sou · H8B330 · 2020-06-02 00:00:00 — protection need to be modernised but that the general balance between the social partners has to be maintained. Our terms of reference point particularly to greater needs of flexibility for employers concerning which employees are able to remain in their organisation when there is a shortage of work. They also point to workers’ needs to continually enhance their skills so as to thereby strengthen their protection when changes are made in their employer’s organisation and when structural change is under way in society. All parts of our remit include compiling and presenting relevant research in economics and labour law. In drafting our proposals the Inquiry is to take account of what needs are like in the labour market of today, focusing particularly on the situation of small businesses. One consistent theme running through our terms of reference is that the proposals presented should contribute to making it easier – especially for people with a weak position in the labour market, such as young people and new arrivals – to become established in the labour market. Changes in the rules on the order of selection for redundancy In the event of redundancy (i.e. termination with notice on the grounds of shortage of work) order of selection rules come into operation. Put simply, these rules mean that employees with a longer period of employment (i.e. more seniority) are given priority ahead of employees with a shorter period of employment. This basic rule is retained. The current position is that in the event of redundancy, an em- ployer with at most ten employees may exempt at most two employees judged to be of particular importance for their future operations from the order of selection. The Inquiry proposes that this possibility of making exemptions be expanded to five employees and that all employers, irrespective of size, be given the possibility of making exemptions from the order of selection. If an employer has previously exempted employees from redundancies, no further exemptions should be permitted in the event of redundancies that take place within the succeeding three months. The Inquiry also proposes some changes to the current order of selection rules. The possibility for an employee organisation to request the combination of several operational units in the same collective agreement sector should be removed. This means that the employees belonging to a particular operational unit where there is a shortage of work will always be placed in their own order of selection. In practice this means that order of selection groups may be smaller in some cases. As at present, seniority will be decisive for their placing in the order of selection. If two or more employees have the same period of employment, the Inquiry proposes allowing the employer to decide who is to be given priority in relation to someone else. The position at present is that, in these cases, the employees are placed in the order of selection on the basis of their age. A corresponding amendment is proposed to, for example, the rules on a priority right of re- employment in the Employment Protection Act. The Inquiry also proposes an amendment regarding the quali- fication requirement for an employee to be able to retain their employment through a transfer pursuant to the order of selection rules. At present the employee has to have sufficient qualifications for the work in order to have the right to be transferred to work that some other employee with a less seniority is already performing. Under current case law an employer may have to accept that an employee needs a certain period of on-the-job training and some training courses after such a transfer. The Inquiry’s proposal is that to have the right to a transfer pursuant to the order of selection rules the employee should, at the time of the transfer, have qualifications for their future work without on-the-job training or training courses. Employer’s responsibility for employees’ skills development The Inquiry proposes adding an obligation to the Employment Protection Act that requires employers to offer their employees reasonable skills development as part of their employment. The proposal is that this obligation should apply to employees who have an aggregate period of employment of at least six months with the employer, irrespective of whether they have an open-ended employ- ment contract or a temporary employment contract. The Inquiry proposes that this obligation should apply both in the public sector and in the private part of the labour market. It should apply to all employers, irrespective of industry, and to all types of work, and it should cover all forms of employment under the Employment Protection Act. In principle, skills development means all types of measures intended to raise the employee’s skills in a way that can be relevant for working life. In specific cases, the employer’s responsibility is instead limited by the requirements that the measures have to be provided as part of their employment and that it is reasonable to expect the employer to provide them. The requirement that the measures have to be provided as part of their employment means that they have to be relevant to the organisation. So, the aim is not to enable the employee to perform some other job in the labour market. It is, however, reasonable to assume that employer-provided skills development can enhance the employee’s of being employable in other parts of the labour market as well. What it is reasonable to expect of the employer will have to be assessed in each specific case in the light of all the relevant circum- stances. The proposed provision points to some circumstances that should be given particular attention in this assessment. The assess- ment of reasonableness should take account of whether the skills development is needed in view of the development of the employee’s work duties or the employer’s organisation. This can involve the