Mobilizing the Rights of Migrant Workers: Swedish Trade Unions’ Engagement with Law and the Courts

ABSTRACT

Migrant workers, both regular and irregular, are at particular risk of having their rights violated. At the same time, there has been an absence of support for exploited immigrant workers from Swedish authorities and civil society. Lately, a number of trade unions and semi-union organisations in Sweden have developed methods to mobilize the rights of migrant workers experiencing exploitation on the Swedish labour market. This article investigates strategies utilized by trade unions to mobilize migrant workers’ rights by engaging with the law and the courts. It draws on qualitative interviews with trade union representatives and court judgements from the Labour Court and other civil courts. We identify legal practices that range from immediate legal assistance and everyday negotiations with employers to litigation in court. We show how the practical, aspirational, and creative engagement of a small group of trade union representatives with the law and courts has generated a new form for mobilizing the rights of migrant workers in the Swedish context. This form of legal mobilization is both instrumental and political, driven by the rhetoric of class struggle and a belief in the rights of migrant workers.

KEY WORDS:

• migrant workers
• labour exploitation
• trade unions
• legal mobilization

Introduction

A few days before Christmas 2021, the police arrived at the home of the Swedish prime minister outside Stockholm after cleaning-company employees set off the alarm. One of the cleaners was a 25-year-old woman from Nicaragua with no Swedish work or residence permit. Swedish news outlets reported on the incident in early January and turned it into a story about an ‘illegal migrant’ and ‘threats to national security’. When the news broke, the woman had already been detained by the Swedish Migration Agency, and she was deported at the beginning of March 2022 after accepting a summary fine for ‘having resided illegally in Sweden’.¹ This might have been the end of the Swedish news story. However, after the syndicalist trade union SAC (the Central Organization of the Workers of Sweden) was contacted, the case was transformed into both a criminal and a civil legal matter. With the help of the union, the woman reported a previous employer for human exploitation.² The union also took legal action against this previous employer in the Labour Court for refusing to negotiate, and, following a subsequent threat to sue through the court again, arrived at a settlement with the company to pay the woman 100,000 SEK in retroactive wages.³ The owner of the cleaning company hired by the prime minister has since been charged with a criminal offence (a violation of the Aliens Act), but the district court acquitted the owner, and the case has not been appealed. In addition, the same cleaning company has been sued by the SAC in the District Court for unpaid wages, holiday pay, and pension contributions, plus general damages, with the main hearing scheduled for October 2023.

This paper explores the rights advocacy and legal mobilization conducted by Swedish unions in relation to the exploitation of migrant workers. When we refer to migrant labour exploitation in this article, we are referring to exploitation at the bottom end of the labour market,⁴ which is a product of racial capitalism—the interplay between racial and capitalist regimes.⁵ Racialized, migrant, and gendered workers endure a form of ‘super-exploitation’, which ‘involves a reduction or suppression of wages to the point where it falls below the value of the worker’s labour power’⁶ and entails increased occurrence of physically and psychologically damaging labour conditions.⁷

In 2008, Sweden introduced a major reform of its labour migration regime to facilitate more labour migration from third countries. The new migration laws have been referred to as among the most liberal in the world and have entailed a shift in power from unions to employers.⁸ In addition, the large well-established Swedish blue-collar workers’ unions have historically been reluctant to organize labour migrants and undocumented migrants,⁹ although some scholars have noted differences between the ambitions of different unions in this regard.¹⁰ It has also been difficult to translate ambitions and attempts to show solidarity with migrant workers into concrete practice.¹¹ Further, in the 1990s union branches collaborated with the police and actively participated in Sweden’s internal control of foreigners on some occasions.¹² Even for organizations such as the Union Centre for the Undocumented, which is driven by a rights discourse, advocating for rights other than labour rights, such as the right to residency and to work, has been controversial.¹³

Recently, however, some representatives of trade unions and semi-union organizations¹⁴ in Sweden have developed strategies to mobilize the rights of migrant workers, from rights-consciousness building to legal practices, including the provision of legal assistance and everyday negotiations with employers and pursuing litigation in court. The unions primarily use labour rights rather than human rights to frame their rights-claiming practices. Yet labour rights such as reasonable remuneration for work, reasonable limitations on working hours, the right to decent working conditions, the prohibition of forced labour, and the right to join trade unions may be understood as universal human rights on the basis of both positivistic and instrumentalist perspectives.¹⁵ The protection of human rights has been cited as a reason for including migrant workers in the traditional Swedish unions.¹⁶

To explore these developments, we ask how representatives of trade unions and semi-union organizations in Sweden are currently mobilizing migrant workers’ rights by using law and the courts. We draw on qualitative interviews with trade union representatives, observations from visits to trade union activities, and court judgements from the Labour Court and other civil courts. We will show how the practical, aspirational, and creative engagement of a small group of trade union representatives with the law and courts has generated a new form for mobilizing the rights of migrant workers in the Swedish context. This form of legal mobilization is both instrumental and political, driven by the rhetoric of class struggle and a belief in the rights of migrant workers.

Legal mobilization

In analysing how unions mobilize the labour rights of migrant workers, this article builds on the concept of legal mobilization, which involves engaging with the law and the courts.¹⁷ Although infringements of labour law are only one of the many legal struggles faced by migrant workers, when we refer to legal mobilization strategies, rights claims, and rights consciousness, our focus is on the labour law rights promoted by labour unions.

Legal mobilization is a form of political strategy that relies on the law as its mode of expression,¹⁸ often through rights claiming and the mobilization of legal rights.¹⁹ For many scholars, legal mobilization goes beyond the mobilization of formal legal institutions to incorporate rights advocacy at different sites and in different forms.²⁰ Legal mobilization strategies range from the everyday struggles of individuals and groups to the strategic use of litigation.²¹ Others interpret the ‘legal’ aspect of legal mobilization in more strictly legalistic terms. Lehoucq and Taylor²² define legal mobilization as ‘the use of law in an explicit, self-conscious way through the invocation of a formal institutional mechanism’. In addition to litigation, this definition includes legal mobilization by means of administrative procedures and quasi-juridical means. The reference to the explicit and self-conscious use of law emphasizes an active choice to turn to law. Lehoucq and Taylor²³ stress that legal mobilization differs from legal consciousness, the latter being ‘the implicit, nonarticulated use of law to give meaning to an event’.

