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.

15

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.

16

(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.

17

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.

18

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.

20

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, %”.

21

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.

22

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.

25

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

Danish legislation:

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)

Lovbekendtgørelse 2010-03-17 nr. 240 om arbejdsgiverens pligt til at underrette

lønmodtageren om vilkårene for ansættelsesforholdet

Lovbekendtgørelse 2011-06-08 nr. 645 om ligebehandling af mænd og kvinder med hensyn

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

SFS 1962:381, Lag om allmän försäkring

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

Institutional Documents:

European Commission, A new start for the Lisbon strategy, Luxembourg 2005

40

European Commission. Towards common principles of Flexicurity - More and better jobs

through flexibility and security. Luxembourg 2007

European Commission. EUROPE 2020 - A strategy for smart, sustainable and inclusive

growth, Brussels 2010

European Commission. COM (2010) 692: An Agenda for new skills and jobs: A European

contribution towards full employment. Strasbourg 2010, pp. 3-4.

European Commission. COM (2014) 130: Taking stock of the Europe 2020 strategy for smart,

sustainable and inclusive growth. Brussels 2014, pp 12-14.

European Commission, Mutual Learning Programme. DG Employment, Social Affairs, Skills

and Labour Mobility. Key policy messages from the Peer Review on ‘Flexicurity’. Brussels

2014.

European Union, Key Facts and Figures – about Europe and the Europeans. 2007

OECD Employment Outlook 2004, OECD 2004

41

OECD. OECD Employment Outlook 2004. OECD 2004

Litterature:

Adlercreutz, Axel & Nyström Birgitta. Sweden. Wolters Kluwer Law & Business, 2015

(Monograph updated as of June 2014)

Atkinson John. Manpower strategies for flexible organizations. Personnel Management,

August 1984. Institute of Manpower Studies, University of Sussex, Brighton

Atkinson, John & Meager, Nigel. Changing working patterns: How companies achieve

flexibility to meet new needs. National Economic Development Office, London 1986

Blanpain, Roger. European Labour Law, Wolters Kluwer Law & Business Online, 2013.

(Released in print 2014)

Bredgaard, Thomas, Larsen, Flemming & Madsen, Per Kongshøj. Det fleksible danske

arbejdsmarked: en forskningsoversigt, Beskæftigelsesministeriet, København 2005

Bogdan, Michael. Komparativ rättskunskap, upplaga 2:1 Norstedts Juridik, Sverige 2003

Calleman, Catharina. Turordning vid uppsägning, Skrifter från Rättsvetenskapliga

institutionen vid Umeå universitet No 2/1999, Umeå Universitet 1999

Dansk Arbejdsgiverforening, Arbejdsmarkedsrapport 2014. København 2014

Dansk Arbejdsgiverforening, Flexicurity i Danmark - En indføring i den danske

arbejdsmarkedsmodel, DA Forlag, København 2007

Enegren, Bo. Danmark – Föregångsland inför nya utmaningar, Medlingsinstitutet Sverige

2012

Jørgensen, Henning & Madsen, Per Kongshøj (editors). Flexicurity and beyond: Finding a new

agenda for the European Social Model. DJØF Publishing, København 2007

Hasselbalch, Ole. Denmark, Wolters Kluwer Law & Business, 2013 (Rewritten by Monica

Smith and Sylvia van Oosten-Rosman)

Hasselbalch, Ole. Labour Law in Denmark. (3rd edition) DJØF Publishing, Croydon 2012

42

Keune, Maarten & Serrano, Amparo (editor). Deconstructing flexicurity and developing

alternative approaches – Towards new concepts and approaches for employment and social

policy. Routledge, Taylor & Francis. Sabon 2014

Kristiansen, Jens. Den kollektive arbejdsret, Jurist- og Økonomiforbundets Forlag. København

2014

Lando, Ole. Kort indføring i komparativ ret, Jurist- og Økonomiforbundets Forlag. København

2009

Lunning, Lars & Toijer, Gudmund. Anställningsskydd – en lagkommentar, Norstedts Juridik

Stockholm 2010

Nielsen, Ruth. Dansk aArbejdsret. Jurist- og Økonomiforbundets Forlag. København 2012

Numhauser-Henning, Ann & Rönnmar, Mia. Det flexibla svenska anställningsskyddet. Juridisk

Tidskrift 2010-11, nr. 2

Nyström, Birgitta. EU och arbetsrätten, edition 4:1 Norstedts Juridik, Sverige 2011

Olshov, Anders (editor) & Kæraa Rasmussen, Jan, Andersen, Torben M, Svarer, Michael,

Rasmussen Nyrup, Poul, Rothstein, Bo and Boräng, Frida. Svenska strukturproblem kontra

dansk dynamik. Øresundsinstituttet, Malmö 2006

Paulsen, Jens, Ramskov, Bent & Nielsen, Ole Søren. Personalejura, praktisk arbejdsret. 3rd

edition, Academica. Aarhus 2011

Teknologisk Institut, Succes med flexicurity, Beskæftigelsesministeriet, København 2009

Wästfelt, Martin, Bäckström, Magnus, Wulkan, Malin & Åström Lars,

Anställningsskyddslagen – med kommentar. Studentlitteratur, Lund 2014

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:

43

http://www.arbetsformedlingen.se/For-arbetssokande/Stod-och-service/Fa-extra-stod.html

https://www.borger.dk/Sider/Barsel-loenmodtagere.aspx?

NavigationTaxonomyId=919902ec-dfae-4147-b445-353f015b7675

https://www.bemanningsforetagen.se/branschfragor/om-branschen_1/fakta

https://www.borger.dk/Sider/Arbejdsloeshedsdagpenge.aspx?

NavigationTaxonomyId=b17f682b-7b0c-498f-b675-777562d742b6

European Commission, A new start for the Lisbon strategy, 2005.

https://www.djoef.dk/Blade/Samfundsoekonomen/Samfunds-oe-konomen-2011/Samfunds-

oe-konomen-nr-2-2011/~/media/Documents/Djoef/F/Funktionarloven.ashx

http://www.europarl.europa.eu/summits/lis1_en.htm

http://www.iaf.se/Statistik/Statistikdatabasen/Arbetsloshetskassornas-medlemsantal1/

http://www.jura.karnovgroup.dk

http://www.karnovgroup.se

https://www.borger.dk/Sider/Barsel-loenmodtagere.aspx?

NavigationTaxonomyId=919902ec-dfae-4147-b445-353f015b7675

http://www.oecd.org/employment/leed/40575308.pdf

http://www.regeringen.se/artiklar/2015/09/i-dag-hojs-taket-i-a-kassan/

http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2015497%202007%20INIT

http://stats.oecd.org/viewhtml.aspx?datasetcode=LMPEXP&lang=en#

http://vikarbureauernes-brancheforening.dk/wp-content/uploads/2015/09/2015-Q1.pdf

Case law:

AD 1999:124

AD 2000:12

AD 2006:90

44

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.

45