9789176789414

The authors belong to the Swedish Labour Law Academic Network, this being the Network’s ­second anthology.

Laura Carlson, Örjan Edström and Birgitta Nyström, editors

had significant consequences for the regulation of labour markets in recent decades. This volume addresses some of the questions raised by the necessary rethinking of labour law-related issues.

Labour and employment law have become increasingly interdependent at all levels, while simultaneously an increasing fragmentation of legal sources has occurred. This collection of essays provides different perspectives on aspects of these processes, in international or European perspectives, in the light of fundamental human rights or with a view to Swedish labour and employment law. The volume ends by looking into the future through the lens of the fragmentation of labour and employment law.

GLOBALISATION, FRAGMENTATION, LABOUR AND EMPLOYMENT LAW

GLOBALISATION AND INTERNATIONALISATION have

GLOBALISATION, FRAGMENTATION, LABOUR AND EMPLOYMENT LAW A SWEDISH PERSPECTIVE

ISBN 978-91-7678-941-4

Laura Carlson, Örjan Edström and Birgitta Nyström, editors

Globalisation_osmlag4.1.indd 1

2015-12-15 15:38

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Globalisation, Fragmentation, Labour and Employment Law – A Swedish Perspective Editors Laura Carlson, Örjan Edström, Birgitta Nyström

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Table of Contents

Table of Contents

Anthology Abbreviations 13 Chapter 1. Globalisation, Fragmentation, Labour and Employment Law – A Swedish Perspective 15 Chapter 2. Collective Bargaining in a Globalised World: a Multi-dimensional Picture 25 Andrea Iossa 1. Collective Bargaining and Globalisation 26 2. A Global Perspective 29 2.1 The ILO Standards on Collective Bargaining: a Transnational Focus 29 2.2 The International Framework Agreements (IFAs): Back to the Roots of Collective Bargaining 32 3. A Regional Perspective 36 3.1 Is Collective Bargaining a European Fundamental Workers’ Right? 36 3.2 The European Social Dialogue: Strong Legal Basis, Weak Results 38 3.3 Transnational Company Bargaining and the European Works Councils: Going Beyond the Legal Frame 42 3.4 Transnational Collective Bargaining in the EU: to Regulate or not to Regulate? 45

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4. Concluding Remarks: ‘Trans-nationalisation’ or ‘De-nationalisation’ of Collective Bargaining? 48

Chapter 3. Industrial Actions and the Proportionality Principle in Swedish Law 53 Mikael Hansson 1. Point of Departure in the National Legal Context 54 1.1 The Swedish Model of Labour Market Regulation 54 1.2 The Absence of a Proportionality Principle Regarding Industrial Actions 56 2. Industrial Actions in International Law 58 2.1 Industrial Actions and ILO-regulation 59 2.2 Industrial Actions and the ECHR 60 2.3 Industrial Actions and EU law 61 3. Industrial Actions and Swedish Law 63 3.1 The Constitution 63 3.2 The Legal Concept of Industrial Actions 64 3.3 Industrial Actions within the Scope of the Co-Determination Act 67 3.4 Industrial Actions outside the Scope of the Co-Determination Act 68 4. Concluding Remarks 71

Chapter 4. The European Social Charter and Labour Rights in Times of Crisis 73 Birgitta Nyström 1. The European Social Charter 73 2. The Committee of Social Rights and the Monitoring System 77 2.1 The Reporting System 79 2.2 The Collective Complaints Procedure 80 3. Sweden and the Social Charter 81 4. Recent Case Law Concerning Labour Rights 86 5. Concluding Remarks 92

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Chapter 5. The Nordic Industrial Relations Model: Surviving the Impact from European Law? 95 Örjan Edström 1. From Self-regulation to Stabilised Industrial Relations 96 1.1 The Beginning of Nordic Industrial Relations 96 1.2 Legislation Supporting Self-regulation 97 1.3 The Right to Industrial Action 99 2. A Trend of Declining Unionisation 100 3. The Impact of EU Law and Other International Regulations 101 3.1 Information, Consultation and European Works Councils 102 3.2 Collective Redundancies and Transfer of Undertakings 105 3.3 EU Law and Industrial Action 106 3.4 The European Convention, the European Social Charter and the ILO 109 4. Conclusions 110

Chapter 6. Age Discrimination and Labour Law in a Comparative Perspective 113 Ann Numhauser-Henning & Mia Rönnmar 1. Age in the context of non-discrimination law … 115 1.1 … from overall and EU perspectives 115 1.2 … from a comparative perspective 121 2. Age discrimination in the context of labour law … 125 2.1 … from overall and EU perspectives 125 2.2 … from a comparative perspective 130 3. Concluding analysis 135

Chapter 7. Addressing Unlawful Discrimination: The Swedish Journey 139 Laura Carlson 1. The First Stage: From Post-World War II to 1974 140 1.1 International Instruments 141