Others, like McCann and Lovell,²⁴ do not make such a clear distinction between legal mobilization and legal consciousness. They use the term ‘oppositional legal rights consciousness’ to describe the strategic struggles of Filipino labour activists to mobilize law in the US. Ewick and Silbey’s concept of ‘with the law’, where the law is understood as an instrument, tool, or game, highlights the strategic choice to turn or not turn to law.²⁵ Law is then viewed as an ‘arena of competitive tactical manoeuvring’.²⁶ Within this form of legal consciousness, legality is understood as ‘engagement and conflict, resources and process’.²⁷ In other words, law can be an arena for contest and struggle, but using it comes at a cost. This view of law also encompasses recognition of the uneven distribution of legal capabilities.²⁸

Ewick and Silbey show that legal consciousness is inconsistent, fluctuating, and full of contradictions. These qualities will also become apparent in this article, with the unions and semi-union organizations both playing the law game (‘with the law’) and resisting the power of law (‘against the law’).²⁹ At first sight, the relationship between legal consciousness and legal mobilization suggests that people who position themselves ‘against the law’ would not turn to the courts to make rights claims.³⁰ However, Taylor’s extensive research in Colombia suggests that the relationship is much more complex, and that even those who view the state and the law as unfair and have little trust in the courts nonetheless engage in legal mobilization when alternatives are limited. ³¹

When describing rights-based political and legal struggles in Rights at Work, McCann uses the term ‘legal rights consciousness’ to refer to ‘the ongoing, dynamic process of constructing one’s understanding of, and relationship to, the social world through the use of legal conventions and discourses.’³² In particular, the term refers to the understanding of social relations in terms of rights.³³ In the pay equity movement, McCann recognizes four types of impact that legal mobilization had on the rights consciousness of the women in the movement: (1) individual empowerment, (2) collective empowerment, (3) political solidarity (feminist and class consciousness), and (4) the advancement of new rights and entitlements.³⁴ Rights consciousness can thus be understood as one of the impacts of legal mobilization activities.³⁵

In legal mobilization studies, a distinction is made between law as a strategic resource for social movements and law as an instrument of state power that enforces hierarchies based on race, class, and gender.³⁶ One example of law as a repressive force is found in the way that the legal ‘deportability’ of many migrant workers reinforces the exploitation to which they are subjected by employers.³⁷ At the same time, as we will explicate in this article, various laws can be used as a tool to struggle against this same exploitation. In other words, law can provide ‘room for manoeuvre and space for resistance’.³⁸

This article takes these ideas as its point of departure to explore the legal mobilization of trade unions against private employers, which ranges from rights advocacy and the provision of immediate legal assistance and support in everyday negotiations with employers to litigation in court. The study positions itself in the ‘bottom-up’ research tradition, which seeks to understand why and how actors turn to the law and courts, as well as to other forms of mobilization.³⁹

Material and methods

The data for the article was gathered through interviews with trade unions and visits to trade union activities as well as from settlement agreements and court judgments.⁴⁰ The interviews focused on legal strategies and the different arenas used by unions to protect migrant workers’ labour rights against employers and the strategies used to recruit migrant workers as union members. We conducted eight semi-structured interviews with Swedish trade unionists between September 2020 and April 2022 and have observations from six visits to union activities between September 2020 and September 2022. The interviews covered the following topics: the representatives’ roles at the union, their experiences with cases involving migrant-worker exploitation, the unions’ processing of these cases, specific legal cases that illustrate this issue, membership rules, legal and other strategies employed by the unions in cases involving migrant workers, and how the unions engage and collaborate with authorities on this matter.

Of these interviews, five were conducted with representatives from both central and local divisions of unions affiliated to the Swedish Trade Union Confederation (LO), in the construction (Byggnads), forestry (Facket för skogs-, trä- och grafisk bransch), and transport (Transportarbetareförbundet) sectors, together with the Commercial Employees’ Union (Handelsanställdas förbund), which represents several industries. Four visits were made to the Stockholm division of the SAC, which is a small independent anarcho-syndicalist union with no specific sector affiliation. These visits resulted in one semi-structured interview and several informal conversations with representatives, as well as observations made during several meetings with migrant workers. One interview was conducted with a former local representative of another local SAC division.

One visit was also made to the Union Centre for the Undocumented (Fackligt center för papperslösa), a union organization formed in 2008 by unions within the LO, TCO, and Saco union confederations. The centre operates as a coordinating organization for undocumented migrant workers from different industries seeking assistance with a labour dispute, passing the workers’ cases on to the local trade union within their occupational sector. During this visit, we conducted one semi-structured interview with two representatives who were in charge of the organization’s daily operations. In addition, we visited an independent semi-union organization, Husby Arbetarcentrum; while it has no organization number or collective agreements with employer organizations, it assists workers in making wage claims and seeking compensation from individual employers in civil courts. This visit did not result in any formal interviews but involved several informal conversations and observations.

Furthermore, we analysed 26 settlements and judgments from civil courts and the Labour Court. The civil court cases pertained to migrant workers lodging complaints against an employer regarding the non-payment of wages or insufficient wage payments, while the cases in the Labour Court involved the unions representing migrant workers who were seeking damages for breaches of collective agreements, and also claiming unpaid or insufficient wages. We obtained the court judgements via searches in the law database Infotorg Juridik and directly from the unions we were interviewing, from which we also obtained copies of settlement agreements. These cases were used to understand the process whereby migrant workers seek compensation from employers and how unions legally represent migrant workers in disputes with employers and employer organizations.

In the course of the data-collection process, several high-profile cases involving the labour exploitation of migrant workers were given national media coverage. These cases served as descriptions and illustrations of the discussion on labour exploitation in the mainstream media, and as reference points or prompts in our conversations with interview participants. These high-profile cases were also of value when searching for additional court case data. We will now move on to present our empirical findings.

Immediate legal assistance

In one of the rooms at the syndicalist union SAC, two migrant workers of Uzbek origins sat down to tell two SAC representatives that they had worked as roofers and not received any wages from their employer for four months. For more than a month now they had also been out of work. One of the SAC representatives spoke Russian with the two workers and at times turned to the other SAC representative to explain the situation and discuss the measures they might take. They asked for the employer’s phone number and called immediately, but there was no answer. The migrant workers provided the name of the contractor who had hired their employer to do the work. The SAC representatives googled the company and found a webpage and a phone number, but again there was no answer when they called. After a while, the migrant workers mentioned the name of the site manager, but they did not seem to have his number. The SAC representatives reasoned that the next thing to do was to file a request that the company the workers had been employed by be declared bankrupt. They quickly printed a form that the migrant workers signed.

We were curious and asked about the likelihood of obtaining any form of compensation for the two migrant workers; the SAC representatives were optimistic because the workers had all the papers they needed to confirm their employment and the sudden stop in their wage payments. If the company was placed in bankruptcy, they should have the right to compensation via the state-based Wage Guarantee Act,⁴¹ but the union could also claim contractor liability,⁴² which would mean that the contractor could be forced to pay unpaid wages in the construction industry, which is known for its long subcontracting chains. The situation was a bit more difficult for a colleague of the two workers who had been through the same experience but did not have any papers. But the SAC had previously had success in obtaining payments from the Wage Guarantee Act for undocumented workers, so the situation was not impossible. Without proof of employment, someone, for example the contractor, would be required to confirm that the individual had been working on the construction site.

