3d assessment of follow-up: Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, Complaint No. 85/2012, decision on the merits of 3 July 2013, Resolution ResChS(2014)1

3d assessment of follow-up: Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, Complaint No. 85/2012, decision on the merits of 3 July 2013, Resolution ResChS(2014)1

Violation of Article 6§2

Decision of the Committee on the merits of the complaint

Resolution ResChS(2014)1

The Committee found that there had been a violation of Article 6§2 of the Charter on the ground that, with regard to posted workers, legislative restrictions and limitations did not promote the development of suitable machinery for voluntary negotiations between employers’ and workers’ organisations with a view to the regulation of terms and conditions of employment by means of collective agreements.

Information provided by the Government

With regard to the violation of Article 6§2 of the Charter, the Government states in its present report that in 2018 it decided to appoint a commission of inquiry to make proposals on how Directive 2018/957 of the European Parliament and of the Council amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services should be implemented in Swedish law.

The Government does not provide further new information, but refers to information previously submitted, which may be summarised as follows:

The Government had indicated in its previous report that the legislation in force did not sufficiently safeguard the role of collective bargaining agreements, which might lead to unfair conditions in terms of competition, wages and employment conditions.

The committee of inquiry regarding the posting of workers, which evaluated the amendments to the Foreign Posting of Employees Act (1999/678) after the judgment of the Court of Justice of the European Union (Grand Chamber) of 18 December 2007 (Case No. C-341/05, Laval un Partneri Ltd./Svenska Byggnadsarbetareförbundet et al.) was invited to consider possible legislative amendments to strengthen the role of collective agreements with regard to posting of workers. Proposals made in its report of 30 September 2015 include the appointment of a representative authorised to negotiate and conclude collective agreements upon request by a workers’ organisation; permitting industrial action to negotiate a collective agreement for posted workers containing minimum conditions under applicable sectorial agreements or collective agreements containing special legal provisions for posted workers.

The Government indicated that they were currently considering these proposals. It announced that it would propose a bill on the new regulations on the posting of workers in January 2017. It would submit additional information on this issue in due course.

In the Budget Bill for 2017, the Government stated that Swedish wages and conditions shall apply to all persons working in Sweden and that this legislation must be designed so as to promote the implementation of the terms agreed upon by the social partners in collective agreements. In this context, the government is working on reviewing and strengthening the Foreign Posting of Employees Act and implementing Directive 96/71/EC of the European Parliament and the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (Directive concerning the posting of workers).

The Government welcomed the European Commission’s intention to present a Labour Mobility Package including a revision of the Directive concerning the posting of workers. They believed that an amendment of that Directive could enable a substantial revision of current legislation, with a view to safeguarding the role of collective bargaining agreements; Swedish wages and conditions applying to all persons working in Sweden; and legislation promoting the application of terms agreed by the social partners in collective agreements. The Government was currently holding discussions with EU member States and the European Commission to that effect.

Assessment of the follow-up

Although the present Swedish report provides no specific information in this regard, the Committee notes from another source (Utstationeringsdirektivet och det svenska genomförandet, SOU 2019:25) that certain changes to the system for enforcing collective agreements in respect of the posting of workers were introduced on 1 June 2017 (inter alia on the basis of a previous inquiry report, Översyn av lex Laval, SOU 2015:83).

Following these changes, Section 5a of the Foreign Posting of Employees Act no longer prohibits collective action where the employer can prove (bevisregeln) that the posted workers already enjoy working terms and conditions which are similar to those demanded by way of the collective action. However, the nature and level of the terms and conditions in respect of which collective action can be taken are still subject to the limits laid down by the initial lex Laval (and which the Committee in its decision found were contrary to the Charter). Furthermore, collective action can only be taken in respect of employers established in the EEA or in Switzerland.

In addition, the 2017 amendments now provide (Section 5c of the Foreign Posting of Employees Act) that where a collective agreement is concluded between a Swedish trade union and a posting employer, the posted worker has a right to invoke the terms of the agreement even if that worker is not a member of the Swedish trade union party to the agreement. This is however limited to such terms as are stipulated by Section 5a of the Act.

On the basis of the information at its disposal, the Committee does not consider that the 2017 amendments are sufficient to bring the situation into conformity with the Charter. It reiterates that the statutory framework, notably Section 5a of the Foreign Posting of Employees Act, by circumscribing ex ante the terms and conditions that the unions may bargain for, imposes substantial limitations on the ability of Swedish trade unions to conduct free collective bargaining and to take collective action in the context of such bargaining and that this is not in conformity with the Charter (see in particular §112 and §123 of the decision).

