the collective agreement as cornerstone

1.The elements of autonomy, independency and normativity of indus-s. 2229

2.trial relations characterise the Swedish labour law framework, whichs. 2229

3.is thus firmly grounded on collective autonomy as a legal principle ofs. 2229

4.labour market regulation. Through the basic agreements signed ins. 2229

5.214s. 2229

6.The concept of collective autonomy as the methodological link … 1906 (Decemberkompromissen) and 1938 (Saltsjöbadsavtalet) between LO and SAF (now SN), the Swedish legal system delegated the regulation of industrial relations and employment to the labour market parties. The establishment of the Labour Court in 1928 sealed this pact by attributing to the labour market parties themselves an almost entirely autonomous jurisdiction over disputes concerning the application and interpretation of collective agreements. The Co-determination Act (MBL) adopted in 1976 functions as ‘auxiliary legislation’ that supports and facilitates the functioning of a system grounded on collective autonomy. An illustrative example of this element of the Swedish model of labour market regulation is the institution of the collective agreement.s. 2230

7.In a system grounded on collective autonomy, the collective agreement holds a central position: it is the instrument through which the parties (temporarily) settle down the conflict and set forth rules to be applied between them and in the employment relationships that the agreement regulates. In this sense the collective agreement has an obligatory effect and a normative effect. From the perspective of the legal system, the collective agreement needs to be recognised as a source of regulation in the sphere of industrial relations and employment. This issue is thorny. According to the foundations of collective autonomy, industrial relations shall not be grounded on public law as not to encroach on the autonomy of the parties in pursuing the collective interest. Accordingly, the collective agreement cannot be included among the legal sources. Since its appearance, the collective agreement has been recognised by the legal system as a private law contract. Yet collective agreements are concluded to regulate several employment relationships, so they share some elements that usually characterise the law. Consequently, the collective agreement, in particular in the Swedish context, is deemed to enjoy certain prerogatives that place it at the cross-road between private law and public law.s. 2230

8.One example is provided by the so-called semi-dispositive legislation, which refers to those statutory provisions that can be deviateds. 2230

9.215s. 2230

10.Andrea Iossas. 2231

11.by a collective agreement. For instance, Section 4 MBL (but alsos. 2231

12.Section 2 LAS and Section 2 semesterlagen) states that no contracts. 2231

13.can deviate from the provisions of those acts, unless the contract is as. 2231

14.collective agreement. This feature of Swedish labour law explicitlys. 2231

15.recognise the autonomy from the law that the labour market enjoy ins. 2231

16.self-regulating certain aspects of the employment relationship. Thiss. 2231

17.trait is reinforced by the fact that, in order to deviate from semi-dis-s. 2231

18.positive statutory provisions, the collective agreement does not needs. 2231

19.to provide for more favourable conditions for the employees. In thiss. 2231

20.sense, collective autonomy is the primary regulatory principle of thes. 2231

21.Swedish labour market to the extent that it can prevail – in certains. 2231

22.circumstances – over state’s law.s. 2231

23.In all circumstances, instead, collective autonomy prevails over in-s. 2231

24.dividual autonomy. This aspect derives from the legal efficacy attrib-s. 2231

25.uted to the collective agreement by means of Sections 26 and 27 MBL.s. 2231

26.By the former, the collective agreement, albeit being a private contract,s. 2231

27.is meant to produce legal effects in the sphere of third subjects, who ares. 2231

28.members of the signatory parties and fall within the scope of the col-s. 2231

29.lective agreement. By the latter, those subjects who are bound by thes. 2231

30.collective agreement cannot enter into deviating contracts. Both as-s. 2231

31.pects deal with key elements of collective autonomy. Section 26 MBLs. 2231

32.states the binding effects of the collective agreement over the memberss. 2231

33.of the signatory parties (so-called medlemsbundenhet); whereas Sections. 2231

34.27 MBL states the imperative effects of the collective agreement overs. 2231

35.the individual employment contract.s. 2231

36.According to its binding force, the collective agreement does nots. 2231

37.need any further agreement to be applied between the individuals. 2231

38.216s. 2231

39.The concept of collective autonomy as the methodological link … parties who fall within its scope. This means that it is automatically applicable to the individual employment contracts it is meant to regulate. The case law of the Labour Court has then established that this principle is also valid when it is only the employer who is bound by the collective agreement, i.e. when the employee is not member of the trade unions that has signed the agreement. However, this principle has been recognised on the basis of the disruptive effect that the non-application of the collective agreement to non-member employees would have on the principle of collective autonomy. Employers might offer higher conditions to employees who are not members of the union as to undermine the union’s strength in the workplace. For this reason, the missed application of the collective agreement to non-union member employees is treated as anti-union conduct rather than as an individual violation towards the employee. The collective agreement is also recognised to have a so-called ‘filling effect’ meant as a code or custom within the sector and workplace. However, the Labour Court has specified the that non-union member employees can only enjoy minimum conditions set by the collective agreement in order to preserve the role of the union and of the collective agreement as regulatory instrument of the labour market and to prevent the phenomenon of ‘free riding’.s. 2232

40.The imperative force of the collective agreement, instead, entails that no deviating agreements can be concluded by an employer and an employee who are bound by it. Again, the ratio of the norm is to protect collective autonomy. In this regard, the Labour Court has specified that the provision aims at safeguarding the collective agreement against individual agreements that might undermine its force. This principle applies even to individual contracts of employment that provides for better conditions than the ones set by the collective agreement, where the possibility to provide for higher standards is not sets. 2232

41.217s. 2232

42.Andrea Iossas. 2233

43.by the collective agreement itself – as usually is the case for wages.s. 2233

44.In other words, the individual parties have room to deviate from thes. 2233

45.provisions of the collective agreement only in so far as those provisionss. 2233

