- Observatory: EurWORK
- Industrial action,
- Labour and social regulation,
- Industrial relations,
- Published on: 09 February 2010
Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.
It is thought that the number of employees registering a complaint about their treatment at work is growing, but we need more evidence of this. The central question to be covered by this CAR is how these complaints are dealt with outside, and usually before, an application to a labour court or tribunal but which still provide the aggrieved worker with some avenue of redress, or a least a means for having the complaint heard. This is usually referred to as Alternative Dispute Resolution (ADR).
ADR normally uses well known processes of conflict resolution in collective labour disputes, such as conciliation, mediation and arbitration, but applies these to individual workers’ complaints. ADR may be an alternative to litigation through the courts or it can also be a consensual approach to the resolution of individual conflicts in the workplace used by the courts or an agent appointed by the court. ADR has a number of variants. It is usual for an independent person to be involved as a third party. This can sometimes be someone from inside the employing company or organisation but more usually involves someone from outside who is an independent person.
The main types of ADR are as follows:
- Conciliation: Here the third party who acts only as a facilitator by maintaining the two way flow of information between the conflicting parties and encouraging a rapprochement between their antagonistic positions. This is where the third party listens to each side, usually in person, but it can be done by phone, and seeks to find an acceptable solution, which can be compensation or alternatively, measures taken in the workplace. The conciliator does not make a judgement nor suggest a solution but works with the applicant and the employer to find an acceptable outcome. In some countries the law requires that before the matter can be heard in a labour court or tribunal the applicant must use the services of a conciliator. If agreement is reached it would be normal for the case to be withdrawn from the tribunal and registered as ‘settled’;
- Mediation: This is where an impartial third party, the mediator, helps two or more people in dispute to attempt to reach an agreement. Mediation is based on the principle of collaborative problem-solving with the focus on the future and rebuilding relationships, rather then apportioning blame. Sometimes a mediator may suggest a possible solution to the conflict, as they do in collective labour disputes. Another type of mediation is where the mediator guides the parties toward finding their own solution by getting them to explore different and new ways of thinking and acting. This approach has its origins in family mediation, and;
- Arbitration:This is where the third party hears the case presented by each person and makes a ruling on the outcome;
- Other ADR innovations: There can be other types of ADR such as the appointment of a third party as a ‘fact-finder’ who reports to the parties on the issues leaving them to find their own solutions. This can sometimes be used in disciplinary cases.
This EIRO CAR will focus on how far, if at all, the use of these various forms of ADR (and there may be other variants) is growing, how they operate in different EU countries, how they are viewed by the social partners, and the impact of ADR on employment relations. (An earlier EIRO ‘thematic feature’ exercise in 2004 looked at individual labour/employment disputes and the courts and EIRO national centres in 24 countries produced national reports. These were published online at /ef/search/node/eiro OR thematicfeature7?oldIndex). The following questions should enable us to construct a comprehensive picture of practice and trends in ADR across the EU member states. We are essentially looking for evidence and explanation of the uptake of ADR, and details of how it operates.
ADR is very much used in Sweden, however not by a third independent party. The mediation and negotiations occur directly between the social partners, first at the local level and if not settled there secondly at the central level. If the dispute has not been settled at any of these levels the case can go to the Labour Court, provided that both parties are organized and are bounded by collective agreements. Social partners indicate and estimate that there has been an increase of individual disputes as a result of the crisis, however this is difficult to say due to lack of statistics.
(A) Recent trends (2005-2009)
1. What traditional or established methods are used in your country to seek to resolve individual disputes (e.g. labour courts/tribunals)? What ADR methods are now used as alternative or additional means to resolve individual conflicts?
Individual disputes at Swedish workplaces are mainly solved through bilateral ADR between social partners (directly between parties). First after that local and central negotiations or attempts to settle for a solution the Labour Court (for organized employees and employers) or a district court (for unorganized employees) gets involved. Collective agreements and labour legislation regulate where a dispute will be handled. Therefore ADR is to some extent compulsory (by legislation) but mainly it is regulated in collective agreements that are binding for the parties and therefore compulsory but not in the same way as the legislation. Collective agreements are in some extent voluntary, but binding when settled.
The Labour Disputes Act (Lagen om rättegången i arbetstvister, 1974:371) governs the judicial procedure in disputes relating to collective agreements and other disputes defined as labour disputes concerning the relationship between employers and employees.
The Labour Court (Arbetsdomstolen) deals with all kinds of labour disputes – provided that social parties are bound by collective agreements and are organized in trade unions and employer organisations. Employers that are not members of an employer organisation are often bound by an application agreement (hängavtal) and they can also use the Labour Court. There must have been failed attempts at local or sectoral level to resolve the dispute before the Labour Court will take the case. Before the Labour Court decides to open the case, negotiations or arbitration take place, with or without help from the outside (there are no formal rules on how arbitration should be carried out). Many cases are resolved at this point. The Labour Court is the exclusive jurisdiction in labour law cases and there is no possibility to appeal to a higher level. About 400-450 cases are reported to the Labour Court annually and the annual number of judgements passes is about 150 due to the high level of amicable settlements by arbitration at the court.
