AD 2026 No. 26 and AD 2026 No. 38 – The duty to provide information under Section 19a of the Co-determination Act

In two recent rulings, the Labour Court has clarified the meaning of the duty to provide information under Section 19a of the Co-determination Act. In both cases, the Court stated that the duty to provide information does not entail an obligation to provide information at fixed times or for periods during which no specific events have occurred or decisions affecting trade union members were pending. One of the rulings, AD 2026 No. 38, also addressed the questions of whether the duty to provide information entails an obligation on the employer to respond to specific questionnaires from a trade union, and whether the employer’s failure to amend draft negotiation minutes constituted a breach of the duty to negotiate under Section 15 of the Co-determination Act. The employees’ claims were dismissed in both cases.

On two occasions in quick succession, the Labour Court has had to consider the question of whether an employer, who is not party to a collective agreement, has breached the duty to provide information under Section 19a of the Co-determination Act by failing to keep employee organisations whose members are employed by the employer continuously informed about the development of the business in terms of production and finances, as well as the guidelines for personnel policy. In both rulings, the court found that a general principle underlying the duty to provide information is that information must be provided on such general circumstances within the business as are typically of significance to the employees’ side. The requirement that information be provided on an ongoing basis means that it must be provided as soon as possible, unless the parties agree otherwise. There is therefore no obligation to provide the information at fixed specific times. This also means that the employer is not obliged to provide information to a trade union for periods during which no specific event has occurred in the employer’s business or when the employer has not intended to take any decision that may affect the organisation’s members. On the question of whether the employer had breached the duty to provide information, the court found in both rulings that the trade union had neither alleged nor proved that anything specific had occurred in the company’s operations during the period in question, nor that the employer intended to take any decision that could affect the organisation’s members, about which the organisation should have been informed. The trade union’s claim regarding a breach of the duty to provide information was therefore dismissed in both cases.

In one of the rulings, AD 2026 No. 38, the Labour Court also emphasised that the duty to provide information under Section 19a of the Co-determination Act does not, in general, mean that an employer is obliged to answer specific questions to the employer from a trade union. The fact that the employer does not respond to a questionnaire from the trade union does not, therefore, in itself mean that the employer is in breach of Section 19a of the Co-determination Act.

In AD 2026 No. 38, the court also considered whether the employer had breached the duty to negotiate under Sections 15 and 16 of the Co-determination Act by failing, firstly, to respond to the trade union’s questionnaire and, secondly, to approve draft negotiation minutes drawn up by the trade union. The Labour Court first noted that the fact that the company did not respond to the questionnaire, or otherwise provide equivalent information to the union, during a negotiation session is not the same as the company failing to engage in substantive negotiations under Section 15 of the Co-determination Act. With regard to the minutes, the court considered that the company had contributed to the drafting of the minutes by informing the trade union that it wished to make certain amendments to them, and that the trade union had understood that the company wished to make comments on the minutes. As the trade union subsequently informed the company that it did not intend to propose any amendments to the minutes, the Labour Court held that both parties had contributed to the fact that no finalised minutes were ever produced. The company was therefore not deemed to have breached its duty to negotiate by failing to finalise the minutes. The trade union’s claim was thus dismissed on this point as well.

Setterwalls’ comment:

It follows from Section 19 of the Co-determination Act that an employer must keep trade unions bound by collective agreements continuously informed about how the business is developing in terms of production and finances, as well as about the guidelines for personnel policy. This duty to provide information is relatively well known, and our experience is that employers bound by collective agreements generally comply with this provision. One explanation may be that such employers often receive support from their employers’ organisations on matters relating to their obligations.

However, even employers not bound by collective agreements have a corresponding duty to provide information under Section 19a of the Co-determination Act. This applies to all employee organisations whose members are employed by the employer. The employer must therefore ascertain whether there are any trade union members and, if so, which employee organisations are represented, in order to fulfil their duty to provide information.

In our experience, many employers without a collective agreement are unaware of this obligation. The result is often that the required information is not provided. The court cases therefore serve as an important reminder that even employers without a collective agreement must ascertain whether there are unionised employees at the workplace and must keep the relevant trade unions informed on an ongoing basis about the matters specified in the provision.

According to the preparatory work, the employer should, at least once a year, ask employees whether they belong to a trade union, in order to know to whom the information should be provided. The question may be asked in general terms, for example via a notice at the workplace or by other appropriate means. However, the employees also have a responsibility to assist the employer in obtaining the information requested.

These court cases are also welcome as they provide some guidance on what the duty to inform entails in practice. For example, there must be something concrete to report, and the events that have occurred or may occur must affect the trade union’s members. Setterwalls has extensive experience in interpreting and applying these provisions and is happy to assist with any queries regarding what the duty to inform entails in practice.

Read the full court cases here: AD 2026 No. 25 and AD 2026 No. 38