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Does “easy hire, easy fire” promote a better job security?
How can the concept of flexicurity be implemented through legislation?
- A study betweenDanish flexicurity and Swedish job security
By: Camilla LindqvistSchool of Economics and Management
Department of Business LawSupervisors: Vincenzo Pietrogiovanni & Anneli Carlsson
Examiner: Andreas InghammarFall semester 2015
HARH16, Business Law: Bachelor Thesis - Labour Law. 15 ECTS
Abstract:
The main purpose of this thesis is to clarify what the term flexicurity is and what it entails.
Flexicurity is a labour market policy model that has the goal of creating more and better
jobs. In itself, flexicurity is a political tool and is not a legal term. I will aim at clarifying how
this political model has been transformed into legislation and how it can assist the labour
market in different sources of law.
I will try to compare the Danish and Swedish labour law system through a comparison of
some parts, such as job security, dismissals, unemployment and sick leave etc. I will also try
to clarify how these two countries has tried to implement the flexicurity model through
sources of law, e.g. legislation or collective agreements.
The Danish labor market model is characterized by great flexibility, which both makes it
easier to hire and dismiss employees. In Denmark there is no legislation on employment
security like there is in Sweden, therefore there are no priority rules that can be applied.
Results and statistics show that the priority rules both contribute to the young employees
disadvantage in the labor market and that the labor mobility is lower. The priority rules are
designed to protect the most vulnerable employees in the labor market. The purpose of
these rules does not longer serve its function when it is particularly the young employees
who are the most vulnerable in the current labor market.
Key words: Flexicurity, Labour law, Denmark, Sweden, Flexibility
Abbreviations:
ALMP
DA
EPL
EU
FUL
OECD
LO
LAS
MBL
Table of contents
1. INTRODUCTION............................................................................................................1
1.1. BACKGROUND...............................................................................................................11.2. PURPOSE......................................................................................................................11.2.1. RESEARCH QUESTIONS.....................................................................................................................21.3. METHODOLOGY.............................................................................................................21.4. DELIMITATION...............................................................................................................41.5. DISPOSITION.................................................................................................................4
2. AN INTRODUCTION TO FLEXICURITY.............................................................................5
2.1. WHAT IS FLEXICURITY?....................................................................................................52.2. THE EUROPEAN ROAD TO A MORE FLEXIBLE LABOUR MARKET...................................................9
3. DANISH LABOUR LAW.................................................................................................11
3.1. THE DANISH MODEL......................................................................................................113.2. FORMS OF EMPLOYMENT...............................................................................................133.3. JOB SECURITY AND DISMISSALS........................................................................................143.3.1. SICK LEAVE..................................................................................................................................143.4. UNEMPLOYMENT..........................................................................................................153.4.1. NEW LABOUR MARKET LEGISLATION AND ALMP................................................................................16
4. SWEDISH LABOUR LAW...............................................................................................17
4.1. THE SWEDISH MODEL......................................................................................................174.2. FORMS OF EMPLOYMENT...............................................................................................184.3. JOB SECURITY AND DISMISSALS........................................................................................194.3.1. PRIORITY RULES ACCORDING TO LAS § 22........................................................................................204.3.2. PRECEDENCY RULES ACCORDING TO LAS §§ 25-27............................................................................224.4. SICK LEAVE..................................................................................................................224.5. UNEMPLOYMENT..........................................................................................................23
5. ANALYSIS....................................................................................................................24
5.1. DENMARK..................................................................................................................245.2. SWEDEN.....................................................................................................................25
6. CONCLUSION..............................................................................................................28
7. BIBLIOGRAPHY............................................................................................................30
1.
[1.] Introduction
1.1. Background
Sweden and Denmark share some common ground when discussing labour market
strategies. One common denominator is that they are both a part of the Nordic model
regarding their legal traditions, which centres around a non-legislative view on the labour
market. Much is left to the parties of the labour market to control and regulate.1 Both
countries are members of the European Union (below mentioned as EU)..
Employment protection legislation (below mentioned as EPL) Employment protection
legislation (below mentioned as EPL) does not exist in Denmark in a way that can be
compared to the Swedish Employment Act (SFS 1982:80, Lag om anställningsskydd, below
mentioned as LAS). One might form the conclusion that this would result in Danish workers
feeling unsafe and unsatisfied in terms of employment. However, this is far from the truth
according to research – Danish workersemployees’ are one of the most satisfied workers in
all of Europe!2 feels safer than workers do in many other countries.3 This fact, and the fact
that new legislation has made it easier to circumvent LAS by creating scenarios where
employers have an opportunity to avoid hiring permanently contracted workers by hiring
workers on temporary contracts or by subcontracting labour externally due to the high level
of EPL that follows § 7 and § 22 in LAS, has ledmade me to believe that the legislation that
should be offering workers a higher employment security is actually doing the exact
opposite.
1.2. Purpose
The countries that will be compared are Denmark and Sweden. Both countries have certain
areas where Flexicurity is implemented but the approach through regulations and active
labour market policies in each country gives way for different results. The reason behind my
choice is due to previous work experience in Denmark. I have been somewhat fascinated by
1 Nyström, Birgitta. EU och Arbetsrätten, Norstedts Juridik 2011, p. 59; Bogdan, Michael. Komparativrättskunskap, Norstedts Juridik 2003 p. 82.2 OECD Employment Outlook 2004, p. 92; Dansk Arbejdsgiverforening. Arbejdsmarkedsrapport 2014, p. 69.3 OECD Employment Outlook 2004. OECD 2004, p.92.
1
the concept of flexicurity ever since and would like to clarify the different requirements and
what form of society that is needed to make a political and financial concept like flexicurity
work.
The purpose of this thesis is to outline the regulations of Danish and Swedish labour law to
be able to understand the politicallegal phenomenon that is flexicurity. Denmark started
working towards a labour market enforcing the strategy of flexicurity in the mid 1990’s. It
has been recognized as a favourable strategy by the EU who has laid out different pathways
towards reaching their goals in both the Lisbon Strategy and the revised Europe 2020
strategy.
Flexicurity was chosen by the EU as it is deemed as a favourable tool when setting out labour
market policies. The main goals of the Lisbon Strategy and Europe 2020 (see chapter 2.2) is
to, among other things, increase employment and improve the chances for life-long learning
within the EU.
Denmark lacks general legislative protection for dismissal (if not due to any grounds of
discrimination), whereas in Sweden there is the need for just cause according to § 7 of the
Employment Protection Act (Lag (1982:80) om anställningsskydd LAS). The basic idea of
Flexicurity is that the employer is able to hire and dismiss employees on the basis of need
and that the social security system will provide means for them while in between
employment. The protection for Danish workers can vary depending on which sector they
work in. There areare only a few sectors that is covered by law, i.a.i.e. seafarers,
domestic/agricultural workers and the so-called “white collar workers”, or salaried workers
(funktionærer), however a majority of workers are covered either by legislation or by some
form of collective agreement. The Danish system has gotten some negative feedback on this
system as the collective agreements are not generally recognized and applicable by law,
erga omnes.4
LAS was put into place to protect employees from unfair dismissals. § 7 LAS states that the
only way a dismissal can take place is if there is just cause (saklig grund), either through
personal reasons or when a redundancy situation occur. There is no equal piece of legislation
4 Hasselbalch, Ole et al. Denmark, Wolters Kluwer Law & Business, 2013 pp. 23-24.
2
in Denmark.This is also why I have chosen to call the Swedish labour market strategy as job
security.
1.2.1. Research questions
The language of this thesis will be in English. The reason for this decision is partly that I feel
that it is well needed practice before I start my semester abroad next year as well as the fact
that I am hoping that it will bring a more impartial point of view, distancing myself, not using
my native language which is Swedish since the Swedish labour market will be one of the
major topics in this thesis. I hope to find a greater understanding of what flexibility is and
how it works. Would or could the Danish model benefit Sweden or is the path of legislation a
more profitable and appreciated one? What is required to implement a strategy like
flexicurity?
Research questions
You can introduce your research questions, for instance, with a short sentence like “ In order
to fulfill the goals of the present paper, the research questions are as follows:”
What are the Danish characteristics of flexicurity (the golden triangle) and in what way has
the European Union encouraged member states to implement concepts of flexibility and
security? How does it differ from Swedish “job security”?
Could the flexicurity strategy lead to new legislative proposals that are linked to employment
protection? In what way?What possible legal benefits versus disadvantages could occur
when shifting from job security to flexicurity?
[1.3.] What would be required to create a legal environment where the Danish form of
flexicurity is applicable? Could implementation in Sweden be an option or would
the concept of Danish flexicurity need change to reach applicability?
[1.4.] Methodology
One of the aims of this thesis will be to compare the concept of flexicurity in Denmark and,
what I would like to call, job security in Sweden. A comparative approach will be used to
describe what the differences and similarities are and also to try to comprehend how two
3
neighbouring and, in many aspects, similar countries take on the task of implementing the
strategy that is flexicurity. When using a comparative approach, one needs to consider
several things. Lando explains the need of knowing how to use the material that is found
while examining the subject. How will the information be used? Will it be used to describe
differences and similarities? Which legal systems should be included and why? Will the
statements made, help to clarify the development of law and legal attributes (dynamisk
fremstilling) or will it depict current law and the effects of this (statisk fremstilling)?5 Bogdan
mentions that comparative studies can, among other things, be used to increase one’s
general knowledge, give greater understanding of the legal order and work as a tool to
harmonize and/or adjust new legislation that is being created.6 He also mentions that a
greater understanding of a country’s legal order will aid the understanding of what the law is
(de lege lata), relative to what the law could or should be (de lege ferenda).
To determine true similarities and differences while using a comparative approach it is
important to not just search for direct legal equivalents when looking for source of law. It is
important to take into account how the legal system works in reality and try to find the
function. When comparing two different sources of law you must insure that they strive to
maintain the same legal function. It is the common function that will serve as tertium
comparationis, i.e. the factual approach of law.7Letting go of an employee due to
redundancy is possible but somewhat complicated according to Swedish legislation since
there are several formalities that need to be fulfilled, such as negotiations according to the
Co-determination Act (Lag (1976:580) om medbestämmande i arbetslivet). The main focus of
discussion within this thesis will be centered on the question whether the Danish, more
extensive form of flexicurity brings a positive effect on the labour market through greater
mobility for workers and if this leads to helping reduce unemployment.