Neither of the two SAC representatives was a trained lawyer, but they adopted a very practical approach and manoeuvred among the laws regulating employment and business to meet the immediate needs of the migrant workers. They provided legal consultation and within a few minutes they had provided the support their new members needed to name, blame, and claim.⁴³ Their claims-making practice involves invoking various laws to generate compensation for workers. Barclay et al. make a distinction between (elite) lawyers hired by social movements for the purpose of litigation and cause lawyers who participate in activism.⁴⁴ These trade union negotiators constitute another form of a legal player, using the law as a tool in the struggle for migrant workers’ rights without being trained lawyers. They use legal terminology, legal logic, and legal discourse in their ideological commitment to workers’ rights.⁴⁵ Their legal practices are routinized and pragmatically adapted to support the migrant workers in claiming their rights against their employer.

During the meeting we could see through the glass walls that someone came in through the doors of the union’s premises and waved to one of the SAC representatives, who then opened the door to the meeting room and asked the newcomer to wait outside for a moment. When the SAC representative had closed the door again and walked back to his chair, he explained that the person was there to pay his and some friends’ union membership fees. The problem is that migrant workers often want or can only, pay in cash. This is often resolved by one of the staff members at the SAC office using a personal bank account to pay the fee and being reimbursed in cash by the new member.

Over two years ago, the Stockholm branch of the SAC decided to take on cases for non-members, provided that they joined the union. The SAC had already been organizing migrant workers before then—the local unionization of undocumented migrants was supported by a formal decision made at the SAC Congress in 2002 to organize all workers independent of migration status⁴⁶—but the more recent initiative seems to have affected both the number of members and the methods employed. The change regarding the rule on membership, in combination with a variety of initiatives to recruit migrant workers, has led to this union becoming particularly experienced in handling the legal dilemmas of migrant workers in Sweden.⁴⁷

The strategies employed by the SAC are in line with those observed in other countries, where unions have had to adapt to new realities that involve workers being organized at the labour-market level rather than the workplace level.⁴⁸ This form of unionism includes raising awareness via the production of information in many languages, educational initiatives on employment rights, and the establishment of industry-specific organizations.⁴⁹

These new modes for organizing migrant workers, which will also be discussed below, serve several purposes. The union helps to develop migrant workers’ awareness of their (labour) rights, provides a platform for collective rights-claiming actions and provides individual legal assistance to migrant workers, and takes direct action, as we have described in the case of the Uzbek migrant workers. Over the last couple of years, the union has developed its experience and skills as well as formulated new strategies to reach migrant workers and claim their rights—although a large part of this work constitutes a traditional area of labour union activity. As we continue, we will present examples of this development and show how rights claiming in relation to migrant workers is largely achieved through negotiations with employers under the threat of ‘going to court’.

Local negotiations

Labour unions that are part of the Swedish Trade Union Confederation (LO), a large federation comprised of established blue-collar workers’ unions, are by design less flexible in their strategies for becoming involved in the labour conflicts of non-members. In our interviews, two union representatives from the Building Workers Union and the interviewee from the Swedish Transport Workers’ Union described difficulties progressing beyond local negotiations with employers, since workers who seek assistance as non-members, or who become members after the fact, cannot be represented by the union in a labour dispute at the Labour Court. One of the union representatives described how they nonetheless have some flexibility at the local level:

What’s fundamental is that you do not have the right to assistance in negotiations for times when you weren’t a member. Then it’s like this, that we can’t take it to court either, but we can always—I mean we have the local representative; he’s autonomous of course, so he can do what he likes in an individual case, because there may of course be a reason to get into a workplace, like, and you can do that by taking on [the case].⁵⁰

Although the local union representatives from the Building Workers Union and the representative from the Swedish Transport Workers’ Union described having room to manoeuvre, they are constrained in their ability to obtain positive results for workers in local negotiations because these cases may not be admissible either in central negotiations between the employer’s representative and the union’s central committee or in the Swedish Labour Court. One interviewee described these limitations in the following way:

We can of course turn a blind eye if it’s happened retroactively, so to speak, because we can see that it’s a good idea to go in and help. But then we tell them that we can’t pursue it—because if it were to end up in the AD [Labour Court], then we’re done for. So—at the moment all we have is this possibility to negotiate. In the AD, you can’t just say: ‘Yes, but this member wasn’t a member then of course.’⁵¹

It is possible for a union to take the case of a non-member to the district court, although since litigation always entails a cost, the decision to pursue such a case will naturally be preceded by strategic considerations based on the possible benefits for the union. In addition, some unions have rules stating that new members who are seeking assistance in labour disputes must wait for up to three months before they can be given help in a labour dispute. According to several of our interviewees, this waiting-period rule is the subject of intense internal debate and some unions have amended the rule to better accommodate new migrant workers and seasonal migrant workers.

One union representative from the Building Workers Union who was linked to the Union Centre for the Undocumented came into our meeting with an envelope containing 36,000 SEK in cash. He proceeded to explain that the money was the result of successful negotiations with an employer. He had managed to secure the wages owed to the worker in cash, since the worker did not have a bank account. The union representative explained how he had paid the worker’s membership fee from his own pocket, since he thought the case might have to go to central negotiations and wanted to make sure the worker was then a member:

… he wasn’t a member or anything—I didn’t think this would go through so I’ve—he owes me 300—I paid his membership fee actually. So I paid in 300 SEK just so that we would be able to—because I thought this would go up to the central level … we don’t actually pursue cases—or I can’t pursue cases—and if I can’t do it myself, then it won’t get done—and then they need to be members to be able to get it done, and then I pay this 300 because it was so straightforward, all the papers were there, and he [the employer] was good with the paperwork; unfortunately that is very rarely the case.⁵²

This mode of individual initiative to navigate past the perceived rigidness of the rules was observed among several of the union representatives, and according to them these initiatives resulted in tangible successes for the workers and the union.

The Building Workers Union representatives noted that rigid membership rules constitute an obstacle, particularly in cases involving migrant workers, who may be unfamiliar with or have difficulties navigating the Swedish model. For this reason, they resort to unusual methods in some cases, such as paying for membership fees and initiating negotiations with employers without adhering to the waiting-period rules. The money-in-the-envelope incident illustrates that local union representatives have some autonomy, flexibility, and the ability to take action in individual cases that are not necessarily supported at the central level. Similar findings have been reported in a study of labour unions in the UK, where initiatives were taken by local officials without input from the head office and/or without necessarily informing other local representatives.⁵³

Even though the local union representatives work autonomously to some extent to support the rights of migrant workers, local negotiations are firmly grounded in law. According to Swedish law, unions have the right to request negotiations with employers in matters concerning the relationship between an employer and union member under Section 10 of the Co-Determination in the Workplace Act (1976:580). In one negotiation petition sent to a company by the Stockholm section of the SAC, the threat of court action was expressed explicitly: ‘If your company does not participate in the negotiations without giving reason, or deliberately delays the negotiation process, the Stockholm LS will bring an action in the Labour Court.’ In other words, the unions use the threat of going to court in their efforts to mobilize migrant workers’ rights.

