AD - AD 2021 nr 23
From GDPRhub
| AD - AD 2021 nr 23 | |
|---|---|
 | |
| Court: | AD (Sweden) |
| Jurisdiction: | Sweden |
| Relevant Law: | Article 6(1)(c) GDPR Chaper 2, § 1 GDPR-implementation act |
| Decided: | 20.09.2020 |
| Published: | 26.05.2021 |
| Parties: | Fiedler & Lundgren AB Swedish Food Workers’ Union The Swedish Food Federation |
| National Case Number/Name: | AD 2021 nr 23 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | Swedish |
| Original Source: | Decision (in Swedish) |
| Initial Contributor: | Kave Noori |
The Swedish Labor Court ruled that a collective bargaining agreement requiring an employer to provide unredacted copies of employment certificates to a trade union did not conflict with the GDPR. The employer had to pay the union €4936 (SEK 50 000) for the breach of contract.
Facts
The Swedish Food Workers' Union disagreed with the employer Fiedler & Lundgren AB on whether the so-called Tobacco collective agreement conflicted with the GDPR. The Tobacco collective agreement was concluded between the Swedish Food Workers' Union and an employers' association called The Swedish Food Federation. In point 2.2.1, subsection two of the Tobacco agreement it was stated that the local trade union of a company has the right to receive copies of all employment certificates for workers with contracts longer than 1 month.
When the local union requested copies of all employment certificates with the company Fiedler & Lundgren AB initially refused on the grounds that this would breach the GDPR. Later, Fiedler & Lundgren AB provided 50 copies of employment certificates with the name, personal number, employee number, address, telephone number and signature obscured. The Food Workers' Union then decided to take the dispute to court.
Dispute
Does the Tobacco agreement require the company to provide unredacted copies?
All parties to the case agreed that the Tobacco Agreement required the employer to provide copies of the employment certificates. However, they disagreed as to whether the agreement required the company to provide the copies without redaction.
Was the Tobacco agreement compatible with the GDPR?
The employer argued that the provision in the collective agreement was not precise enough and that no clear purpose for the collection of data could be derived from it, and therefore it could not constitute a legal obligation.
Holding
Does the Tobacco agreement require the company to provide unredacted copies?
The court first sought to determine whether it could find that the Swedish Food Workers' Union and Swedish Food Federation had a common contractual intent when they drafted the specific provision. Because the court could not find a common intent with respect to the redaction of employment certificates, the court adopted a textual interpretation of the provision.
The court considered that the provision was very clear. The court held that the contracting parties must have intended "copy" to mean an unaltered replica. The court reasoned that otherwise the agreement would be written in such a way as to specify the information that was to be redacted. The court held that the clause required the company to provide unaltered copies of employment certificates.
Was the Tobacco agreement compatible with the GDPR?
The court held that the provision was unambiguous and imposed a legal obligation on the employer to provide copies of employment certificates to its local union upon request. The court explained that there are many other examples in Swedish law of statutory provisions requiring a company to hand over data to a public authority that are equally unclear or undetailed. The court considered that it would be compatible with Article 6(1)(c) GDPR and Chapter 2, 1 § of the GDPR Implementation Act if the company followed the provision in the Tobacco agreement and provided the union with unredacted copies of the employment certificates. The court held that the employer was therefore obliged to provide the requested copies under the Tobacco agreement.
Damages
The court ordered the employer to pay SEK 50 000 to the Swedish Food Workers' Union for breach of the collective agreement.
Comment
Swedish labor law allows for a form of delegated legislative power. The power to enact certain labor market rules, which in other countries would fall to parliament, is instead in the hands of trade unions and employers' associations through collective bargaining agreements. These collective agreements are also binding on third parties who are not direct contracting parties. If the trade union and employers' association cannot agree on how a provision of the collective agreement should be interpreted, they can refer the dispute to the Labor Court.
(Comment by initial contributor)
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English Machine Translation of the Decision
The decision below is a machine translation of the Swedish original. Please refer to the Swedish original for more details.
