Council of Europe criticises Sweden over closed shop and union 'examination fees'

In September 2003, the Council of Europe's Committee of Ministers stated that Sweden is breaching the European Social Charter and European Convention for the Protection of Human Rights and Fundamental Freedoms by allowing closed shops - which are found almost exclusively in the building industry - and the deduction of trade union 'examination fees' from the pay of both union members and non-union members, also in the building industry.

On 24 September 2003 the Committee of Ministers of the Council of Europe adopted a resolution (ResChS(2003)1E) with regard to a collective complaint (No. 12/2002) lodged by the Confederation of Swedish Enterprise (Svenskt Näringsliv) - Sweden's largest private sector employers' confederation - against Sweden in April 2002.

The complaint related to two issues. The first was the use of pre-entry 'closed-shop' clauses in collective agreement, whereby workers who belong to a particular trade union receive priority in employment at the workplace concerned. In Sweden closed-shop clauses are found almost exclusively in the building industry, and hardly anywhere else in the labour market. The Committee of Ministers found unanimously that the clauses in question are a breach of Article 5 of the European Social Charter, covering the right to organise, and should be abolished.

The second issue was the existence of so-called 'examination fees' (granskningsavgift) in the Swedish building industry. Under the main collective agreement for the construction sector, 1.5% of the pay of all workers, including non-union members, is deducted at source. This represents an 'examination fee' given as remuneration to the local trade union for conducting an 'examination'- ie looking at the wage scales and other material that forms the basis for the payment of wages. The fee is administered and handed to the local union by the employer.

The Confederation of Swedish Enterprise argued that this practice should not be allowed, as it is unfair that non-union members should pay the same fee as union members. Furthermore, employers contend that, as well as its wage examination purpose, the fee should be seen partly as a contribution to the trade union's ordinary activities and thus a compulsory wage deduction from non-unionised workers in favour of a trade union. However, when the Swedish Labour Court (Arbetsdomstolen) examined the issue in 2001, in a case brought by the Swedish Construction Federation (Sveriges Byggindustrier) against the Swedish Building Workers' Union (Svenska Byggnadsarbetareförbundet, Byggnads), it ruled (Dom nr 20/01) that the examination fees were lawful (SE0104191N). The Labour Court argued that the deductions from pay for examination fees cannot be considered as equivalent to forced membership of a trade union, or as exposing unorganised workers to pressure or influence to join the trade union (as argued by the employers). There was thus no violation of the workers' 'negative right' to freedom of association (ie not to be obliged to join a union), based on Article 11 of the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms. As in earlier cases (SE9912109N), the Labour Court took the view that Article 11 should be interpreted restrictively in cases related to the negative right to freedom of association.

With regard to the complaint brought by the Confederation of Swedish Enterprise, the Council of Europe Committee of Ministers concluded in September that neither closed-shop clauses nor the use of examination fees in the building industry were compatible with the European Convention. The Committee requested the Swedish state to ensure that the closed-shop clauses used in the building industry are abolished. As for the issue of examination fees, these should be used only for examining wages, and not for other trade union activities, and must also be proportional. The Committee recommended that the Swedish courts adjust their judgments accordingly.

The Committee of Minister's statements caused an immediate discussion over their interpretation among the Swedish social partners. Kent Brorsson of the Confederation of Swedish Enterprise stated that the decision was a victory for the human right of freedom to join a union or not, and called for new legislation in this area. Hans Tilly, the chair of the Swedish Building Workers' Union, stated that closed-shop clauses were old-fashioned and already being removed. As for the issue of examination fees, he stated that this was very important and interpreted this part of the Committee's resolution as being to the advantage of the trade union, claiming that it had found that the use of examination fees is acceptable as long as they are used only to fund the examination of wages.

The issue of examination fees in the building industry has also been referred to the European Court of Human Rights, but it has not yet been decided whether the Court will consider the case.