Introduction
In 2016 several cases have seen foreign employees face expulsion by the Migration Agency because their employers have not complied with certain employment terms in the relevant collective agreements. Some of these employees have been denied renewed working permits because their employers have failed to adjust wages to the relevant conditions stipulated in the collective agreements.
Minimum wage is not regulated by Swedish employment law, but rather by private parties (eg, employers' organisations and trade unions) through collective agreements. In some industries, wage conditions are not regulated at all (ie, not even through collective agreements).
The Aliens Act stipulates that a foreign citizen who has been offered employment in Sweden can be granted a time-limited work permit, provided that the employment enables the employee to provide for himself or herself. The act also requires that the terms for employment regarding wages and insurance, as well as other employment terms, not be inferior to terms according to Swedish collective agreements or to that which is otherwise customary for the particular profession or industry.
If these requirements are fulfilled, a time-limited working permit and a time-limited residence permit can be issued. The foreign worker will thereby have the right to reside in Sweden on the grounds of his or her employment. The Aliens Act states that a working permit is valid for up to two years and terms can thereafter be extended following an application by the foreign citizen.
According to the act, a time-limited residence permit will be revoked if the legal requirements for the working permit are no longer met – for example, if the employment terms are inferior to the relevant collective agreement (which includes wage conditions). The revocation is mandatory and the reason for the compliance failure does not matter. According to a recent judgment by the Migration Court of Appeal (March 2015), the same strict approach must be applied when a foreign worker applies for an extended working permit. According to the judgment, an application for an extended working permit should not be granted if it has been found that the legal requirements concerning the employment terms according to the Aliens Act have not been fulfilled during the previous permit period.
According to the legislature and the Migration Court of Appeal, the purpose of the cited law and case law is to seek to avoid unreliable employers' attempts to hire foreign workers by offering them employment terms inferior to those on the Swedish national labour market.
In practice, the cited law and case law mean that foreign employees can be declined an extended working permit and lose the right to remain in Sweden because the employer has failed to comply with collective agreements during the previous permit period. This means that foreign employees can get expelled because their employer failed to pay wages corresponding to the exact amount stipulated in the relevant collective agreement. In some cases, foreign employees lose their right to reside in Sweden because their employer paid them as little as €20 to €50 less in wages per month than the collective agreement stipulated, even if correct payments have subsequently been made by the employer
Since the actual effects of the Aliens Act and the referred judgment have become known, several Migration Agency decisions have been appealed and the cases are now pending at the Migration Courts, where the fairness of expulsion of foreign workers due to employers' failures to comply with collective agreements under certain circumstances will be questioned.
For further information on this topic please contact Jörgen Larsson or Viktoria Hybbinette at Wistrand Advokatbyrå by telephone (+46 31 771 21 00) or email ([email protected] or [email protected]). The Wistrand website can be accessed at www.wistrand.se.
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