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1.2 Sweden’s Constitutional Starting Point 143 1.3 The Swedish Labour Law Model 144 The Second Stage: 1975 to 1993 146 2.1 International Instruments 146 2.2 Swedish Discrimination Legislation 147 2.2.1 Unlawful Sex Discrimination 147 2.2.2 Unlawful Ethnic Discrimination 149 The Third Stage: 1994 to 2007 149 3.1 International Instruments Addressing Discrimination 149 3.2 Swedish Discrimination Law 150 The Fourth Stage in Sweden: 2008 and onward 151 Protection against Unlawful Discrimination as a Human Right – Are We There Yet? 152 5.1 Supreme Court Judgment NJA 2008 p. 918 152 5.2 Labour Court Judgment AD 2009 no. 4 153 5.3 The Burden of Proof as Applied by the Swedish Courts 155 Remedies and Costs 156 The Discourses within Swedish Discrimination Law: Final Words 159

Chapter 8. Moves towards Increased Workforce Fragmentation among Labour Immigrants 161 Catharina Calleman & Petra Herzfeld Olsson 1. Purpose and structure 163 2. Swedish single-stream regulation of labour immigration 164 2.1 Reforms aiming to counteract abuse – yet increasing fragmentation 166 3. The EU – Different provisions for labour immigrants of different sectors 168 3.1 The Blue Card Directive 169 3.1.1 The implementation of the Blue Card and the equal treatment argument 170 3.1.2 Remaining inequalities between Blue Card holders and other labour immigrants 172 3.1.3 The practical application – effects of the Blue Card regulation in Sweden 173 8

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3.2 The Seasonal Workers Directive 174 3.2.1 Seasonal work in Sweden 174 3.2.2 Challenges for the implementation process 3.2.3 Scope of the Directive 175 3.2.4 Conditions and Sanctions 177 3.2.5 Circular migration 180 4. Concluding remarks 181

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Chapter 9. The Notion of ‘employee’ in Swedish and European Union Law. An Exercise in Harmony or Disharmony? 185 Annamaria Westregård 1. The Construction of the Concept of an Employee 187 1.1 The function of the concept 187 1.2 The theory of dispositive facts 188 1.3 Evidentiary facts 190 1.3.1 Change in working life 190 1.3.2 Customs and usages in industry 191 1.3.3 Agreements with legal persons 192 1.3.4 Employment defined in tax law 193 1.4 The term ‘worker’ in EU Law 195 1.5 The relationship between Swedish national law and EU law 197 2. The Concept of Dependent Contractors 199 2.1 Dependent contractor in 1976 Co-Determination Act 2.2 Collective agreements for self-employed 199 3. Social Fees, Labour Law and Reality 202 4. Concluding Remarks 204

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Chapter 10. The Evolution of Fixed-term Employment in Swedish Legislation: What Can We Learn from History? 207 Carin Ulander-Wänman & Josefina Blom 1. Background 209 2. Temporary employment in the LAS of 1974 9

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3. New scope for temporary employment in the LAS of 1982 4. Increased scope to use fixed-term contracts in the early 1990s 217 5. Conclusions 220

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Chapter 11. The Relationship between Swedish Regulation of Working Hours and the EU Working Hours Directive 225 Einar Prytz 1. Implementation of the Directive in Swedish law 227 2. Conformance of the Working Hours Act to the Directive 229 2.1 Workers who are exempt from the Working Hours Act 229 2.2 Limitation of working hours per day, week, month and year 232 2.3 Limitation of time for night work 234 3. The Directive and the potential for different working-hours regulations in collective agreements 236 4. Concluding discussion 237

Chapter 12. The System of Sources of a Globalised Labour Law 241 Vincenzo Pietrogiovanni 1. Law as a Matter of Legal Sources 242 1.1 The Rise of State Level … 245 1.2 … and Its Fall 248 1.2.1 Transnational Law and Other Effects of Globalisation 249 1.2.2 The Autonomous Sources 251 2. Labour Law and (Its) Globalisation 253 3. The Impact on Sources: The Case of the “Enterprisation” of Labour Regulation 256 4. Conclusions 259

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Chapter 13. Abnormal Justice and Globalised Labour Markets: Thinking Labour Law with Judy Fudge 263 Hanna Pettersson & Niklas Selberg 1. Prologue 263 2. The Interview 266 3. Epilogue: Thoughts on an agenda for labour law

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Table of Contents

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The authors belong to the Swedish Labour Law Academic Network, this being the Network’s ­second anthology.

Laura Carlson, Örjan Edström and Birgitta Nyström, editors

had significant consequences for the regulation of labour markets in recent decades. This volume addresses some of the questions raised by the necessary rethinking of labour law-related issues.

Labour and employment law have become increasingly interdependent at all levels, while simultaneously an increasing fragmentation of legal sources has occurred. This collection of essays provides different perspectives on aspects of these processes, in international or European perspectives, in the light of fundamental human rights or with a view to Swedish labour and employment law. The volume ends by looking into the future through the lens of the fragmentation of labour and employment law.

GLOBALISATION, FRAGMENTATION, LABOUR AND EMPLOYMENT LAW

GLOBALISATION AND INTERNATIONALISATION have

GLOBALISATION, FRAGMENTATION, LABOUR AND EMPLOYMENT LAW A SWEDISH PERSPECTIVE

ISBN 978-91-7678-941-4

Laura Carlson, Örjan Edström and Birgitta Nyström, editors

Globalisation_osmlag4.1.indd 1

2015-12-15 15:38