The material that will be used to discuss the topic of this thesis will primarily be traditional
sources of law, such as legislation, case law, doctrine and institutional documents from OECD
(the Organisation for Economic Co-operation and Development) and the EUEU law. I have
chosen to seek out doctrine compiled by much known Danish scholars within the area of
labour law, e.g. Ruth Nielsen (Professor at the Department of Law, Copenhagen Business
5 Lando, Ole. Kort indføring i komparativ ret, Jurist- og Økonomiforbundets Forlag 2009 p. 199.6 Bogdan, Michael. Komparativ rättskunskap, Norstedts Juridik 2003 pp. 26-27, 30.7 Bogdan, Michael. Komparativ rättskunskap, Norstedts Juridik 2003 pp. 58-59.
4
School), Ole Hasselbalch (Professor of Business Law at Aarhus University) and Per Kongshøj
Madsen (Professor at the Department of Political Science, Aalborg University). Since
flexicurity is a political concept that is mainly regulated by labour market policies and
political interests, this kind of material will, as well be, highly relevant. Regarding the
Swedish material, doctrine from much known scholars like Birgitta Nyström and Axel
Adlercreutz will be used. Doctrine will be of greater use since less is regulated by legislation.
Swedish case law will be relevant in terms of discussing dismissals according to § 7 LAS. To
further understand the EU view on flexicurity as a labour market model I will use primarily
labour market policy documents. both primary and secondary sources of law, e.g. treaties
and doctrines. For a more statistical approach I will use statistics reports issued by the OECD
and EUROSTAT.8
1.3. Delimitation
[1.5.] The main focus will be on policies and EPL in Denmark and Sweden. The Lisbon
strategy will be mentioned to clarify the European Union’s standpoint on
flexicurity. It will also be needed to discuss the general applicability of flexicurity.
This means that the European Union’s views on the topic will only be investigated
on a general basis.
[1.6.]
[1.7.] Delimitation
Due to limited time and space I have been forced to exclude information from this thesis. I
have chosen not to involve legislation that covers the proceedings following collective
dismissals, such as the Directive 98/59/EC and the national legislations that implemented
this directive. Collective agreements are of great importance to Danish labour law since
much of the employment protection comes through these agreements. Due to a lack of time
I have chosen to only include the main agreement (hovedaftalet) between DA and LO. This
agreement often serves as a legal custom and it also represents a large part of the labour
market. I would have liked to include some Danish case law but verdicts are not as accessible
in Denmark as they are in Sweden and time is very limited. isposition
8 Chapter mainly taken from memorandum written on the topic of this thesis by the same author.
5
1.4. D isposition
A general and descriptive introduction to the concept of flexicurity will follow after the
opening chapter. It will describe what flexicurity details, not only from a Danish perspective
but also from a “European” perspective. What are the Danish characteristics of flexicurity
(the golden triangle) and in what way has the EU encouraged member states to implement
concepts of flexibility and security?How can flexicurity benefit a labour market and what
could be the negative results?
The two following chapters will attempt to explain in detail both the Danish and the Swedish
labour market from a legal and practical standpoint. It will entail in detail how the labour
market functions in different areas, such as job security and dismissals, unemployment, sick
leave etc. to give a greater understanding of what similarities and differences that exists and
what potential negative impacts that follows from the practice of Swedish job security and
Danish flexicurity. how these two labour markets work. This will assist when discussing
similarities and differences in chapter 5making the discussion later on. This is also where I
will try to answer the research questions mentioned in chapter 1.2.1. The final chapter will
be a conclusion summarizing this thesis.Chapter 5 will be a discussion that will try to answer
the research questions. This will be followed by a final conclusion.
[1.1] Delimitation
The main focus will be on policies and EPL in Denmark and Sweden. The Lisbon strategy will
be mentioned to clarify the European Union’s standpoint on flexicurity. It will also be needed
to discuss the general applicability of flexicurity. This means that the European Union’s views
on the topic will only be investigated on a general basis.
6
2. An introduction to flexicurity
2.1. What is flexicurity?
1.5 NOTE: after reading your first draft, it seems to me that you don’t need to deal with all the aspects of labour law in Sweden and Denmark as you did in your 3 rd and 4th
chapters.You should select only those issues that are strictly related to your purpose and research questions.
7
The expression “flexicurity” is a portmanteau of the words flexibility and security. The
purpose of flexicurity is to indecrease unemployment and to let the labour market support
itself through regenerating options and skills for the unemployed.9 It should not be
conceived as giving employers the freedom to dissolve their responsibilities towards the
employee and offering them lower employment security. The idea behind flexicurity is
bringing people into good jobs and developing their talents. The European Commission
mentions that employers needs to invest in the skills of the workers. This is a part of
“internal flexicurity”. It is however, not always possible to keep the same employment. In
these cases the focus should be on finding a new job. This form of “external flexicurity”
should be found through safe moves between different employments and generous benefits
during unemployment periods as a motivating factor for transitioning.10
Bredgaard et al. defines flexicurity as a term that can be interpret in several ways. They
mention a minimum of three different understandings of flexicurity that are all different but
at the same time overlapping and intertwined, flexicurity as a political strategy, as a
condition of the labour market and as an analytical concept.11 Early critics pointed out that
flexicurity in combination with a higher amount of labour protection legislation will lead to
employers seeking other ways, e.g. using sub-contractors or external workers hired through
employment agencies.12 Flexibility and security are to be seen as mutually supportive
notions. The European Commission describes the positive effects of flexicurity as:
“Rather than job security, flexicurity focuses on ‘employment security’. Employment
security means staying in employment, within the same enterprise or into a new
enterprise. The philosophy behind flexicurity is that workers are more prepared to make
such moves if there is a good safety net.”13
9 Kæraa Rasmussen, Jan in Olshov, Anders (ed.) et al. Svenska strukturproblem kontra dansk dynamik. Øresundsinstituttet, Malmö 2006, pp. 22-23.10 European Commission. Towards common principles of Flexicurity - More and better jobs through flexibility and security. Luxembourg 2007 p. 7.11 Bredgaard, Thomas, Larsen, Flemming & Madsen, Per Kongshøj. Det fleksible danske arbejdsmarked : en forskningsoversigt, Beskæftigelsesministeriet, København 2005 p. 34.12 Keune, Maarten & Serrano, Amparo in Keune et al. (ed.). Deconstructing flexicurity and developing alternative approaches – Towards new concepts and approaches for employment and social policy. Routledge, Taylor & Francis. 2014, p. 1; Bredgaard, Thomas, Larsen, Flemming & Madsen, Per Kongshøj. Det fleksible danske arbejdsmarked :: en forskningsoversigt, Beskæftigelsesministeriet, København 2005 p. 32.13 European Commission. Towards common principles of Flexicurity - More and better jobs through flexibility and security. Luxembourg 2007 p. 7.
8
Both Denmark and Sweden have adopted some of the principles of flexicurity but due to
effects of underlying legislation, the practical use of flexicurity differs between the two
countries.
Flexicurity can be described using this figure (sometimes referred to as the golden triangle):14
The three “corners” of the triangle are equally dependent on each other. If the ALMP’s are
not strong enough then the flexibility will not be used to its full capacity and if the generous
unemployment benefits do not exist then workers will want a higher sense of job security.15
For flexicurity to take place, three conditions must be met:
1) The need for a flexible labour market
Atkinson mentions three different types of flexibility in the labour market:16
Numerous flexibility – The ability to quickly and easily increase or decrease the number of
employees to fit the current demand for labour. Can be achieved by implementing a more
“hire & fire” friendly EPL or by creating a looser contractual relationship between the
employer and the employee. The wanted result is to match the supply and demand of
labour.
14 Figure taken from: Bredgaard, Thomas, Larsen, Flemming & Madsen, Per Kongshøj. Det fleksible danske arbejdsmarked : en forskningsoversigt, Beskæftigelsesministeriet, København 2005 p.19.15 Bredgaard, Thomas, Larsen, Flemming & Madsen, Per Kongshøj. Det fleksible danske arbejdsmarked : en forskningsoversigt, Beskæftigelsesministeriet, København 2005 p.49.16 British economist Atkinson, John. Manpower strategies for flexible organizations. Personnel Management, August 1984 pp. 28-31. Institute of Manpower Studies, University of Sussex, Brighton. General views on flexibility and the organizational need for it.
9
Functional flexibility - Letting employers dispose of the employees as they choose, meaning
that employees can quickly be redeployed doing whatever task is required by the employer.
It may require multi-skilled workers to be able to perform different tasks at a regular basis or
having employees change careers altogether.
Financial flexibility – Financial flexibility is sought for two reasons. The first is to be able to
adjust and protect the costs of wages and other personnel-related expenditures according to
the status of the labour market in general. A low demand for workers combined with a high
rate of unemployment should allow lower wages when hiring. Secondly, and probably more
important in the long term, the flexibility of pay. Adjusting remuneration systems to
facilitate either numerical or functional flexibility, such as assessment-based pay systems
instead of fixed salaries for specific positions.
Later on, a fourth type was added, Temporal or otherwise referred to as distancing
flexibility. This mainly contained the use of temporary subcontracted workers. Making the
need for flexibility “someone else’s problem” by shifting the responsibilities of the employer
over to an external operator. 17
17 Atkinson, John & Meager, Nigel Changing working patterns: How companies achieve flexibility to meet new needs. National Economic Development Office, London 1986 p. 54.
10
2) Generous unemployment benefits
To increase mobility within the labour market it needs to be a triggering incentive in the
form of higher than average unemployment benefits.18 According to statistics, between 25-
35 % of Danish workers change employment each year. The result of the high mobility rate is
that it is inevitable to occur plenty short periods of unemployment.19 Except for an extended
“easy hire, easy fire” policy, the high mobility rate also requires easy access to
unemployment benefits.20
3) Active labour market policies
As shown in the figure above, the combination of favourable unemployment benefits and
active labour market policies, allowing the unemployed to reach greater qualification and
thus opening the path towards new employment possibilities.