Choosing when to go to court is generally a strategic decision, which of course depends on organizational resources in the legal dispute process.⁵⁴ Negotiations may benefit from the threat of court litigation; litigation is said to be most successful as an unrealized threat, but the threat must be realized from time to time for it to retain its power in the bargaining process.⁵⁵ It is undermined if the union cannot or will not follow through on such threats when necessary. This might be the case in instances such as that described above, when unions within the LO federation take on cases of non-members. In addition, mobilizing the rights of undocumented migrants may require other legal manoeuvres and more refined tools. In the next section, we will explore how unions and semi-unions use the law as a game and creatively mobilize various laws to enforce the rights of migrant workers.

Playing the law game

The way in which the syndicalist union SAC spoke of their engagement with law resembled Ewick and Silbey’s concept of ‘with the law,’ in which the law is understood as a game that creates space for action and advancement.⁵⁶ In contrast to the perception of law as a commodity that can be used in your own self-interest,⁵⁷ the union plays the law game to advance the rights of others. As we experienced in connection with the immediate legal assistance provided to the Uzbek migrant workers, various laws are utilized to assist the workers. On another occasion, a representative of the union described the usefulness of several new laws, both civil and criminal:

Three new laws that we have all been able to use: contractor liability, the law on human exploitation, which we pass on to the police … and the law that undocumented persons have the right to wages—the agreement from 2013 or whenever it was. They are good.⁵⁸

The last law referred to by the representative regulates the right of undocumented persons to wages or remuneration from an employer or even a contractor for three months of full-time work, based on an EU directive (2009/52/EC).⁵⁹ Several unions mentioned this law as providing opportunities when seeking to protect the rights and interests of undocumented workers, either as a means of exerting pressure during negotiations with employers or as the basis for court litigation. We will later describe an attempt to enforce liability under this Act.

The SAC makes use of civil law processes to sue employers. When we visited them in the autumn of 2020, they had taken on many new cases concerning migrant workers and had started to figure out what was required in order to win these cases in the Labour Court:

If a member comes and says that everyone who has worked here has been treated like slaves; every month we have to pay them back from a cash machine in gratitude for the work permit; we work fourteen hours a day, seven days a week, and they haven’t paid wages in full. Then I was assaulted by the owner and lost my job … And then we call them to a negotiation, and in the end we were able to recover the unpaid wages, because there was evidence of that … and then we threatened with a blockade and they gave in. And we could sue them in court and get … yes, it’s not entirely clear yet, but we’re going to get about 20,000 there … but everything else, the rest, there was no evidence at all … we couldn’t prove it. And then it’s difficult to pursue. So everything is about provability, and the most important tool for people on this slum of a labour market is the mobile phone. I mean, anything that has been sound-recorded … [or] photographed, we almost always win.⁶⁰

One and a half years later, they described how they had made a lot of progress, referring to the situation in the autumn of 2020: ‘We lost cases then that we would never lose today.’ They showed us the statistics from 2021 describing all their successful cases. One of these involved a settlement confirmed by the Labour Court, in which a migrant worker had received 560,000 SEK in compensation for having been fired and the non-payment of wages.⁶¹ He was sacked when the employer found out that he had participated in a meeting with the union. A similar situation was described by a representative from an LO union, showing that going to court is also an important element in defending workers’ right to union membership, a question of principle:

But we’re also going to demand damages, of course, both general and financial as a result of the breaches of central agreements. Because of what they are guilty of, and because then you also commit something that’s called a violation of the right to association, because it’s completely obvious when you listen to these recordings and you can see the whole story, the overall assessment is that the employer chooses to terminate their employment when the employer finds out that someone has sought help from us. It’s the union membership and joining us that triggered the termination of employment, that [is why] they had their jobs taken away from them, and that’s like a damaging act and like … very strongly suggests that it’s a pure violation of the right to association. I’m also going to petition that we should be paid damages for that.⁶²

Freedom of association is a fundamental human right proclaimed in the Universal Declaration of Human Rights of 1948. The right of workers to form and join organizations of their own choosing is the most important right for trade unions to protect unconditionally. Under Swedish law, freedom of association is articulated in Section 7 of the Co-Determination in the Workplace Act, stating that employees, as well as employers, have the right to belong to trade unions. Section 8 states that the right of association must be left inviolate, meaning that no party may take any action that could impede or prevent the right of association. The unions reported, however, that the capacity of migrant workers to access this right is much more limited than for native workers. For migrant workers, the barriers to joining a union are multiple: temporary jobs, unfamiliarity with the domestic labour market and unions, language barriers, and a fear of being dismissed for union activities.⁶³

In addition to the established unions, other initiatives have been developed to support the rights of migrant workers and enable their access to a claims-making process in relation to employers. Husby Arbetarcentrum is a local ‘union organization’ (facklig organisation) founded in 2019 with the support of SAC members. They are not a registered union and therefore do not have union rights, but they employ similar strategies to those of the SAC. They help workers file complaints against employers, negotiate with employers, and ultimately take cases to court.

When we visited them on a Tuesday evening in April 2022, members of the union organization were sitting at temporary tables in the crowded café area of the community centre, and together with a lawyer from a local law firm were busy providing consultation to workers who had turned up to that day. One of the initiators of Husby Arbetarcentrum told us how they were able to take cases to court as a small organization with limited resources. On a few occasions, they utilized Swedish legislation on small claims litigation (Förenklat tvistemål or so-called Småmål) to enable them to litigate in court without the financial risk otherwise involved in litigation. The downside was that they could only make compensation claims for sums up to half the price base amount (currently 24,150 SEK). In one such case, the initiator had himself conducted the litigation without being trained in law. Their approach to the law is very much in line with the idea of legal mobilization, as they actively choose to turn to the courts to advance the rights and interests of workers. They told us that members participating in their own cases, as a form of legal empowerment, was important. On their webpage, they have uploaded a summons application form (stämningsansökan) from the Courts of Sweden website to make the process of exacting accountability through the courts accessible.⁶⁴

As regards the costs of litigation, being represented by a trade union opens the possibility of litigating in the Labour Court. Without membership and representation by a union, a migrant worker must sue the employer in a district court and assume the financial risk involved in that process. The Union Centre for the Undocumented has been able to obtain state-funded legal aid a couple of times to cover the costs of the civil litigation process for undocumented migrants.

Yes, but we’ve got a guy, a lawyer that we work with. And there we’ve at least on two occasions applied for legal aid, despite them being undocumented. And they’ve been granted on both occasions. [Interviewer: the public?] Yes. I was really surprised when I rang: ‘Yes, of course they can!’ ‘Yes, but they’re so-called undocumented individuals?’ ‘Yes, yes, but—’. So I applied on both occasions, and they were granted both times.⁶⁵

These examples show how union representatives have developed skills in playing the law game in pragmatic and creative ways. When representing migrant workers, who are often undocumented, the unions and semi-union organizations manoeuvre to find solutions to practical problems and have become creative in mobilizing the law, seeking new routes and breaking new ground. An example of the latter is a precedent obtained in the Labour Court,⁶⁶ which states that principal contractors have a duty to negotiate with the union, and which resulted from litigation brought by the syndicalist union SAC. However, while the unions’ creative but pragmatic engagement with the law resembles the form of legal consciousness labelled ‘with the law’ by Ewick and Silbey, this does not necessarily reflect optimism about the law’s effectiveness. Engagement with law, particularly for the SAC, incorporates a fundamental scepticism towards law and the courts in general and towards the Labour Court in particular.⁶⁷ Before discussing this further, we will first turn to developments in the processing of migrant workers’ rights in the Labour Court.