THE LABOR COURT Judgment No 23/21
Objective A 47/20
The Labor Court has found that a provision in the tobacco agreement that it
the local trade union organization must receive a copy of the employment certificate
regarding employment where the employment period exceeds one month, means a
obligation for the employer to hand out unmasked copies.
The Labor Court has further found that the employer was able to follow both
the collective agreement provision and data protection legislation
(Data Protection Ordinance and the Data Protection Act). An employer who off
for data protection reasons only provided copies containing the employee's personal data
masked, has been ordered to pay general damages for violations
the collective agreement.
Postal address Telephone Expedition time
Box 2018 08-617 66 00 Monday – Friday
103 11 Stockholm 09.00–12.00
Visiting address 13.00–15.00
Stora Nygatan 2 A and B kansliet@arbetsdomstolen.se
www.arbetsdomstolen.se 2
THE LABOR COURT JUDGMENT Judgment No. 23/21
2021-05-26 Goal no. A 47/20
Stockholm
PLAINTIFF
Livsmedelsarbetareförbundet, Box 1156, 111 81 Stockholm
Representative: the federal lawyer Henric Ask, LO-TCO Rättsskydd AB,
Box 1155 111 81 Stockholm
DEFENDANT
1. Livsmedelsföretagen, Box 55680, 102 15 Stockholm
2. Fiedler & Lundgren AB, 556628-1118, Box 9041, 200 39 Malmö
Representatives for 1 and 2: lawyer Åsa Erlandsson and Bachelor of Laws. Arwin Sofla,
Setterwalls Advokatbyrå AB, Box 1050, 101 39 Stockholm
SAKEN
breach of collective agreement
______________________
Background
Livsmedelsföretagen and Livsmedelsarbetareförbundet (union) have
reached the collective agreement the tobacco agreement. Fiedler & Lundgren AB (the company) is
through membership in Livsmedelsföretagen bound by the tobacco agreement.
The tobacco agreement contains the following provision in section 2.2.1, second paragraph.
2.2.1 Employment contracts
[…]
The local trade union shall receive a copy of the employment
proof of employment where the period of employment exceeds one month.
[…]
In early 2019, the union's local union requested
the company, with reference to the provision in the tobacco agreement, to receive from the company
copies of employment certificates for employment where the period of employment
exceeds one month. Initially, the company refused to release copies of
employment certificates with reference to data protection legislation. During some
March 2019, however, the local union received just over
50 hard copies of employment contracts, concluded from 1 January
ari 2019 until the summer of 2019, where the company had masked data
the employee's name, social security number, employment number, address,
phone number and signature. The company has not left the local union 3
the organization unmasked copies of the employment contracts, despite the
sation requested it.
A dispute has arisen as to whether the company has broken through its actions in 2019
against point 2.2.1, second paragraph, of the Tobacco Agreement.
A special dispute concerns the disclosure of unmasked copies of
certificates of employment would be contrary to the rules of the
Regulation (EU) 2016/679 of 27 April 2016 on the protection of individuals
with regard to the processing of personal data and on the free flow of
such information and repealing Directive 95/46 / EC (Data Protection
the scheme) and the law (2018: 218) with supplementary provisions to
EU Data Protection Regulation (Data Protection Act). When the term data-
protection law is used in the following, it is these two acts that
referred to.
The parties have negotiated disputes without being able to agree.
Claims m.m.
The union has demanded that the Labor Court order the company to
it pays general damages of SEK 150,000 for breach of collective agreement, with
interest in accordance with section 6 of the Interest Act from the date of service of the summons (the
13 May 2020) until payment is made.
The employer parties have disputed the claim, but endorsed the way of calculating
interest. The employer parties have demanded that any general damages should
adjusted, primarily to zero.
The union has denied the allegations.
The parties have claimed compensation for legal costs. The employer parties
has demanded that each party side according to ch. Section 2, second paragraph, of labor disputes
shall bear its own costs, if the employer parties lose,
which the union disputed.
___________
In support of their action, the parties submit, in essence, the following.
