The European Committee on Social Rights, part of the Council of Europe human rights organisation, has ruled against the Swedish government on its posted worker legislation.
The LO (blue collar) and TCO (white collar) trade union confederations are delighted by the decision. They brought the case in response to the Swedish government's 2010 amendments to its posted worker legislation, introduced in response to the European Court of Justice's (ECJ) Laval ruling in 2007.
In 2004, Swedish unions took action against a Latvian construction company, Laval, over the working conditions of Latvian workers employed to refurbish a school in the town of Vaxholm. When the company refused to sign a collective agreement the construction union organised a blockade of the workplace, supported by the electricians' union, and then faced a legal challenge over their actions.
The Swedish Labour Court referred the case to the ECJ which ruled in December 2007 that the right to strike is a fundamental right, but not as fundamental as the right of businesses to supply cross-border services. The judgement was seen as a major blow to workers' rights by the trade union movment and, as the ETUC argued at the time, the ruling amounted to a licence for social dumping that could undermine key features of national industrial relations systems.
In response the judgement the Swedish government introduced changes to its posted workers legislation in 2010 and it this revised legislation that the confederations have challenged through both the International Labour Organisation (see below) and the Council of Europe.
The Council of Europe's European Committee on Social Rights decided in favour of the unions on four counts, ruling that the legislation as amended:
- fails to promote suitable machinery for voluntary negotiations between employers and trade unions with a view to the regulation of conditions of employment of posted workers, by means of collective agreements;
- places disproportionate restrictions on the right of trade unions to take collective action in order to regulate employment terms of posted workers along with giving inadequate recognition of the fundamental right
to collective action;
- fails to ensure that the treatment of posted workers is no less favourable than that of Swedish workers on permanent contracts as regards pay and other working conditions; and
- fails to ensure that the position of foreign posted workers in relation to the benefits of collective bargaining is no less favourable than that of Swedish workers is not secured.
The Swedish government will now have to report back to the Committee setting out how it intends to respond to the ruling.
Eva Nordmark, chair of the TCO confederation said: "This further increases pressure on Sweden to change the Laval legislation. In consultation with the social partners , the government should as quickly as possible to seek a solution that respects both the basic trade union rights of posted workers the right to equal treatment in Sweden."
Earlier this year the International Labour Organisation also raised concerns about the amendments to the posted workers' legislation. Its Committee of Experts on the Application of Conventions and Recommendations asked the Swedish government to review with the social partners the 2010 amendments "so as to ensure that workers’ organizations representing foreign posted workers are not restricted in their rights simply because of the nationality of the enterprise."