Authorities in Denmark, Finland and Norway have long been obliged to
include so-called labour clauses in their procurement contracts. These
clauses mean the provider as a minimum must guarantee employment
conditions in accordance with the collective agreement covering the
workplace where the work will be carried out.
Swedish authorities are not obliged to make such demands. But this
will now change, says the Swedish government. Just before Christmas it
appointed a commission, which has now presented its
recommendations.
A risk of unfair working conditions
The commission suggests that in some cases authorities should be
obliged to include certain labour conditions into the contract. This is
when the procurement concerns a sector where there is a risk of unfair
working conditions, e.g. the construction industry, cleaning or taxi
services, where problems are known to exist. In those cases authorities
should always demand that the provider applies the collective
agreement’s minimum rules on wages, working hours and annual
holidays.
Beyond this authorities can decided whether to make further demands
concerning labour conditions, for instance asking providers to pay
occupational pensions and other kinds of collective agreement regulated
insurances for their employees. Similarly, authorities should be able
to make contractual demands in relation to labour conditions in cases
of procurement from other sectors than the ones where this is
obligatory.
“Precise and unambiguous”
Perhaps the hardest nut to crack for the commission was finding a
solution for uniting the Swedish labour market model with the
transparency and predictability required by the EU’s public procurement
rules. The procurement rules stipulate that the so-called tender
documents issued by the authority looking for tenders must be so clear,
precise and unambiguous that “all reasonably well-informed tenderers
exercising ordinary care” understand what is expected from
them.
They should for instance not have to look elsewhere in order to find
out what salaries they should be paying. It is therefore not enough for
the authorities to simply refer to a certain collective agreement — the
conditions which the providers must adhere to must be spelled out in
the actual tender documents. But in Sweden, where there is no system of
universally applicable collective agreements, these are not normally
accessible for others than the contracting parties and their members.
So the issue is how the authorities get hold of the correct
collective agreement and identify which conditions should apply to a
certain contract.
A new authority
The commission proposes that this should be done by a recently set
up central authority, the Procurement Authority, which is assigned with
the task of supporting other authorities in their procurement
processes. It will decide which kinds of procurements would trigger the
obligatory introduction of labour clauses, as well as identifying which
collective agreement conditions the procuring authority should include
in its contract. Everything should be done in consultation the social
partners.
The proposal has now been referred for consideration, but it has
already proven controversial. Trade unions had been hoping for a more
radical proposal which would have made it obligatory to include labour
clauses in all procurements, and that they would not only refer to the
minimum levels stipulated in the collective agreement.
Businesses are criticising the fact that it will be possible to
demand more from domestic suppliers than form foreign companies, which
would fulfil the contract using posted workers. That is in breach of
the principle of equal treatment in EU law, they argue.
The Commission disagrees, saying that it is a consequence of the
case law of the EU Court of Justice itself.
The commission will now continue its work. The reason why Denmark,
Finland and Norway are so far ahead is that they long ago ratified the
International Labour Organisation’s convention number 94, which says
workers as a minimum should be guaranteed the same conditions as found
in collective agreements covering their place of work. Thus, Denmark,
Finland and Norway have, unlike Sweden, signed up to do just that.
According to new directives the Swedish commission will look into
whether Sweden too can ratify the convention.