organisation and the way in which the work is performed being affected by technical or digital development or by some other consideration such as a decision to make changes in production or in the direction of activities. Another point that should be given particular consideration in the assessment of reasonableness is how the skills development and the purpose of the measure are linked to the employee’s existing training and experience. Typically, the employer’s responsibility includes ensuring that employees keep up with developments in their work in a way that is linked to their basic skills and education or training. In contrast, it is not normally reasonable to expect the employer to be responsible for measures that results in the employee acquiring a completely new basic skill. In the case of an employer with a small number of employees, the assessment of reasonableness should take particular account of whether the skills development will be a burden for the employer. There is also scope in the assessment of reasonableness to take parti- cular account of a previous failure by an employee to participate in skills development as part of their employment. So the individual has a personal responsibility regarding participation in skills development offered. The Inquiry proposes that the employer should not be responsible for offering skills development to employees who are 68 or older. Employers who have not fulfilled their responsibility should have to pay damages to the employee. The Inquiry proposes ‘standardised damages’, where an employer in breach of this responsibility should be required to pay the employee the equivalent of two monthly wages. If the employee has a period of employment of at least five years with the employer, the damages should instead correspond to three monthly wages. The design of the standardised damages means that the cost of not fulfilling this obligation is predictable for the employer. Under this proposal it should only be possible to conduct a legal examination of the employer’s responsibility when the employee has been made redundant or when a temporary employment contract has not been extended and the reason given is shortage of work. Employer’s responsibility to provide information The Inquiry proposes that the employer should be obliged, when requested by an employee, to provide written information about the skills development that the employee has received as part of the employer’s responsibility for the employee’s skills development. The request should be made no later than one month after the end of an employment and the employer should provide the information no later than one month after the employee’s request. The Inquiry also proposes some amendments to the rules in the Employment (Co-determination in the Workplace) Act about the right of employee organisations to receive information from the Supplements proposed to these rules make clear that the employer’s obligation to provide information regarding guidelines for personnel policy also covers the skills development of employees. Lower and more predictable costs for termination with notice The requirement that there have to be objective grounds for termi- nation with notice by the employer remains in place, and no changes are proposed to the concept of objective grounds itself. The Inquiry proposes that the main rule should no longer be that the employment continues during the period of the dispute in cases where an employee has made a claim to have a termination with notice declared invalid. For the employment to continue during the dispute, the employee will have to show probable cause, at an interim examination by a court, that there was no objective ground for the termination with notice. This proposal brings the regulations in the Employment Protection Act on the declaration of the invalidity of terminations with notice and summary dismissals into line with one another. If the employer has no more than fifteen employees at the time of the termination with notice or summary dismissal, it should not be possible to have it declared invalid. If a court makes the assessment that there was no objective or legal ground for the termination with notice or summary dismissal, the employer will thus only be obliged to pay damages corresponding to the employee’s financial loss, as well as for the violation resulting from the measure. In such cases the financial damages should always correspond to at least eight monthly wages. It should still be possible to declare terminations with notice issued by an employer with not more than fifteen employees invalid in cases where they take place pursuant to an act other than the Employment Protection Act. Examples are the Discrimination Act, the Trade Union Representatives (Status at the Workplace) Act and a number of acts in labour law relating to leave days. The Inquiry proposes that the highest possible amount that the employer may have to pay in damages to cover the employee’s financial loss after the end of the employment should be increased by two monthly wages. This change also affects the level of the standardised damages payable by the employer because the employment relation- ship has to be considered as dissolved despite a judgment of invalidity. Taken together, the Inquiry’s proposals in this part of its remit mean that a dispute about invalidity will not normally cost the employer anything in cases where a termination with notice has been found, in a legal examination, to have objective grounds. If there were no objective grounds for the termination with notice, it will be more costly for an employer with more than 15 employees to dissolve the employment relationship despite the invalidity. This means, in other words, that there will be a clear difference in cost for the employer between cases where a termination with notice is held to have object- tive grounds and one where it is held not to have objective grounds. The Inquiry’s proposal also means