The union
Summary of the grounds for the action
Clause 2.2.1, second paragraph, of the Tobacco Agreement imposes an obligation on
to provide copies to employees of the local trade union
proof of conformity with the original documents, ie copies there
no data has been masked. By refusing to exceed 4 at the beginning of 2019
in general, leave some copies of the local union
employment certificate and by leaving the local during the summer of 2019
union organization documents corresponding to employment contracts as
masked, the company has violated the tobacco agreement. The company is therefore obliged to
pay the union general damages.
A disclosure to the local union of unmasked copies
of employment certificates or employment contracts would not be in conflict with
protection legislation. Even if that were the case, and the tobacco agreement in question
would prescribe anything in violation of legislation, has the obligation to comply
the collective agreement remained and the company has, by violating this, incurred
liability for damages.
There are no reasons for adjusting the damages.
The meaning of the tobacco agreement
The party intention
The provision in point 2.2.1, second paragraph, of the Tobacco Agreement was introduced in connection
with the agreement negotiations in 2013 on a proposal from the union. Food companies
and the union were not, as the employer parties have done
applicable, agree that data would be deleted or masked when copies
of employment certificates are handed out. It was not mentioned in the contract negotiations
on personal data legislation. Food companies have not been informed
informed its members that names should be deleted from the copies of the
evidence.
The purpose of the introduction of the provision was to make it possible to
ensure that the employer complies with the provisions of law and collective agreements. Determining
was introduced at the same time as the tobacco agreement introduced provisions on
extended maximum limits for fixed-term employment contracts (point 2.2.3) and
on trade union information for new employees (point 2.2.1, fourth paragraph) which
bound wanted to control compliance with.
The wording
The wording of the provision is clear and unambiguous. None of this is clear
limitation of the information to be provided in the employment certificates or
that any information should or may be deleted or masked. The word copy means
according to accepted language use any object, in this case an act, that sees
the same as another object, ie. a transcript. If the action is masked
or something is deleted in it, it is not a copy of the original document.
The application
Until the end of 2018, the local union has the company
received unmasked copies of employment certificates. 5
At the same time as the provision in point 2.2.1, second paragraph, was introduced in
agreement in 2013, the corresponding provision was introduced in the food agreement as
The food companies and the union also meet. The union's local union
organizations have since received unmasked copies of employment
evidence in both areas of application of collective agreements. This dispute is it
only that has occurred about missing or disguised employment certificates within
areas of application of both collective agreements.
The application of the provision shows that food companies and
its contractual intent has been in line with the union's interpretation
current.
Data protection legislation
Data protection legislation would not be applicable
Handing out hard copies of employment certificates is not such a treatment
of personal data covered by data protection legislation. The company
disclosure of unmasked hard copies of employment certificates would therefore
have not been in breach of data protection law. It is not questioned that
the company has produced the copies of the employment certificates using a computer.
Nor does the local union's further handling of paperwork
copies of employment certificates would have been covered by data protection law.
The information in the copies of the employment certificates would not have been entered in any
computer and the copies would have been put in folders. Until the end of 2018 received
the local union mentioned unmasked copies of
employment certificate. In 2013, the local trade union organization received
certified copies of employment certificates. These were inserted into folders in chrono-
logical order after the time they arrived at the local trade union
sation. The binders were stored in a locked cupboard at the club office. To get
to get information about a certain person you had to browse through
the hard copies until you find them. The information in the copies of the
the certificates were not entered into any computer. After 2013 and until the autumn
In 2018, the local trade union received emails with unmasked copies
of employment certificates that the organization left in the inbox. Tasks
The copies were used to verify that the company complied with the law and
the tobacco agreement and to contact new employees to present the unions
shop stewards and trade union activities. From the end of 2018 until
until the summer of 2019, the local trade union organization received no copies at all
of employment certificates.
