Thematic feature - posted workers

This article examines the Swedish situation, as of June 2003, with regard to: legislation and collective bargaining on the pay and conditions of posted workers (ie workers from one EU Member State posted by their employer to work in another); the number of such posted workers; and the views of the social partners and government on the issue.

EU Directive 96/71/EC concerning the posting of workers in the framework of the provision of services seeks to avoid 'social dumping' by ensuring that a minimum set of rights is guaranteed for workers posted by their employer to work in another country. The basic principle is that the working conditions and pay in effect in a Member State should be applicable both to workers from that State, and those from other EU countries posted to work there. The Directive covers undertakings established in a Member State, which, in the framework of the transnational provision of services, post workers to the territory of another Member State.

The Directive establishes a core of essential regulations aimed at ensuring employees' minimum protection in the country in which their work is performed. It guarantees the application of the host country's statutory and regulatory provisions relating to:

  • maximum work periods and minimum rest periods;
  • minimum paid annual holidays;
  • minimum rates of pay, including overtime rates (excluding supplementary occupational retirement pension schemes);
  • the conditions of hiring-out of workers, in particular the supply of workers by temporary employment agencies;
  • health, safety and hygiene at work;
  • protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; and
  • equality of treatment between men and women and other provisions on non-discrimination.

As well as these generally applicable statutory and regulatory provisions, a Member State's collectively agreed provisions on these issues must also be applied to workers in the construction sector (where these are based on 'collective agreements or arbitration awards which have been declared universally applicable').

The Directive allows for a number of exceptions to all or some of these 'minimum provisions' for: the crew of merchant ships; staff involved in the initial assembly and/or first installation of equipment; postings lasting less than a month; and where 'the amount of work to be done is not significant'. The Member States were obliged to transpose the Directive by 16 December 1999.

In 1999, the European Industrial Relations Observatory (EIRO) conducted a comparative study on posted workers and the implementation of the Directive. In June 2003, the EIRO national centres in each EU Member State (plus Norway), have updated the basic information in the earlier comparative study, four years on, in response to a questionnaire. The Swedish responses are set out below (along with the questions asked).

Regulatory framework

What changes were made to national legislation in your country in order to implement the Directive? And have there been any further changes to the relevant legislation since then?

A new Act on Foreign Posting of Employees (Lag om utstationering av arbetstagare) was passed by the Swedish parliament in May 1999 (SE9906172N) and came into force on 16 December 1999 (SFS 1999:678). The Act defines and lists the working and employment conditions under Swedish labour law that apply when an employer established in another country posts employees on a temporary basis to Sweden. Some legislation on issues such as work environment protection, unemployment insurance and working time already applied to posted foreign workers.

Please outline very briefly the current legal position of posted workers in your country - are they covered by specific or general employment legislation, what is their position with regard to social security (are they covered under the social security system in their country of origin or the host country?) etc. Also, have any specific measures been taken to prevent abuses arising from the posting of temporary agency workers (eg an agency hiring temporary workers through a subsidiary in a low labour cost country and sending them to work for a user company in a higher labour cost country)?

The legal position of posted workers in Sweden is the same as for national workers. If posted workers prefer to be treated under the legal rules of their own country, they can choose to do so, though certain Swedish legal rules are compulsory and must be applied to posted workers, such as rules on paid leave, working time, the work environment, work protection for pregnant women and women with new-born children, protection for young workers under 18 years of age and bans on discrimination.

The Work Environment Authority (Arbetsmiljöverket) is the Swedish liaison office as required by the EU Directive, and is responsible for informing and advising national and foreign companies (not only those based elsewhere in the EU) about the Act on Foreign Posting of Employees and the legislation referred to in the Act, and for monitoring implementation.

Have there been any collective agreements concluded on the issues covered by the Directive? Have the social partners been consulted as part of the legislative and policy-making process and, if so, in what way? Have the social partners taken any other initiatives related to posted workers?