Rights claiming in court

Although most conflicts relating to migrant workers are settled before they reach the Labour Court, those that reach the court are of particular significance, not at least because they produce case law. Swedish trade unions have made occasional use of the Labour Court in relation to ‘illegal’ migrant workers since at least the 1980s.⁶⁸ More recently, Bengtsson has identified six cases from 2004–10 relating to EU workers.⁶⁹ One of these, the famous Laval case, which concerns the right of unions to take industrial action in conflicts with employers, was passed on to the European Court of Justice and has been considered a defeat for the unions. The other five relate to companies’ duty to negotiate with unions when hiring subcontractors, the right to join a union, the definition of an employee (compared to a self-employee), and how wages should be determined for temporary agency workers. The cases won by the union produced damages payments to the union, with the exception of one that also generated damages payments to the employees.⁷⁰ These cases are important for the trade unions since they relate to the position of trade unions and the regulation of the Swedish labour market, but they do not necessarily benefit exploited migrant workers. In a later example, AD 2018/78, which focused on breaches of collective agreements and a refusal to negotiate with a trade union, the construction workers’ union was awarded 850,000 SEK. The Latvian workers involved, who had received substantially lower wages than those specified in the collective agreement, had no part in the case examined by the court and were thus not awarded any damages.⁷¹

Over the last couple of years, as an effect of the large increase in the number of migrant members in the SAC, the union has pursued several cases in the Labour Court that focus on the rights of migrant workers.⁷² In addition to the large increase in migrant SAC members, and as an effect of the many initiatives described above, including the abolishment of the deferred period, the increase in the SAC’s migrant workers’ rights litigation in the Labour Court is also due to the fact that restrictions were imposed on the right to strike in Sweden in 2019.

One of the more successful Labour Court cases is the one mentioned in the introduction to this text against one of the employers of the cleaner who found herself on the front pages having worked at the house of the Swedish prime minister. The case was settled prior to the main hearing and resulted in a payment of 100,000 SEK in pre-tax wages to the member and 25,000 SEK to the union for the employer’s refusal to negotiate.⁷³ Another of the Labour Court cases litigated by the SAC also resulted in a court settlement prior to the main hearing.⁷⁴ On paper, it looks like a big win for the member and the union: the member received compensation of almost 600,000 SEK (before tax) for having been sacked upon joining the union. However, the settlement was not recognized by the Migration Authority as giving the member the right to a work permit, and the member was deported.

Suing in the Labour Court has several disadvantages. First, it requires the union lawyer to devote a great deal of time to preparing the case, particularly if it results in a main hearing. Proving wage claims is difficult and time-consuming, especially if there are no documents relating to employment or to bank payments. Second, there is always a financial risk since you might have to pay the legal costs of the other party if you lose the case. This can be seen from a case litigated in the Labour Court by the Swedish Transport Union against the online food delivery company Foodora.⁷⁵ The union lost the case and had to pay 1 million SEK of Foodora’s legal expenses. Third, if the company is placed in bankruptcy as a result of the judgement, winning in court does not necessarily lead to compensation; this is also something the SAC has experienced.

Even though the SAC has won several court cases over the last couple of years, one of the union lawyers expressed pessimism: ‘It doesn’t feel like the court cases lead to any progress.’ The choice to litigate in court is more pragmatic than strategic. Taking some cases to court is a means of showing that the union will not back down. The union lawyers explained: ‘We maintain the collective agreements by demanding the wages of individual members.’ At best, court cases can serve as a threat in the context of other negotiations. In the following section, we will discuss the SAC’s ambivalent relationship with the law and the Labour Court.

Law as weapon and conflict

Legal tactics and practices often have multiple motivations.⁷⁶ In the case of the unions, and particularly the SAC, the legal practices examined are both a way of enforcing the rights of individual migrant workers and motivated by the more ideological class conflict between workers and employers (or, in SAC’s terms, buyers of labour). The union’s efforts to mobilize the law have in this regard both short-term and long-term goals. The stance of the SAC is that all workers have basic common interests and that the struggles of the trade union undermine the power of the employers, which will, in turn fundamentally challenge the class system. The foundation for their work is the organization of workers and collective action. The organization of migrant workers constitutes part of this overarching struggle.

The meetings of the building sector and the migrant workers’ branch (Solidariska byggare - Stockholms byggsyndikat av SAC), which are held every second Sunday, are in the process of literally outgrowing the SAC’s venues in central Stockholm. More than 100 workers from different countries arrived at one of the members’ meetings in November 2022, many more than the meeting room could accommodate. The agenda of these meetings varies but often includes information on new members, ongoing conflicts, battles won for members, and the planning of upcoming debt-collection blockades (indrivingsblockad) of companies. When we visited one of the meetings, legal rights discourse was very much at the centre of the discussion. There are also regular training activities, primarily focused on labour law but also on tenancy law and migration law, thus building the workers’ rights consciousness. The Sunday meetings thus function as a means of producing both individual and collective empowerment, as well as building solidarity between workers.⁷⁷

After each meeting, the union negotiators provide advice to individual members on labour law rights and take on cases for further processing. Many of these cases relate to unpaid wages and will be settled by the union. Very few will result in court litigation. One negotiator explained that the ideal case does not need to go to court: ‘We can find new negotiators more easily than new lawyers.’ The SAC’s union programme from 2006 also shows a fundamental scepticism about turning to the law and to the Labour Court:

An overemphasis on legalism shifts the struggle away from the workers on the floor to the legal games of the negotiating table and ultimately to the Labour Court (LC). When the court takes over, it judges on the basis of a top-down perspective. The LC is a corporatist class court. Its praxis is anti-labour, particularly in relation to the SAC and other minority unions. Nor is the court free of the sexism and racism that characterize the application of the law in general. Relying on the law is completely insufficient.⁷⁸

The above paragraph clearly emphasizes a conflicting perspective on law and manifests a theoretical view of law as an instrument of power and class rule,⁷⁹ very much in line with the anarcho-syndicalist philosophy.⁸⁰ Still, as we have shown, the syndicalist union engages continuously with the law and with the Labour Court to negotiate the rights of migrant workers. However, this legal mobilization is firmly grounded in the organization of workers from ‘below’ (in contrast to the union’s understanding of the law as coming from ‘above’) and in other strategies and methods.

