 Conflict & social peace Right to strike in the Costitution (1974); Sections of Co-Det Act All industrial actions are lawful if not banned (Strike / Lockout / Blockade / Picketing / Boycott); A collective action is lawful unless explicitely prohibited; Disputes on rights v. disputes on interests; Collective entitlement and trade union liability & obligations; Social peace obligation between parties of a collective agreement; Sympathy and secondary actions; Collective action (blockades) towards employers not convered by a collective agreement («accession agreement») Promoting the conclusion of collective agreement; Effective and efficient instrument of labour market regulation for trade unions.

21 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).

22 Paradoxes of the Swedish model Trade union conflict in the Gothenburg harbour on personnel policy; Minority union affiliated with LO (Transport) but signatory of the collective agreement; Strikes and claims of the majority union (Hamnarbetarförbundet) to sign a new collective agreement; Government s proposal (2017) to: Restrict the right to undertake collective actions for claims other than working and employment conditions; Extending peace obligations of collective agreement in force to non-party unions. Yellow unions?

23 The Laval case (C-431/05) Cross-border posting of workers under EU law; Anti-dumping collective action to conclude an «accession agreement»; Obstacle to EU freedom to provide services in the internal market; Destablising the Swedish model based on universalism & uniformity of labour standards; Legislative changes and evolution on the exercise of the right to strike.

24 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.

25 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.

26 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.

27 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.

28 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.

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?