that the cost will be more predictable than it is at present. Balance between different forms of employment In this area the Inquiry has interpreted its remit as relating to the differences in employment protection depending on whether the worker has an open-ended employment contract or a temporary employment contract. The Inquiry has concluded that the other proposals in this report influence these differences in the desired direction, principally through the right of temporary employees to be offered skills development. The Inquiry has, however, found reason to present additional proposals. Here the Inquiry proposes stronger protection for employees with general fixed-term employment. Our proposal is that this category of employees should qualify for a priority right of re-employment when their employment has lasted for more than nine months in a three- year period instead of twelve months in the same period, which is the position under the current rules. The inquiry also propose that when an employee has qualified for a priority right to re-employment, they should also have a priority right to vacant open-ended employment and employment that starts with probation with the employer during the period when a general fixed-term employment is running. We propose that the priority right to open-ended employment should apply to vacant positions in the operational unit where the employee is working during their tempo- rary employment and, where relevant, in relation to work that comes under the same collective agreement sector. One requirement is that the employee has sufficient qualifications for work in the open-ended employment and that they have notified interest in having an open- ended employment. A consequential amendment is proposed regarding the right of employees with general fixed-term employment to be informed that they will not be given a new employment after their employment has ended. The proposed amendment means that employees with general fixed-term employment qualify for a right to such information after having attained an aggregate period of employment of more than nine months in a three-year period. The Inquiry proposes that most of the proposals of new and amended regulations it presents should be semi-mandatory, i.e. it should be possible to depart from the regulations in collective agreements made at a particular level. This applies to the proposals on order of selection rules, the provisions on the employer’s responsibility for skills development and the proposed priority right to open-ended employ- ment for employees with general fixed-term employment. This will make it possible for the social partners to find regulations in collective agreements adapted to the specific conditions that apply to each industry or sector, and also to find solutions adapted so that they function in the best possible way in the light of the conditions that apply at local level. Making the regulations semi-mandatory is an important step in safeguarding the Swedish model and the collective agreements. It is proposed that the Inquiry’s proposals enter into force on 1 January 2022. The Inquiry’s proposals contribute to reducing the cost for employers of adapting their organisations to economic change. The proposals provide greater possibilities for employers to retain the necessary skills when there is a shortage of work and facilitate terminations with notice when there are objective grounds. The Inquiry’s proposals are designed to be of most importance for small employers, whose organisations are more vulnerable in many ways. Historically, it is also small- and medium-sized enterprises that have contributed to the employment growth in the economy. This reduction in the costs of adapting organisations to changes in the economy means that the risk involved in hiring new employees will decrease at the same time. This change is expected to increase employers’ propensity to recruit. It is expected to have a particularly great impact for individuals with no or limited experience in the labour market, where employers may experience uncertainty when recruiting. Examples are young people and people who have been out of work for a long time or who do not have experience of the Swedish labour market. The proposals are expected to result in greater mobility in the labour market. This means that resources can be moved more easily from industries and sectors that are cutting back to organisations that are expanding. However, no clear effects are expected on the level of aggregate employment and unemployment, even though the composition of the group of unemployed may be affected to some extent. Seniority will continue to be important for job security, but will be of less importance with the Inquiry’s proposals. Employees in smaller organisations who have a long period of employment will not be protected to as great an extent by the order of selection rules. At the same time, the risk for termination with notice may decrease for those with a shorter period of employment. The proposals are of most importance for small employers, which means that a relatively large number of employers are affected. At the same time, relatively few employees are employed by small employers. The fact that seniority, which can be considered an objective criterion, will be of less importance for the job security of some employees may be perceived as an increased risk for unfair dismissals. But it remains the case that seniority plays an important role for employees’ employment protection and that employees are still protected from unfair dismissal in the Employment Protection Act through the requirement of objective grounds in the event of termination with notice by the employer and in other laws such as the Discrimination Act. It will still be costly, and in some cases even more costly, for employers to terminate employees with notice unless they have an objective ground to do so. Employees’ skills will play a more important role