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

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 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.

2. Information provided by the Government

The Government had indicated in Findings 2016 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 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 authorities indicated that they were currently considering these proposals. The government announced that it would propose a bill on the new regulations on the posting of workers in January 2017. The government 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 authorities 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.

3. Assessment of the follow-up

In Conclusions 2015, the Committee considered that, as regards posted workers, the statutory framework 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 will next examine the situation on the basis of the information to be submitted in October 2019.

In this regard, the Committee takes note of the recent legislative changes that have taken place in Sweden and therefore requests to be informed of their impact on the follow-up to this decision.

B. Violation of Article 6§4 of the Charter

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

The Committee 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.

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 applicable 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 posted 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 will next examine the situation on the basis of detailed information to be submitted in October 2019.

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

1. 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.

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 complaint procedure enabled workers to assert the right to protection in terms of remuneration and other employment terms and conditions set out in the directive on the posting of workers; what action was available to the Government to enforce the provisions of the ‟lex Laval”, which transposes this directive; and whether the same collective agreements and working terms and conditions applied to posted workers and 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 will next examine the situation on the basis of the information to be submitted in October 2019.

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 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.

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 requested up-to-date information on the work or the findings of the committee of inquiry on the posting of workers and on any changes in law or practice concerning posted workers with regard to union membership or the enjoyment of the benefits of collective bargaining. It reiterated its conclusion that the restriction imposed by law on the right of posted workers to participate in collective action to improve their terms and 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 concludes that the lack of statutory provisions or regulations providing the requirement for foreign companies to appoint in Sweden a contact person entitled to negotiate and conclude agreements with Swedish trade unions still does not secure for foreign posted 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 concludes that the situation has not been brought into conformity with the Charter.

It will next examine the situation on the basis of the information to be submitted in October 2019.

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

Leave a Reply

Your email address will not be published.

*

code