Labour Law Newsletter No. 3/2011

News on the European Works Council

Law no. 217/2005 regarding the establishment, organization and functioning of the European Works Council has recently been modified by Law no. 186/2011 published in the Official Gazette, Part I, no. 763 dated October 28th 2011 and which has entered into force as of November 1st 2011.

The above-mentioned law has introduced several amendments, regarding the establishment, organization and functioning of the European Works Council, of which the most important concern:

establishing the limits of competence of the European Works Council;
detailing the information obligation incumbent upon the employer for the commencement of the election process of the European Works Council;
the structure of the special negotiating body;
the agreement for the establishment of the European Works Council or for the establishment of the information and consultation procedure of the employees;
the structure of the European Works Council in case of application of the subsidiary provisions;
the competence and functioning of the European Works Council in case of application of the subsidiary provisions;
the protection of the employees’ representatives which are members in the special negotiations body/European Works Council.

More specifically, amongst the most important aspects newly regulated by Law 186/2011, concerning the European Works Council, may be mentioned:

the limits of competence of the European Works Council

Pursuant to the new legislative amendments, the limits of competence of the European Works Council are exprellsy provided for, respectively trans-national measures, defined as representing those aspects which reffer to the Community-scale undertaking/group of undertakings, as a whole, or to at least two of the undertakings or subsidiaries, branches or other secundary work points of a Community-scale undertaking or group of undertakings, located in two different states.

In addition, Law no. 186/2011 states that in establishing the trans-national character of an aspect, it should also be taken into consideration, regardless of the number of states involved, the level of management and representation which the aspect involves, as well as the magnitude of the potential effects for the European work force or which imply transfers of activity between member states.

the information obligation incumbent upon the employer regarding the establishment of the European Works Council, respectively for the establishment of the information and consultation procedure of the employees

In accordance with the provisions of Law no. 186/2011, the management of every undertaking from within the Community-scale group of undertakings, of every subsidiary, branch or of each secondary office pertaining to a Community-scale undertaking, as well as the central management or, in lack thereof, the presumed management of the Community-scale undertaking or of the group of undertakings are responsible for obtaining and transmitting towards the interested parties the information necessary for opening the negotiations process in view of establishing the European Works Council or of the information and consultation procedure, especially information regarding the structure of the undertaking or of the group of undertakings and its personnel, for the latter especially with respect to the number of employees.

the structure of the special negotiating body

Law no. 186/2011 establishes that the special negotiating body shall comprise of the designated or elected members in a proportionate number with the number of employees hired within each member state by the Community-scale undertaking or group of undertakings, by allotting each member state one seat within the special negotiating body, for every trance of employees hired in the respective member state which represent 10% from the number of total employees hired within all member states or a fraction of the respective trance.

In addition, in order to ensure the continuity of the special negotiating body, a reserve list shall be put in place, by allotting each member state one replacement for every trance of employees hired in the respective member state, respectively which represents 10% of the total number of employees hired in all member states or a fraction of the respective trance.

Moreover, the new legislation brings forth new rules concerning the information of the central management with respect to the structure of the European Works Council, as well new obligations incumbent upon the central management following such information.

the agreement regarding the establishment of the European Works Council or of the employees’ information and consultation procedure

Relative to the agreement regarding the establishment of the European Works Council or of the information and consultation procedure of the employees, through the provisions of Law no. 186/2011, several aspects pertaining to the meetings of the special negotiating body as well as to the minimum content of the agreement have been clarified.

Furthermore, the new legal provisions expressly regulate the situation when new negotiations intervene for the establishment of a new European Works Council or of a new information and consultation procedure as a result of significant modifications within the Community-scale undertaking or group of undertakings.

the structure and functioning of the European Works Council in case of application of the subsidiary provisions

The new legal regulations establish new rules for the functioning and structure of the European Works Council in case of application of the subsidiary provisions.

Thus, the members of the European Works Council are elected or appointed in a proportionate number with the number of employees hired in each member state by the Community-scale undertaking or group of undertakings, by alloting each member state a seat for every trance of hired employees in the respective member state which represent 10% of the total number of employees hired in all member states or a fraction of the respective trance.

Moreover, the maximum number of members for the select committee has been increased (from 3 to 5 employees). The select committee ensures the coordonation of the European Works Council’s activities.