By active labour market policies, such instruments include training and education, subsidized
trainee- or internships in public companies as well as private enterprises, and job seeking
courses for the unemployed.21
Andersen et al. mentions three different effects on the individual period of the
unemployment:22
The motivational effect: For many of those who are unemployed, the lure of participating in
a labour market program is fairly low and would much rather leave unemployment to avoid
participation, thus increasing the motivation for job seeking. The relatively high
remuneration combined with the pressure of job seeking could also have a positive effect on
motivation.
The confined effect: By this means that the unemployed might not be as active in his/her job
seeking during the participation of the labour market program. The chances of actually
getting hired are thus lower during this time.
18 Hasselbalch, Ole et al. Denmark, Wolters Kluwer Law & Business, 2013 p. 24.19 Bredgaard, Thomas, Larsen, Flemming & Madsen, Per Kongshøj. Det fleksible danske arbejdsmarked : en forskningsoversigt, Beskæftigelsesministeriet, København 2005 p. 22.20 Dansk Arbejdsgiverforening, Flexicurity i Danmark - En indføring i den danske arbejdsmarkedsmodel, København 2007 p. 3.21 http://www.oecd.org/employment/leed/40575308.pdf page 4, box 2.22 Andersen, Torben M & Svarer, Michael in Olshov, Anders (ed.) et al. Svenska strukturproblem kontra dansk dynamik. Øresundsinstituttet, Malmö 2006, p 34.
11
The impact effect: At the end of the labour market program, the unemployed hopefully
increased his or her skills and competences which should make the possibilities of getting
hired greater. One risk is that the job seeker will become narrower in search of a new job,
delimiting him- or herself to areas of their newfound knowledge.
The European Councils response to the work presented by the Commission, “Towards
common principles of Flexicurity”, is that the term flexicurity is described as a good way to
aid the implementation of the Lisbon strategy (see ch. 2.2).23 The European labour market
needs to adapt to a modern time and this is to be done through modernizing the labour
market by promoting good work through new forms of flexibility and security to increase the
adaptability, employment rate and social cohesion. The concept of flexicurity is not to be
seen as a standardized model or method and the implementation in member states will
require tailoring to adjust to the circumstances of each specific country.
Sufficient contractual flexibility must be accompanied by secure transitions from job to job.
Better jobs and work places are needed and continuous upgrading of skills (Life Long
Learning) is an essential part of making this a reality. Gender equality is also important since
women are underrepresented in the work force. The gender issue goes hand in hand with
the importance of a functioning and supportive social security system and the ability to
combine family life with having a career, something that is still difficult in many countries.
2.2.
[2.2.] The European road to a more flexible labour marketLisbon strategy
At a summit in Lisbon in 2000 the European Council held a special meeting that focused on
agreeing to a new strategic goal for the EU in order to strengthen employment, economic
reform and social cohesion as part of a knowledge-based economy.24 This has since been
dubbed the Lisbon Strategy and formulated goals for the European labour market from
2000-2010. The main topics regarding EU’s internal affairs were:
Setting a strategic goal for the next decade
Preparing the transition to a competitive, dynamic and knowledge-based economy
23 European Council DRAFT COUNCIL CONCLUSIONS - Towards Common Principles of Flexicurity, 2007. http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2015497%202007%20INIT.24 Lisbon European Council, http://www.europarl.europa.eu/summits/lis1_en.htm.
12
Modernizing the European Social Model by investing in people and building an active
welfare state
Putting decisions into practice: A more coherent and systematic approach
Even though flexicurity as a concept wasis not mentioned literally back in 2000, these topics
clearly share common principles that would result in what we today refer to as flexicurity
such as life-long learning, modern social security systems and favouring job creation.
This endeavour was partly summarized in 2005 and found to be disappointing.not to have
achieved the goals that were set out. Three new recommendations were handed out by the
European Commission in order to improve growth, create more and better jobs and to
create a better governance.25 Growth was to be made by making the EU more attractive for
investors and by putting more focus and interest in research and development. More and
better jobs were to be made through better effectiveness from the social security systems,
benefits should help those in need but at the same time provide support and incentives to
find a way back to the labour market. The system should also support the balance between
flexibility and security in a way that makes it easier for workers to change employment and
to be able to move to where employment exists. The goal was to increase the over-all
employment rate to 70 % of those in working age within the EU by 2010. This goal was not
met union-wide by 2006 but at this time, both Denmark and Sweden were above 70 % in
terms of employment.26 In 2007 the European Commission released “Towards common
principles of flexicurity” where they strongly suggested flexicurity as a labour market
concept that would aid in achieving the goals set up through the Lisbon Strategy.27
ByIn 2010, the European Commission decided to keep working towards these strategies and
laid out plans for a new strategy that is now referred to as Europe 2020.28 The Commission
put forward five main goals that should be met by the year 2020. and these are:29
25 European Commission, A new start for the Lisbon strategy, 2005; http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=URISERV:c11325&from=SV.26 European Union, Key Facts and Figures – about Europe and the Europeans. 2007 pp. 37-38.27 European Commission. Towards common principles of Flexicurity - More and better jobs through flexibility and security. Luxembourg 2007 pp. 22, 26-27.28 European Commission. COM (2010) 2020: EUROPE 2020 - A strategy for smart, sustainable and inclusive growth, Brussels 2010.. EUROPE 2020 - A strategy for smart, sustainable and inclusive growth, Brussels 201029 European Commission. COM (2010) 2020: EUROPE 2020 - A strategy for smart, sustainable and inclusive growth, Brussels 2010 pp 10-11.
13
The employment rate of the population aged 20-64 should increase from the current approx.
69% (68,5% in 2010 and 68,4% in 2012) to at least 75%, including through the greater
involvement of women, older workers and the better integration of migrants in the work
force.
The EU currently has a target of investing 3% of GDP in R&D. The target has succeeded in
focusing attention on the need for both the public and private sectors to invest in R&D but it
focuses on input rather than impact. The Commission proposes to keep the 3% target while
developing an indicator which would reflect R&D and innovation intensity.
Reduce greenhouse gas emissions by at least 20% compared to 1990 levels (or by 30% if the
conditions are right), increase the share of renewable energy sources in our final energy
consumption to 20% and a 20% increase in energy efficiency.
A target on educational attainment which tackles the problem of early school leavers by
reducing the dropout rate to 10% from the current 15%, whilst increasing the share of the
population aged 30-34 having completed tertiary education from 31% to at least 40% in
2020.
The number of Europeans living below the national poverty lines should be reduced by 25%,
lifting over 20 million people out of poverty.
The targets set out by the commission was reviewed in 2014 to look at what progress had
been made, close to “half-time”. Only two out of the five targets were deemed plausible to
reach by the Commission in 2020 and these where the reduced emissions target (pt. 3) and
the target on higher education (pt. 4). Poverty, that was one priority, had actually risen by
2012, Research & Development investment of 3% was not deemed plausible due to a slower
financial recovery following the crisis and the employment rate is estimated to land at 72-
74% in 2020.30
The Commission renewed its faith in flexicurity as a labour market model but see areas that
are in need of changes to meet the demands of the Europe 2020 strategy. Flexicurity had
30 European Commission. COM (2014) 130: Taking stock of the Europe 2020 strategy for smart, sustainable and inclusive growth. Brussels 2014, pp 12-14.
14
helped, weathering the financial crisis but the vulnerable groups were still highly exposed.31
In order to implement strategies regarding flexicurity, some areas required more attention.
The commission submitted a number of different suggestions on how to implement
flexicurity on both a European and on a national level. The labour market needs to be more
flexible in adjusting to the conditions on a local level. Labour legislation should be made
“smart”, making it easier to change e.g. terms of working hours, posting of workers and
facilitate movement of workers within the EU.32 Several member states had increased the
social protection for workers through strengthening the protection through higher
unemployment benefits and including a larger scale of people who are entitled to take part
of these systems.33 There is however, still a substantial mismatch between the current
knowledge of the workers and what kind of knowledge that is desired by the labour market.
Making these two match will be one of the most important, and at the same time, most
difficult tasks for the strategy of Europe 2020.34
The fixed-term directive 99/70/EC was implemented in order to increase the incentive for
hiring new employees but at the same time working for safe and fair employments. The
Directive was created by organizations representing the labour market and stated that
permanent contracts should still be considered the norm of the labour market. Workers on
fixed-term contracts were now given the legal right to be treated equally compared to those
workers who were permanently hired. No matter the contract, workers should be offered
the same pay and other conditions to ensure that people hired on fixed-term contracts are
not being abused. The Directive also states that any renewal of a fixed-term contract instead
of a transfer to a permanent contract should be on objective grounds and there should be
clear rules regulating the possibility of stacking one contract on top of the other and for how
long this can go on.35
31 European Commission. COM (2010) 692: An Agenda for new skills and jobs: A European contribution towards full employment. Strasbourg 2010, pp. 3-4.32 COM (2010) 2020: EUROPE 2020 - A strategy for smart, sustainable and inclusive growth, Brussels 2010 p. 19.33 European Commission. COM (2010) 692: An Agenda for new skills and jobs: A European contribution towards full employment. Strasbourg 2010, p. 4.34 European Commission. COM (2010) 692: An Agenda for new skills and jobs: A European contribution towards full employment. Strasbourg 2010, p. 20.35 COUNCIL DIRECTIVE 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. Clause 5.
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Note: so far, there is not any definition of flexicurity. I have sent you many articles about
flexicurity that will help you.
Flexicurity – a role model?
Criticism on Flexicurity
3. Danish Labour law
3.1. The Danish model
3.1.
