Futurisme II - A joint Seminar Företagarna & UEAPME
“The social dialogue, the labour markets in the Nordic countries
and the small and medium sized enterprises”
Malmö, 28th and 29th October 2002
Post - seminar report
This report is written as a follow up of the seminar in Malmö the 28th and 29th October
2002, which dealt with the social dialogue and its consequences for the Nordic labour
markets. The seminar was a part of a larger UEAPME-project, Futurisme II, which puts focus
on the social dialogue and the small and medium seized enterprises (SME). The central
question for the seminar in Malmö was the implementation of the results from the social
dialogue in SME´s in the Nordic countries.
In this report, some features on the labour markets in Sweden, Finland and Denmark have
been discussed, as far as they have any importance for the social dialogue. Additionally,
different ways of implementation will be treated, in the light of the contributions that were
made during the seminar. The text that follows is a sum up of facts and conclusions from the
seminar in Malmö.
Implementation by collective agreements
A common aspect of the labour markets in Denmark, Finland and Sweden is the great
importance played by collective agreements; such agreements cover the major part of the
labour market in all three countries and regulate working conditions for most workers. But
there may remain a share of companies that is not covered directly by the agreements, most of
them SME´s. This puts the question whether this is a problem or not.
On this matter, Finland differs from Denmark and Sweden. The Finnish lawmaker has
created a system where a collective agreement can become legally binding for all enterprises
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in a sector of the economy. If an agreement covers a certain degree of a branch, an official
board can decide that it should have the status of being generally binding for all actors in this
part of the economy. One consequence of this seems to be that implementation of directives
from the commission is more likely with collective agreements as an instrument in Finland, at
least with those countrywide general agreements that get the legal status just mentioned.
However, implementation of directives this way is probably not possible in Denmark or
Sweden where a certain amount of employers and employees is not connected to collective
agreements and where the system with generalized agreements doesn’t exist. The directive
will thus not have effect on the whole of the labour market; and, accordingly, will probably
not be regarded as being properly implemented. An initiative from the lawmaker is therefore
necessary to complete the process in those two countries. This is relevant for directives from
the commission; but for agreements in the social dialogue the picture might be different.
The social dialogue – two or three parties?
First, one aspect of the social dialogue is that it is, formally, negotiations between two
parties, employers and employees; but there is also a third part, the Commission, or, on
national level, the different member-states. In a way, the commission or the states are present
in the process, even if they are not sitting at the negotiations table. If the parties in the
dialogue don’t reach an agreement, the initiative will go back to the Commission or the state;
and the issue will be solved in the political sphere, beyond the control of the parties. This can
somehow serve as an incentive for the parties to produce a result. Consequently, the social
dialogue is not entirely an autonomous process; it has been described as “bargaining in the
shadow of the law”.
Results from the social dialogue can of course be of different natures. One is that the
parties reach an agreement and then hand over the issue to the Commission to take the
necessary initiatives, for instance to produce a directive. The result will then in the end be a
binding rule applicable to all companies in the union. Referring to the imperative art of such
an effect, we can here speak of hard law.
Another alternative is that the parties in the social dialogue agree about rules of a totally
voluntary art. They can for instance recommend their members to handle a matter in a certain
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way, but with no stipulated sanctions for those not complying and with no arrangement for a
follow up survey etc. Regarding the optional character of such a solution, one speaks now and
then about soft law.
The agreements about telework – self-regulation
But we can also talk about something in between hard and soft law, something that
doesn’t result in a EU-directive or in a completely voluntary solution. An example of this is
the agreement about telework, mentioned in the previous report and discussed during the
seminar in Malmö. The agreement is voluntary in the sense that it does not ask the
Commission to take any steps on the lawmaking field. On the other hand, it is not voluntary in
a way that it leaves the issues of implementation and the follow up to the parties’ own free
choice. As was mentioned before in the previous report, one central aspect of the agreement is
that the parties are responsible for implementation and follow up.
One crucial element of the agreement is thus the element of self-regulation. It is also said
that this should be done “in accordance with the procedures and practices specific to
management and labour in the Member states.” To the question of the right way to implement,
this phrase is presumably of little help since the agreement on telework is the first of its kind
and there are no routines to follow.
Implementation by agreements or guidelines
The character of the new ground was reflected on the seminar by contributions from
representatives for the central organisations on the employer and employee sides, which both
underlined the fact that there is settlement on the issue of implementation. One way to go is of
course to use collective agreements as way of implementation. This way was described in the
first report; this means that companies not covered by the agreements will not be directly
forced to implement the telework regulation. They may of course in an indirect way judge that
there is no other alternative than to offer their employees the same conditions as employees in
those companies that is directly connected.
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In Finland, the situation might be slightly different than in Sweden and Denmark, since
Finland has the above-mentioned system with collected agreements, which gets the status of
legally binding regulations and accordingly becomes binding for the all actors in the field.
Another alternative that also was discussed in the first report, is by guidelines. Such a
method can be fulfilled also by organisations that don’t enter into collective agreements.
Then, the telework agreement would get the character of soft law; that is not binding
regulations. Such a flexible solution would of course mean a less rigid implementation
process; but, as was said during the seminar, sometimes less formal institutions lead to better
results.
A charter of rights and good practice
Another aspect of the telework agreements is its character of an “employers rights charter”
with close resemblance to the European charter of fundamental rights. On the labour market
in some countries, such fundamental rights can after a while achieve the status of good
practice in the relationship between employer and employee. They can then be referred to in
courts and will have the same binding status as law regulations. It is of course not easy to say
when or even if an agreement of this kind will be regarded as unwritten rules, with binding
effects for the actors; but it is worthwhile to notice its special character of a rights declaration.
Summary
The seminar in Malmö showed that there are both common sides of the labour markets in
the Nordic countries and substantial differences between them. This can have implications on
the issue of implementation in the different countries. Another information from the seminar,
was that, so far, the central organisations do not seem to have a common idea of the best way
to handle the issue. However, the method chosen by them will be decisive also for
organisations, which stand beside the system of collective agreements.
Jens Karlsson, The Federation of Private Enterprises
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