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Swedish social partners agree to limit right to industrial action

| Text: Kerstin Ahlberg, editor EU & Arbetsrätt

Employers who have signed a collective agreement should be able to trust that the peace obligation still stands. So argue the Confederation of Swedish Enterprise and the trade union confederations LO, TCO and Saco.

On 5th June they presented the Swedish Minister for Employment with their joint agreement on how they want to limit the right to take industrial action. This is how the social partners want to prevent future conflicts like the one at the port of Gothenburg in 2016 and 2017.

It is not common for trade unions and employers to agree to limit the right to take industrial action. But what has now happened does follow a pattern in the Swedish labour market: When the government ‘threatens’ to legislate on issues that are central to the autonomy of the social partners, they tend to come to terms on a solution at the last moment.

And one year ago, the Minister for Employment Ylva Johansson launched an inquiry into the legislation covering the right to take industrial action. She said the conflict at the port of Gothenburg demonstrated that the Swedish model does not work as it should, because the social partners themselves could not solve the issue of which organisation should be signing a collective agreement there. 

On 20th June this year, the inquiry should have finalised its work, but a few days earlier the Confederation of Swedish Enterprise and the union confederations LO, TCO and Saco announced a press conference and presented their own proposed legislation. Leaks about the inquiry’s progress had made them take matters into their own hands. Ylva Johansson has later said that she wants to use the parties’ agreement, rather than the outcome of the inquiry, as a basis for legislation. 

Competing trade unions

The conflict at the port of Gothenburg stems from the fact that there are two trade unions competing for members among the port workers, the Swedish Transport Workers´ Union (Transport), a member of LO, and the Dockworkers’ Union, which broke away from Transport in the 1970s and is not a member of any trade union confederation.  

On a national level, Transport organises more workers than the Dockworkers’ Union. But in Gothenburg the latter has considerably more members, and the union therefore wants to represent these in collective agreement negotiations there. 

However, as a member of the employers organisation Ports of Sweden, , the employer ATM Terminals is bound by the national collective agreement with Transport. As a result, ATM must adhere to the terms in the agreement for all its port workers, and cannot enter into a new collective agreement with different terms for the same work. The only thing the employer can offer the Dockworkers’ Union is an agreement mirroring the one Transport has, but the union has declined this.

Since the Dockworkers’ Union does not have a collective agreement with ATM, members are free to take industrial action – a freedom they have used. To get what they want, during 2016 and 2017 they carried out selective strike actions, blockades and complete stoppages which saw the port’s capacity severely reduced. The employer responded with a lockout. 

“Do not want a collective agreement”

So far, the parties concerned on the whole agree on the description of reality. But when it comes to the aim of the actions of the Dockworkers’ Union, the Confederation of Swedish Enterprise and LO, TCO and Saco believe the union does not really want a collective agreement, but is happy with the current situation. With no collective agreement, it can put pressure on the employer over all kinds of issues, by threatening strike action – not least in so-called disputes of rights (rättstvister) 

These are disputes that concern individual trade union members, where the union disagrees with the employer over the application of the member’s employment contract or some employment legislation. Transport and other organisations with collective agreements cannot use strike action to apply pressure during such disputes. They will have to take the issue to the Swedish Labour Court.

The four confederations believe this is an abuse of the right to take industrial action. According to the Swedish model, the parties are responsible for keeping the peace and order in the labour market. The objective of the freedom to take industrial action is to enable them to reach a collective agreement as quickly as possible, with a peace obligation lasting for the duration of the agreement. Any party taking industrial action for other purposes, will be acting in breach of the fundamental principles of the Swedish labour market model, and does not deserve legal protection, the organisations write. 

The objective is the deciding factor

Consequently, the organisations’ proposed legislation would make it illegal to take industrial action against an employer which is already bound by a collective agreement, if the action’s objective is not to achieve a collective agreement involving a peace obligation. The trade union must also have negotiated all the demands it has put forward with the employer, before it can call for industrial action. Demands that the future collective agreement should be applied rather than the one which the employer is already bound by will not at all be allowed. In addition, organisations without collective agreements will not be allowed to use industrial action as leverage during disputes of rights

The Labour Court will have the difficult task of determining whether the trade union really does want to arrive at a collective agreement, and in their agreement, the confederations describe what circumstances the court should consider when judging what objective the organisation has for its industrial action.   

In summary, the proposal means that the Dockworkers’ Union should still be able to enter into a collective agreement with ATM – but in reality this could only be an agreement identical to the one Transport already has (unless Transport accepts something else). Thus, the union would not be able to influence its members’ salaries or other employment conditions. However, it would gain a range of special rights which, according to labour legislation, only apply to trade unions with collective agreements: The right to information and consultation, the right to paid time off to do trade union work and extended rights to participate in the employer’s working environment management. As such, the Dockworkers’ Union would still be able to take care of its members’ interests to some extent.

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