for job security. The Inquiry therefore proposes a statutory obligation for employers to provide employees with reasonable skills development as part of their employment. The purpose is to give employees greater possi- bilities to change tasks within a certain organisation, thus enabling them to also remain with the same employer when there are organi- sational changes. Enhanced skills may also help to make it easier to find a new job should they become unemployed. Normally, an employer’s operations benefit from skills development of employees, but there is also a direct cost for employers. Many employers already offer employees continuous skills development, and there are also agree- ments for parts of the labour market that regulate the responsibility of employers for providing skills development for employees as part of their employment. To avoid this responsibility becoming disproportionately large for small employers, clear account has to be taken of the size of the employer in an assessment of reasonableness. The fact that this responsibility also applies to fixed-term employees will lead to smaller regulatory differences between employees with fixed-term contracts and those with open-ended contracts. The Inquiry also proposes a greater priority right to open-ended employment for employees who have a fixed-term contract. This is also a way of increasing job security, by promoting transitions from fixed-term contracts to open-ended contracts, i.e. the chances for those with a fixed-term contract to establish themselves more per- manently in the labour market will increase. The proposals about skills development and a greater priority right contribute to increasing job security, but involve increased costs for employers at the same time. Increased costs can result in both fewer terminations and fewer new hires. That is, mobility on the labour market may possibly decrease. One risk would then be that this would make it for people who are remote from the labour market to find employment. In an overall assessment, the Inquiry’s proposals will make it easier for employers to adapt their organisation to economic change while retaining job security, albeit differently designed in parts. In terms of employers’ costs, however, the proposals may operate in different directions to some extent. On the one hand, the proposals reduce the cost for employers of adapting their organisations to economic change. On the other hand, the proposals to give employers more responsibility for skills develop- ment and to increase the priority right of fixed-term employees are judged to increase employers’ costs, which can have the opposite effect. Skills development must, however, be seen as an essential component of modernised employment protection and also results in a greater transitioning capacity among employees with the positive effects that this can be expected to generate. However, the decrease in the regulatory difference between fixed-term and open-ended employment contracts should give employers an incentive to make more use of open-ended contracts. The Inquiry’s assessment is that the impact on the ability of employers to adapt their organisations will be positive, in particular for small employers. The ability to adapt organisations to economic change is important for all businesses’ competitiveness and growth and for efficient and rational public administration. security will be based to a greater extent on skills, the possibility of finding a job and the possibilities of obtaining lasting employment than on seniority. In the longer term, if the effects accumulate over time, the pro- posals may also have an impact on the economy, in the form of greater growth and a higher level of living standards, for instance. Changes may be needed in a number of areas to address the current challenges in the labour market. Employment protection is only one of several factors that influence the functioning of the labour market. Other important factors include wage formation, unemployment insurance, the social insurance systems and the regular education system. It is important that the various parts are adapted and designed so that they work together to the functioning of the labour market and the development of the economy. 1.1Förslag till lag om ändring i lagen (1982:80) om anställningsskydd Härigenom föreskrivs i fråga om lagen (1982:80) om anställnings- skydd dels att 2, 3, 15, 22, 26, 33 b, 33 c, 34, 35, 39, 43 §§ och rubriken närmast före 22 § ska ha följande lydelse dels att det ska införas tretton nya paragrafer, 21 a, 21 b, 22 a–22 e, 25 b, 25 c, 33 e, 34 a, 38 a, 38 b §§ och närmast före 21 a, 22 a, 22 d, 34, 34 a och 35 §§ nya rubriker av följande lydelse. Om det i en annan lag eller i en förordning som har meddelats med stöd av en lag finns särskilda föreskrifter som avviker från denna lag, ska dessa föreskrifter gälla. Ett avtal är ogiltigt i den mån det upphäver eller inskränker arbets- tagarnas rättigheter enligt denna lag. Genom ett kollektivavtal får Genom ett kollektivavtal får det göras avvikelser från 5–6, 22, det göras avvikelser från 5–6, 21 a, 25–27 och 33 d §§. 22–22 e, 25–27, 33 d och 38 b §§. inte har slutits eller godkänts av Om avtalet inte har slutits eller en central arbetstagarorganisation, godkänts av en central arbets- krävs dock att det mellan par- tagarorganisation, krävs dock att terna i andra frågor gäller ett det mellan parterna i andra frågor kollektivavtal som har slutits eller gäller ett kollektivavtal som har godkänts av en sådan organisa- slutits eller godkänts av en sådan tion eller att ett sådant kollek- organisation eller att ett sådant 1Senaste lydelse 2019:528. tivavtal tillfälligt inte gäller. kollektivavtal tillfälligt inte gäller. samma förutsättning är det också Under samma förutsättning är det tillåtet att genom ett kollek- också tillåtet att genom ett kollek- tivavtal bestämma den närmare be- tivavtal bestämma den närmare be- räkningen av förmåner som avses