Also, the new legal provisions regulate, in a nonexhaustive manner, the situations which are subject to the annual information, respectively to the annual information and consultation of the European Works Council, as a result of the summoning of such European Works Council by the central management.

the protection of the employees’ representatives – members in the special negotiating body/European Works Council

The members of the special negotiating body/European Works Council shall benefit, to the extent this is necessary, from training courses, without this affecting their salary rights

News on the general registry of employees

the procedure and documents ncessary for obtaining the electronic registry of employees, as well as the procedure for transmitting the electronic registry of employees

Order no. 1918/2011 for the approval of the procedure and documents which the employers must present to the territorial labour inspectorate for obtaining the password as well of the procedure for transmitting the electronic general registry of employees has been published in the Official Gazette no. 587 dated August 19th 2011 and has entered into force starting with the date of its publication.

The newly enacted legal provisions regulate the procedure to be followed and the necessary documents for obtaining the username and password for the electronic registry of employees as well as presents in detail the modalities for transmitting the electronic general registry of employees to the Territorial Labour Inspectorate.

the modification of the general registry of employees

Government Decision no. 500/2011 regarding the general registry of employees has been recently modified through Government Decision no. 1105/2011 published in the Official Gazette no. 798 dated November 10th 2011 and has entered into force on the same day.

The modification consists in the clarification of the salary elements which are subject to registration in the general registry of employees. Thus are subject to registry, “the monthly base gross salary and the increments, as such are provided in the individual employment agreement”.

Moreover, the legal act also clarifies the issue of the term in which it is necessary to transmit the elements subject to registration in the electronic general registry of employees.

the modification of the Classification of Occupations in Romania

The common Order of the National Institute of Statistics and of the Labor Ministry no. 856/1832/2011 has been published in the Official Gazette no. 561 dated August 8th 2011 and has entered into force as of the same date.

The legal provisions introduce the new Classification of Occupations in Romania, which is mandatory for all the employers in Romania, regardless of the branch in which they undertake their activity.

In addition, the newly enacted legal provisions also state that, in order to ensure the transition from the previous Classification of Occupations in Romania to the newly introduced Classification, both versions may be utilized in parallel until December 31st 2011.

News on the health and safety of employees

the establishment of the Health and Safety Commission for Dangerous Chemical Agents

The common Order no. 1297/2096/2011 of the Public Health Ministry and of the Labor Ministry concerning the establishment of the Health and Safety Commission for Dangerous Chemical Agents has been published in the Official Gazette no. 678 dated November 23rd 2011 and has entered into force as of the same date.

The Commission is organised and functions as a special organism within the public administration, consisting of representatives of both the Public Health Minstry and of the Labor Ministry, as well as of other specialists designated by such representatives.

The legal provisions regulate the role of the Commission as regards health and safety, namely: establishing the threshold-values for professional exposure to dangerous chemical agents which are used by the employers as well as the mandatory national biological threshold-values, elaboration of the necessary guides for the safe utilization of dangerous chemical agents, the periodical analysis of the professional morbidity structure at national level by exposure to dangerous chemical agents present in the work environment, for the purpose of identifying the main problems generated by dangerous chemical agents etc.

the procedure for diagosing professional illnesses, as well as the list of afferent medical services

The common Order of the Ministry of Public Health and of the Ministry of Labor no. 1378/2287/2011 for the approval of the Procedure for investigating and diagnosing professional illnesses, as well as of the list of afferent medical services, published in the Official Gazette no. 748 dated October 25th 2011 has entered into force as of October 25th 2011.

The legal act establishes the applicable procedure for determining the existence of professional illnesses as well as the structure of the analysis necessary for diagnosing a medical condition generated by a proffesional illness.

modification of the Government Decision no. 355/2007 concerning the supervision of the workers’ health

Government Decision no. 1169/2011 on the modification of Government Decision no. 355/2007 concerning the supervision of the workers’ health has been published in the Official Gazette no. 873 dated December 12th 2011, and has entered into force on the same day.

The legal text introduces a series of modifications in relation to the health and safety of workers, also establishing new obligations upon the employer.

Thus, pursuant to the provisions of Government Decision no. 1169/2011, a new prophylactic medical service has been introduced, namely special supervision. This new type of prophylactic service is aimed at establishing the work capacity of certain categories of workers such as, persons aged between 15 and 18 years old, pregnant women, persons with one-eyed vision etc.

More than that, pursuant to the new legislative amendments, amongst others, the labor medicine service which ensures the supervision of the workers’ health shall elaborate and present to the employer an annual report containing in main the conclusions of the workers’ health evaluation, as well as medical reccomendations for the scope of promoting health in the work place.