Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Sweden (Ratification: 1949)

The Committee notes the joint observations made by the Swedish Trade Union Confederation (LO), the Swedish Confederation of Professional Employees (TCO) and the Swedish Confederation of Professional Associations (SACO) received on 6 October 2015. The Committee also notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

The Committee recalls that in its previous observation it had taken note of observations provided by the LO and the TCO concerning the application of the Convention within the framework of the European Court of Justice (ECJ) judgment in the case Laval un Partneri v. Svenska Byggnadsarbetareforbundet (Laval). At that time, the Committee had requested the Government to review with the social partners the 2010 amendments made to the Foreign Posting of Employees Act (Lex Laval) so as to ensure that workers’ organizations representing foreign posted workers were not restricted in their rights.

Having observed in its previous comments that the LO and the TCO also filed a complaint against Sweden in relation to similar matters before the European Committee of Social Rights (ECSR), the Committee now notes the ECSR decision issued on 3 July 2013, which concluded in relation to Article 6(4) of the European Social Charter that the restrictions on industrial action resulting from sections 5(a) and (b) of the Foreign Posting of Employees Act and section 41(c) of the Co-determination Act constituted a disproportionate restriction on the free enjoyment of the right of trade unions to engage in collective action, insofar as it prevented trade unions from taking action to improve the employment conditions of posted workers over and beyond the minimum conditions set out in agreements at central level or the user undertaking.

In its previous comments, the Committee had further taken note of the information provided by the Government that a parliamentary committee was assigned to look at the situation of posted workers and, following its investigation: (i) evaluate whether the application of the regulation ensures that fundamental employment conditions of posted workers in Sweden can be safeguarded; (ii) in terms of foreseeability, assess and evaluate the practice of the Swedish Work Environment Authority’s statutory task of providing information and the trade unions’ obligation to submit information on collective bargaining agreements to the Swedish Work Environment Authority, and if necessary propose legislative changes in this regard; and (iii) consider necessary changes to safeguard the Swedish labour market model in an international context. The Committee requested the Government to continue to provide information on the impact of the legislation and in particular the outcome of the work of the parliamentary committee and any proposed legislative changes, as well as the developments relating to the Bill regarding agency workers.

The Committee notes the Government’s indication that, in November 2014, given its view that Lex Laval did not sufficiently safeguard the role of collective bargaining agreements and that there was a risk that this would lead to unfair competition and a race to the bottom in terms of wages and employment conditions, the parliamentary committee was also assigned to consider legal amendments and possible other measures necessary to strengthen the role of collective agreements as regards posting of workers. While observing that the LO, the TCO and the SACO briefly stated that they would wait until they had the full report of the parliamentary committee and all its proposals before making their comments, the Committee takes note of the Report of the Inquiry on the Posting of Foreign Workers to Sweden transmitted by the Government on 20 October 2015. The Committee notes with interest that the cross-party Inquiry committee makes a number of proposals to safeguard the Swedish labour market model and status of collective agreements in situations involving posted workers, and that it suggests that its proposals enter into force on 1 January 2017. Among the elements related to the Convention, the Inquiry committee proposes that Lex Laval be replaced by new regulations to apply when a Swedish employees’ organization wishes to take industrial action against an employer with the aim of obtaining regulation of terms and conditions for posted workers via a collective agreement. Such industrial action may only be taken if the terms and conditions demanded correspond to the minimum terms and conditions in the applicable sectoral agreement and fall within the hard core of the Posting of Workers’ Directive (PWD), but would not apply in cases of third-country postings.

The Committee further notes with interest the Government’s indication that one example for strengthening the regulatory framework would be to consider “confirmation agreements” whereby trade unions can take action aimed at getting the foreign employer to sign an agreement to confirm that the conditions required for the concerned sector shall be applied for posted workers when such employers claim to apply the same or better conditions. The Committee further notes the statement of the Swedish Prime Minister referred to by the Government that the principle shall be equal pay for equal work according to laws and collective agreements in the country where the posted worker temporarily performs work. The Government welcomed the European Commission’s intention to present a labour mobility package, including a targeted revision of the PWD at the end of the year, and expressed its desire that this would make it possible for a revision in substance, which would enable a more substantial revision of the so-called Lex Laval and contribute to EU law being developed in line with applicable international agreements.

The Committee trusts that the amendments ultimately adopted will ensure fuller compliance with the Convention for posting workers and organizations representing them and requests the Government to provide information on the progress made in this regard and to transmit a copy of the amendments once approved.