Co-determination in the Workplace Law

According to the Co-determination in the Workplace Law (1976:580) parties bound to collective bargaining agreements must refrain from conducting or participating in collective strike actions that have not been properly decided by a party to the agreement. Any collective strike action conducted without the required decision will be considered illicit.

The law also prescribes that there are illicit collective strike actions, but does not define a 'collective strike action'. The law shows only that collective strike actions could take the form of a strike, blockade or boycott.

Collective strike action

According to Swedish legal standards, when assessing whether a collective strike action is at hand, the general starting point is whether the action is:

  • taken to apply pressure regarding union matters; or
  • taken collectively.

Any action or omission taken in order to affect a counter party could be deemed a collective strike action. The crucial factor for whether the action is considered a collective strike action is the purpose behind it – for example, an action that aims to change an agreement or affect the content of an agreement under negotiation is a collective strike action.

Decision

The Labour Court recently reviewed whether actions conducted by the employees of a private waste-collection and transportation company were illicit collective strike actions (Case A 94/17, March 7 2018).

Background The company was a member of an employer association and bound to a collective agreement with a trade union (under which most employees were members). The employer association filed a summons against the union and the employees claiming damages. The legal grounds for the claim were that the employees had held collective strike actions against the company which were illicit, since they had not been adequately decided by the union in respect of the existing collective bargaining agreement.

According to the employer association, the employees had collectively decided to stop performing work for the company, which was considered a collective strike action in the form of stoppage of work. The stoppage of work had consisted of the employees not taking an inventory of keys needed for the performance of other essential work tasks, which the employees had also refused to perform.

The employer association further asserted that two days after the stoppage of work, 35 of the total 49 employees called in sick. About a week later, 33 of the employees gave notice of termination. The employer association believed that the illness reports and termination notices were part of the stoppage of work. According to the company, the stoppage of work was a collective strike action conducted to put pressure on the company not to change the salary system and to stop the company from demanding that the employees take an inventory of the keys.

The union and employees claimed that collective strike action had not been taken and that the company had made the keys in question unavailable for the employees and thereby prevented them from performing their other essential work tasks. The employees and the union also stated that, according to the collective bargaining agreement, the employees were not obliged to take the inventory. The illness reports and termination notices were not considered part of the collective strike action, but were instead a result of the dysfunctional situation at the workplace.

Labour Court The Labour Court initially concluded that since it is easier for a party to prove that an action has been conducted than to prove the purpose of that action, the evidentiary requirement is less strict regarding the purpose of the action than for the occurrence of the action itself. The court also stated that stoppage of work is a collective strike action if its purpose is to put pressure on the employer. According to case law, employees terminating their own employment is considered a collective strike action if a group of employees explicitly or implicitly agree to leave their employment as a measure to, for example, receive higher salaries.

In this case, the court considered that the investigation had failed to prove that the company prevented the employees from working or that the employees were not obliged to perform the inventory. According to the court, the investigation instead showed that the employees refrained from performing their work tasks in order to pressure the company into ending the demands to conduct the inventory. This was a stoppage of work and an illicit collective strike action, since it had not been duly decided by the union.

Based on the extensive number of illness reports and the workplace conflict, the court presumed that the employees had collectively agreed to call in sick. The court considered this to be part of the stoppage of work. However, the court did not consider the extensive number of termination notices to be part of the collective strike action, even though it was clear from the investigation that several of the employees had agreed to collectively hand in their notice. The investigation did not show that the action was taken in order to put pressure on the company, but rather that the terminations were a result of the conflict at the workplace and therefore could not be considered as a collective strike action based on the reasoning behind the terminations.

Comment

The employees were held liable to pay damages to the company for their illicit collective strike actions. According to the legislature, damages for illicit collective strike actions should not normally exceed Skr3,000. With regard to different circumstances for individual employees, none of the 49 employees were obliged to individually pay more than Skr3,500 in damages.

For further information on this topic please contact Jörgen Larsson or Viktoria Hybbinette at Wistrand Advokatbyrå by telephone (+46 31 771 21 00) or email (jorgen.larsson@wistrand.se or viktoria.hybbinette@wistrand.se). The Wistrand website can be accessed at www.wistrand.se.

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