The building sector and migrant workers’ branch regularly organizes debt-collection blockades of companies that are in conflict with the union, in line with the strategy of organizing workers collectively. They also engage in a balancing act between engaging with the law and organizing blockades, as one SAC negotiator explained: ‘There has to be a balance between blockades and the law—otherwise you are regarded as not being a serious player.’ If employers do not perceive the union as serious, the union risks being threatened by the employers. In other words, the law is needed as a balance to other methods and forms of organizing in order to bring companies to the negotiating table and strengthen migrant workers’ rights, vis-à-vis employers. They do not turn to the courts because this is the only option⁸¹ but because it is one of several strategies for claiming the rights of the workers, namely collective conflict-oriented debt-collection blockades in combination with legal claims-making in individual cases.

From a conflict perspective, law does not primarily regulate conflicts but rather generates conflict.⁸² However, as Chambliss has described, it is a bit more complicated than the law functioning simply as a reflection of the interests and ideologies of the ruling class.⁸³ He illustrates this by referring to the development of labour law, as shaped via struggle and conflict between workers and capitalists, which he describes as a dialectic process in which capitalists fare considerably better in protecting their interests than the working class, but in which class struggles shape the content of the law. He concludes that conflicts, not harmony, are the engine for social change.

On the one hand, for a union like the SAC, conflict resolution is not the ultimate objective. As emphasized in their union program from 2006: ‘It is not sufficient to stop at rights that have already been achieved, positions should continuously be moved forwards.’ On the other hand, the law and the courts serve as an instrument and a weapon to promote the union’s ability to challenge the exploitation of migrant workers’ rights by employers while strengthening the union’s visibility and advancing its position. The union’s position resembles what Sager and Kolankiewicz have referred to as critical legal practices, which incorporate a fundamental ambivalence in relation to engaging with legal practices and are at the same time committed to an ideological critique of the law.⁸⁴ Similarly, Halliday and Morgan refer to the ‘gaming approach’ to state law manifested by radical environmental activists, which involves a pragmatic acceptance of existing law as a tool for collective aims while also resisting the authority of state law.⁸⁵ Needless to say, the SAC’s position stands in contrast to the positive perception of the state held by traditional trade unions, which have historically had strong links to the Swedish state apparatus.⁸⁶

Concluding discussion

In this article, we have examined the work of a small group of trade union representatives and their practical, aspirational, and creative mobilization of migrant workers’ rights. On the one hand, there is nothing surprising about unions engaging with law. Their work is surrounded by law and rights: the right to association, to co-determination in the workplace, to collective bargaining, etc. They engage with law as they would in any other dispute involving members’ labour rights. On the other hand, the union representatives have been faced with a new group of workers who are rarely members of the union at the start and who are quite often undocumented; the representatives have shown creativity when approaching and using the law to mobilize these migrant workers’ rights. Their work could be described as bricolage, the skill of using whatever is available and puzzling it together to create something new and imaginative.⁸⁷

The article outlined various differences between the syndicalist trade union SAC and the traditional unions affiliated with the Swedish Trade Union Confederation (LO) in their approach to violations of migrant workers’ rights. While the former has developed a new approach to reach migrant workers who were not previously members of a union and to mobilize their rights, the latter has been less flexible when faced with exploited migrant labour in the Swedish labour market. The development of semi-union organizations, such as Husby Arbetarcentrum and the Trade Union Centre for Undocumented Migrants, can be seen as a response to a need that has not been met by the established unions.

We have also documented several initiatives to mobilize the rights of migrant workers taken by the traditional unions affiliated with the Swedish Trade Union Confederation (LO) at both the local and central levels, but the small, independent SAC union is clearly pushing the agenda on migrant workers’ rights. SAC has also attracted considerable media attention. Many of their cases have been reported in national or local media, creating pressure both for companies and at the political level. Given that work-life criminality (arbetslivskriminalitet) has been given priority on the political agenda over the last couple of years, with Swedish authorities receiving increased financial resources in this area, the legal opportunity structure has been favourable for unions looking to frame the rights of migrant workers. The fact that the syndicalist union was invited to the Ministry of Employment in January 2023 to describe their work with the Act on contractor liability for wage claims in the building sector, and the ways in which the law can be expanded to other sectors, constitutes an example how unions can seize this opportunity.

Our analysis raises several questions about unions’ legal mobilization strategies for exploited migrant workers and their relation to the Swedish context. The Swedish model rests on the principle that employer organizations and trade unions negotiate the terms of their relationship on the labour market without the involvement of the state and in the absence of a statutory minimum wage. The legal strategies discussed here (legal assistance, local negotiations, and pursuing litigation in court) are part of Swedish unions’ working practices. They, therefore, do not challenge the Swedish model and nor are they exclusive to the mobilization of super-exploited workers’ rights.

Sweden is characterized by a non-litigating legal culture with strong state corporatism and reliance on the state.⁸⁸ Legal mobilization strategies have, however grown both quantitatively and qualitatively over recent decades, and civil society organisations have increasingly turned to courts to claim rights.⁸⁹ Even so, the range of strategies and the creativeness shown by the small union SAC and semi-union organisations could serve as an inspiration not only for other unions but for other civil society groups.

The legal mobilization conducted by the SAC and semi-union organisations do not, however, constitute a long-term, sustainable solution to the larger problem of super-exploitation on the Swedish labour market. Solutions have been suggested that involve either allocating financial support from the state to the unions to monitor labour conditions among non-members or shifting some of the responsibility for overseeing labour conditions to state agencies.⁹⁰ The latter would constitute more of a challenge to the Swedish model. Moreover, labour law is not intended to deal with employers who exploit workers to the extent that it becomes a criminal offence.⁹¹ As seen in the case with which we opened the article, unions have also supported exploited migrant workers in reporting violations to the police. The protection provided by criminal law to exploited migrant workers is, in practice, very limited.⁹² Mobilizing labour law thus seems to offer more than criminal law when it comes to providing access to justice for migrants who are being exploited on the Swedish labour market today.

Notes

1 SVT ’Statsministerns städerska utvisad – arbetsgivaren utreds fortfarande’ https://www.svt.se/nyheter/inrikes/stadsministerns-staderska-utvisad-arbetsgivaren-utreds-fortfarande, accessed 25 May 2022

2 The criminal investigation into human exploitation was closed, which allowed for her expulsion.

3 Mål A 17/22; Arbetaren ’ 100 000 kronor till stats­minis­terns städare’ https://www.arbetaren.se/2022/03/15/100-000-kronor-till-statsministerns-stadare/, accessed 25 May 2022

4 Hannah Lewis and others, 'Hyper-precarious lives: Migrants, work and forced labour in the Global North' (2014) 39 Progress in Human Geography 580

5 See Michael McCann and George Lovell, Union by Law (University of Chicago Press 2020); Paula Mulinari and Anders Neergaard, 'Trade unions negotiating the Swedish model: racial capitalism, whiteness and the invisibility of race' (2023) 64 Race & Class 48

6 Amanda Latimer ‘Super-Exploitation, the Race to the Bottom, and the Missing International’ In: Ness, I., Cope, Z. (eds) The Palgrave Encyclopedia of Imperialism and Anti-Imperialism, (2021) Palgrave Macmillan, Cham.

