It was only on 1 July this year that Sweden made it mandatory for
companies which posted workers to the country to report this fact to
Swedish authorities. Since then, foreign employers have been obliged to
register with the Swedish Work Environment Agency and leave information
about the posting, the posted workers and the employer’s contact in
Sweden. Thus, so far there are no official statistics to show how many
workers have been sent to work in Sweden.
How does Lex Laval work?
This has been a problem for the parliamentary committee responsible
for investigating how the so-called lex Laval really works. The
committee therefore asked the social partners to help gather the facts.
They have no proper statistics either and can only offer estimations,
while the Swedish Trade Union Confederation (LO) now considers it has
good enough information to publish the report ‘Guest in reality – on
posted workers in practice’ (only in Swedish).
The report is based on a survey of all divisions and regions among
all member unions apart from one. 80 percent responded, representing
around 90 percent LO affiliate members. The report also includes
interviews. Still, the authors underline that the result is only based
on estimations and that no union has a full overview over the scale of
the posting of workers.
Construction and forestry biggest on posting
With that in mind, the authors conclude that more than 18,000
workers from around 800 foreign companies were posted in the LO area
when the survey took place. The majority, around 15,000, were working
in the construction industry. This means the number of posted workers
in that industry was nearly as high as one fifth of all the working
members of Byggnads – Sweden’s main union for construction
workers.
Forestry came second, with around 1,200 posted workers, which
represents just over 10 percent of the industry’s total workforce. In
all other areas the posted workers made up less than one percent of the
total workforce.
The length of a posting varies from industry to industry and depends
on the type of posting. The average period varies between one month and
one year. Construction projects can run over long periods of time, of
course, but it appears to be common to change the workforce every six
months. If the workers leave Sweden at the end of that period, they do
not have to pay income tax here. But in the construction industry it is
hard to control whether the workers or their employers actually do go
home, or whether they move on to another project elsewhere in the
country. There are suspicions that employers exploit this in order to
avoid Swedish tax.
3,700 self-employed
Most of the workers came to Sweden to work for the company they were
employed by. Only one in five were hired out by temporary work
agencies, and these were mainly found in certain industries like
agriculture and forestry and the food industry. The unions also said
there were 3,700 foreign workers who act as self-employed. It is very
difficult for the unions to know whether these really were
self-employed or should be counted as employees and be subject to
collective agreements and other employment regulation.
LO’s survey also included questions regarding trade union activities
when it comes to the posting of workers. Mapping the extent of postings
is just the beginning of the parliamentary inquiry. The main task is to
examine whether the social partners can safeguard the rights of workers
in light of the law changes that came into effect as a result of the EU
Court of Justice ruling in the Laval case. The law on posted workers is
still dependent on having trade unions police the situation – there is
no control from the authorities – but after the law was changed the
unions have no right to force foreign companies to sign up to ordinary
Swedish collective agreements. They can only take industrial action on
the basis of demanding that the employer pays the minimum wage as
stipulated in the collective agreement along with certain other minimum
terms. Also: if the company can show that the employees already enjoy
‘essentially’ the same benefits as stipulated in the collective
agreement, it can refuse to sign any agreement with the Swedish trade
union.
Many sign collective agreements
Despite this, relatively many of the foreign companies are ready to
sign agreements. Just four in ten LO affiliates say companies have
refused to sign collective agreements. What is more, the agreements
that are signed are usually so-called application agreements, where the
employer undertakes to apply the sectoral agreement in full not
‘posted workers agreements’ with minimum terms. One explanation is that
many domestic companies that engage foreign contractors or temporary
work agencies demand that these must adhere to Swedish collective
agreements.
When the foreign companies refuse to sign agreements, their most
common argument is that their employees already receive wages and other
benefits which are similar to the Swedish ones. It is often difficult
for the trade union to check whether this is true. In many cases the
employer has not provided any documentation at all. In other cases
trade unions have suspected employment contracts and other information
presented to them have been false. They suspect there are two sets of
documents – one to show in Sweden and one, with worse conditions, which
really counts. But because the act on the posting of workers does not
include clear rules on which proof the employer must present, it is
risky for the trade union to call for industrial action in order to
force an agreement. After the Laval conflict this has not happened at
all, the authors of the report note.
The fact that quite a few companies still sign up to collective
agreements in Sweden does not mean everything is as it should be. The
main problem is that it is very difficult to check whether the employer
is really sticking to the agreement when the posted workers are not
members of a Swedish trade union. In the Byggnads union they believe
companies are aware of this, and that they have learned how to ‘fix a
licence‘ to access the Swedish labour market by signing agreements
which they do not adhere to.
LO proposes law changes
LO’s report concludes with a range of suggested changes to the law.
Top of the list is to make the main contractor responsible for making
sure all subcontractors involved in a project is following existing
legislation and agreements. The Byggnads union, which represents the
industry where most of the posted workers end up, is not content with
simply waiting for (highly uncertain) changes to the law. One of the
union’s demands in this year’s bargaining round with the employer
organisation the Swedish Construction Federation was that the new
collective agreement should include provisions on extended
responsibilities for main contractors. The employers did not agree to
this, but the parties agreed to establish a working group which will
come up with new rules “in order to get to grips with irregularities in
the trade”. The group will study systems and solutions in other
countries, “for instance the Norwegian model covering contract work”.
The final report must be finished no later than on 15 February
2014.
