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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Sweden (Ratification: 1950)

The Committee notes the 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.

Article 4 of the Convention. Promotion of collective bargaining. The Committee recalls that in its previous observation it had taken note of the observations provided by the LO and the TCO, as well as those of the Confederation of Swedish Enterprise (CSE) and the Government in relation to the impact on collective bargaining of the legislation introduced in Sweden in 2010 in response to the application of the European Court of Justice (ECJ) judgment in the case Laval un Partneri v. Svenska Byggnadsarbetareforbundet (Laval). At that time, the Committee had observed that the unions’ concerns were not related to a desire to have better terms and conditions of employment for foreign posted workers than those set out in collective agreements, but rather to ensure that the terms for foreign workers were comparable to those in the relevant sector and geographic area. The Committee had also noted the LO and TCO concerns that, even if a foreign employer had to appoint a contact person in Sweden, there was no requirement that the representative of the employer would be mandated to negotiate and conclude collective agreements and that there was an increasing number of “double agreements” in foreign companies which set terms at a very low level, while providing a second agreement only for presentation to the authorities and the trade union setting out better terms. Noting the concerns expressed by the LO and the TCO that the number of agreements had fallen dramatically after the ECJ judgment, the Committee had welcomed the plans for the submission of a bill whereby a foreign employer must report that it posts workers to Sweden and must appoint a contact person in Sweden. The Committee hoped that this bill would facilitate engagement in collective bargaining with foreign employers posting workers in Sweden.

The Committee notes with interest the information provided by the Government in its report under the Collective Bargaining Convention, 1981 (No. 154) that a statutory amendment to the Foreign Posting of Employees Act requiring a foreign employer to report to the Swedish Work Environment Authority when it posts workers to Sweden and to appoint a contact person entered into force on 1 July 2013. According to the Swedish Work Environment Authority, around 2,700 companies and 20,000 posted workers were registered between 1 July and 31 December 2013. The TCO and the SACO added that the second report from the Swedish Work Environment Authority shows 1,000 new companies registered between 1 January and 30 June 2014. The LO, TCO and SACO state that, while they are in favour of the legislation regarding the obligation to report posted workers, they query how the Government will ensure that the registered workers are genuinely posted workers and whether it will carry out spot checks.

The Committee further notes the statistics provided by the Government that there were a total of 251 registered collective agreements concluded directly with foreign employers as at mid-November 2013. The Swedish Building Workers’ Union (Byggnads) concluded 45 collective agreements directly with foreign employers in 2014 and an additional 11 foreign employers became bound by collective agreements with Byggnads through membership of an employers’ organization in 2014.

As regards the concerns raised relating to double agreements, the Government refers to the work assigned to the Parliamentary Committee of Inquiry regarding posting workers and further recalls the possibility of “confirmation agreements” whereby trade unions can take action aimed at getting the foreign employer to sign an agreement to confirm that the conditions required within the concerned sector shall be applied for posted workers when employers claim to apply the same or better conditions.

While observing that the LO, TCO and 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 requiring a posting employer, when requested to do so, to appoint a representative who is authorized to negotiate and conclude collective agreements. The request for bargaining from the employees’ organization can be made whether or not the organization has members working for the employer and must include details of the minimum terms and conditions in the sector in question. Moreover, where an agreement has been entered into, the contracting employees’ organization has supervisory powers over its application, which includes an obligation on the employer to submit relevant documentation. Damages are proposed in the event of non-compliance.

The Committee trusts that the amendments ultimately adopted will have the effect of promoting voluntary collective bargaining for organizations representing posted workers and requests the Government to provide information on the progress made in this regard and to transmit a copy of the amendments once approved.