The Labour Court handles two kinds of cases, A-cases and B-cases. The court deals with the A- cases directly and there is no appeal to a second instance. The B-cases are ones that have first been tried in a district court and then referred to the Labour Court in the second instance. The regulation for reconsidering cases to the Labour Court from the district court was more tightened up in November 2008.
The judicial procedures are the same as other courts. The Labour Court consists of both professional judges and representatives nominated by social partner organisations, both employer organisations and trade unions. The Confederation of Swedish Enterprise (Svenskt Näringsliv),the Swedish Association of Local Authorities and Regions, SALAR (Sveriges Kommuner och landsting) , the Swedish Confederation of Professional Employees (TCO), and the Swedish Confederation of Professional Associations (SACO) have members in the Labour Court.
Trade unions represent individual workers in cases relating to the interpretation of collective agreements and in other cases that are based on the Employment Protection Act, (Lagen om anställninsskydd, LAS 1982:80)
The trade union represents the individual worker automatically in cases relating to interpretation of collective agreements, even in cases where the individual might not want to be involved. In cases relating to interpretation of LAS, the trade union needs an approval from the individual to go to the court. The Equality Ombudsman (Diskriminerings Ombudsmannen, DO) has the right to take a case of suspected discrimination to the Labour Court. It is the trade union representing the person claiming discrimination that initially has the right to bring discrimination cases to the court. If the trade union for some reason does not want to proceed the, the Ombudsman may take over the case on the behalf of the individual employee. Workers, who are not members of a trade union, may go directly to the Ombudsman, which might take the case to the Labour Court. DO only takes cases if the complainant is not member of a trade union or if the trade union decides not to follow up on the case and says no to represent the complainant in the dispute. DO represent the complainant in the first case, but can also negotiate in order to reach an agreement before the case is opened in the Labour Court.
In Sweden most disputes are handled directly (bilateral negotiations) between parties, primary at a local company level. Therefore arbitration, conciliation or mediation by a third party as defined in this CAR, is not really applicable in the Swedish case. The negotiation system only involves two parties, until the dispute reach the Labour Court, first at this level a third party gets involved.
Conflicts and disputes are to a very large majority handled at the local level, either solely by the parties or by counselling and coaching in labour legislation by judicial experts from the employer and trade unions at the central level. If the conflict or dispute can not settled at the local level an official negotiator (ombudsman) from the central parties can be involved or the case can be taken over by the central social partners. It is however seldom need for the central parties to take over negotiations or to assist in conflict resolution, according to Samuel Engblom at TCO. Enblom estimates that about 90% of the individual disputes are taken care of at company level by local trade union representatives and the employer itself. If the central parties are not capable to find a solution or settle, the dispute finally becomes a matter of the Labour Court. The logic in the Swedish system is that disputes should be taken care of within the channels of dialogue and negotiations that exist and are regulated by Co-determination Act (Medbestämmandelagen, (MBL 1976:580) and parties’ collective agreements. MBL is compulsory, and gives the frame work for how the individual disputes should be handled between parties. The trade unions the first/exclusive right to negotiate on behalf of the worker both in MBL and the Discrimination Act. The Discrimination Act (Diskrimineringslagen 2008:567), is a compulsory legislation that in more detail sets the frames and procedures within individual disputes regarding discrimination in relation to work life, in comparison to MBL. The Discrimination Act also determine that the employer have a preventive responsibility that also is compulsory.
As have been said already the very large majority of disputes are taken care of by the local trade union representative and the employer on the behalf of the individual, if the employee is a member of a trade union. If an employee is not a member of any trade union, he or she who is not organized in any trade union can hire a lawyer to represent them in the district court or in cases regarding discrimination the DO.
Most of the detailed regulation about individual disputes is written in collective agreements and local cooperation agreements between parties. The framework for the conflict resolution for individual disputes is however regulated in the legislation, MBL. The individual disputes is therefore taken care of within the frames of established channels for social dialogue at the workplace.
2. Over the last five years, i.e. since the beginning of 2005, have there been any changes in your country in the volume of cases dealt with by ADR and in the proportion of individual disputes dealt with by ADR?
(i.e. in relation to the total number of individual disputes lodged with tribunals/labour courts)
There is no official aggregated statistics over the amount of ADR that is handled within the social dialogue channels between social partners, neither at local or central level. Therefore it is not possible to answer this question.
