Obligation to negotiate
The idea of the collective bargaining system is that the parties’ negotiations should be part of the employer’s decision-making process.
Primary obligation to negotiate
The primary obligation to negotiate means that an employer with a collective agreement must negotiate on its own initiative with the union or unions that have a collective agreement in the workplace before taking certain types of decisions.
The employer has a primary obligation to negotiate before making a decision on:
- Significant change in operations.
- Significant change in the working or employment conditions of employees belonging to a trade union.
What constitutes ‘major change’ may vary between different employers.
Generally speaking, the employer is obliged to negotiate on issues where unions would typically be expected to want the opportunity to negotiate.
Examples of significant change:
- Closure of all or parts of the business.
- Changes to production processes.
- Transfer of all or parts of the business.
- Outsourcing of parts of the business.
- Hiring of contractors.
- Organisational restructuring.
- Managerial appointments.
- Major investment decisions.
- Modification of benefits offered unilaterally by the employer, such as subsidised lunch.
Employers who do not have a collective agreement have a primary obligation to negotiate on certain issues with the workers’ organisations that have employees at the workplace.
This applies to:
- Termination of employment due to shortage of work or redundancy.
- Transfer of activities covered by LAS §6 b (Swedish).
According to the LAS, the employer must also inform employees who are to be dismissed or to have their employment terminated for personal reasons before the termination or dismissal takes place. The employer must also notify any trade union of which the employee is a member.
If a change concerns an employment relationship that affects only employees who belong to a trade union with which the employer does not have a collective agreement, the employer has an obligation to negotiate with that employee’s trade union.
However, if the change also involves employees who are members of a trade union that has a collective agreement at the workplace, the employer only has an obligation to negotiate with that trade union.
Exemption from the primary obligation to negotiate
Under an exemption from the primary obligation to negotiate, the employer may in certain cases be able to take and implement decisions on major changes before negotiation, i.e. postpone negotiation with the trade unions. This presupposes that there are exceptional reasons for a rapid decision. The exemption does not release the employer from the obligation to negotiate; the negotiation is merely postponed and must be carried out as soon as possible.
What constitutes a situation involving ‘exceptional circumstances’ is determined on a case-by-case basis. Examples of such cases would be emergency situations involving risks in the workplace or cases where the employer would suffer significant financial damage if the decision were postponed. Lack of time or poor planning on the part of the employer are not considered to constitute exceptional circumstances.
Secondary obligation to negotiate
When a trade union has a collective agreement at a workplace, that union can request negotiations on issues concerning one of its members at the workplace. The negotiations may be requested before or after the employer’s decision on the matter as long as the decision has not yet been implemented.
In these cases, the employer is said to have a secondary obligation to negotiate.
The employer must wait until the end of the negotiations before making or implementing the decision. However, in exceptional circumstances, the employer has the option of both taking and implementing a decision immediately.
General right to negotiate
According to the MBL, the employer and the trade unions have a mutual basic right to negotiate. This means that both parties have the right to request negotiations with the other party in matters concerning the relationship between the employer and members of the union who are or have been employees of the employer.
Both the employer and the trade unions therefore always have an opportunity to request negotiations, and the other party then has an obligation to negotiate.