Suomen 17. määräaikaisraportin laatiminen uudistetun Euroopan sosiaalisen peruskirjan soveltamisesta

Ulkoministeriö on lähettänyt Suomen Yrittäjille tiedoksi lausuntopyynnön uudistetun Euroopan sosiaalisen peruskirjan soveltamisesta laadittavan määräaikaisraportin laatimisesta. Lausuntopyynnön mukaan sen tiedoksisaajilla on mahdollisuus lausua peruskirjan täytäntöönpanosta. Suomen Yrittäjät kiittää mahdollisuudesta lausua peruskirjan soveltamisesta ja esittää seuraavat huomiot (lausuntopyynnön mukaan englanniksi).

Article 4, 26 and 28 – possibility for reinstatement

Suomen Yrittäjät ry (The Federation of Finnish Enterprises) considers Finnish legislation appropriate and to be in conformity with the Article 4, 26 and 28 of the revised European Social Charter. In its conclusions the Committee of European Social Rights has held that Finland is not in conformity with Article 4, 26 and 28 because reinstatement does not exist in Finnish employment legislation as a remedy for adverse treatment or unlawful dismissal (from different reasons).

Suomen Yrittäjät stresses that neither the literal reading of Article 4 nor Article 26 or 28 contain an obligation for reinstatement. Suomen Yrittäjät is at opinion that these Articles cannot be interpreted in a way that reinstatement must be included as a remedy. The discretion of the concrete content must be left to national legislation and practice.

The possibility for reinstatement did exist in the Finnish Employment Contracts Act, but it was never used. An obligation for reinstatement is not appropriate remedy in cases of adverse treatment, harassment, or unlawful dismissal. Generally, an obligation for reinstatement is not appropriate relief in cases of dismissal as it means forcing contractual parties to continue their contractual relationship against mutual will. Also, from practical point of view, forced reinstatement would not be suitable solution for parties of employment relationship.

Article 5 – freedom of association

Suomen Yrittäjät ry (The Federation of Finnish Enterprises) considers Finnish legislation not in conformity with Article 5, as the legislation contains provisions which are less favourable for those employers who have used their negative freedom of association.

Section 7 of Chapter 13 of the Employment Contracts Act (55/2001) authorizes national Trade Unions and Employer Organisations to derogate from certain provisions of the Employment Contracts Act, which are listed in Section 7. However, Section 8 of Chapter 13 contains a provision, according to which the employer (who is not member of Employer Organisation) is not allowed to company-level collective bargaining on the issues mentioned in Section 7, even though the applicable Collective Agreement would authorize company-level bargaining.

The universal applicability of Collective Agreements is stated in Section 7 of Chapter 2 of the Employment Contracts Act. According to it, also those employers that are not members of Employers’ Organisations are obliged by law to comply with the Collective Agreement which is declared generally applicable in their sector of business.

In other words, all employers in certain sector of business are obliged to comply with universally applicable Collective Agreement. However, if the Collective Agreement authorises to bargain on some provision locally at company level (between the employer and workers’ representative or group of workers) on some issue listed in Section 7 of Chapter 13, only those employers who are members of Employers’ Organisation may engage into company-level bargaining. Therefore, the employers’ possibilities to negotiate on working conditions is less favourable for those employers who have decided to use their negative freedom of association.

Similar structure and prohibition of company-level bargaining for unorganized employers is also included in the Working Hours Act (872/2019), Annual Holiday Act (162/2005) and the Study Leave Act (273/1979).

Suomen Yrittäjät considers that the prohibition of company-level bargaining for unorganized employers (i.e. not members of that Employer Organisation, which is a contractual party in Colletive Agreement) violates the negative freedom of Association as set in Article 5 of the revised European Social Charter.

Suomen Yrittäjät

Janne Makkula Albert Mäkelä
johtaja asiantuntija