Amendments to the Romanian Labour Code

The main amendments to the Labour Code refer particularly to the provisions regarding the trial period, employment contracts concluded for a determinate period of time, work done through a temporary work agency, extra pay for work at night, Internal Regulation, sanctions applicable for infringement of legal provisions.
Monitorul Oficial al Romaniei, Part I, No. 225 / 31 March 2011 has published the Law amending and supplementing Law No. 53 / 2003, regarding the Labour Code.
The main amendments to the Labour Code refer to the following:
• Establishment of assessment criteria: The individual selected for employment or the employee, as the case may be, shall be informed of the criteria for the assessment of his/her professional activity, which are applicable at employer’s level.
• Amendment of any of the elements contained in the Employment Contract: Any amendment of the elements provided under Art.17 (2) of the Employment Contract shall be subject of an additional act to the Contract, which should be concluded within 20 working days of the date on which the amendment has occurred, except for the cases in which such amendment is specifically provided under law.
• Request for information from former employer: Any employer may request information regarding the individual applying for employment from such individual’s former employers only in respect to his/her fulfilment of employment duties and employment period, as well as only after informing that individual thereof.
• Trial period: Trial periods have extended. In order to test employee’s abilities, when an employment contract is concluded, the trial period may be set at 90 calendar days, at the most, for operational functions and 120 calendar days, at the most, for executive functions. Individuals with disabilities shall be tested for a maximum period of 30 calendar days. The first six months of employment of any fresh graduate of a higher learning institute shall be deemed trial period, excepting the professions for which the trial period is regulated by special laws. At the end of the trial period, the employer shall release a certificate which should be endorsed by the Labour Inspectorate in the territory in which such employer has its registered office located. The manner in which the trial period should be organised will be regulated by special law. The period during which several individuals may be employed and tested for the same job / position may not be longer than twelve (12) months.
•Temporary Assignment: Any employee may be assigned to carry on his activity at another workplace for no more than 60 calendar days in a twelve-month period. Nevertheless, should the employee agree, such assignment may be extended by successive periods of maximum 60 calendar days.
• Lawful cancellation of Employment Contract: The Contract may be lawfully cancelled at the date on which employee’s authorisation, permit, licence or certificate required for the exercise of his/her profession expires, unless the employee renews it within a six-month term of the expiry date of such authorisation, permit, licence or certificate.
• Temporary reduction in business activity: In the event that business activity is temporarily reduced for economic, technological, structural or similar reasons over a period longer than 30 calendar days, the employer may reduce the working programme from five 95) to four (4) days in a week, paralleled by corresponding reduction in salary, until the situation causing such reduction is remedied, only after consultations have been held with the business union representatives or employees’ representatives, as the case may be.
• Rightful termination of the Employment Contract: The provisions referring to three (3) cases in which the Contract may be terminated de jure have been amended / restated.
• Layoffs: The legal provision referring to employer’s restriction on performing new employments over a period of nine (9) months from the layoff date has been amended. Thus, within 45 calendar days of the layoff date, any employee who has been dismissed following the layoff procedure may be reemployed with priority in the same post, if such post has been reintroduced for the same activity, without any further examination, contest or trial period.
• Prior notification term in case of resignation: The prior notification term shall be the one covenanted by the parties under the Employment Contract or the term provided under the applicable Collective Bargaining Agreements, but it may not be longer than 20 working days in the case of employees fulfilling operational functions or than 45 working days in the case of employees occupying executive offices.
• Employment Contract concluded for a determinate period of time: The period of time during which such Contract may be concluded shall not be longer than 36 months. It may be extended only under the conditions set forth under Art.81 and only after the expiry date of the initial term, by parties’ written agreement, over the period requiring the implementation of a project / programme or the performance of works.
• Work done through a temporary work agency: Temporary work assignment shall be established for a period which may not be longer than 24 months. However, it may be extended by successive periods which, added to the initial term, shall not exceed 36 months.
• Maximum working time: The working time limit has been set at 48-hour week inclusive of overtime. As an exception, the working time including overtime may be longer than 48 hours weekly, provided that the average working hours in a period of reference of four (4) calendar months do not exceed the 48-hour week. Regarding certain activities or professions provided under the applicable Collective Bargaining Agreement, periods of reference longer than four (4) months, which should not, however, exceed six (6) months, may be negotiated under such
Agreement.
• Overtime: It shall be compensated for by paid free time taken in the following 60 calendar days.
• Extra pay for work at night: The salary raise for work done at night has been set at 25% from 15% if the time thus worked represents three (3) night hours out of the normal working time.
• Internal Regulation: In addition to the previous provisions, the Internal Regulation shall contain the criteria and procedures for employees’ professional assessment.
• Disciplinary sanction: Any disciplinary sanction shall be lawfully erased, upon employer’s written decision, within 12 months of the date on which it has been applied to employee unless another disciplinary sanction is applied to the employee within this time interval.
• Harsher sanctions: Should an employer accept up to five (5) individuals to work for its benefit without concluding an employment contract, such employer shall be punished with a fine ranging between RON 10,000 and RON 20,000 for each unemployed individual. If an employer benefits from the work of more than five (5) individuals, irrespective of their citizenship, without concluding an employment contract with them, such employer is deemed
to have committed an offence which is punishable with imprisonment from one (1) to two (2) years or with fine under the penal law. The employer that repeatedly establishes salaries below the all-country minimum gross salary guaranteed under law shall be deemed an offence for which such employer shall be punished with imprisonment from six (6) months to one (1) year or with a fine as stipulated by the penal law.
The court of law may also command the application of one of the following complementary punishments:
a) employer’s total or partial loss of the right to benefit from public support or subsidy, EU funds included, over a period of up to five (5) years;
b) interdiction to participate in the awarding of a public acquisition contract over a period of up to five (5) years;
c) full or partial recovery of public aid or subsidies, EU funds included, which were granted to employer within an up to 12-month time interval before committing the offence;
d) temporary or final windup of the workplace where the offence has been committed or temporary or final withdrawal of employer’s operating licence if such measure is justified by the seriousness of the offence.
• Collective Bargaining Agreement: Collective Bargaining Agreements and Additional Acts thereto which have been concluded in the time interval spanning the date of entry into force of this Law and 31 December 2011 may not provide for a valid duration which exceeds the 31st of December 2011. Collective Bargaining Agreements shall come into full force and effect at the date on which this Law commences producing effects, being valid until their expiry date.
The new Labour Code shall come into force 30 days after its publication in Monitorul Oficial, i.e. on 1 May 2011.
This article is also available in: Romanian
This post is also available in: Romanian