The Danish modelParties of the labour market control questions regarding employment
through arbitration and collective agreements.The Danish model regarding labour law has
typically been that questions regarding employment is controlled by parties of the labour
market through arbitration and collective agreements. Danish labour law can be divided into
two categories, collective labour law (kollektiv arbejdsret), which regulates the legal
conditions surrounding collective agreements, and individual labour law (ansættelseret),
which regulates the legal relationship between the employee and the employer.36 Denmark
has a historically low level of Employment protection legislation since the September
agreement (Septemberforliget) in 1899 and cConsensual agreements and lack of legislation
have been the basis of labour law in Denmark.37 The foundation is that the employer is free
to hire as they please. This is limited only by choices of hiring that are constructed on a
discriminatory basis, e.g. by going against the Equal Treatment Act (Ligebehandlingsloven) or
the Discrimination Act (Forskelsbehandlingsloven) and so on.38 Employment contracts is a
part of contract law and do not differ from other contracts except that it needs to follow a
certain form. Legislation regulating terms of employment contracts can be found in the
Danish Contract Act (Aftaleloven) and the Proof of Employment Contract Act 36 Hasselbalch, Ole et al. Denmark, Wolters Kluwer Law & Business, 2013 p. 26.37 Hasselbalch, Ole et al. Denmark, Wolters Kluwer Law & Business, 2013 p. 23.38 Paulsen, Jens, Ramskov, Bent & Nielsen, Ole Søren. Personalejura, praktisk arbejdsret. 3rd ed., Academica. Aarhus 2011, pp. 43-46.
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(Ansættelsebevisloven).39 One of the bigger stepping stones in Danish labour law was the
main agreement (hovedaftalet) between DA (Dansk Arbejdsgiverforening) and LO
(Landsorganisationen) that was agreed upon in 1960. This agreement cemented the
previous tradition of leaving matters of the labour market up to the parties of the labour
market to regulate.40
As a member of the EU, Denmark has been forced to implement new legislation in order to
meet minimum requirements set up by the EU. Denmark has created laws in order to follow
the Directives since these were not previously covered by legislation. However it still remains
as one of the most non-legislative members when it concerns EPL. Employment protection is
typically given by collective agreements and for employees within certain categories of
labour that are covered, for example, by the Employers' and Salaried Employees' act, also
known as the “white-collar act” (Funktionærloven, later described as FUL).41 Because of the
high impact of collective agreements and union-related efforts the membership level
remains very high in both blue-collar and white-collar sectors, although declining in more
recent time.42 The collective agreements lack a generally applicable function, which has
gotten some criticism from the EU since many detailed rules are covered by a non-legislative
document instead of actual law. Danish labour law has gotten some negative feedback on
the use of collective agreements and that they are not generally recognized and applicable
by law, erga omnes and at the same time lacking large amounts of EPL.43
Danish flexicurity is often referred to as a hybrid as it represents a labour market that
combines the dynamic of the liberal labour market economy model through a low EPL status
and, at the same time, the protection that follows athe vigorous social security system,
which is typical for the Nordic Model.44
39 Official translation does not exist, literal translation made. Lovbekendtgørelse nr 781 of 1996-08-26 om aftaler og andre retshandler på formuerettens område; Lovbekendtgørelse 2010-03-17 nr. 240 om arbejdsgiverens pligt til at underrette lønmodtageren om vilkårene for ansættelsesforholdet.40 Kristiansen, Jens. Kollektiv arbejdsret. Jurist- og Økonomiforbundets Forlag 2014, pp. 44-45.41 Lovbekendtgørelse nr 81 of 2009-02-03 om retsforholdet mellem arbejdsgivere og funktionærer.42 Enegren, Bo. Danmark – Föregångsland inför nya utmaningar, Medlingsinstitutet Sverige 2012 p. 9; Hasselbach, Ole et al. Denmark, Wolters Kluwer Law & Business, 2013 p. 32 pt. 28.43 Hasselbalch, Ole et al. Denmark, Wolters Kluwer Law & Business, 2013 pp. 23-24.44 Teknologisk Institut, Succes med flexicurity, Beskæftigelsesministeriet, København 2009 p. 6.; Dansk Arbejdsgiverforening, Flexicurity i Danmark - En indføring i den danske arbejdsmarkedsmodel, København 2007 p. 2.
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3.2.[3.1.] Forms of employment
There is no law that regulates length of employment contracts, the main form of
employment is employment on an indefinite contract but this can be agreed on in a freely
manor. The result of this is that there are, simply put, two kinds of contracts, for definite and
indefinite time.45 An employee can be hired on a fixed-term basis or for a specific task.
The Fixed-term Contracts Act46 § 5 states that fixed-term contracts cannot be stacked on top
of each other unless there is an objective reason. There is no precise legal definition of the
term objective in this piece of legislation but it has been interpreted as an allowance to
renew such a contract (if no valid objective reason is given) at one occasion in the bigger
collective agreements, such as the main agreement between DA and LO, making it a legal
custom.47 This piece of legislation applies to all employees who are not covered by a
collective agreement or are covered by an agreement with less favourable terms and was
created to adapt the implementation of Directive 1999/70/EC.48 The dismissal periods for
employees on indefinite time contracts are relatively short in Denmark and the consequence
of this is that the share of workers on fixed-term contracts are fairly small.49 For workers
covered by FUL, a notice period should be at least 14 days (during the probation period of
three months) and after this between 1-6 months depending on seniority.50
3.3.[3.2.] Job security and dismissals
As previously mentioned Danish employers in general have the right to hire and dismiss
employees as they choose, as long as choices are not made on discriminatory grounds, e.g
refusal to hire pregnant women or trying to dismiss a worker due to ethnicity or if collective
agreements states otherwise. Dismissals can be divided into two categories, due to
redundancy or for personal reasons. In the main agreement that exists between LO and DA
there is a prohibition for “unfair” dismissals.51 This prohibition has become a legal custom for
many workers not covered by the agreement as well and most other agreements has
45 Hasselbalch, Ole et al. Denmark , Wolters Kluwer Law & Business, 2013 pp. 67-72.46 Literal translation made, Lovbekendtgørelse 2008-09-11 nr. 907 om tidsbegrænset ansættelse in Danish.47 Nielsen, Ruth, comment on § 5, Lovbekendtgørelse 2008-09-11 nr. 907 om tidsbegrænset ansættelse. jura.karnovgroup.dk. (account needed for login).48 Lovbekendtgørelse 2008-09-11 nr. 907 om tidsbegrænset ansættelse, § 2.49 European Commission, Mutual Learning Programme. DG Employment, Social Affairs, Skills and Labour Mobility. Key policy messages from the Peer Review on ‘Flexicurity’. Brussels 2014, p. 4.50 FUL, § 2 pt. 2 & 4.51 Nielsen, Ruth. Dansk Arbejdsret. Jurist- og Økonomiforbundets Forlag, København 2012, p. 536-537.
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implemented similar terms. 52 Hasselbalch mentions that “unfair” can be difficult to define
but that there are some examples from the Employment Tribunal where the principle of
seniority has made a difference. EPL otherwise mainly effects workers that are covered by
the white-collar Act (mentioned in 3.1 FUL). FUL was created in the early 1950’s and
covers around 64 % of workers today.53 Collective agreements carries a heavy weight in
Denmark and around 88 % of workers are covered by some form of collective agreement.54 If
the employer chooses not to join into a collective agreement and the labour tasks do not
follow under FUL, conditions of labour will be set solely between the employer and the
employee. There is no statutory minimum wage in Denmark so wages could in theory be
next to nothing. The result could also be that two employees performing the same task
could have vastly different wages. Probation is allowed for a maximum of three months for
those covered by FUL.
3.3.1. Sick leave
Financial aid during sick leave depends on whether there is a collective agreement or not
and if it follows under FUL (or any other categorized labour task legislation). It can also
depend on what the individual contract states. If an employee is covered by FUL the
employee is entitled to full pay during his or her sick leave. After 14 days, the employer has
the right to retain more information regarding the health condition by sending the employee
to a doctor. If the employee refuses it is seen as grounds for immediate termination. 55 If an
employee under FUL is absent due to sick leave for more than 120 days during a period of 12
months, it is cause for dismissal with one month’s notice, regardless of the period of
employment.56 Sick leave in itself is not ground for dismissal as long as the employee informs
their employer that they are, in fact, sick. However, this does not mean that dismissal of a
sick employee is not possible, it is simply a “normal” dismissal with notice and pay according
to what the contract or agreement states. The employer has the financial responsibility
during the first 30 days of sick leave. The social security system will take over after this
period. The amount that is paid can vary from full pay (for those covered by FUL or eq.) or an 52 Hasselbalch, Ole. Labour Law in Denmark. DJØF Publishing, Croydon 2012, p. 169.53 Funktionærloven – en lønmodtagerlov for de fleste? https://www.djoef.dk/Blade/Samfundsoekonomen/Samfunds-oe-konomen-2011/Samfunds-oe-konomen-nr-2-2011/~/media/Documents/Djoef/F/Funktionarloven.ashx, p. 28.54 Funktionærloven – en lønmodtagerlov for de fleste?, p. 29.55 FUL § 5, pt. 4.56 FUL § 5, pt. 2.