The company could thus also in 2019, by handing over unmasked
paper copies, have complied with the tobacco agreement without data protection legislation
have become applicable. Nowadays, the company emails the local trade union
ion masked copies of employment certificates. 6
The release of unmasked hard copies of employment certificates would
not contravene data protection law
In the event that the Labor Court should find that the data protection legislation
would be applicable to the company's disclosure of unmasked hard copies
certificate of employment, it is argued that this would not be contrary to
protection legislation.
It follows from Article 6 (1) (c) of the Data Protection Regulation that:
process personal data if the processing is necessary for the personal
the data controller must be able to fulfill a legal obligation. Of ch. 2 § 1
The Data Protection Act states that personal data may be processed on the basis of
Article 6.1 (c) of the Data Protection Regulation, if the processing is necessary to:
the personal data controller must be able to fulfill a legal obligation which
follows from collective agreements. The obligation in the Tobacco Agreement to provide the local
the organization an (unmasked) copy of certain certificates of employment is
clear and rests with the company, as a member of Livsmedelsföretagen, according to § 26
first paragraph of the Co-determination Act. It is of course necessary that
process personal data in order to fulfill the obligation to disclose unmasked
copies of employment certificates must be able to be completed.
The company's disclosure of unmasked copies of employment certificates is everywhere
permitted under Article 6 (1) (f) of the Data Protection Regulation following an
weighing. The processing of personal data by the company's disclosure
unmasked copies of employment certificates may constitute necessary for the
objectives concerning the legitimacy of the local trade union (third party)
interests in being able to check that the tobacco agreement and law are complied with and it
registered (employee) interests or fundamental rights and
freedoms do not weigh heavier. This is harmless personal data.
The local trade union has a legitimate interest in being able to
check compliance with the provisions of the Tobacco Agreement on limits for
the total time in fixed-term employment (point 2.2.3) and if
minimum wage (point 3.1), piecework (point 7.8) and holiday pay (point 12.2), where
the age of the employee and, as far as the minimum wage is concerned, the length of employment is important
for the application. Without personal data, it is not possible to re-check
the company complied with these provisions in the tobacco agreement. A new employee has further
the right to participate in paid time for one hour by a local club at the company
organized information on trade union activities (point 2.2.1 fourth
paragraph). The disclosure - processing - of the personal data in the copies of
proof of employment is therefore necessary for the local trade union
the ion must be able to check that the tobacco agreement is complied with.
There are also several legal rules whose application depends on the employee
age or period of employment, e.g. the rules of the Employment Protection Act on
order and notice period, which the local trade union has one
legitimate interest in being able to check compliance with. Even from one
From a work environment law perspective, it is of great importance to the local trade union
the organization to know which workers are in the workplace. 7
With regard to employment certificates for employees who are members of
the union gets the workers, through its membership in the union and the subscription
of the employment contract, shall be deemed to have given his consent in accordance with Article 6 (1) (a) (i)
the Data Protection Regulation to the processing of personal data
the copying of the employment certificate to the local trade union
ion means.
The employer parties
Summary of grounds for opposition
Point 2.2.1, second paragraph, of the Tobacco Agreement does not imply an obligation for
employers to hand over completely unmasked copies of employment certificates with
data that can be used to identify the employee.
The release of completely unmasked copies of employment certificates, with
to the local trade union organization would be contrary to the
protection legislation. If the Labor Court were to find that the tobacco agreement has
the meaning asserted by the association, a fulfillment of the
the obligation to enter into a contract is thus in breach of legislation. The company therefore has
has not been obliged to comply with that obligation, and the union is not entitled to
general damages for the company complying with the legislation instead of collective
the agreement.
It is true that the company initially in 2019 did not leave the local
the trade union organization no copies at all of employment certificates. In section 2.2.1
The second paragraph of the Tobacco Agreement does not specify when the local trade union
the ion must receive a copy of the employment certificate. The local trade union
The organization has received masked copies of all employment certificates issued
2019 and the company has had acceptable reasons for delaying the disclosure of
certain copies, as the company meanwhile tried to find a way to leave
copies that did not violate data protection laws.
