Swedish law on industrial action called in question

Swedish law on industrial action is currently being questioned in the European Court of Human Rights, in a case that has caused much debate. The applicant is a former restaurant owner who was the target of industrial action when he refused to sign a collective agreement. On 10 October 1997, a screening panel of the Court decided that the conditions for revision might be satisfied in the case, which was originally decided against the applicant.

The right of a trade union to take industrial action in order to secure a collective agreement is regarded as inherent in the right to freedom of association under the Swedish constitution. This applies regardless of whether such action is called for by the employees directly affected or not. Furthermore, employees who work for other employers which are bound by collective agreements can take sympathy action to support their fellow workers.

Legislation has left the unions free discretion in this field. It attaches great importance to the right of trade unions to promote their members' interests, and no principle of "proportionality" has to be taken into consideration when they decide to take such industrial action. Neither is there any legislation prohibiting conflict injurious to society at large. Employers and trade unions have, however, subjected themselves to certain restrictions in the so-called principal agreements. According to the central agreement between the Swedish Employers' Confederation (SAF) and the Swedish Trade Union Confederation (LO), one of the contracting parties or an institution which represents a vital social interest can demand that measures should be taken to limit the consequences of a conflict which have an unreasonably disruptive effect on socially important functions. The issue would be referred to a joint committee of both parties.

Background of the case

A case on Sweden's industrial action legislation was brought in the European Court of Human Rights by Torgny Gustafsson. Mr Gustafsson had been the owner of a small restaurant with a few employees. He was not a member of either of the two associations of restaurant employers, and was not bound by any collective agreement.

In 1987 the Hotel and Restaurant Workers' Union (Hotell- och Restauranganställdas förbund, HRF) initiated contact with Mr Gustafsson in order to persuade him to sign a collective agreement. The trade union gave him two options. He could either join one of the employers' organisations and thereby be bound by the collective agreement, or sign a separate, so-called substitute agreement directly with the trade union. He refused both options and referred to his objections of principle against the system of collective bargaining. He also claimed that his employees had higher wages than a collective agreement would have provided for them, and that they themselves, including the only trade union member, objected to the signing of a substitute agreement on their behalf.

Following Mr Gustafsson's refusal, HRF placed his restaurant under a blockade in July 1987 and declared a boycott against it. Sympathy measures were taken by the Commercial Employees' Union (Handelsanställdas förbund), the Food Workers' Union (Livsmedelsarbetareförbundet), the Municipal Workers' Union (Kommunalarbetareförbundet) and the Transport Workers' Union (Transportarbetareförbundet). As a result, deliveries to the restaurant were stopped.

In August 1988, Mr Gustafsson requested the Government to prohibit the trade unions from continuing the blockade and the sympathy measures. He referred to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Government stated that no legal provision authorised it to examine such disputes. Mr Gustafsson then turned to the Supreme Administrative Court and asked for a judicial review of the Government's decision in accordance with the 1988 Act on Judicial Review of Certain Administrative Decisions. This Court also dismissed his request, stating that the decision was not a decision in an administrative matter involving the exercise of public power.

After four years, Mr Gustafsson sold his restaurant owing to difficulties in running his business, allegedly caused by the industrial action.

The judgment

In November 1991 Mr Gustafsson applied to the European Commission of Human Rights. His complaints consisted of lack of state protection against the industrial action which violated his negative freedom of association (Article 11 of the Convention) as well as his right to the peaceful enjoyment of his possessions (Article 1 of Protocol No 1). He also claimed that the remedies to which he could resort in order to challenge those actions had been ineffective (Articles 6 and 13).

The Commission came to the conclusion that an abuse had been committed, as there was a lack of proportionality between the legitimate interest behind the industrial actions and the boycott of Mr Gustafsson's business, and that Article 11 had been breached.

The Swedish Government brought the case before the European Court of Human Rights and requested the Court to hold that there had been no violation of the Convention. The Government's main argument was that, according to the trade union involved, one of its members had contacted the union in August 1986 complaining about the fact that she had not been granted holiday compensation. The union then came to the conclusion that the employees' economic conditions were inferior to those formulated in the collective agreement.

In its judgment of 25 April 1996 (Case of Gustafsson v. Sweden 18/1995/524/610), the Court stated that Article 11 of the Convention does not as such guarantee a right not to enter into a collective agreement.

Furthermore the Court found that Mr Gustafsson had not substantiated his submission to the effect that the terms of employment which he offered were more favourable than those required under a collective agreement. Bearing in mind the special role and importance of collective agreements in the regulation of labour relations in Sweden, the Court saw no reason to doubt that the union action pursued legitimate interests consistent with Article 11.

The Court's conclusion was that, having regard to the margin of appreciation to be accorded to the respondent state in the area under consideration, Sweden had not failed to secure Mr Gustafsson's rights.

Request for revision

In the spring of 1997, Sweden's leading morning paper began to take an interest in the case. The newspaper claimed that the Government's argumentation before the Court, especially regarding the working conditions at the restaurant, was based on false information. Now Mr Gustafsson has requested a revision of the Court's judgment. He argues that he has provided new information concerning the working conditions in his restaurant and that the Court has misunderstood the meaning and implication of the actual substitute agreement.

A screening panel declared Mr Gustafsson's request for revision admissible on 25 September 1997. However, this does not mean that he is granted a new trial. The final decision, which will take several months, is referred to the Chamber which gave the original judgment. Among other matters, it will examine whether the new information, if known at the time when the original examination was made by the Court, would have had a decisive impact on the judgment. Should it find Mr Gustafsson's request admissible, it would be the first time in the Court's history that a private person was granted a revision.

Commentary

The judgment of 1996 was a relief to the Swedish Government, which concluded that it did not have any impact on the Swedish law in this area. However, if the case is reopened it could involve a possibility that a principle of proportionality is drawn into the Swedish system. As a consequence, trade unions would have to consider the proportionality aspect before they decided to take industrial action. (Petra Herzfeld-Olsson, NIWL)