46.are made dispositive rather than imperative by the collective agree-s. 2233

47.ment itself.s. 2233

Collective autonomy and the influence of EU law

1.The concept of collective autonomy also provides for a framework tos. 2233

2.analyse the influence that EU law, and in particular EU internal mar-s. 2233

3.ket law, plays over national labour law regimes. The Laval dispute iss. 2233

4.of course illustrative in this regard – whose facts and rulings of thes. 2233

5.Labour Court and of the Court of Justice of the EU will not be re-s. 2233

6.capitulated here. The elements of autonomy and independence ofs. 2233

7.industrial relations provide for the criteria to display the intrusion ofs. 2233

8.EU internal market law over the Swedish model. This assessment iss. 2233

9.based on two observations: first, the CJEU declared the collective ac-s. 2233

10.tion undertaken by Byggnadsförbundet to be not in compliance withs. 2233

11.EU internal market law because of its disproportionate nature; sec-s. 2233

12.ond, the CJEU affirmed that a company posting workers to anothers. 2233

13.EU Member State needs to know in advance the labour costs (and ins. 2233

14.particular the wages) it will incur according to Directive 96/71/EC.s. 2233

15.Both aspects have the effect of undermining collective autonomy.s. 2233

16.The dis-proportionate nature of the action derived from its aim tos. 2233

17.force the foreign company to conclude a collective agreement (häng-s. 2233

18.avtal) – a feature of the Swedish model that ensures uniformity ofs. 2233

19.standards on the labour market. To deny this aim corresponds to as. 2233

20.denial of collective autonomy to the extent that it limits the range ofs. 2233

21.objectives that can be pursued through a collective action. Moreover, its. 2233

22.frustrates the possibility to undertake a collective action as part of thes. 2233

23.218s. 2233

24.The concept of collective autonomy as the methodological link … collective bargaining process – a key element of collective autonomy. This denies the self-determination of labour market parties in defining the contours and substance of their conflict of interests, which would be instead designed by EU law. This aspect relates to the second observation. The voluntary system of collective bargaining is ruled not in compliance with EU law since, according to the CJEU, negotiations between national trade unions and foreign companies cannot occur on case-by-case basis. The CJEU ruled that the extension of a collective agreement to a posting company has to occur via legal mechanisms rather than via industrial relations processes. The regulatory framework for cross-border posting of workers seems to privilege non-flexible instruments such as legislation and erga omnes collective agreement. Further, in those systems in which collective agreements lack mandatory erga omnes efficacy, the determination of the conditions to be applied to posted workers needs to rely on collective agreement that are generally applied through the national territory or in the sector concerned – de facto national sectoral collective agreements. Wage-setting via collective bargaining in cross-border situations is assessed by the CJEU not to be ‘sufficiently precise and accessible’ as to ensure the posting companies to know the costs in advance. Along with social dumping, these aspects of the Laval case law hide a further hazard for collective autonomy. By privileging non-flexible instrument of labour market regulation driven by economic logic, the risk is the juridification of industrial relations – in particular in the area of wage-setting. An easy way-out to prevent social dumping would indeed concern the adoption of statutory minimum wage (which has happened in 2015 in Germany for instance) or the adoption of statutory mechanisms to extend the legal efficacy of national sectoral collective agreements.s. 2234

25.The restrictions to collective autonomy stemming from the CJEU’s ruling reverberated in the legislative interventions undertaken at national level. The so-called Lex Laval, for instance, limited the resorts. 2234

26.219s. 2234

27.Andrea Iossas. 2235

28.to collective action against foreign companies to demands for mini-s. 2235

29.mum conditions set by the national sectoral collective agreement. Col-s. 2235

30.lective actions were instead banned when the foreign company coulds. 2235

31.prove to already apply essentially similar minimum conditions to itss. 2235

32.posted employees by a collective agreement signed in the country ofs. 2235

33.establishment or even by the sole contract of employment. Evens. 2235

34.though this so-called bevisregel (proof-rule) has been repealed in thes. 2235

35.amendment of Lex Laval occurred in June 2017, restrictions to col-s. 2235

36.lective action persist. Section 5a of the posting of workers act statess. 2235

37.that collective actions towards posting companies can be undertakens. 2235

38.only for demanding minimum conditions, including the minimums. 2235

39.rate of pay, as stated in national sectoral collective agreements. Fur-s. 2235

40.ther, Section 5c of the act makes the collective agreement signed withs. 2235

41.a posting company mandatory. This means that the posting companys. 2235

42.cannot enter into a deviating individual contract and that the posteds. 2235

43.workers can claim the application of the agreement. In this regard,s. 2235

44.it is interesting to note the evolution of industrial relations: in 2017,s. 2235

45.Sveriges Byggindustrier and Svenska Byggnadsarbetareförbundet signed as. 2235

46.collective agreement about posted workers in the construction sectors. 2235

47.(one of the sector most exposed to social dumping via cross-borders. 2235

48.posting) in which they specify the minimum wage to be correspondeds. 2235

49.to posted workers. Although it could be considered an effectives. 2235

50.means against social dumping, this development can also be deemeds. 2235

51.as undermining the evolution of collective autonomy from a purelys. 2235

52.national dimension to a cross-border dimension. Under the pressures. 2235

53.of the cross-border dynamics of the EU internal market, the risk of as. 2235

54.juridification of industrial relations – and therefore of a erosion of thes. 2235

55.principle of collective autonomy – is concrete due to the difficultiess. 2235

56.220s. 2235

57.The concept of collective autonomy as the methodological link … for the EU internal market to accept a flexible mechanism of labour market regulation such as collective bargaining.s. 2236