In the event that the Labor Court should find that the company has incurred
liability, the damages shall in all circumstances be adjusted accordingly.
view in part the uncertain legal situation and the risk of tangible sanctions under
data protection legislation, and that the company has disguised the copies of
for a justifiable purpose, namely to comply with data protection
the Foundation’s requirement not to disclose information about
tagare.
The meaning of the tobacco agreement
The party intention
When point 2.2.1 second paragraph of the tobacco agreement at the request of the union
introduced in connection with the collective bargaining negotiations in 2013,
agree that copies of the employment certificates should be disguised on the basis of 8
applicable data protection legislation in order to avoid unauthorized processing of
son information. In this way, the local trade union would get the
toxins needed for control and possible follow-up of employment
conditions, without the disclosure of the copies entailing a
under the then data protection legislation, unauthorized processing of personal data
marriages. The parties to the collective agreement agreed to apply the provision
with regard to current data protection legislation. The purpose of the provision
was not discussed.
That this was the common intention of the parties is clear from conversations between
then head of negotiations at Livsmedelsföretagen A.N. and earlier
the secretary of the union of the union G.L. in conjunction with
The food companies and the union agreed on the 2013 tobacco agreement. The
is also apparent from the fact that food companies then informed their
that information in the copies of employment certificates on social security numbers,
address and telephone number would be deleted.
The purpose of the provision in question was not to give the union the opportunity to
monitor compliance with laws and collective agreements in the respects
bound asserted. It is primarily the employer, and not the union,
who - in addition to the employee himself - is responsible for checking that
The conditions for new employment are in accordance with applicable law and collective agreements.
Nor is the current provision intended to provide the local union
the organization the opportunity to inform about the union activities and
recruit members.
The wording
It is not clear from the wording of the provision in question that the copy of
the employment certificate to be submitted must be completely unmasked. In common language
use, the term copy is sometimes used in reference to an exact copy,
sometimes with reference to a specimen with variations. It is not possible to
only draw conclusions on the basis of the wording if this refers
to an unmasked or masked copy. Had the parties to the collective agreement intended
that what is to be provided is exactly in accordance with the original and
unmasked transcripts of the employment certificates, they would have indicated this.
The application
The current provision has not been applied in a way that shows one
joint intention of the parties to hand over completely unmasked copies without further ado
of employment certificates. On the contrary, food companies have since
introduced, maintained its position, and its advice to member companies
gen, on how the provision is to be understood and applied, ie. that information should
be masked in order to avoid unauthorized processing in accordance with current data protection rules.
personal data. 9
Although it would have occurred that unmasked copies of employment
has been disclosed by some of the food companies' member companies, including
does not imply that the parties to the collective agreement agree that there is a right
according to the tobacco agreement to receive completely unmasked copies of employment certificates.
Data protection legislation
Data protection law would apply
Data protection law would apply to the processing of personal data
son information that the company's release of unmasked hard copies of
proof of employment would entail. Data protection legislation would also be
applicable to the processing of personal data by the local union
the organization's further handling of the unmasked copies would include
wear.
The company prepares and processes the employment certificates, as well as the copies of
these, digitally. When printing for the release of unmasked copies of employees
such a partially automated treatment
to which data protection law is to be applied. The company deals with
the information in the employment certificates for personnel administrative purposes.
The local trade union organization's handling of the unmasked paperwork
of the employment certificates would be such a manual treatment of
personal data to which data protection law applies, because
The organization has the copies in such a structure in folders that the copy relates
a particular worker can be easily recruited. Had the company instead chosen to email
unmasked copies of the employment certificates, the local union would
the organization's handling of them be such an automated processing
of personal data to which data protection law applies.