7 See Janina Puder ‘Cheap Labour, (Un)Organised Workers. The Oppressive Exploitation of Labour Migrants in the Malaysian Palm Oil Industry’ (2022) In: Global Agricultural Workers from the 17th to the 21st Century. Series: Studies in Global Social History, Volume: 50. Publisher: Brill. Harsha Walia ‘Transient Servitude: Migrant Labour in Canada and the Apartheid of Citizenship’ (2010) 52 Race and Class 71.

8 Anders Neergaard, '”Det fackliga löftet” : solidaritet, fackföreningsrörelse och arbetskraftsinvandring' in Petra Herzfeld Olsson Catharina Calleman (ed), Arbetskraft från hela världen : Hur blev det med 2008 års reform? (Delmi 2015); Niklas Selberg, 'The Laws of "Illegal" Work and Dilemmas in Interest Representation on Segmented Labor Markets: A Propos Irregular Migrants in Sweden' (2014) 35 Comparative Labor Law & Policy Journal 247

9 Heidi Moksnes, 'Papperslösa arbetare och möjligheterna för facklig organisering' in Maja Sager, Helena Holgersson and Klara Öberg (eds), Irreguljär migration i Sverige : Rättigheter, vardagserfarenheter, motstånd och statliga kategoriseringar (Daidalos 2016); Niklas Selberg and Markus Gunneflo, 'Discourse or merely noise? Regarding the disagreement on undocumented migrants' (2010) 12 International Journal of Comparative Labour Law & Industrial Relations 173

10 Neergaard (n 8); Nedžad Mešić, 'Framing solidarity in the unionisation of undocumented migrant workers' in Carl-Ulrik Schierup Anders Neergard Aleksandra Ålund (ed), Reimagineering the nation : essays on twenty-first-century Sweden (Peter Lang Publishing Group 2017); Erik Bengtsson, 'Swedish trade unions and European Union migrant workers' (2013) 55 Journal of Industrial Relations 174

11 Neergaard (n 8).

12 Denis Frank, 'State, union and unauthorized migrants' (2012) 2 Nordic journal of migration research 298

13 Selberg, 'The Laws of "Illegal" Work and Dilemmas in Interest Representation on Segmented Labor Markets: A Propos Irregular Migrants in Sweden'

14 The term ‘semi-union organizations’ denotes NGOs that act as substitutes for official unions, see Chloé Froissart, '“NGOs” Defending Migrant Workers’ Rights. Semi-union organisations contribute to the regime’s dynamic stability' (2011) 2 China Perspectives 18, and refers here to the Trade Union Centre for Undocumented Migrant Workers and Husby Arbetarcentrum.

15 Virginia Mantouvalou, 'Are Labour Rights Human Rights?' (2012) 3 European Labour Law Journal 151

16 Neergaard (n 8); Selberg, 'The Laws of "Illegal" Work and Dilemmas in Interest Representation on Segmented Labor Markets: A Propos Irregular Migrants in Sweden'. Initiatives to organize undocumented workers in Sweden have however been criticized for not doing anything to protect migrants’ right to stay and solely focusing on labour rights. Mešić, 'Framing solidarity in the unionisation of undocumented migrant workers'.

17 see Leila Kawar, 'Contesting migration governance through legal mobilization' in Katharina Lenner Emma Carmel, Regine Paul (ed), Handbook on the Governance and Politics of Migration (Edward Elgar Publishing 2021)

18 Ibid

19 Michael McCann, 'Law and Social Movements: Contemporary Perspectives' (2006) 2 Annual Review of Law and Social Science 17

20 McCann and Lovell, Union by Law

21 Michael McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (University of Chicago Press 1994); Lisa Vanhala, 'Legal Opportunity Structures and the Paradox of Legal Mobilization by the Environmental Movement in the UK' (2012) 46 Law & Society Review 523 ; Kawar, 'Contesting migration governance through legal mobilization'

22 Emilio Lehoucq and Whitney K. Taylor, 'Conceptualizing Legal Mobilization: How Should We Understand the Deployment of Legal Strategies?' (2020) 45 Law & Social Inquiry 166

23 Ibid, 179

24 McCann and Lovell, Union by Law

25 Patricia Ewick and Susan S. Silbey, The common place of law : stories from everyday life (University of Chicago Press 1998) 132ff

26 Ibid, 48

27 Ibid, 131

28 Ibid

29 see ibid

30 Whitney K. Taylor, 'Ambivalent Legal Mobilization: Perceptions of Justice and the Use of the Tutela in Colombia' (2018) 52 Law & Society Review 337

31 Ibid

32 McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization, 7

33 McCann, 'Law and Social Movements: Contemporary Perspective'

34 McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization, 258ff

35 Michael McCann, 'On legal rights consciousness: A challenging analytical tradition' in Benjamin & Nielsen Fleury-Steiner, Laura Beth (ed), The new civil rights research: A constitutive approach (Ashgate 2006)

36 McCann and Lovell, Union by Law; Gerald N. Rosenberg, 'Positivism, Interpretivism, and the Study of Law' (1996) 21 Law & Social Inquiry 435 ; Michael McCann, 'Introduction' in Michael McCann (ed), Law and social movements (Ashgate 2006); Scott Barclay, Lynn C. Jones and Anna-Maria Marshall, 'Two spinning wheels: Studying law and social movements' in Austin Sarat (ed), Special Issue Social Movements/Legal Possibilities, vol 54 (Studies in Law, Politics, and Society, Emerald Group Publishing Limited 2011)

37 Maja Sager and Klara Öberg, 'Articulations of deportability : Changing migration policies in Sweden 2015/2016' (2017) 3 Refugee Review 2; Nicholas De Genova, 'The legal production of Mexican/migrant “illegality”' (2004) 2 Latino studies 160; Niklas Selberg, 'Exkluderade ur nationen, inkluderade i arbetsrätten? Irreguljära migrantarbetare ur rättslig synvinkel', Irreguljär migration i Sverige: rättigheter, vardagserfarenheter, motstånd och statliga kategoriseringar (Daidalos 2016)

38 Austin Sarat, '' … The Law Is All Over': Power, Resistance, and the Legal Consciousness of the Welfare Poor' (1990) 2 Yale Journal of Law & the Humanities 343

39 Lisa Vanhala, 'Legal Mobilization obo in Political Science.' (2011)

40 The study was approved by the Swedish Ethical Review Authority, Dnr 2021-01203, with an amendment for inclusion of obvservations with union representatives, Dnr 2022-03368-02.