However the number or disputes that were taken care of by the Labour Court has not changed much the last three years, in total 10 more cases in 2008 than 2006. (2006 = 393, 2007 = 389, 2008 = 403 the number refers to both A and B cases). An indication of how many cases that are handled in ADR is that the trade unions themselves estimates that about 5-10 of there cases end up in the Labour Court, however this vary between different trade unions. There is neither any official statistics over the type of cases that are solved in ADR.The Labour Court has statistics over the type op disputes it deals with.
A-cases 2008:The large majority deals with disputes regarding LAS (41%), interpretation of collective agreements (26 %), MBL (11%), wage discrimination (7%), other discrimination cases (4%).
B-cases 2008:The large majority deals with disputes regarding LAS (26%), disputes about Rules of Court (15%), disputes about legal aid regulation (10 %), wages (7%) other discrimination cases (2%).
The number of disputes regarding wages and collective agreements follow the trends in the large bargaining rounds, every third year new collective agreements are settled between parties.
(Se also question 5.)
3. What are the main categories of individual workplace disputes dealt with by each type of ADR?
(e.g. disciplinary issues, employee grievances, harassment, bullying, discrimination on grounds of gender, ethnicity, religious belief, sexual orientation, pay, employment rights etc)
Are some issues more amendable to ADR than others? For example, it has been suggested that mediation may be best suited for disputes concerned with bullying, harassment and worker-worker problems.
Most disputes are taken care of in negotiations between the two parties involved. There are no differences in ways of dealing with different types of individual disputes in general. The DO is however sometimes involved in individual disputes (se above). The DO deals with all types of discrimination at workplaces.
It is also very difficult to answer the question due to that there is no registration or statistical system that collects information about the cases handled outside the Labour Courts. Each workplace has protocols over their local negotiations and meetings that take place within the framework of MBL or local work councils or health and safety councils/committees. No statistics are available at an aggregated level. Neither confederations of trade unions or employer organisations keep statistics that are available. DO does not have statistics either due to that the organisation is new (January 2009), next year there will be statistics about the new DO and its ADR cases.
4. Does the use of ADR vary by industry sector and by occupational characteristics?
(e.g. public, private and voluntary sectors; professional, white collar, manual workers)
It is difficult for the social partners to assess whether there are any differences between sectors due to the lack of aggregated information about ADR cases. Most of the interviewed states that they do not believe that there are any large differences due to that the regulation and framework for handling individual disputes looks very much the same in collective agreements and in the legislation.
DO can neither assess whether there are any differences between public or private sector or between occupations (see above).The legislations set the same basic framework for all types of workplaces. There is no difference between public or private workplaces regarding the formal channels for social dialogue and negotiations regarding individual disputes. The structures are therefore the same regardless of occupation or sector. However, the formal structures might be complemented with safety committees or other cooperation committees in blue-collar sectors, where accidents and disputes regarding safety are more common than within public administrations.
5. What impact is the recession having on the number or volume of individual disputes and on the use of ADR?
According to LO, Håkan Löfgren, the service sector is the one with the most individual disputes and has increase over the last five years and especially in the time of recession. According to LO, in a five year perspective the number of disputes related to wages has increased as well as disputes about alternative forms of employment contracts such as temporary or part-time employment. The employers do more often not live up to the collective agreements regarding these two issues. LO has also noticed that the number of cases regarding employment agreements have increased as a result of the recession - especially for the youth
According to Tommy Andersson, at Union of Metalworkers (IF Metall, a member organisation in LO), the number of individual disputes has increased among blue collar workers during 2009 and is closely linked to the recession. The disputes are very often about interpretations of LAS as a result of the massive notice that have been given. In a longer time perspective, the number or discrimination complaints and disputes has also increased, probably due to that people are more informed about their rights rather than the number of insults or violations. IF Metall has had 525 individual disputes at the central level in 2006, 486 in 2007 and 529 in 2008. During the first 6 months this year 327 cases have been reported to IF Metall, indicating that the number of cases will be high this year. About 12-15 cases reach the Labour Court annually out of all cases. Historically the number or disputes are lower in years when large bargaining rounds for new collective agreements are taken place (last time was in 2007). A rule of thumb that can be used to estimate the volume, according to Löfgren at LO, is that about 10 times more cases are negotiated at the local level in comparison to the central levels for trade unions in the manufacturing industry and about 7 times the number for the service sector due to the traditional structures of trade union representatives differs some what in these sectors.
According Malin Sjunnebo at the union for publicly and privately employed salaried employees (SKTF) the number or complaints and individual disputes have been very stabile since 2006. The number of disputes might even have decreased a little bit. No increase in disputes have been noticed due to the recession, this might be because of that the effects of the recession is delayed in the public sectors. Private sectors usually get hit first. About 250 individual disputes are negotiated at the local level by ADR and 50 of these are handed over to the central organisation. Out of the 50 disputes, 15 cases are referred to the Labour Court,( 6% of the total) yearly, whereof about 5 cases get a judgement in the court and the rest are settled by ADR.