The release of completely unmasked copies of employment certificates would be contrary
against data protection legislation
A processing of personal data must be necessary to be allowed
under data protection law and the unnecessary processing of personal data
contravenes this legislation. To release in all cases completely unmasked
copies of employment certificates would be an unnecessary treatment of
personal data, as unmasked copies of employment certificates normally
not needed to check the terms of employment for new hires
follows the tobacco agreement and law. That check can normally be done with mask
copies of employment certificates, without personal data. If the local trade union
the organization would at some point need additional information, would
the company, upon request, provide the organization with these. The examples of legal rules
as stated by the union is about situations where personal data would
could be provided on request or on the company's own initiative if it should be
current. In applying the provisions of the Tobacco Agreement on the Minimum Wage,
piecework and holiday pay, it is sufficient to know that the employee who 10
employed has reached the age of 18. The company, which works with tobacco, never hires
someone who has not turned 18 years old. The company does not apply composition.
The provision in point 2.2.1, second paragraph, of the Tobacco Agreement is not so clear in
question of the processing of personal data and its purpose required to:
it must be able to establish a legal obligation and thus make a
completely unmasked copies of employment certificates allowed in the way that
claimed (Article 6 (1) (c) and (3) of the Data Protection Regulation).
The release of completely unmasked copies of employment certificates is not possible
nor is it permitted under data protection law on the basis of an interest
balancing, as the control mentioned can normally be done with masking
copies of the employment certificates; the disclosure would in the vast majority of cases
be unnecessary. The local union's interest in getting completely
unmasked copies of employment certificates also do not outweigh the
interests of protection against invasion of privacy or
other fundamental rights and freedoms. The information in the employment certificate
then can not be considered harmless, because it is a matter of e.g. person-
number and salary, which is information of a privacy-sensitive nature and private
nature.
To provide personal information for the local trade union to
be able to inform about the union activities would not be compatible
with the personnel administrative purposes that the company processes personal data
the poisons in the employment certificates for and thus contravene the finality principle in
Article 5 (1) (b) of the Data Protection Regulation.
As the collection of the local trade union organization and continued
the use of completely unmasked copies of employment certificates is thus
puts an unauthorized disclosure of these from the company, the local
the organization's processing of the copies of the employment certificates
not allowed.
Workers have not given their consent under Article 6 (1) (a) of the Data Protection
Regulation on the release of fully unmasked copies of the employment
evidence to the local union.
The investigation
The case has been decided after the main hearing. At this request, at the request of
witnesses have been questioned by former union chairman G.L.,
the union's former food contractor M.L. and R.M.
who is elected to the Life Club at the company. At the request of
employer parties, witness hearings have been held with A.N., previously
chief negotiator at Livsmedelsföretagen, V.K., former negotiator at
The food companies and contract manager for the tobacco contract, and the HR manager
at the company P.B. The parties have also relied on written evidence. 11
Reasons for judgment
The dispute
Despite the union's local union organization in early 2019 requested
at the company, with reference to clause 2.2.1 second paragraph of the tobacco agreement, that
obtain copies of employment certificates regarding employment where the period of employment
exceeds one month, the company initially refused to release such
copies. Only in the summer of 2019 did the company leave the local union
the organization copies of employment contracts where the company had disguised
information on the employee's name, social security number, employment number, address,
phone number and signature. The parties dispute the company through their
actions in 2019 have violated point 2.2.1, second paragraph of the Tobacco Agreement.
let.
The parties disagree, firstly, whether the collective agreement provision entails one
obligation to provide copies of employment certificates containing personal data
the worker has not been masked. Secondly, if the provision implies
such an obligation, the parties disagree on whether the data protection legislation entails
that copies with personal data about the employee may not be disclosed to it
local trade union organization and if that means that the company does not
has in a tortious manner violated the provisions of the collective agreement
late. The parties also disagree as to whether the company has breached the collective agreement
already by delaying the release of copies of the employment
the proof.
Does the collective agreement imply an obligation to hand out unmasked copies?
According to the second paragraph of point 2.2.1 of the Tobacco Agreement, the local trade union
receive a copy of the employment certificate regarding employment there
the employment period exceeds one month. The Parties agree that
in itself entails an obligation for the employer to disclose
copies to the local trade union, but disagree with the provision
means that the copies must be unmasked.
