Informe definitivo - Informe núm. 119, 1970

1. 19. The complaint is contained in a communication addressed directly to the ILO by the Central Organisation of Swedish Workers (SAC) on 11 December 1969. The text of the complaint was transmitted to the Government for its observations on 3 February 1970; these were furnished in a communication dated 29 April 1970.
2. 20. Sweden has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 21. It is alleged that under the Swedish law union security clauses are allowed in collective agreements and this has had the effect, on a number of occasions, of preventing members of the complainant organisation from obtaining employment or from keeping their jobs with employers who have concluded such agreements with other unions. The complainants allege that union security clauses disbar workers from belonging to the union of their choice, and, moreover, that under the law not only workers in the private sector but also public servants can be the subject of such discrimination in respect of employment and that there have even been cases where work offered by the Employment Service under union security clauses has been exclusively reserved for workers who are members of the Swedish Confederation of Trade Unions (LO).
2. 22. In support of their contentions the complainants cite a number of specific instances in which union security clauses have been inserted in collective agreements where the employer is a commune, i.e. a public body. As examples of such agreements provisions are quoted to the effect that the commune, when engaging new workers, shall accord priority to members of the contracting union or that it shall restrict the grant of employment to workers who are members of the contracting union. The complainants allege that as a result of such agreements members of the SAC residing in the communes in question were sometimes excluded from employment and on occasion even dismissed from their posts. Further, the complainants state that the building concern of the LO, after taking over a private building enterprise in which a SAC member was employed, notified him that unless he changed his union affiliation he would be dismissed. When he failed to comply with this demand he was dismissed. The complainants contend that the very fact that cases like this can and do occur proves that the protection afforded to workers under the legislation on freedom of association is totally inadequate and that what is called for is an absolute prohibition against the employment of union security clauses in collective agreements.
3. 23. The complainants further allege that contemporary Swedish law and practice permit a union to conclude a collective agreement with an employer which contains a clause granting the union a monopoly over the measurement of piece-work and authorising it to levy a fee from all the workers concerned, including those who are not its members. In the opinion of the complainants the fact that this fee often not only covers the actual cost of taking measurements but also allows for a surplus which goes into the regular budget of the contracting union makes this practice quite incompatible with the right of association.
4. 24. The complainants further allege that the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), is not applied. According to Article 1 of the Convention, the term discrimination includes any distinction, exclusion or preference made on the basis of political opinion which has the effect of impairing equality of opportunity or treatment in employment. Through the Swedish Labour Court's approval of union security clauses in collective agreements " our members are excluded from the right to obtain and often also to keep on employment with an employer bound by the agreement. This means that a worker with our political opinion against his will is prevented from associating himself with us."
5. 25. The Government in its observations points out that union security clauses in collective agreements are only valid in so far as they do not infringe the provisions of Swedish law guaranteeing freedom of association. The content of such clauses varies. Sometimes it is stipulated that the employer shall give priority to members of the employees' Organisation concluding the agreement, or that he may only employ members of this organisation. In other cases the clause states that each employee of the employer in question shall become a member of the Organisation concluding the agreement within a due period after appointment. On the other hand, the Freedom of Association Act provides that an employer who dismisses an employee on the grounds that he belongs to a given employees' Organisation is guilty of an infringement of the right of association, even if such dismissal results from an employer's compliance with a union security clause in a collective agreement to which he is a party. Further, the Labour Court, which has exclusive jurisdiction in matters relating to freedom of association, has the power to reinstate any workers who have been wrongfully dismissed. It has, in addition, held that an employer is guilty of an infringement of the right of association if he demands, under threat of dismissal, that a member of one employees' organisation shall join another such organisation with which the employer has concluded a collective agreement containing a union security clause-and this even if the employer does not demand that the employee leave the first organisation.
6. 26. The government concludes its observations on this point by drawing attention to the fact that union security clauses only have practical effects (a) in respect of employees who have no union affiliations at all and (b) in respect of unorganised job seekers or job seekers belonging to an organisation other than that with which the employer has concluded a collective agreement; in contrast, the existence of such a clause cannot be used to justify the dismissal of an employee belonging to a union other than the contracting union.
7. 27. As regards the allegations relating to the measurement monopoly, the Government states that the Labour Court has found that, while the granting of such a monopoly does not per se constitute an infringement of the Trade Union Act, the right of association of workers who are not members of the contracting union will be infringed if the stipulation regarding the withholding of a measurement fee permits the contracting union to levy a fee which not only covers the actual costs of the measuring operations but also provides for a surplus to be used for the promotion of the union's regular activities.
8. 28. As regards the allegations that Swedish legislation and practice concerning union security clauses are incompatible with Convention No. 111, the Government states that the precedence to appointment given by the union security clause is based on the job seeker's union allegiance. The union organisations in Sweden are independent-in accordance with Article 3 of Convention No. 87-in respect of the content of their charters, including such matters as the right to be a member of the organisation. For this reason alone it seems impossible to maintain that a union security clause benefiting a union Organisation is in conflict with the obligations incumbent upon a member State by its ratification of Convention No. 111. Moreover, membership of a Swedish union or occupational Organisation is not usually dependent on political opinion.

B. B. The Committee's conclusions

1. 29. The Committee recalls that Article 1 of Convention No. 98 provides that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment and that such protection shall apply more particularly in respect of acts calculated to make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership or cause the dismissal of or otherwise prejudice a worker by reason of trade union membership. Thus while the Convention protects the positive right of workers to belong to a union, it does not protect the negative right of association, i.e. the right to refrain from joining a union.
2. 30. With regard to union security clauses in collective agreements, the Committee has always taken the view, in accordance with that of the International Labour Conference itself, that the question of union security arrangements is a matter for regulation in accordance with national practice. When dealing with this question in a number of earlier cases the Committee has referred to the statement of the Conference Committee on Industrial Relations which examined this matter, inter alia, when the text of Convention No. 98 was under discussion; in that statement the Conference Committee declared: "The Committee finally agreed to express in their report that the Convention could in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice ". This view was accepted by the Conference when it adopted the report.
3. 31. As regards measurement fees, the Committee is of the opinion that it is for the competent judicial authority to remedy any alleged abuse in the establishment of measurement fees as, for example, when the amount fixed exceeds the actual cost of the measuring operations.