Sweden has a strong framework for protecting workers’ freedom of association rights.  The Constitution guarantees freedom of association and the right to strike, and the 1976 Co-Determination Act (MBL) enlarges these rights.  Sweden ratified ILO Conventions Nos. 87 and 98 in 1949.  Under the law, workers are free to form and join unions without government intervention.  Unions have strong collective bargaining rights and, if conflicts arise, they can litigate or use collective action. 

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Sweden has a strong framework for protecting workers’ freedom of association rights.  The Constitution guarantees freedom of association and the right to strike, and the 1976 Co-Determination Act (MBL) enlarges these rights.  Sweden ratified ILO Conventions Nos. 87 and 98 in 1949.  Under the law, workers are free to form and join unions without government intervention.  Unions have strong collective bargaining rights and, if conflicts arise, they can litigate or use collective action.  And both union members and the enormous number of elected trade union representatives enjoy protection from discrimination on the basis of their status. 

Sweden has extremely high rate of union density.  As of early 2005, the union density rate was just under 80% of the employed workforce.  In the public sector, union density is over 90% and has been increasing.  Another gauge of union influence is the fact that more than 90% of employees are covered by legally binding collective agreements, according to the ILO.  In the public sector, virtually all employees – blue-collar workers as well as salaried employees – have the right to collective bargaining and are covered by collective agreements. 

Given the high density and also that about 3.7 million Swedes are union members, trade unions exercise an authoritative voice across a range of national issues.  The largest union confederation is the Swedish Trade Union Confederation (LO), which organizes blue-collar workers and has about 1.8 million members (as of December 2004).  The second largest is the Swedish Confederation of Professional Employees (TCO) with about 1.3 million white-collar members.  The Swedish Confederation of Professional Associations (SACO) represents mostly public sector workers and has over 500,000 members. 

Trade unions and employers, rather than the state, take the lead in labour relations by collective bargaining and forging agreements.  These parties have cooperated for decades in fashioning collective agreements at the local, sectoral and national levels that govern every economic sector.  The parties must maintain industrial peace during a collective agreement and, generally, disputes are resolved informally.  Sweden has one of the lowest strike rates (lost working days per 1,000 workers) in Europe.  In the period from 2000-05, there have been, on average, ten strikes (legal and illegal) per year (and just eight thru August 2006). 

RIGHT TO FORM AND JOIN TRADE UNIONS

Both the Constitution and the Co-Determination Act guarantee employees the “right of association.”  Instrument of Government, Ch. 2, Art. 1.  The statutory right includes the right to “belong” to a trade union, to exercise “their rights of membership,” and to establish and “participate in such organization.”  MBL, Sec. 7.  As described below, these rights can be enforced in Court and violators are liable for compensatory and punitive damages.

There are no barriers to union formation in Sweden and no law regulates that topic.  There is no registration requirement, no minimum membership, and no payment to the state.  The MBL simply states that a trade union is an association of employees, which according to its by-laws, aims to safeguard workers’ interests.  Sec. 6.  In practice, unions must have by-laws (including name, purpose and a decision-making process) and a board of directors.

No statute regulates the internal activities of unions and the Government respects their independence.  Unions are free to organise their own administration, elections and activities.  No barrier prevents workers, including foreign workers, from joining a union.  Sweden’s 1.2 million public sector workers generally have the same rights to form and join unions as private sector workers.  Military and police employees also are free to organize unions.  Trade unions are free to join national and international organisations. 

By contrast, Sweden does not have any statute barring closed shop clauses.  In 2003, the Council of Europe found, based on Complaint No. 12/2002 by the Confederation of Swedish Enterprise, that these closed shops violate the European Social Charter.  Since then, the number of pre-entry closed shops has plummeted.  Some private sector closed shops still remain and the COE maintains that practice violates negative freedom of association rights.

Employers provide union representatives with office space and time to perform their duties, including negotiations.  Trade Union Representatives Act (FML), Secs. 3, 6; MBL, Sec. 17.  If the time off is to perform duties at work, including safety duties, they must be paid.  MBL, Sec. 7; Work Environment Act, Ch. 6, Sec. 5.  Unions negotiate the amount of time off and level of support and divide the hours among their representatives.  FML, Sec. 6.  Regional union representatives must be admitted to worksites to perform their duties.  FML, Sec. __.

RIGHT TO COLLECTIVE BARGAINING

The Co-Determination Act creates the framework for collective bargaining and promotes the principle that disputes should be resolved by union-employer negotiations.  Trade unions -- even those in the public sector -- have the right to negotiate with employers on behalf of their members on any issue concerning the relationship between employers and workers.  Thus, there is no issue in Sweden about union recognition.  Both management and unions have respective duties to enter in negotiations, when requested, and to bargain.  Failure to appear for negotiations can lead to a court claim for damages.