The following has emerged from the investigation. The provision was introduced into the
the agreement in 2013. The general provisions, where the current provision
hear, in the tobacco agreement are normally taken unchanged from the food agreement as
the same parties first meet. This was also the case with the provision in question
without any discussion of its meaning. The provision
was, however, acted upon in substance in connection with its introduction in the food agreement.
During those contract negotiations, there were no discussions about
son information or that the copies were masked. The provision was introduced on
the union's initiative and the agreement text was written by Livsmedelsföretagen.
A.N., who had negotiated for the Food Companies, has stated that she
after the contract negotiations, before the Food Companies would design
information to its members about the collective agreement reached, called
then second chairman of the union G.L. and raised the issue of a 12
application of the then Personal Data Act (1998: 204) upon disclosure
of copies. Her information about the conversation, which is not supported by what G.L.
stated, in the opinion of the Labor Court can not be considered to mean more than
that she and G.L. would agree to any disclosure in violation of
applicable data protection legislation would not exist.
There is thus a common intention of the parties as to whether the copies were to be masked
could not be ascertained. This is primarily the wording of the provision
governing its meaning.
The Labor Court agrees with the union that the wording of the
then is clear and distinct. With a copy, the parties to the collective agreement cannot have
intended other than an undistorted image of the original employment certificate. Hade
the parties to the collective agreement intended that certain information (the
poisons), but not all, in the original would not be in the copy, they should
have stated this and specified what information would be in the copy.
If the Food Companies that formulated the text of the agreement intended that certain
poisons would be masked in the copy, even though it was not necessary due to
current data protection legislation, it had been incumbent on food companies to
reprimand it to the union during the contract negotiations.
The Labor Court's summary conclusion is that the provision entails one
obligation for the employer to provide unmasked copies of the employment
evidence to the local union. What the parties stated about
the application of the provision does not alter this conclusion.
Has the company been able to comply with both the collective agreement and data protection legislation?
ningen?
In the opinion of the Labor Court, the company can avoid liability for damages
for breach of collective agreement only on condition that the company had not been able to
comply with both the collective agreement obligation to hand out unmasked copies of
employment certificates to the local trade union and data protection law
the foundation (compare AD 2012 no. 74). Only in that case has the Labor Court
reason to take a position on the union's objection that it exists
liability for breach of collective agreement despite an application of
the provision would be contrary to data protection law.
The union has not questioned that the company produced the copies of the
the evidence using a computer. Thus, data protection legislation, such as
the employer parties, be applicable to the company’s disclosure of
to the local trade union organization. The company would be personal
responsible for the processing of personal data. There's nothing
derogations from the Data Protection Regulation that could be applicable.
Every processing of personal data must have a so-called legal basis according to
Article 6 (1) of the Data Protection Regulation. Pursuant to Article 6 (1) (c) of the Data Protection
treatment is legal if and to the extent that the treatment is necessary
you in order to fulfill a legal obligation incumbent on the personal data
responsible. According to Article 6 (3) of the Data Protection Regulation, it must:
the treatment referred to in e.g. the aforementioned article is determined accordingly
with i.a. the national law of a Member State as the controller
covered by, and the purpose of the processing shall be determined in the legal
the reason. According to ch. Section 1 of the Data Protection Act, personal data may be processed
pursuant to Article 6 (1) (c) of the Data Protection Regulation, if the processing is
necessary for the personal data controller to be able to fulfill a legal
obligation that follows from e.g. collective agreement.
According to the employer parties, the collective agreement provision is not so clear in
question of the processing of personal data and its purpose required to:
it must be able to establish a legal obligation. The Labor Court can not
agree with it. The wording is, as already said, clear and distinct and off
In this context, it is clear that the obligation rests with the employer.
The Data Protection Commission has stated the following with regard to the purpose being stated
of the obligation (SOU 2017: 39 p. 114 f.).
As an example, it can be mentioned that a company's obligation to provide information about
the company’s payroll costs do not include any stated purpose for processing
personal data in the form of disclosure, while an obligation to
provide information on the company's salary payment to a specified employee
contains such a purpose. The latter obligation can in practice not
be fulfilled without personal data concerning the specified employee
treated.