No collective agreements or initiatives by the social partners specifically concerning posted workers have been reported in Sweden. The social partners provide information and advice about collective agreements and work legislation in general, and posted workers and their employers are included in this general responsibility.

In general terms, Swedish trade unions seek to protect national workers from 'social dumping', though this has so far occurred quite seldom in Sweden. However, in the merchant shipping sector there have been cases where foreign ships have docked in Sweden with a low level of crew pay and conditions, including wages far below Swedish levels. Swedish law allows Swedish unions to attempt to force a collective agreement upon an unorganised foreign ship-owner that does not provide its unorganised foreign seafarers with conditions as favourable as those offered by Swedish employers. However, if the crew are already members of a foreign trade union and covered by a foreign collective agreement, the Swedish unions can do nothing (this was established by a 1989 Swedish Labour Court case [AD 1989: 20] and a subsequent 1991 amendment to the Swedish Co-Determination Act). Unlike many other EU Member States, Sweden has no statutory minimum wage or system of extension of collective agreements to unorganised employees/employers. The main means of combating social dumping is thus the strength of the social partners and the main pressure that unions can use against foreign employers suspected of such practices is industrial action.

The workers affected

Please provide the latest figures available on the number of employees who are posted from your country to other EU Member States.

Please provide similar figures, if available, for employees posted to your country from other EU Member States.

Neither Sweden Statistics (Statistiska Centralbyrån) nor the Work Environment Authority (the Swedish liaison office for the Directive) nor any other relevant body keep any statistics about workers posted from or to Sweden. One reason may be that there are very few workers posted to Sweden, but this is only a guess.

Workers in the construction industry

The EU Directive, although of general application, is aimed particularly at workers in the construction industry (building and public works), in which discrepancies between practice and legal standards are often observed. Has any special action been taken by the social partners or the state to address the situation of posted workers in this industry?

No initiatives or specific actions by the state or social partners are reported concerning posted workers in the construction industry.

The positions of the social partners and government

Please outline the stances adopted by the social partners and the public authorities/government on this issue. Particular attention should be given to unions and employers in the construction industry.

Sweden has a very strong system of independent trade unions and employers' associations. The practice is that trade unions ensure that collective agreements and the law are followed, and this also applies to foreign workers, including workers posted to Sweden. A 2001 report to the European Commission from the Swedish Ministry of Industry, Employment and Communications (Näringsdepartementet) (EUN2001/1694/ARM) confirmed that the government relies on the social partners to ensure that the working and employment conditions laid down in collective agreements are observed in respect of posted workers. The Ministry has also produced information material, which has been sent to the social partners.

According to the Work Environment Authority, it has had only one genuine case related to the posted workers legislation to handle since 16 December 1999, when the law came into force. The case concerned improper scaffolding and was a typical work environment case dealt with by the Authority, which prohibited further use of the scaffolds in question (the order could not, however, be officially served as there was no representative of the foreign employer present). Furthermore, the Authority has received around 10 enquiries from foreign employers about working time regulations and other rules in Swedish collective agreements. The language used in communication with these foreign employers is English, and this has caused no problems.

The public authorities responsible for the observance of specific employment-related legislation - the Work Environment Authority for work environment legislation and the Equal Opportunities' Ombudsman (Jämställdhetsombudsmannen), Ombudsman for Ethnic Discrimination (Diskrimineringsombudsmannen) and Disabled Person's Ombudsman (Handikappombudsmannen) for anti-discrimination legislation - seek to ensure that foreign workers, including posted workers, are treated in line with this legislation in the same way as Swedish workers are.

With regard to the construction industry, a spokesperson for the Swedish Building Workers' Union (Svenska Byggnadsarbetareförbundet) states that it has so far had no problems related to posted workers, and as long as posting companies observe Swedish collective agreements and legislation there will be no such problems. However, some turbulence may occur in 2004, when neighbouring Baltic states join the EU. Nevertheless, the spokesperson believes that any problems will occur only during the transitional stage, as foreign building workers will come to understand that Swedish collective agreements are favourable for them. (Annika Berg, Arbetslivsinstitutet)

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