In practice, there are many collective agreements at the local, industry and national levels.  The Government only rarely intervenes in any national bargaining.  Sweden has no minimum wage, so the most common negotiation issues involve pay and the conditions of employment.  National-level collective agreements are binding on respective members of union and employer organizations and take precedence over local agreements.  Collective agreements bind the signing parties and a breach can result in damages.  Since 1997, the social partners also have crafted “collaboration agreements” to govern the process of negotiations if disputes arise.  If registered with the National Mediation Office, these agreements exempt the parties from state-ordered compulsory mediation. 

Unions also have negotiation rights – “co-determination negotiations” – about “important alterations” in worksite operations or working conditions for employees.  Before any substantial change, employers must seek negotiations with the union.  Local unions have the right to request that higher-level union and management organizations review any dispute.  However, this right is not a veto power over company plans.  There is no right to file court cases on these issues and there is no right to take collective action.  

No statute extends collective agreements to employers who are not parties to the agreement.  As a practical matter, however, non-union companies often apply the pay levels or other provisions in such agreements.  Unions also have the power, thru collective action, to impose national collective agreements even on employers who are not members of an employers’ organization.  (See Torgny Gustafsson v. Sweden, No. 15573/89, 1998 ECHR 67 (30 July 1998)).

Employers bound by a collective agreement must keep union representatives informed about company production, financial issues and staff policy.  As of 2005, even companies not bound by a collective agreement have a similar duty to regularly inform a union representative in that workplace.  Union representatives have a right to time off to receive the information.  There are about 50,000 such trade union representatives at non-unionized workplaces in Sweden.

The 1987 Board Representation Act entitles workers (where a collective agreement is in force) to two representatives on the board of directors of Swedish companies that employ 25 or more workers (or three representatives for larger companies).  Only trade unions may appoint such representatives.  Union representatives have similar rights as other board members, except for issues dealing with trade union relations.  And the 1996 Act on European Works Councils requires large companies that operate on an EU-wide scale to establish European Works Councils to inform and consult with workers.  

RIGHT TO STRIKE

The Constitution guarantees the right to strike, stating that unions “shall be entitled to take industrial action unless otherwise provided in an act of law or under an agreement.”  The Co-Determination Act regulates collective actions for both unions and employers.  Designed to promote “labour stability,” the statute allows lawful collective actions, unless specifically prohibited. 

An unlawful collective action may not be initiated by a union or employer during a contract.  No collective action is allowed to exert pressure in a dispute about a collective agreement, to force a change in an agreement, to create a new rule to take effect when an agreement expires, or to engage in a sympathy action if the underlying action is illegal.  Also, collective action (except for blockades) is barred against companies without employees or family companies.  Agreements may include more extensive peace obligations or greater damages than required by law.  There are very few unlawful strikes in Sweden, just 18 since 2000, involving less than 2,000 workers.  If an action is lawful, workers do not face liability.  Even if an action is unlawful, workers cannot be held liable, if the action was union-authorized.  In practice, Court-awarded damages against employees for unlawful actions do not exceed  SEK 2,000 (equivalent to 221 Euros). 

Lawful collective action must be authorized by a union and may include strikes, boycotts, or other action.  While approval is mandatory, no law requires a prior union membership vote.  Collective action can be directed at neutral third parties.  Unions also have leeway to conduct lawful secondary action (an exception to the rule against action during an agreement).  Secondary strikes have declined recently, but they still are a powerful trade union tool (and one that Swedish employers have attempted to ban).  Likewise, employer lockouts are rarely used.  Since 2000, there have been seven lockouts involving 2,100 employees.  Striking workers are still employees and entitled to their jobs after a legal strike ends.  Accoridng to the Public Employment Act, public sector employees also have the right to strike and take other forms of union-authorized collective action, as set forth in the law. 

Non-union workers cannot exercise the right to strike in Sweden, but in 2004 a Council of Europe committee found that fact alone did not violate the European Social Charter.  It reasoned that a vast portion of the Swedish workforce is unionized and that workers are free to form trade unions without excessive Government intervention.

Parties must give seven working days notice of a collective action.  Mediators can be appointed with the consent of the parties or, in certain cases, by the National Mediation Office without consent (which only occurred three times from 2000-2004).  There is no injunction procedure in Sweden, but the Mediation Office may order a party to postpone collective action for up to fourteen days.  As a general matter, the state mediators have limited powers to force dispute resolution since mediation is voluntary.  Subject to fines, the parties must cooperate with any mediator.  Also, the parties can be fined if they fail to give proper notice (SEK equivalent of 3,301to 10,831 Euros) or if they violate a postponement order (SEK equivalent of 33,008 to 108,310 euros).  In 2006, the COE’s Committee of Social Rights voiced some concern that the level of these fines may be disproportionate for trade unions.