19
amount that matches the minimum sick pay benefits according to the Act on Sickness
Benefits (Sygedagpengeloven).57
[3.3.] Union related activities
[3.4.] Sick leave
[3.5.] Parental leave and pay
[3.6.] According to the Consolidation Act on Entitlement to Leave and Benefits in the
Event of Childbirth (Barselsloven) expecting women are entitled to start their
pregnancy leave (graviditetsorlov) 4 weeks prior to her expected delivery
date.58After delivery she is entitled to 14 more weeks of maternity leave
(barselsorlov). The father (or co-parent) is entitled to 14 days leave in connection
with the delivery. After this period both parents are entitled to 32 weeks of leave
(forældreorlov) each which amounts to 64 weeks in total (benefits only paid
during 32 weeks).59 These weeks can be used simultaneously or separately. It is
possible to extend the parental leave by an additional 8-14 weeks but this will
lead to the compensation for the 32 previous weeks to be split over a total of 40-
46 weeks, meaning a smaller compensation over a longer period.60
[3.7.] To be entitled monetary benefits during parental leave the employee must have
been working 13 weeks prior to the parental leave and have acquired a minimum
of 120 hours of labour.61 The size of the compensation varies depending on
income and if the employer is bound by a collective agreement or not. Benefits
are sometimes to be paid fully by the employer (who will be reimbursed by the
social security system), if this is not the case then Utbetaling Danmark will handle
the transactions.62 This is the national authority in Denmark which handle most
payments that has to do with social security, such as pensions, welfare benefits
and housing benefits etc. The previously mentioned 32 weeks of paid leave must
be utilized within the first 46 weeks following the birth of the child. A parent can
57 Literal translation. Lovbekendtgørelse 2015-08-12 nr. 938 om sygedagpenge, ch. 4, § 6, pt. 1.58 Lovbekendtgørelse 2015-04-29 nr. 571 om ret til orlov og dagpenge ved barsel. (Barselsloven) Chapter. 4 § 6.59 Barselsloven § 9. It is also important to mention that the 32 weeks of paid leave must be used during the first 46 weeks of the child’s life.60 Barselsloven § 10; Hasselbach, Ole et al. Denmark, Wolters Kluwer Law & Business, 2013 p. 145.61 Barselsloven § 27.62 https://www.borger.dk/Sider/Barsel-loenmodtagere.aspx?NavigationTaxonomyId=919902ec-dfae-4147-b445-353f015b7675.
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receive up to 92 % (8 % being the compulsory labour market tax,
(Arbejdsmarkedsbidrag) of her or his income as long as it is below the maximum
amount. According to VEJ nr. 9043 of 27/01/2015 the maximum amount that you
can receive in parental benefits that is available for those who fill the labour
quota for 2015 is 4135 DKK per week.63 A mother-to-be is entitled to start her
pregnancy leave at least 4 weeks before the expected date of delivery, depending
on employer and/or agreements, this period can be longer. During this time
benefits will be paid out in the same way as parental leave. This concludes that
parents are entitled to 50 weeks of full benefits (min. 4 weeks before and 46
weeks following the birth) at a maximum amount of 4135 DKK per week. For
those who are unemployed and/or not entitled to collect unemployment benefits
or otherwise unable to fill the labour quota, the compensation will come from
welfare benefits (kontanthjælp).
[3.8.] Unemployment
One of the bigger incentives of implementing the flexicurity strategies in Denmark was the
high unemployment that existed during the 1980s. As previously mentioned, Denmark have
one of the lowest unemployment rates in Europe even though its rise during the recessional
years following the financial crisis of 2008. The unemployment benefits are divided into two
parts, one that is income based for those who are members of an unemployment insurance
fund (a-kasse) and fulfils the requirements for qualifying, or benefits from the social
insurance if one does not qualify (kontanthjælp).64 The income based insurance covers up to
90 % of the former salary up to an amount of 827 DKK per day.65
Compared to the European Union, Denmark has done very well in keeping their
unemployment low, especially for those under 25. As pictured below, the percentage of
unemployment for those under 25 were between 7,5 – 14,2% in the years 2007-2014.
During this period of time, the equivalent numbers for the entire EU was 15,9 – 23,7%.66
63 Arbejdsmarkeds- og Rekrutteringsstyrelsens Vejledning nr 9043 of 27/1 2015. chart 2, Barselsdagpenge.64 Nielsen, Ruth. Dansk Arbejdsret. Jurist- og Økonomiforbundets Forlag, København 2012, p. 558-559.65 Lovbekendtgørelse 2015-07-07 nr. 832 om arbejdsløshedsforsikring, § 48, pt. 3; https://www.borger.dk/Sider/Arbejdsloeshedsdagpenge.aspx?NavigationTaxonomyId=b17f682b-7b0c-498f-b675-777562d742b6.66 http://ec.europa.eu/eurostat/web/lfs/data/database. Statistics under the title: “Unemployment rate by sex and age - annual average, %”.
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UNEMPLOYED (%) 2007 2008 2009 2010 2011 2012 2013 2014
WOMEN 4,2 3,7 5,3 6,5 7,5 7,5 7,3 6,8
MEN 3,4 3,2 6,6 8,4 7,7 7,5 6,7 6,4
AGED UNDER 25 7,5 8,0 11,8 13,9 14,2 14,1 13,0 12,6
TOTAL 3,8 3,4 6,0 7,5 7,6 7,5 7,0 6,6
Unemployment statistics in Denmark during the years 2007-2014 according to EUROSTAT:67
3.3.2.[3.8.1.] New labour market legislation and ALMP
During the implementation of flexicurity in the 1990’s until today there has been substantial
changes to how the ALMP and the system regulating unemployment benefits work.68 In the
beginning, the system focused more on passive measures, making it possible to collect
unemployment benefits for up to eight years, this period could then be renewed if the
unemployed participated in a program designated to getting him/her back into employment,
meaning that the period for collecting unemployment could become unlimited. This has
been restricted several times but is at the moment between 2 ¼ - 4 years depending on
when the time of unemployment starts.69
The current legal system regulating the unemployment benefits also focuses on a “rights and
obligations” policy, meaning that the unemployed has to take part in courses, actively seek
employment and increase their skillset or competences by training or more formal education
if required. An unemployed is also required to be able to accept a job offer at short notice.70
As an unemployed, the job seeker is entitled to benefits due to loss of income but also
required to look for employments and participate in labour market programs and other
training. There are separate rules for unemployed under 25 years old which mainly focuses
on support during training or other educational efforts.71
67 Statistics also taken from EUROSTAT, see note 58.68 Andersen, Torben M & Svarer, Michael in Olshov, Anders (ed.) et al. Svenska strukturproblem kontra dansk dynamik. Øresundsinstituttet, Malmö 2006, p 30. 69 Lovbekendtgørelse 2015-07-07 nr. 832 om arbejdsløshedsforsikring, Chapter 9b, § 52k, pt 2.70 Andersen, Torben M & Svarer, Michael in Olshov, Anders (ed.) et al. Svenska strukturproblem kontra dansk dynamik. Øresundsinstituttet, Malmö 2006, pp. 29-32.71 Lovbekendtgørelse 2015-07-07 nr. 832 om arbejdsløshedsforsikring, Chapter 9a, §§ 52a-52f.
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Creating an optimal system of ALMP’s is described as a political dilemma by Andersen et al.
due to the fact that the policy has the bilateral need of being both effective in increasing
employment for job seekers that are helped by above mentioned policies, as well as
deterrent for those who have the skills and abilities to find employment on their own.72
Active labour market policies
4. Swedish Labour law
4.1. The Swedish model
In the beginning of the 1900s, a reformative period began in Sweden. The Swedish labour
market made a significant transformation by implementing legislations that improved the
status of workers and citizens in general such as the Collective Agreements Act of 1928 73, the
right to a minimum of 14 days of vacation in 193874, an extended social insurance system
that started with a regulation stating general insurance for industrial injuries in 1901.75 In
1963 the act (SFS 1962:381) on general insurance was inserted76 to providegive a wider
coverage which today is replaced by the Social Code (SFS 2010:110). The first Employment
Protection Act (SFS 1974:12, later replaced by LAS 1982:80) and the Co-determination Act
(MBL 1976:580) that was implemented in the 1970s had a large impact on the labour
market. § 1 LAS states that all employees are covered by the following legislation except for
the five categories of workers that are listed in the second paragraph, among others,
members of the employers family and employees who can be considered as having a leading
role in the company.77
72 Andersen, Torben M & Svarer, Michael in Olshov, Anders (ed.) et al. Svenska strukturproblem kontra dansk dynamik. Øresundsinstituttet, Malmö 2006, p. 35.73 Adlercreutz, Axel & Nyström, Birgitta. Sweden, Wolters Kluwer Law & Business, 2015, p. 45.74 Adlercreutz et al. Sweden, Wolters Kluwer Law & Business, 2015, p. 97; the first Vacation Act of 1938 (SFS 1938:287), giving employees the right to two weeks of leave, not required to be paid.75 Several acts and regulations followed, e.g. Förordning (SFS 1938:216) om livräntetillägg av statsmedel åt vissa livräntetagare enligt lagen den 5 juli 1901 angående ersättning för skada till följd av olycksfall i arbete, replacing the act of 5th July 1901.76 Lag (SFS 1962:381) om allmän försäkring.77 LAS (SFS 1982:80) § 1 pt. 2.
23
The tradition in Sweden is that legislation is neither preferred, nor necessary in regulating
the labour market. The legislation that is available generally focuses on employment
protection or serves as a minimum protection that is mostly possible to overrule through
collective agreements (semidisposivitet). The unions plays a central role in setting the
standards and around 70 % of workers are members.78 Around 90 % of the labour market is
covered by collective agreements and even though they are not universally applicable for all
workers within each industry (erga omnes), workers are still covered regardless of their
membership in a union or not.
Since the entry into the European Union in 1995 the legislation has become more extensive
to meet the demands of the directives set by the EU within those areas that was previously
not covered by law (however, previously most likely covered by collective agreements). 79 In
areas of employment security, workplace environment/safety and the right for employee
consultation or participation, the legislative protection is however comprehensive.
4.2. Forms of employment
There are five different forms of employment as described in §§ 4-5 LAS. The basic
understanding is to be employed on a permanent basis if nothing else is agreed upon.80 This
entails that if the employee is not given a notice that the position will be on a temporary
basis but this would later show to be the case, the burden of proof, whether a permanent or
temporary contract is in place lies with the employer.81 The other four forms of employment
are:
- General tTemporary employment
- Temporary sSubstitute employment
- Seasonal work
- Temporary eEmployment for those over the age of 67
The second section of § 5 LAS states that temporary and substitute employment can be
combined, but at a maximum of two years in total during the past five years. 82 It is however
important to mention that legal contractual regulations in forms of e.g. full-time or part-time 78 Nyström, Birgitta. EU och Arbetsrätten, Norstedts Juridik 2011, p. 59 & 63.79 Nyström, Birgitta. EU och Arbetsrätten, Norstedts Juridik 2011, p. 65.80 LAS (SFS 1982:80) § 4 pt. 1.81 Wästfelt et al. Anställningsskyddslagen - med kommentar, Studentlitteratur 2014, s. 49. 82 LAS (SFS 1982:80) § 5 pt. 2.
