As is common knowledge, nowadays there is an electronic personnel ledger on many construction sites in order to reduce undeclared work and achieve fair competition between companies. The Tax Agency is responsible for checking that the rules are followed and therefore the data must be saved to enable control. The existence of an electronic personnel ledger means however that information is stored that may be of interest to other parties. One question that arises is therefore what are the possibilities that other parties than the Tax Agency can access information stored in the employee ledger?
The information stored in the electronic personnel ledger is called personal data and is therefore subject to the Personal Data Act (PDA). The purpose of the law is to protect people against the violation of their personal integrity by processing personal data. According to PDA, anyone processing personal data has certain obligations to those registered, i.e. in this case to those registered in the employee ledger.
According to the PDA, those registered have the right, once a year, upon request, to get a written extract of the information registered about them. It is therefore in the interests of both the person registered and those responsible for personal data that there are operational routines in place to ensure smooth delivery of the requested information.
It must, however, be noted that this possibility to get access to the information according to the PDA is limited to a request from the registered person and does not therefore include other parties, e.g. employers or contractors.
According to AB 04 and ABT 06, the parties in a variety of situations are obliged to notify the other party of the circumstances that occur. This obligation is in some cases connected to the right to compensation in such a way that failure to notify the other party can mean the loss of the right to compensation for costs incurred. It may happen, however, that now and again the contractor finds himself/herself in a situation where it is no longer possible to contact the client, or the client is avoiding making the necessary decisions. The question is then how should the contractor act and to what extent should the contractor, despite the absence of a response, be able to perform and receive compensation for the work.
Normally in Swedish law, passivity in itself is not binding on the passive party, an active response is required for the party to incur liability. This, however, can be changed in the case of an existing contractual relationship.
One situation where the client’s passivity can be significant is when it is a question of so-called ÄTA work (work involving changes or additions to the original contract). In many cases the contractor is obliged to obtain the client’s views before the work is done. If the contractor performs the work without waiting for the client’s feedback, the general rule is that the contractor is not entitled to any compensation other than the contract price. There is, however, an opening that makes compensation still possible in certain cases, if it would otherwise be unreasonable. A typical example of something so unreasonable is when the client does not promptly answer the contractor. A client who in this situation avoids answering should normally nevertheless be liable to pay for the work in question.
Worth mentioning is also the case where the work is completely prevented due to something that is the responsibility of the client, e.g. when a crucial drawing is missing. If the contractor in such a case solves the problem without getting any response from the client, the contractor risks being held responsible for the solution implemented. A contractor should in such a case immediately report the hindrance according to current regulations. The contractor should always bear in mind that there may be an obligation to minimize damage, which is why the contractor should not exploit the situation in an improper way.
If the client systematically ignores the contractor’s notifications, the contractor may, in time, be tempted to stop sending notifications, which take time to write and administer. A wise contractor should, however, always fulfil his/her obligation to send notifications in order to secure the right to compensation and extension of time.
The contractor’s notifications are, however, not only important to meet the formal requirements of AB 04/ABT 06, a contractor who writes and saves notifications has an advantage in terms of evidence in the event of a dispute where the parties have different views of what actually happened during the construction period.
Something that can often be subject to discussion or even dispute is to what extent a contractor’s costs should be covered by the stated hourly rate when compensation is paid according to the cost price principle on the current account. If a certain cost is not covered by the stated hourly rate, the contractor may be entitled to receive additional compensation for the cost, if the cost is necessary for the execution of the contract.
Part of the problem is based on the lack of a clear and general definition of what should be covered by the term “hourly rate”. If the parties have not expressly agreed on what to include, guidance may be obtained from the Swedish Construction Federation Form, which is considered industry practice on the question of the cost price principle. Otherwise, the burden of proof is generally on the party claiming that certain costs are included in the hourly rate.
In a relatively fresh Court of Appeal case certain costs such as for modems, parking and cell phones were considered to fall outside the hourly rate, but may be necessary for the execution of the contract and the costs should therefore be compensated at cost price. More unexpected costs such as for coffee at meetings and meals at topping out parties were considered to fall outside the hourly rate and would therefore be compensated separately.
The Court of Appeal emphasized that the costs were not private in nature but were of such a nature that they were usually paid by the employer.
Such an outcome can seem surprising to many – and there is every reason to sort out in advance what should be covered by a specified hourly rate and which additional cost prices should be compensated.