41 Lönegarantilagen, 1992:497

42 Lag 2018:1472 om entreprenörsansvar för lönefordringar

43 see William L. F. Felstiner, Richard L. Abel and Austin Sarat, 'The Emergence and Transformation of Disputes: Naming, Blaming, Claiming' (1980) 15 Law & Society Review 631

44 Barclay, Jones and Marshall, 'Two spinning wheels: Studying law and social movements'

45 cf. Michael McCann, 'Legal Mobilization and Social Reform Movements: Notes on Theory and Its Application Part IV: Contesting Rights' (1991) 11 Studies in Law, Politics, and Society 237 on equal pay activists

46 Mešić, 'Framing solidarity in the unionisation of undocumented migrant workers'

47 The initiatives have included organized open days (öppet hus) every Wednesday (until the second wave of the Covid-19 pandemic hit Stockholm), providing written information and publishing videos in 15 languages on social media, and the organization of sector-specific migrant workers’ branches in the building sector and more recently in the cleaning sector.

48 Phil James and Joanna Karmowska ‘Unions and migrant workers: strategic challenges in Britain’ (2012) 18 Transfer: European Review of Labour and Research 201

49 Ibid.

50 Representative from the Swedish Transport Workers' Union

51 Representative from the Building Workers Union

52 Representative from the Building Workers Union

53 James and Karmowska, ‘Unions and migrant workers: strategic challenges in Britain', Transfer: European Review of Labour and Research 18 (2).

54 see McCann and Lovell, Union by Law, 360

55 McCann, 'Legal Mobilization and Social Reform Movements: Notes on Theory and Its Application Part IV: Contesting Rights'

56 Ewick and Silbey, The common place of law : stories from everyday life

57 Ibid

58 Representative from SAC

59 The name of the Swedish act is Lag 2013:644 om rätt till lön och annan ersättning för arbete utfört av en utlänning som inte har rätt att vistas i Sverige.

60 Representative from SAC

61 Labour court AD 28/21

62 Representative from the union for forest, wood, and graphic industries.

63 Berntsen, 'Stepping up to strike: a union mobilization case study of Polish migrant workers in the Netherlands'¸ Louisa Vogiazides and Charlotta Hedberg, 'Trafficking for forced labour and labour exploitation in Sweden: examples from the restaurant and the berry industries' in Natalia Ollus, Anniina Jokinen and Matti Joutsen (eds), Exploitation of migrant workers in Finland, Sweden, Estonia and Lithuania : uncovering the links between recruitment, irregular employment practices and labour trafficking (European Institute for Crime Prevention and Control, affiliated with the United Nations 2013)

64 https://www.arbetarcentrum.nu/produkt/stamningsansokan/ accessed 25 May 2022

65 Representative from the Union Centre for the Undocumented

66 Labour Court AD 27/21

67 Ewick and Silbey, The common place of law : stories from everyday life

68 Selberg, 'The Laws of "Illegal" Work and Dilemmas in Interest Representation on Segmented Labor Markets: A Propos Irregular Migrants in Sweden'

69 Erik Bengtsson, 'Social dumping cases in the Swedish Labour Court in the wake of Laval, 2004–2010' (2016) 37 Economic and Industrial Democracy 23

70 Ibid

71 see Erik Sjödin, 'Criminalisation as a response to low wages and labour market exploitation in Sweden' (2021) 12 European Labour Law Journal 529

72 There are however several examples from the last 20 years of other unions litigating in the Labour Court to claim the rights of individual migrant workers, which have resulted in damages being paid to the union members (see AD 1/07, AD 54/09, AD 76/10, AD 54/19, AD 45/22). Presumably there are more cases than these, since settlements prior to a main hearing are not published by the court and will thus not have been identified in our digital searches.

73 Labour Court AD 17/22

74 Labour Court AD 28/21

75 Labour Court AD 45/22

76 McCann, 'Legal Mobilization and Social Reform Movements: Notes on Theory and Its Application Part IV: Contesting Rights'

77 see McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization

78 SAC ’Fackligt program för SAC-syndikalisterna’ https://www.sac.se/Om-SAC/Styrdokument/Fackligt-program-f%C3%B6r-SAC-Syndikalisterna, accessed 22 January 2023

79 William J. Chambliss, 'Towards a political economy of crime' (1975) 2 Theory and Society 149; Austin T. Turk, 'Law as a Weapon in Social Conflict' (1976) 23 Social Problems 276

80 This stand in contrast to the positive perceptions of the traditional trade unions Selberg, 'The Laws of "Illegal" Work and Dilemmas in Interest Representation on Segmented Labor Markets: A Propos Irregular Migrants in Sweden'

81 cf. Taylor, 'Ambivalent Legal Mobilization: Perceptions of Justice and the Use of the Tutela in Colombia'

82 Chambliss, 'Towards a political economy of crime'; Turk, 'Law as a Weapon in Social Conflict'.

83 William J. Chambliss, 'On Lawmaking' (1979) 6 British Journal of Law and Society 149

84 Maja Sager and Marta Kolankiewicz, ' Critical legal practices. Approaches to law in contemporary anti-racist social justice struggles in Sweden' (2022) 16 Studies in Social Justice

85 Simon Halliday and Bronwen Morgan, 'I Fought the Law and the Law Won? Legal Consciousness and the Critical Imagination' (2013) 66 Current Legal Problems 1; ibid

86 Selberg, 'The Laws of "Illegal" Work and Dilemmas in Interest Representation on Segmented Labor Markets: A Propos Irregular Migrants in Sweden'

87 See Claude Lévi-Strauss, The Savage Mind (University of Chicago Press 1966); Martti Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power, 1300-1870 (Cambridge University Press 2021).

88 Michael Molavi 'Collective Legal Mobilisation: Exploring Class Actions in Sweden and Canada' this issue

89 Johan Karlsson Schaffer, Mikael Rask Madsen, Malcolm Langford ‘An unlikely rights revolution: Legal mobilization in Scandinavia since the 1970s’, this issue

90 Riksrevisionen ’Statens insatser mot exploatering av arbetskraft– regelverk, kontroller samt information och stöd till de drabbade’ (2020), RiR 2020:27; Herzfeld Olsson, Petra. "Konsten att inkludera arbetskraftsmigranter i den svenska arbetsrättsliga modellen." Juridisk Tidskrift 2019, no. 3 (2019/20) Juridisk Tidsskrift 638; Woolfson, Thörnqvist & Herzfeld Olsson ‘Forced Labour in Sweden? The Case of Migrant Berry Pickers’, (2011) A Report to the Council of Baltic Sea States Task Force on Trafficking in Human Beings: Forced Labour Exploitation and Counter Trafficking in the Baltic Sea Region.

91 Sjödin, Erik. "Arbetsmarknadens skuggsida–rättsföljder vid för låga löner." Juridisk tidskrift 20, no. 3 (2019/20) Juridisk tidskrift 671.

92 Isabel Schoultz and Heraclitos Muhire, ‘Is there any criminal law protection for exploited migrant workers in Sweden? Logics of criminal law and the labour migration regime’ (2023) 24 Nordic Journal of Criminology