24
employments lack legislation altogether. § 6 LAS also states that a probation period of up to
6 months is allowed for permanently contracted workers.
4.3. Job security and dismissals
One of the foundations of the Employment Protection Act of 1974 was that all employments
should be on a permanent basis and that dismissals have to be justified. Swedish job security
is partially created by the need for just cause according to § 7 LAS and the need for union
represented negotiations according to MBL §§ 10-13. § 7 LAS states that an employer needs
to show just cause when dismissing an employee and further entails that just cause can only
be recognized in, either a redundancy situation or reasons that relates to the employee in
person. Wästfelt et al. mentions several reasons that can be contributed to the employee in
person, such as abuse or threats of violence, insobriety at work, disloyal behaviour,
insubordination and a difficulty to cooperate etc.83
According to LAS § 7 pt. 4, an employer is not allowed to solely base a dismissal due to
reasons contributed to the employee in person if this reason is older than two months.
However, if the employee in question has previous documented wrongdoings that are older
than two months but continues to end up in situations that could lead to a potential
dismissal, then older wrongdoings can be invoked by the employer.84 An example of this
could be repeated tardiness/late arrivals by the employee that on its own cannot be cause
for dismissal.85
Just cause when dismissing an employee due to personal reasons can differ depending on
various factors, such as the size of the company (a large company has a bigger responsibility
when trying to mend problems by e.g. trying to relocate the employee), the length of the
employment (a long-time employee has a more extensive job security), the nature of the
employment (Wästfelt et al. mentions the difference between an airline hostess being
repeatedly late to work vs. a mechanic in the same situation and the financial consequences
thereof), previous negligence (if the employment record shows that the employee
mismanages the employment on several occasions), the employers’ previous actions (has
there been previous warnings given or has the employer previously turned a blind eye
83 Wästfelt et al. Anställningsskyddslagen - med kommentar, 2014, pp. 99-145.84 Wästfelt et al. Anställningsskyddslagen - med kommentar, 2014, pp. 158-165.85 See for example: AD 2000:12 & AD 2006:90.
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regarding indiscretions) and interpersonal relations of the work place (e.g. worsening the
environment at work for colleagues by increasing their work load due to unauthorized
absences or, for example, an unpleasant social atmosphere).86 Lunning mentions that the
Labour Court is restrictive when dealing with dismissals due to personal reasons. The burden
of proof lies mainly with the employer to prove that there is just cause for dismissal.87 He
also mentions the importance of how the employers chooses to handle an employee before
a dismissal when the court makes their judgement.
In the preparatory work for the Employment Protection Act of 1982 it is mentioned that the
wrongdoing of the employee should not be the issue in focus unless the wrongdoing is of
such nature that it makes the employee unfit for the tasks at hand. The issue in focus should
be on how the employer has handled the situation in the attempt of avoiding dismissals
through, for example, communication, possible redeployment of the employee and what
means and conditions that are disposable for the employer. When determining the
responsibilities of the employer, factors such as the size of the organization and the length of
the employment are taken in to consideration. An employee with a long period of
employment should receive a higher amount of protection then someone recently hired and
a larger company or a public enterprise has greater responsibilities in trying to mend the
situation to avoid dismissals.88
4.3.1. Priority rules according to LAS § 22
The priority rules that are stated in § 22 LAS apply to situations only due to redundancies. An
employer has the right to manage and distribute labour tasks as they see fit and since this is
regarded as a financially motivated decision that is part of an employer’s managerial rights,
redundancies are generally not subjugated to be questioned by a court of law.89
The scope of redundancy is fairly wide and entails all scenarios were the employer regards
that dismissals due to redundancy are needed. Different kinds of redundancies can occur, for
example, situations where the employer chooses to change the tasks of labour and needs
staff that can manage other qualifications than their current duties. If the employer decides
to reorganize through more employees on part-time contracts and thus make those on full-86 Wästfelt et al. Anställningsskyddslagen - med kommentar, 2014, pp. 100-103.87 Lunning, Lars & Toijer, Gudmund. Anställningsskydd – en lagkommentar, Norstedts Juridik 2010, pp. 339-340.88 Prop. 1981/82:71, pp. 65 & 72; Lunning et al. Anställningsskydd – en lagkommentar. 2010, p. 347.89 Prop. 1973:129, p. 23; Prop. 1981/82:71, p. 65.
26
time contracts redundant, or an employer can choose to hire external consultants to
complete the tasks needed, meaning that permanently hired staff can become redundant.90
There are several things that needs to be taken into account during a dismissal due to
redundancies such as the affected operating units (driftsenhet), affected collective
agreements, how the period of employment is calculated, if redeployment is possible
according to § 7 LAS (tillräckliga kvalifikationer) and if there is an agreed selection between
the employer and the trade union (avtalsturlista). There is also a possibility for employers
with less than 10 employees to except up to 2 workers that are of “special importance” to
the organisation.91 This is one out of three ways to exclude certain workers from dismissals.
Other employees that could be possible to exempt from priority lists are union
representatives that are vital for continued union related duties within the organization and
workers with reduced labour capacity.92 Employees that are fully exempt from dismissals are
those not covered by § 1 LAS and employees that are older than 67 years old, according to §
33 LAS.
An operating unit is most commonly to be seen as a geographical and local unit but this is
only the basic assumption and cannot always be applied. Operating units is a term that can
be difficult to define since an organisation can have several different offices within the same
geographical area and/or several types of workers/collective agreements that covers the
kind of labour that is performed.93 The bigger the operating unit is considered, the greater
regard must be given to the principle of seniority, simply put “last hired, first fired.” 94 This
paragraph is possible to overrule through collective agreements making agreed selections
possible between employers and the collective agreement-baring trade union.95
4.3.2.
90 Wästfelt et al. Anställningsskyddslagen - med kommentar, 2014, p. 139.91 Wästfelt et al. Anställningsskyddslagen - med kommentar, 2014, p. 209.92 § 8, Lag (1974:358) om facklig förtroendemans ställning på arbetsplatsen; LAS (SFS 1982:80), § 23.93 Calleman, Catharina. Turordning vid uppsägning, Skrifter från Rättsvetenskapliga institutionen vid Umeå universitet No 2/1999, 1999, pp. 95-101.94 Prop. 1973:129, pp. 44-46; Calleman, Catharina. Turordning vid uppsägning, p. 94.95 LAS (SFS 1982:80) § 2, pt. 3.
27
4.3.3. Precedency rules according to LAS §§ 25-27
An employee that has been dismissed due to redundancy could in some cases be entitled to
a reinstatement according to §§ 25-27 LAS. The right to precedency is described in § 25 LAS
and states that a former employee has accumulated a minimum working time within the
company, that a maximum period of nine months has passed since the expiration of the
contract, that the announced position is within the scope of the former employment and
that the employee has the sufficient qualifications for the new position.
Current part-time workers that has informed their employer that they want a full-time
contract are also covered by the precedency rule in § 25a LAS. The preparatory work to this
paragraph also states that in situations where new full-time contracts are being offered,
current part-time employees has priority over employees that are dismissed but still entitled
to precedency.96 The right to reinstatement should be acknowledged in the written
termination of a contract97 or the notice given that a fixed-term contract will not be renewed
or extended.98 The notice should be in writing and contain information regarding the
entitlement to precedency and if the employee needs to inform the employer regarding
their interest of reinstatement or a contract containing more working hours according to §
27 LAS. If the employer disregards the right to precedency and wishes to hire someone even
though former employees are entitled to precedency, negotiations following MBL §§ 11-14
and LAS § 32 should be held.99
4.4. Union related activities
4.5. Sick leave
In the mid-fifties, Sweden introduced a compulsory sickness insurance that today is a part of
the national health insurance system.100 Sick leave for workers has changed over the years
but is today regulated by the Social Code (SFS 2010:110). During the first day of sick leave,
no salary is paid to the employee (karensdag). Between days 2-14, salary at a sick pay level
96 Prop. 1996/97:16, p. 51.97 LAS § 8, pt. 2.98 LAS § 16, pt. 2.99 LAS § 32.100 Adlercreutz et al. Sweden, Wolters Kluwer Law & Business, 2015, p. 108.
28
(80%101) is to be paid by the employer. Adlercreutz et al. mentions that one reason behind
this would be to give employers an incentive when creating a good work place environment.
If the employee still remains unable to work after 14 days, sickness benefits will be paid by
the Swedish Social Insurance Agency (Försäkringskassan).102
The employer has an obligation to help plan and participate in the rehabilitation of the
employee to a reasonable extent.103 Sick leave (or sickness) cannot be grounds for dismissal
unless it is clearly proven that the employee cannot perform tasks that are of any relevance
for the employer.104
4.6. Parental leave and pay
4.7. In Sweden there are two separate laws that control the right for parental
leave and parental pay during parental leave. The first one is the Parental
Leave Act (Föräldraledighetslagen) and it regulates the right of leave in
connection with pregnancy and childbirth and controls the relationship
between the employer and the employee. The second piece of legislation
is found in section B, chapters 9-13 in the Social Code
(Socialförsäkringsbalken) and it regulates the relationship between the
public and the individual regarding parental- and pregnancy pay.
According to the Parental Leave Act, the mother-to-be is entitled to 7
weeks of maternity leave both before and after giving birth. Two of these
weeks are mandatory in connection with the birth of the child. The
employee also has the right to continue her leave for as long as she is
nursing the child.105 Parental leave is granted until the child is 18 months
old, after this the parents have a possibility to use their paid parental
leave days according to the Social Code’s 12th chapter.
