The future of Nordic labour law Facing the challenges of changing labour relations Report from The future of work: Opportunities and Challenges for the Nordic Models Marianne Jenum Hotvedt Natalie Videbæk Munkholm Dagný Aradóttir Pind Annamaria Westregård Marjo Ylhäinen Kristin Alsos 2 Contents Preface from project managers 5 Preface from the pillar coordinators 7 Summary 8 Part I Introduction and legal framework 13 1 Introduction 14 1.1 The focus and aims of the study 14 1.2 Terminology and types of non-standard work 17 1.3 Study design and groundwork 17 1.4 Structure of the report 18 2 The framework of Nordic labour law and regulations 20 2.1 Introduction 20 2.2 Collective agreements as regulatory tools 21 2.3 Other effects of regulation by collective agreements 22 2.4 The interplay between collective agreements and statutory law 24 Part II Key concepts of labour law and changing labour relations 27 3 Adaptability of key concepts 28 3.1 Key concepts – core content and regulatory approach 28 3.2 Challenging characteristics of labour relations 29 3.3 Concept of employee 31 3.4 Concept of employer 43 3.5 Adaptability of key concepts: Main weaknesses and strengths 56 4 Legal responses to non-standard work 58 4.1 Introduction, common features and prevalence of non-standard work 58 4.2 Fragmented and marginal contracts or work 59 4.3 Agency work and triparty arrangements 64 4.4 Umbrella companies and similar artificial employment contracts 68 4.5 Platform work 70 4.6 Responsiveness in the legal framework: Main weaknesses and strengths 74 Part III Legal implications of an unclear employment status 77 5 The structure of the analysis 78 5.1 Comparison and typology 78 5.2 Selected elements of labour law and welfare protection 79 3 6 Collective bargaining mechanisms 81 6.1 Introduction, common features and legislative basis 81 6.2 Membership in labour market organizations 82 6.3 Scope of the collective bargaining mechanism 85 6.4 Exemption from the scope of competition law 89 6.5 Obstacles to obtain a collective agreement 93 6.6 Conclusions 95 7 Protection of health and safety at work 97 7.1 Introduction, common features and legislative basis 97 7.2 Health and safety at work 100 7.3 Working time 106 7.4 Paid annual leave 110 7.5 Conclusions 113 8 Income protection when out of work 116 8.1 Introduction, common features and legislative basis 116 8.2 Legal categories of workers 119 8.3 Unemployment benefits 122 8.4 Benefits related to sickness and injury 129 8.5 Parental leave benefits 136 8.6 Retirement and old age pensions 140 8.7 Conclusions 143 9 Protection of workers with an unclear employment status: Main weaknesses 145 and strengths Part IV Overall conclusions and recommendations 147 10 A Nordic labour law framework fit for the future? 148 10.1 A stress-test of the legal framework 148 10.2 The unclear employment status of workers 149 10.3 The unclear allocation of employer responsibilities 152 10.4 The gaps in the legal protection of workers with an unclear employment status 155 10.5 Recognizing new types of labour relations 158 Literature 160 Sammendrag 164 About this publication 169 4 Preface from project managers Major changes in technology, economic contexts, workforces and the institutions of work have ebbed and flowed since well before the first industrial revolution in the 18th century. However, many argue that the changes we are currently facing are different, and that the rise of digitalized production in particular will entirely transform our ways and views of working. In this collaborative project, funded by the Nordic Council of Ministers, researchers from the five Nordic countries have studied how the ongoing transformations of production and labour markets associated with digitalization, demographic change and new forms of employment will influence the future of work in the Nordic countries. Through action- and policy-oriented studies and dialogue with stakeholders, the objective has been to enhance research-based knowledge dissemination, and experience exchange and mutual learning across the Nordic borders. Results from the project have informed, and will hopefully continue to inform, Nordic debates on how to contribute to the Future of Work Agenda that was adopted at the ILO’s centenary anniversary in 2019. The project has been conducted by a team of more than 30 Nordic scholars from universities and research institutes in Denmark, Finland, Iceland, Norway and Sweden. The project started in late 2017 and will be completed with a synthesizing report in 2020. In order to address the main aspects of change in working life, the project has been organized into seven pillars with pan-Nordic research teams: I. Main drivers of change. Coordinator: Jon Erik Dølvik, Fafo, [email protected] II. Digitalization and robotization of traditional forms of work. Coordinator: Bertil Rolandsson, University of Gothenburg, [email protected] III. Self-employed, independent and atypical