Assessment of the follow-up: Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, Complaint No. 85/2012

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

A. Violation of Article 6§2 of the Charter

1. Decision of the Committee on the merits of the complaint

The Committee concluded that there was a violation of Article 6§2 of the Charter on the ground that legislative restrictions and limitations in respect of posted workers do 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.

2. Information provided by the Government

The Government indicates in the information registered on 2 November 2015 that current legislation does not sufficiently safeguard the role of collective bargaining agreements, which may lead to unfair conditions in terms of competition, wages and employment conditions.

The Committee of Inquiry regarding posting of workers, which evaluated the changes 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 therefore assigned to consider legal amendments to strengthen the role of collective agreements as regards 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 intends to report on the follow-up given to these proposals. It welcomes the European Commission’s intention to present a Labour Mobility Package including a revision of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (Posting of Workers Directive) by the end of 2016. It believes that an amendment of the Posting of Workers 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 is discussing with EU member States and the European Commission to that effect.

3. Assessment of the follow-up

In Conclusions 2015, the Committee considered that the statutory framework applicable to posted workers 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. It therefore concluded that the situation was not in conformity with Article 6§2 of the Charter.

In view of the information provided, the Committee finds that, with regard to posted workers, legislative restrictions and limitations still do 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.

The Committee finds that the situation has not been brought into conformity with the Charter.

It takes note of the Government’s action to bring the situation into conformity with Article 6§2 of the Charter.

It will next assess the situation on the basis of information to be submitted in October 2016.

B.Violation of Article 6§4 of the Charter

1. Decision of the Committee on the merits of the complaint

The Committee concluded 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.

2. Information provided by the Government

The Committee refers to the information provided above concerning the violation of Article 6§2 of the Charter.

3. Assessment of the follow-up

In Conclusions 2015, the Committee considered that the statutory framework applied to posted workers constituted a disproportionate restriction on the free enjoyment of the right of trade unions to engage in collective action, since it prevented trade unions taking action to improve the employment conditions of these workers. It therefore concluded that the situation was not in conformity with Article 6§4 of the Charter.

In view of the information provided, the Committee finds that Sections 5a and 5b of the Foreign Posting of Employees Act, as well as Section 41c of the Co-determination Act, still do not adequately recognise the fundamental right to collective action.

The Committee finds that the situation has not been brought into conformity with the Charter.

It takes note of the Government’s action to bring the situation into conformity with Article 6§4 of the Charter.

It will next assess the situation on the basis of information to be submitted in October 2016.

C. Violation of Article 19§4a of the Charter

1. Decision of the Committee on the merits of the complaint

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

2. Information provided by the Government

The Committee refers to the information provided above concerning the violation of Article 6§2 of the Charter.

3. Assessment of the follow-up

In Conclusions 2015, the Committee asked what procedure was available to workers claim the terms of pay and other employment conditions guaranteed under the Posting of Workers Directive; what action was available to the Government to enforce the provisions of the “lex Laval” that transposed the said Directive; and whether the same collective agreements and conditions of work applied to posted workers as to nationals in the same area of work. It reserved its position pending receipt of this information.

In view of the information provided, the Committee finds that the legislation in respect of remuneration and other working conditions still does not secure for posted workers the same treatment guaranteed to other workers with permanent employment contracts.

The Committee finds that the situation has not been brought into conformity with the Charter.

It takes note of the Government’s action to bring the situation into conformity with Article 19§4a of the Charter.

It will next assess the situation on the basis of information to be submitted in October 2016.

D. Violation of Article 19§4b of the Charter

1. Decision of the Committee on the merits of the complaint

The Committee concluded that there was a violation of Article 19§4b of the Charter on the ground that the lack of statutory provisions requiring 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.

2. Information provided by the Government

The Committee refers to the information provided above concerning the violation of Article 6§2 of the Charter.

3. Assessment of the follow-up

In Conclusions 2015, the Committee asked to receive updated information on the work and/or findings of the Committee of Inquiry regarding posting of workers, and on any changes in law or practice regarding posted workers with regard to the membership in trade unions and the enjoyment of the benefits of collective bargaining. It reiterated its finding that the restriction placed on the right of posted workers to participate in collective action to improve their conditions above the basic level of the current collective agreement was in violation of Article 19§4b of the Charter.

In view of the information provided, the Committee finds that the lack of statutory provisions providing the requirement for foreign employers to appoint in Sweden a contact person entitled to negotiate and conclude agreements with Swedish trade unions still 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.

The Committee finds that the situation has not been brought into conformity with the Charter.

It takes note of the Government’s action to bring the situation into conformity with Article 19§4b of the Charter.

It will next assess the situation on the basis of information to be submitted in October 2016.

Related

Assessment of the follow-up: Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, Complaint No. 85/2012

Decision on admissibility and the merits: Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, Complaint No. 85/2012

2nd assessment of the follow-up (2017): Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, Complaint No. 85/2012

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