Since the previous report by Sweden summarised above, Directive 2018/957 of the European Parliament and of the Council amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services was adopted. The Committee notes that against this background the Government tasked a commission of inquiry with submitting proposals as to how the Amending Directive should be implemented in Swedish law. Under the commission’s terms of reference, one of its objectives was to achieve equal treatment, as far as possible, between posted (non-resident) workers and resident workers while respecting the free movement of services.

The Committee notes that the commission of inquiry published its report (SOU 2019:25) in May 2019 containing a series of proposals concerning the scope for collective bargaining and collective action by trade unions in respect of posted workers. The commission proposes that the proposed legislative amendments shall enter into force by 30 July 2020.

The Committee further notes that the proposals put forward by the commission would appear to increase the scope for collective bargaining and collective action to enforce demands for remuneration (as opposed to a “minimum rate of pay”) and certain allowances/reimbursements, and in particular to increase the scope for enforcing collective agreements on terms and conditions in respect of long-term postings. Other proposals include equal treatment of posted temporary agency workers, the right of trade unions to certain documents and the employer’s obligation to provide information in a certain case. However, the Committee can only make a definitive assessment of these various proposals if and when they have been enacted in law and implemented in practice. It therefore asks that the next report on the follow-up contain detailed information in this respect.

Meanwhile, the Committee finds that during the period under consideration the situation has not been brought into conformity with the Charter.

Violation of Article … Decision of the Committee on the merits of the complaint

It held that there was a violation of Article 6§4 of the Charter on the ground that Sections 5a and 5b of the Foreign Posting of Employees Act, as well as Section 41c of the Co-determination Act, do not adequately recognise the fundamental right to collective action.

Information provided by the Government

The Government does not provide specific new information on the follow-up in respect of the violation of Article 6§4, 19§4a, and 19§4b, but reference is made to the information provided above concerning the violation of Article 6§2 of the Charter.

Assessment of the follow-up

The Committee refers to its remarks above on the follow-up in respect of the violation of Article 6§2 and finds that during the period under consideration the situation has not been brought into conformity with the Charter on the ground that Sections 5a and 5b of the Foreign Posting of Employees Act, as well as Section 41c of the Co-determination Act, do not adequately recognise the fundamental right to collective action.

Violation of Article 19§4a Decision of the Committee on the merits of the complaint

The Committee found that there had been a violation of Article 19§4a of the Charter on the ground that in respect of remuneration and other working terms and conditions, the legislation does not secure for posted workers the same treatment guaranteed to other workers with permanent employment contracts.

Information provided by the Government

The Government does not provide specific new information on the follow-up in respect of the violation of Article 6§4, 19§4a, and 19§4b, but reference is made to the information provided above concerning the violation of Article 6§2 of the Charter.

Assessment of the follow-up

The Committee refers to its remarks above on the follow-up in respect of the violation of Article 6§2 and finds that during the period under consideration the situation has not been brought into conformity with the Charter on the ground that in respect of remuneration and other working terms and conditions, the legislation does not secure for posted workers the same treatment guaranteed to other workers with permanent employment contracts.

Violation of Article 19§4b Decision of the Committee on the merits of the complaint

The Committee concluded that there had been a violation of Article 19§4b of the Charter on the ground that the lack of statutory provisions or regulations providing the requirement for foreign employers to appoint in Sweden a contact person entitled to negotiate and conclude agreements with Swedish trade unions does not secure for foreign workers lawfully within the territory of Sweden treatment no less favourable than that of Swedish nationals in respect of the enjoyment of the benefits of collective bargaining.

Information provided by the Government

The Government does not provide specific new information on the follow-up in respect of the violation of Article 6§4, 19§4a, and 19§4b, but reference is made to the information provided above concerning the violation of Article 6§2 of the Charter.

Assessment of the follow-up

The Committee refers to its remarks above on the follow-up in respect of the violation of Article 6§2 and finds that during the period under consideration the situation has not been brought into conformity with the Charter on the ground that Sweden does not secure for foreign workers lawfully within the territory a treatment no less favourable than that of Swedish nationals in respect of the enjoyment of the benefits of collective bargaining.