(B) Actors and processes
6. How does the aggrieved worker get access to ADR?
The costs for ADR or negotiations between the parties are totally financed by the member fees to the trade union or employer organisation. No extra payments are given for these services. If an employee is not member of a trade union his or hers private insurance can cover some of the expenses for judicial support if need of legal protection. Legal aid can bee given to members of a trade union by the trade unions themselves. If the complainant loses the case in the court, the trade union or employer organisation cover the expenses of the opposite party as well. Workers who are not members of a trade union and are not insured or covered by any other insurance can apply for legal aid at Rättshjälpsmyndigheten (free translation, Legal Aid Authority). The applicants can only receive financial support for Legal Aid from the public authorities in cases of small income. In order for a case to be directly opened in the Labour Court a claim bust be lodged by an employer organisation or trade union, or an appeal is being made from the district court. The Labour Court requires that the social parties have tried to solve the matter within the dispute procedures that exist before the case become a legal case at the court.
7. Where do independent experts in conciliation, mediation and arbitration come from?
Due to that no third parties are involved in ADR, there are in general no independent experts in conciliation, mediation or arbitration that are involved in disputes procedures in the Swedish system. There are thought some independent labour law experts, outside the social partners, such as professors at the universities, public officials that act as experts at the state governmental level. However most labour law experts exist within the social partners organisations. Central social partners offer education and training for local trade union representatives and employers in labour law matters and assist with counselling when needed. It is the social partners that pay for the services related to individual disputes, the services is included in the members’ fees.
The Equality Ombudsman is a public authority that is financed by the state. This authority is new since 1 of January 2009 (the new organisation is a merger between four different types of offices of Ombudsman). The Ombudsman does not mediate between parties in individual disputes, but represents complainants who have reported about discrimination or harassments, in the Labour Court or assist in arbitration free of charge. LO- TCO Rättsskydd AB is a lawyer firm that only takes care of individual disputes that have not been able to settle in neither local or central negotiations between social partner (LO and TCO and its counterparts) . When the cases reach them a plaint is prepared for the Labour Court. Many cases are being settled before they reach the Labour Court at this level by negotiating or mediation with the counterpart. (It has not been possible to get any statistics on the number of disputes handled in this way due to summer vacations.)Official negotiators are educated an trained by DO and by the trade unions and employer organisations.
8. Is there any formal link between ADR and a labour court or a tribunal?
Workers do not have to apply to the labour court before other forms of conflict solutions and disputes procedures (ADR) are being applied. If a dispute is settled in ADR before the case/plaint is opened in the Labour Court, the case/plaint is withdrawn from the Courts list of cases. Se also question 1.
9. Is the worker using ADR usually accompanied by someone at the hearing?
A local trade union representative or DO negotiate on behalf of the complainant.
(C) Views of governments and social partners
10. What are the attitudes of the government and social partners (employers/employers’ associations and trade unions) to the use of ADR techniques?
The state as well as social partners encourage that individual disputes should be taken care of outside/before the dispute reaches the court. Therefore there is a well developed conflict resolution system and channels in the Swedish labour market system. All collective agreements includes regulations in conflict solving, both at a collective and individual level. No changes in attitudes have been taken place the last five years. The state has appointed the trade unions to be the primary negotiation part for the complainant in individual disputes. DO is not a competitive organisation, it is rather a supplementary for those who are not members of a trade union or in cases where the trade unions says no to represent the complainants. DO is also responsible for educating the social partners in the discrimination law and through DO the state finance these activities and information campaigning. Social partners educate their negotiators.
1 January 2009 the regulation for the Labour Disputes Act (Lagen om rättegången i arbetstvister, 1974:371) was changed as a response to the criticism towards the Labour Court and its composition that have taken place the last ten years. Due to the high number of representatives from the social partners in the judicial process, it has been argued that the court has not been impartial in discrimination cases. Therefore the number of social partner representatives was reduced from four to two (one representative from the employer organisation and one from the trade union) in cases of discrimination.
(D) Commentary by national centre
11. Please provide a short commentary on the significance of ADR in your country and debates about its impact (or potential impact) on employment relations.
The fact that social partners negotiate to such a high extent at local level the individual disputes have large possibilities to adjust to local prerequisites and gives flexibility. The social partners are quite happy with this part of the Swedish Labour Market. Both the government, the Labour Courts and social partners find it good that parties are practising ADR to such a high degree and the fact that not many cases finally reach the Labour Court.
However, the social partners are very much disunited regarding the regulation for labour such as LAS. Disagreement about the labour law and LAS was one of many reasons why the negotiations for a new main agreement between the national peak social partners broke down earlier this spring. SN wants to reform both the labour law and LAS (SE0903029I , SE0811029I).
Karolin Lovén, Oxford Research