101 Socialförsäkringsbalken (SFS 2010:110), chapter 28 § 7, pt. 1.102 Socialförsäkringsbalken (SFS 2010:110), chapter 23 § 5; Adlercreutz et al. Sweden, Wolters Kluwer Law & Business, 2015, pp. 108-109.103 Arbetsmiljölag (SFS 1977:1160), chapter 3 § 2, pt 3; Socialförsäkringsbalken (SFS 2010:110), chapter 30 § 6.104 See for example: AD 1999:124, AD 2012:51, AD 2013:78 & AD 2014:26.105 Föräldraledighetslag (SFS 1995:584), § 4.
29
4.8. To be able to comply to the “force majeure” requirements in the Parental
Leave Directive 96/34/EC the legislation SFS 1998:209 is also applicable as
it regulates the right for leave regarding urgent family matters, this giving
the employee right of leave without having to give notice if urgent family
matters were to take place.106
4.9. Swedish parents are entitled to 480 days of paid leave for each child these
days can be used until the child is 12 years old. If a pregnant woman has a
physically demanding work she can apply for pregnancy pay
(graviditetspenning) if her employer cannot find more suitable tasks for
her to do. This is paid as an ordinary sick leave, meaning 80% of full pay
and can be started 60 days prior to the expected delivery date. In
connection with the birth of a child the other parent is entitled to 10 days
of leave, these days can be used during the first 60 days after returning
home from delivery.107
4.10. Parental pay benefits in Sweden are depending on what level of
compensation the parent is entitled to. The highest compensation is paid
to those who have been insured according to the “sickness level pay”
(Sjukpenninggrundande inkomst, SGI) for 240 days prior to the expected
date of birth, usually by working.108 The benefits at this level are income-
based and amount to about 80 % of the normal salary, but with a
maximum of 10 times the so called, Prisbasbelopp which for 2015
amounts to 445 000.109 This would amount to a maximum parental pay of
6622 SEK per week ((445 000*0.97)*0.8/365 = 946*7) during the first 390
days. For those who do not meet the 240 day-requirement, a pre-set
amount of 225 SEK per day will be paid out during the first 180 days, after
this you are entitled to 210 days of leave with full income-based benefits
as mentioned above. Following these 390 days are 90 days on minimum
level, which is 180 SEK per day. The authority responsible for
106 Lag om rätt till ledighet av trängande familjeskäl, 1998:209; http://arbetsratt.juridicum.su.se/euarb/98-1/03main.asp.107 Socialförsäkringsbalken (SFS 2010:110), chapter 13 § 14.108 Socialförsäkringsbalken (SFS 2010:110), chapter 12 § 35.109 Socialförsäkringsbalken (SFS 2010:110), chapter 12 § 26.
30
administering the benefits is Försäkringskassan.110 It is also not
uncommon for collective agreements to offer a “top-up” regarding
parental pay for their members, which could, for example mean that the
employer is bound to pay an additional 10 % of the income or one larger
lump sum in connection with delivery.
4.11. Unemployment
The unemployment insurance system can be divided into two parts, one insurance that
covers the loss of income (inkomstbortfallsförsäkring) and one insurance that covers those
who were without income or did not qualify for the loss of income insurance
(grundförsäkring).111The insurance was revised in the fall of 2015 and raised for the first time
in 13 years. Today, those who qualify for the loss of income insurance can receive up to 80%
of their old salary up to a maximum of 910 SEK per day during the first 100 days of
unemployment. Those who do not qualify can receive up to 365 SEK per day.112
The rate of unemployment in Sweden is fairly low, comparing to other member states within
the EU.113 One major concern however, is the unemployment rate for those under 25.
Sweden has a higher unemployment rate for those under 25 than the EU, varying from 19,2 -
25 % between the years 2007-2014.114 In 2014 the youth unemployment was 22,9 % which
was slightly higher than the EU average at 22,2 %.
110 Socialförsäkringsbalken (SFS 2010:110) , chapter 27 § 25.111 Lag (1997:238) om arbetslöshetsförsäkring, § 4.112 http://www.regeringen.se/artiklar/2015/09/i-dag-hojs-taket-i-a-kassan/.113 Blanpain, Roger. European Labour Law, Wolters Kluwer Law & Business, 2013, p. 312.; Adlercreutz et al. Sweden, Wolters Kluwer Law & Business, 2015, p. 22.114 http://ec.europa.eu/eurostat/web/lfs/data/database. Statistics under the title: “Unemployment rate by sex and age - annual average, %, less than 25”.
31
Unemployment in Sweden according to EUROSTAT:115
UNEMPLOYED (%) 2007 2008 2009 2010 2011 2012 2013 2014
WOMEN 6,5 6,6 8,0 8,5 7,7 7,7 7,9 7,7
MEN 5,9 5,9 8,6 8,7 7,8 8,2 8,2 8,2
AGED UNDER 25 19,2 20,2 25,0 24,8 22,8 23,7 23,6 22,9
TOTAL 6,1 6,2 8,3 8,6 7,8 8,0 8,0 7,9
5.6. Analysis
5.1. Denmark
Denmark has implemented several concepts of flexibility, such as numerical, temporal and
functional flexibility (see chapter 1.1). Kæraa Rasmussen mentions that one of the bigger
differences regarding numerical flexibility are made more apparent in the building and
construction section where the dismissal rate is higher and the notice periods shorter. This
makes the seasonal changes in the construction sectors between Denmark and Sweden
larger due to the assumption that Danish contractors are not as afraid to hire new staff and
take on new construction projects since it is much easier to adjust staffing according to the
demands of the market.116 One could also make the argument that financial flexibility is
possible in Denmark since there is no regulated minimum wage. This is however, as
mentioned in chapter 3.3, fairly unlikely since most Danish workers are covered by collective
agreements that might not be legislation in itself but fills that kind of function regarding
minimum wage.
Wilthagen & Tros states that the high amount of primarily numerical flexibility could be one
of the greater reasons for the low level of unemployment in Denmark. This is further aided
115 http://ec.europa.eu/eurostat/web/lfs/data/database. Statistics under the title: “Unemployment rate by sex and age - annual average, %”.116 Kæra Rassmussen, Jan in Olshov, Anders (ed.) et al. Svenska strukturproblem kontra dansk dynamik. Øresundsinstituttet, Malmö 2006, p 23.
32
by the high amount of security that is offered through generous unemployment benefits.117
On the other hand it seems important to mention that Denmark, however known for their
low unemployment and implementation of flexicurity strategies there is not much
mentioned about the massive spending on ALMP in comparison to the nations GDP. Schmid
mentions that this becomes problematic since it puts the effect and “income” that is created
by low levels of unemployment in a way that does not present the full picture.118 In my
opinion, it is hard not to ask the question on what the indirect cost of the low
unemployment is?
One vital change has been the movement from passive to active labour market policies. This
is also regulated by law in comparison to many other areas. This transition to active labour
market strategies is important in order to comply with the flexicurity model and the idea of
transitioning workers from one employment to another or to help those without sufficient
qualifications to receive the training needed in order to achieve employment.
Just like in Sweden, dismissals can be divided into two parts, due to redundancy or for
personal reasons. Regulations regarding dismissals covers the right to notice in general and
there also exists a legal custom that dismissals should not be unfair which is stated in the
main agreement. The scope of unfair is not as strict as just cause due to personal reasons,
which is the Swedish equivalence. Hasselbalch mentions that several cases from the Danish
Employment Tribunal has deemed the question of unfair or not as what would be
considered as legal custom or good practice in the labour market, taking matters of seniority
for example, into the question.119
5.2. Sweden
The perception of Swedish EPL is that Swedish workers have one of the strongest forms of
employment protection in the world. This is a common perception both for those in Sweden
and from abroad. Is this true? Numhauser-Henning & Rönnmar mentions that much of the
Employment Protection Act (SFS 1982:80) is possible to overrule through collective 117 Wilthagen, Ton & Tros, Frank - The concept of ‘flexicurity’: a new approach to regulating employment and labour markets. Transfer, Vol 10, nr. 2/2004, p. 178.118 Schmid, Günther in Jørgensen, Henning & Madsen, Per Kongshøj (ed.) – Flexicurity and beyond – Finding a new agenda for the European Social Model. DJØF Publishing, København 2007, p 42.119 Hasselbalch, Ole. Labour Law in Denmark. DJØF Publishing, Croydon 2012, p. 171.
33
agreements even if this would result in worsened conditions for the employee. 120 The need
for just cause for dismissals in § 7 LAS is compulsory and can be sorted into two categories,
dismissals due to redundancy and dismissals due to circumstances that relates to the
employee in person. Dismissals due to personal circumstances remain fairly strict and has
developed through case law from AD and legal custom through the years but the definition
of redundancy is still a far-reaching term for the employer to decide whether it exists or
not.121 As previously mentioned, this is a financial decision that usually cannot be subjugated
in a court of law.122
One effect of this legal custom is that there is a certain risk for fictitious redundancies
(fingerad arbetsbrist). Employees might be dismissed due to redundancy that is created by
the employer in order to dismiss an employee without having to prove just cause that comes
from circumstances that can be contributed to the employee in person.123 There are also
cases where dismissals due to both redundancy and personal circumstances occur whereas
the matter of redundancy is given a higher legal significance. One example of this is AD
2000:31 where a site manager was dismissed after her tasks where taken over by the CEO of
the company due to worsening financial results. The company stated that the poor financial
results forced them to down-size but also that the poor results were caused by the former
site managers incompetence. AD stated that there is just cause for down-sizing due to poor
financial results regardless if the site managers incompetence is the reason for this or not.124
The demand for just cause could mean that numerous flexibility (see chapter 2.1) would be
more difficult to achieve and in my opinion this could create a need for a higher form of
“ingenuity” when hiring. This can come from e.g. hiring consultants that are employed by
external employment agencies or by hiring staff on fixed-term contracts. According to the
Swedish employers’ association for employment agencies, around 167 000 where occupied
through employment agencies in 2014, 65 500 of those were permanently hired.125 This
corresponds to 1,4 % of the labour force. The equivalent numbers for employment agencies 120 Numhauser-Henning, Ann & Rönnmar, Mia. Det flexibla svenska anställningsskyddet. Juridisk Tidskrift 2010-11, nr. 2, pp. 383-384.121 Numhauser-Henning et al. Det flexibla svenska anställningsskyddet. Juridisk Tidskrift 2010-11, nr. 2, p. 384.122 See chapter 4.3.1.123 DS 2002:56, p. 164.124 For other examples, see AD 2003:29 & 2012:11.125 https://www.bemanningsforetagen.se/branschfragor/om-branschen_1/fakta (2015-12-07)
34
(vikarbureau) in Denmark corresponds to just over 17 000 full-time positions, making up 0,81
% of the labour force.126
The fixed-term contract that was added to § 5 LAS in 2007 has made it possible to hire staff
for up to two years without offering a permanent contract and this has been under great
discussion. One of the major reasons stated behind this change in legislation was to make it
easier to hire workers when a contemporary need appeared without having to go through
constant redundancy negotiations.127 The biggest impact of the new § 5 in LAS was that
fixed-term contracts no longer needed justification, such as the tasks being on a temporary
or seasonal basis, as it did earlier.128
The public unemployment agency (arbetsförmedlingen) is responsible for matching
unemployed workers with prospective employers. The agency is also responsible for
prioritizing those who have been outside the labour market during longer periods. This can
be because of reasons, e.g. disabilities, injuries or for those under 25 that are having
problems with finding employment etc.129 In order to receive unemployment benefits,
registering with the unemployment agency is mandatory. For those who qualify for the
income based benefits of the insurance through membership and a qualifying period, an
amount of up to 80 % of 25 000 SEK is possible during the first 100 days of unemployment.130
In September 2015, the unemployment insurance funds had over 3 500 000 members.131 The
benefits were revised in the fall of 2015 for the first time in 13 years and was raised
substantially in comparison to what it had been previously, from a maximum of 680 SEK per
day to 910 SEK per day. This is a generous system that goes well with the security segment of
flexicurity.
