The government must also decide whether to accept the European
Commission’s criticism of Swedish rules on fixed-term work, or risk
being taken to the Court of Justice of the European Union.
The ILO’s Committee of Experts each year investigates member
countries’ reports on how they implement the ILO’s conventions, in this
case convention 87 on the freedom of association and protection of the
right to organise. The criticism aimed at Sweden partly covers changes
made in the legislation on the posting of workers since the EU Court of
Justice concluded the Swedish Building Workers’ Union and the Swedish
Electricians’ Union were in breach of EU law when they blocked the
Lithuanian construction firm Laval from a site in Sweden. It is also
aimed at the Swedish Labour Court’s final ruling in the Laval
case.
Big fines
The Labour Court sentenced the two trade unions to pay 550,000
Swedish kronor (€65,700) in so-called general damages plus interest and
legal costs to Laval’s bankruptcy estate. The Committee of Experts says
this constituted a severe breach of the freedom of association, and it
recommends the government compensates the Swedish Building Workers’
Union and the Swedish Electricians’ Union for what they were forced to
pay. The industrial action was fully legal according to Swedish law
when it was taken, and at the beginning of the conflict even the Labour
Court gave the unions a green light to continue their
blockade.
The committee also has concerns over lex Laval, i.e. the limitations
put on the right to strike which was introduced in the law on posted
workers in the wake of the EU Court of Justice’s judgement in the Laval
case. This allows foreign companies to send workers to Sweden without
entering into any binding agreements whatsoever on wages or
other employment conditions. All they have to do is ‘show’ that they
broadly offer their employees the same conditions as the minimum
conditions agreed in Swedish collective agreements.
Even in cases where the posted workers are members of Swedish trade
unions, which is increasingly common, the union cannot demand that the
employer signs a collective agreement for the workers. However, the
expert committee writes, foreign workers shall enjoy the right to be
represented by the trade union of their choosing in order to safeguard
their interests, and the trade union they choose shall have the right
to defend their members‘ interests, which in the end includes the right
to take industrial action. The committee therefore encourages the
Swedish government to review the changes to the law on posted workers
to make sure trade unions representing foreign workers are not
restricted in their rights simply because of the company’s
nationality.
Different interpretations
The question is what happens now. The recommendations from the
Committee of Experts are not binding per se, but are usually regarded
as a guide. This has also long been accepted by governments, trade
unions and employers’ organisations. But in the mid 1990s the first
signs of disagreement on what the committee can and cannot do emerged.
The disagreement came to a head in the summer of 2012.
Employers now claim that the committee has no right at all to an
opinion on the right to strike, because ILO rules do not include the
right to take industrial action. Therefore the committee is
interpreting issues which are not covered by its mandate. The ink on
this year’s expert committee report was barely dry before the
Confederation of Swedish Enterprise published an article making that
argument. The employers’ conclude that the government does not have to
take the committee’s opinions on the right to strike into account.
Yet despite all this, it is no doubt problematic for a government
which wants to protect trade unions’ freedoms to be criticised by the
ILO’s Committee of Experts.
And while the government is considering all this, it has also been
dealt a final warning from the European Commission to change the rules
on fixed-term work in Sweden’s employment protection legislation. The
Commission argues Swedish employers can hire people on temporary
contracts in perpetuity without ever offering workers permanent
positions. This would be in breach of the EU’s fixed-term work
directive.
Government position unclear
The government’s position has been vague, to say the least. In its
answer to the Commission the government claims the Commission is wrong.
Nevertheless, in 2011 the Ministry of Employment presented a proposed
change to the legislation. This was met with fierce criticism and later
withdrawn. In the summer of 2012 the Ministry presented a new proposal.
It was admitted in that memorandum that there was a risk of misuse, but
this has not led to any changes either. In January this year the
Minister for Employment, Hillevi Engström, said in an interview that
the government had decided not to propose any changes, as this might
deteriorate the situation in the labour market.
The European Commission is now tired of waiting and has told the
government to present an answer by 22 April: is or is it not
considering changing the Swedish employment protection legislation? If
not, the next step could see Sweden facing the European Court of
Justice.