There are many examples in Swedish legislation of so-called information obligations
relating to the disclosure of personal data and which is not more detailed or
clearer than the collective agreement provision. In the preparatory work for the Data Protection Act,
prop. 2017/18: 105 p. 54, is taken as an example of when the purpose is stated in a constitution
stating that in a given situation a trader is obliged to provide information
marriages to an authority or a court.
In the opinion of the Labor Court, the purpose of the treatment is clear
personal data already from the clear wording of the provision, namely that
provide the local trade union with copies of certain
proof. Since an unmasked copy of a certificate of employment is unconditional
must contain personal data about the employee, it is clear that
the obligation includes, or rather consists of, the performance of a treatment of
personal data in the form of a disclosure to the local trade union
ions.
The employer parties have also questioned whether the processing of personal data
necessary in the manner required by Article 6 (1) (c) of the Data Protection
scheme. However, the Labor Court considers that the processing of personal data
in the form of a disclosure is obviously necessary to fulfill it
the legal obligation to provide unmasked copies of employment certificates to
the local trade union. 14
The Labor Court has thus concluded that the treatment of
information such as the company's disclosure of unmasked employment certificates to it
local trade union organization would have meant could have been founded on
Article 6 (1) (c) of the Data Protection Ordinance and Chapter 2 § 1 of the Data Protection Act in and
that, in accordance with the collective agreement provision, it is incumbent on the company to
nandet. Since it is sufficient that a legal basis under Article 6 (1) of the
the protection ordinance can be invoked, the Labor Court does not need to reconsider
the treatment could alternatively have been based on another part of the
keln.
The employer parties have further objected that it would not be compatible with
the personnel administrative purposes for which the company processes personal data
the poisons in the employment certificates to disclose the personal data to it
the local trade union organization must be able to inform about the trade union
the business. The treatment would thus, according to the employer parties, be contrary
against the principle of finality in Article 5 (1) (b) of the Data Protection Regulation according to which
personal data shall be collected for specific purposes and not later
read in a manner inconsistent with those purposes.
That it is the person responsible for personal data, ie, the company, who decides
the objectives for the processing of personal data are already clear from the definition of
data controller in Article 4 (7) of the Data Protection Regulation. It does not exist
any obstacle to the company in determining the collection of personal data
more that these should also be treated in order to in accordance with the obligation under
the collective agreement provision is handed over to the local trade union
ion, which may treat them i.a. to inform about it
trade union activity.
It is the Labor Court's summary conclusion that the company could have
comply with both the collective agreement obligation to provide unmasked copies of
employment certificates to the local trade union and data protection law
the foundation. Thus, it is clear that the company has violated the collective agreement
the provision by not leaving unmasked copies of the employment certificates
to the local trade union organization and that the company is liable for
poem. That the company initially for data protection reasons refused to on request
handing out any copies at all should not affect it in such a situation
the amount of general damages.
The Labor Court sets the general damages at SEK 50,000.
Costs
The employer parties have lost and should therefore, with half each, compensate
the costs of the proceedings. The Labor Court thus finds no reason to
order the so-called set-off of court costs according to ch. § 2 second
paragraph of the Labor Disputes Act.
The employer parties have approved the compensation demanded by the union. 15
Judgment
1. The Labor Court obliges Fiedler & Lundgren AB to pay in general
damages of SEK 50,000 to the Food Workers' Union, with interest
according to section 6 of the Interest Act from 13 May 2020 until payment is made.
2. Livsmedelsföretagen and Fiedler & Lundgren AB shall, with half
reimburse the costs of the Food Workers' Union with
SEK 324,748, of which SEK 254,000 relates to agency fees excluding VAT, incl
interest in accordance with section 6 of the Swedish Interest Act on the first-mentioned amount from the date of this
judgment until payment is made.
Members: Sören Öman, Inger Andersson, Kerstin G Andersson, Ari
Kirvesniemi, Elisabeth Ankarcrona, Per Bardh and Erland Olauson.
Unanimously.
Legal Secretary: Pontus Bromander