There is no true equivalence to the Danish ALMP system but there are some similarities like
traineeships, labour market programs, support and guidance towards finding a job etc.132
One great difference that leads me to the conclusion that the two countries do not share the 126 http://vikarbureauernes-brancheforening.dk/wp-content/uploads/2015/09/2015-Q1.pdf.127 Prop. 2006/07:11, p. 28.128 Lunning, Lars & Toijer, Gudmund. Anställningsskydd – en lagkommentar, Norstedts Juridik 2010, p. 264.129 Förordning (2007:1030) med instruktion för Arbetsförmedlingen, § 2.130 http://www.regeringen.se/artiklar/2015/09/i-dag-hojs-taket-i-a-kassan/.131 http://www.iaf.se/Statistik/Statistikdatabasen/Arbetsloshetskassornas-medlemsantal1/ search: ”totalt”.132 http://www.arbetsformedlingen.se/For-arbetssokande/Stod-och-service/Fa-extra-stod.html.
35
same view on ALMP as an instrument is the spending on these policies. Sweden spent
between 1,67-2,03 % of its GDP in the years 2007-2013 which is only near half the Danish
spending.133
6. Conclusionmaybe subtitles?
133 http://stats.oecd.org/viewhtml.aspx?datasetcode=LMPEXP&lang=en#.
36
Sweden has made some steps in enabling the flexicurity strategy through legislation, i.a
through more flexible forms of employment and raising the unemployment benefits. I view
the generalized fixed-term contracts in § 5 LAS as one way of describing how Sweden has
implemented the “flexibility”-segment of the flexicurity model without compromising with
the need for just cause in LAS. Instead of lowering employment protection for those already
employed, there has been more focus on trying to increase different ways to access the
labour market by making temporary contracts wider in their definition. This means lowering
the job security for those who were previously without employment. The result of this is has
been under heavy debate and in my opinion it seems as a compromise that has gone too far.
Employment security in Sweden can be viewed as unevenly distributed and the result of this
is that many of those who recently joined the labour force or changed employments may
have to sacrifice “their” employment protection for those who have employed for a longer
period of time. I believe that a major change in LAS is justified and maybe it is time to revise
the need for (primarily) just cause for dismissals due to personal reasons and the priority
rules in order to increase the flexibility on the labour market instead of implementing, what I
view as political compromises, such as fixed-term contracts.
Dismissals in Denmark is a matter that is supposed to be regulated upon between the
employer and the employee. There is no legislative need for just cause and the notice
periods either follows a collective agreement or individual contract. For those covered by
collective agreement there is a prohibition for unfair dismissals. In general this requires
employers to follow legal customs during times of dismissal but does not give employees the
same protection as in Sweden. The negative part of this system is that there is a larger risk of
exposing those who are already in a weaker position in the labour market even more. Those
with employments that lack collective agreements or those who does not have the basic
knowledge of contractual law, most often workers in positions that does not require a high
level of qualification. But by trying to activate the unemployed who are not able to make the
transition between different positions themselves, through education, traineeships or the
use of apprentices seems like an idea that works in Denmark, at least if unemployment
statistics are of primary interest. Through legal custom, fixed-term contracts are normally
only subjugated to a renewal at one time if no objective reason can be given, making it more
difficult to “stack” these employments on top of one another like the Swedish equivalence.
37
Both countries share a foundation of high taxation and a self-regulating labour market. They
also have a history in high coverage of collective agreements and a high union member ship
level. Starting wages are high in both countries for most workers and unemployment
benefits as well. What makes the flexicurity model to, different extents, enforceable in
Scandinavia is in my opinion largely based on this common piece of history. The biggest
struggle while writing this thesis has been to keep it on a “legal” track. Flexicurity on its own
is not a legal concept and much of the Danish literature that has been used is written by
scholars in the field of political science or economics, this has made the legal aspect of
flexicurity harder to both find and clarify.
38
7. Bibliography
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Lovbekendtgørelse 1996-08-26 nr. 781 om aftaler og andre retshandler på formuerettens
område
Lovbekendtgørelse 2006-05-08 nr. 417 om barselsudligning på det private
arbejdsmarkedLovbekendtgørelse 2008-09-11 nr. 907 om tidsbegrænset ansættelse
Lovbekendtgørelse 2008-12-16 nr. 1349 om forbud mod forskelsbehandling på
arbejdsmarkedet
Lovbekendtgørelse 2009-02-03 nr. 81 om retsforholdet mellem arbejdsgivere og
funktionærer (Funktionærloven)
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lønmodtageren om vilkårene for ansættelsesforholdet
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til beskæftigelse
Lovbekendtgørelse 2012-11-26 nr. 1109 om ret til barseldagpenge.
Lovbekendtgørelse 2015-02-20 nr. 167 om dag-, fritids- og klubtilbud m.v. til børn og unge.
(Dagtilbudsloven)
Lovbekendtgørelse 2015-04-29 nr. 571 om ret til orlov og dagpenge ved barsel
(Barselsloven)Lovbekendtgørelse 2015-07-07 nr. 832 om arbejdsløshedsforsikring
Lovbekendtgørelse 2015-08-12 nr. 938 om sygedagpenge
Vejledning 01/07/2006 nr. 9469 Vejledning om ret til orlov og dagpenge ved barsel.
Vejledning 27/01/2015 nr. 9043 Vejledning om satser m.v. 2015.
Vejledning 2015-02-27 nr. 9109 Vejledning om dagtilbud m.v.
Swedish legislation:
39
Proposition 1973:129 - Förslag till lag om anställningsskydd m.m. given Stockholms slott den
25 maj 1973
Proposition 1981/82:71 - om ny anställningsskyddslag m.m
Proposition 1996/97:16 - En arbetsrätt för ökad tillväxt
Proposition 2006/07:111- Bättre möjligheter till tidsbegränsad anställning, m.m.
Förordning (2007:1030) med instruktion för Arbetsförmedlingen
SFS 1938:216, Förordning om livräntetillägg av statsmedel åt vissa livräntetagare enligt lagen
den 5 juli 1901 angående ersättning för skada till följd av olycksfall i arbete
SFS 1938:287, Semesterlag
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SFS 1974:12, Lag om anställningsskydd (original version)
SFS 1974:358, om facklig förtroendemans ställning på arbetsplatsen
SFS 1976:580, Lag om medbestämmande i arbetslivet
SFS 1977:1160, Arbetsmiljölag
SFS 1982:80, Lag om anställningsskydd
SFS (1997:238), Lag om arbetslöshetsförsäkring
SFS 1995:584, Föräldraledighetslag
SFS 1998:209, Lag om rätt till ledighet av trängande familjeskäl
SFS 2008:307, Lag om kommunalt vårdnadsbidrag
SFS 2008:313, Lag om jämställdhetsbonus
SFS 2010:110, Socialförsäkringsbalken
SFS 2010:800, Skollagen
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European Commission, A new start for the Lisbon strategy, Luxembourg 2005
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through flexibility and security. Luxembourg 2007
European Commission. EUROPE 2020 - A strategy for smart, sustainable and inclusive
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European Union, Key Facts and Figures – about Europe and the Europeans. 2007
OECD Employment Outlook 2004, OECD 2004
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OECD. OECD Employment Outlook 2004. OECD 2004
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Wilthagen, Ton & Tros, Frank - The concept of ‘flexicurity’: a new approach to regulating
employment and labour markets. Transfer, Vol 10, nr. 2/2004
Certain legal terms has been translated with help from: Martinger, Sven. Juridik ordbok –
svensk-engelsk fackordbok. Norstedts Juridik, Stockholm 2004
Electronic sources:
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http://www.arbetsformedlingen.se/For-arbetssokande/Stod-och-service/Fa-extra-stod.html
https://www.borger.dk/Sider/Barsel-loenmodtagere.aspx?
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oe-konomen-nr-2-2011/~/media/Documents/Djoef/F/Funktionarloven.ashx
http://www.europarl.europa.eu/summits/lis1_en.htm
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http://www.oecd.org/employment/leed/40575308.pdf
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Case law:
AD 1999:124
AD 2000:12
AD 2006:90
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AD 2012:51
AD 2013:78
AD 2014:26
European Union Directives:
COUNCIL DIRECTIVE 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-
term work concluded by ETUC, UNICE and CEEP.
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