Term denoting a legal rule which may be departed from by agreement between the parties concerned (as opposed to a mandatory rule, which is in all cases binding and not transactionable).
In Swedish labour law almost all legislation may be departed from to the benefit of the employee, but not to the employee's disadvantage. In the case of such statutory provisions as do permit derogations to the employee's disadvantage, a distinction must be made between rules where derogation is possible through both individual contracts of employment and collective agreements and those where it is possible only through collective agreements. Rules falling into this latter category are referred to in case-law and the legal literature as semi-discretionary law. Nowadays it is fairly common for labour law provisions to come under this heading. The statutes concerned frequently stipulate that such derogation must take place through collective agreements concluded or approved by a sectoral union. However, in collective agreements concluded with the employer side the sectoral unions can delegate to a local union the right to derogate from statutory provisions within the limits specified in the agreement itself. There are no legal rules on such delegation and questions as to whether it is permissible in individual cases have to be resolved in the form of case-law. Nevertheless, it is very common in, for example, matters concerning detailed arrangements on the scheduling of working hours or job-security issues such as a collectively agreed redundancy list. In the case of the 1976 Co-Determination Act, derogation is possible without any involvement of the relevant sectoral union. This is because the Act is aimed at the greatest possible degree of decentralization. It may, however, be stipulated in sectoral agreements that derogations from the Act must be decided on or approved by sectoral organizations, either on both sides or on only one, usually the employee side. Delegation to the individual parties, i.e. employer and employee, is conceivable in certain cases and does occur, although only by way of exception. Semi-discretionary provisions which implement EC Directives usually introduce a specific restriction on the bargaining freedom of the parties concerned (see EC bar).
Provisions laid down in collective agreements may also be referred to as discretionary or mandatory with respect to personal contracts between the employer and individual employees.
Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.