work. Coordinator: Anna Ilsøe, University of Copenhagen/FAOS, [email protected] IV. New labour market agents: platform companies. Coordinator: Kristin Jesnes, Fafo, [email protected] V. Occupational health—consequences and challenges. Coordinator: Jan Olav Christensen, National Institute of Occupational Health, Oslo, [email protected] VI. Renewal of labour law and regulations. Coordinator: Marianne J. Hotvedt, University of Oslo, [email protected]; and Kristin Alsos, Fafo, [email protected] VII.Final synthesizing report: the Nordic model of labour market governance. Coordinator: Jon Erik Dølvik, Fafo, [email protected] For Fafo, which has coordinated the project, the work has been both challenging and rewarding. In the final phase of the project, all the Nordic economies were hit hard by the measures taken to slow the spread of Covid-19. This effectively illustrates how 5 predicting the future of work is a difficult exercise. As our data collection had ended before the virus brought the Nordic economies almost to a halt, we have unfortunately been unable to address the effects of the pandemic and the vigorous countermeasures taken by Nordic governments. We are very grateful for all the work done by the cooperating scholars, and we would also like to thank our contact persons in the Nordic Council of Ministries, namely Tryggvi Haraldsson, Jens Oldgard and Cecilie Bekker Zober, for their enthusiastic support. Many thanks also to all the members of the NCM committees that have contributed to this work through workshops and commenting on different drafts, and to the numerous interviewees in Nordic working life organizations and companies who shared their time and insights with us. Oslo, 2020 Kristin Alsos, Jon Erik Dølvik and Kristin Jesnes Project managers 6 Preface from the pillar coordinators How will the ongoing transformation of work influence the need for legal reform in the field of labour law? Is labour law in the Nordic countries prepared to meet future challenges, or is there a need for adjustments and renewal? These questions form the backdrop for the analysis in this report. The report is the concluding analysis of Pillar VI in the project Future of Work: Opportunities and Challenges for the Nordic Models (NFoW), funded by the Nordic Council of Ministers. In Pillar VI, Renewal of Labour Law and Regulations, researchers from all the Nordic countries have examined how new, emerging labour relations may affect the foundations and structure of Nordic labour law in the future. The Nordic team of researchers consists of Natalie Videbæk Munkholm (University of Aarhus), Annamaria Westregard (University of Lund), Marjo Ylhäinen (University of Eastern Finland), Dagný Aradóttir Pind (BSRB), Marianne Jenum Hotvedt (University of Oslo) and Kristin Alsos (Fafo). The work in the research group has been conducted in three phases. First, an introductory paper was drafted by Hotvedt and Munkholm, in which more detailed research questions were developed. Second, the researchers drafted two subsequent country reports addressing these research questions. Based on these country reports, this final report compares national regulations, identifies weaknesses and strengths, and suggests avenues for the future of labour law in the Nordic countries. The final report has been drafted by Hotvedt, and has benefitted from valuable input and comments from all the researchers in the pillar team. The introductory paper, country reports and this final report have been regularly discussed in workshops throughout the project period (2018–2020). We would like to thank the Nordic Council of Ministers for financing the project and for helping us finalize this report, and to the members of the Industrial Relations Committee of the Nordic Council of Ministers for their input. We would also like to thank Jon Erik Dølvik at Fafo for initiating and organising the project, as well as for valuable comments to this report. Oslo, 2020 Marianne Jenum Hotvedt and Kristin Alsos Pillar coordinators 7 Summary Is Nordic labour law fit to meet future challenges? This TemaNord report addresses this question by studying whether the legal framework is adequate for dealing with the labour relations of the future. The Nordic systems of labour law build on a binary divide between employees and the self-employed. The contract of employment is the main object of labour law, while contracts for independent work mainly fall under general contract law. The legal concepts of employee and employer are therefore the building blocks of labour law. If future labour relations make it difficult to apply these concepts, it will blur the binary divide and destabilise the foundation of labour law. This may affect the scope of application and undermine the effectiveness of the legal regulation of the labour market. This is the reason why this study examines the challenges of future labour relations and whether the labour law framework will be able to meet them.