En skälig avvägning – Arbetsgivares och arbetstagares intressen vid verksamhetsövergång
Sammanfattning: The aim of the thesis is to analyse the balance of interests in labour law regulation concerning transfer of undertakings. The thesis is based upon a new direction in the case-law of the Court of Justice concerning Directive 2001/23/EC on Transfer of Undertakings. The Court has established that the purpose of the directive is not only to safeguard the interests of employees in the event of a transfer, but to ensure a fair balance between the interests of employees and employer. With a legal dogmatic method, the thesis demonstrates that the scope of application of the regulation has an extensive interpretation. The assessment is based upon establishing that the economic entity retains its identity. The retainment of identity is assessed by the type of business and what parts of the business has been transferred to the transferee. The regulation secures the transfer of the employees’ employment to the transferor. The safeguarding includes rights according to terms employment shall transfer and a prohibition of dismissals due to the transfer. The protection of workers is not absolute, as the provisions include a right to make changes and dismissals on the grounds of economic, technical or organisational reasons. The regulation has also defined the employees’ interest to the employees of the transferor. Thus, the regulation does not safeguard any other employees affected by the transfer. The analysis demonstrates that the regulation takes both the interests of the employers and employees into account, even though the regulation predominantly safeguards the rights of the employees. As regards the balance of interests by courts in individual cases, the analysis shows that the balance is not referenced concerning the interpretation of the prohibition of dismissal or the definition of a transfer. The scope of application for the balancing of interests appears to be expanding. The analysis shows that the Court of Justice has not taken the collective interests into account in the balancing of interests. Though the Labour Court appears to take collective interests into account regarding transfers. Some of the balancing of interests has mainly taken the transferee’s interests into account. However, case-law shows that the balancing has developed to be more nuanced. As the assessment does not contain clear criteria, it can enable one-sided balancing. Nonetheless, the rulings that contain a balancing of interests has an underlying sense of not interpreting the regulation too extensively. By taking the employers interest into account, the regulation of transfer of undertakings draws closer to the current direction in EU labour law.
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