A Swedish case now pending before the European Court of Justice, Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet, may have an impact on collective action.  In Laval, a Latvian employer is challenging the right of Swedish unions to use collective action (i.e., a blockade) in order to force it to sign a collective agreement in Sweden. 

PROTECTION OF TRADE UNION MEMBERS

The Co-Determination Act prohibits interference with the “right of association.”  Employers cannot take any “detrimental” act against employees who exercise their right of association or in an attempt to “induce” them not to exercise that right.  Trade unions themselves have guarantees against any “infringement” of their activities.  A legal provision that interferes with the right of association is void.  Employers have a duty to try and prevent and correct any interference with the right of association. 

The Employment Protection Act (LAS) also protects workers, including union members, against unfair dismissals (unless based on “objective” grounds).  The LAS covers almost all workers and both public and private sector employees.  Union members have the right to challenge in court any interference of the right of association.  For example, a worker cannot be fired for taking part in a legal strike.  Trade unions may represent their members (at no cost) in Labour Court (even without their authorization) if there is a collective agreement in place for the member.  Dismissal cases have priority and must be conducted “speedily.”  Also, in dismissal cases, absent special circumstances, an employee receives wages until the litigation ends.  If an employee loses in court, these interim wages need not be repaid.

The Trade Union Representatives Act (FML) protects representatives in the performance their duties and from adverse conduct based on their status.  Representatives are protected, both during and after their terms of office, as soon as the union notifies the employer of their appointment.  FML, Secs. 1, 4.  Employers may not prevent a union representative from performing his or her duties.  Sec. 3.  If an employer wants to alter the terms of employment for a representative, it must provide notice as well as engage in mandatory discussions with both the union and representative before it may implement the requested change.  Both representatives and unions may challenge discriminatory conduct in court.  Employers may be liable for wages, employment benefits, and punitive damages.  Also, representatives may receive “priority” for continued employment in case of redundancies.  In the alternative, a representative may challenge any such dismissal in court. 

Employers must give notice of their intent to fire an employee and also engage in discussions between the parties before issuing a formal, written notice of dismissal.  If the employee is a union member, an employer also must notify the local union.   A notice must detail an employee’s statutory rights.  The period of notice for a dismissal ranges from one to six months, depending on the length of employment.  Employees are paid during this notice period.  If an employee intends to file a case in court and to claim damages then he or she must notify the employer. 

An unjust dismissal may be declared invalid and back pay, benefits and other damages may be awarded.  In practice, damages rarely exceed SEK equivalent of 10,000 Euros.  If there is a violation, employers may reinstate the aggrieved employee.  However, it also may bar a dismissed employee from reinstatement if it pays additional damages (beyond any court award), ranging from six to 48 months pay, depending on the employee’s length of service and age.  The court also may award costs to the winning party. 

SWEDISH PROTECTION FOR FREEDOM OF ASSOCIATION RIGHTS

Sweden has a strong framework for protecting workers’ freedom of association rights.  It relies on the combined strength of trade unions as well as statutes and, to a lesser extent, government institutions.  On a day-to-day basis, trade unions and their members (especially the 375,000 trade union representatives) act as the first line of defense in monitoring compliance with binding collective agreements and the law.  Given the very high rate of union density, this system has worked relatively well to protect Swedish workers.  Unlike many other European countries, there is no state-run labour inspection agency, aside from the worker safety and health agency, which is governed by the 1977 Working Environment Act.  That agency employs 440 inspectors and conducts thousands of annual inspections. 

Unions and union members have a right to file individual or collective disputes in court.  Before litigation begins, the parties must make repeated efforts to voluntarily mediate their differences, starting at the plant level, proceeding to a national level, and finally at the Labour Court.  The practice of multi-tiered negotiations resolves a huge number of disputes.  There is no flood of labour litigation.  From 2002 to 2004, about 410 new cases were filed at the Labour Court each year.  In fact, the Court only decides about 150 cases per year, while about 50 percent of the cases are settled by mediation between the parties.  Labour court decisions cannot be appealed.

The Labour Court is staffed by judges as well as representatives picked by trade unions and employers’ organisations.  In a 2004 case, AB Kurt Kellermann v. Sweden, the European Court of Human Rights ruled that the presence of trade union and employers’ organization representatives did not make the Court inherently biased.

Analysis provided by Philip Simon, OSCE/ODIHR consultant.

Posted: April 2007

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