News on the social dialogue

Law no. 62/2011 on the social dialogue has been published within the Official Gazette no. 322/10.05.2011 and shall enter into force starting May 13th, 2011.

The new law groups and regulates subjects that have previously been covered by distinct legal provisions, which it expressly repeals:

The Unions Law no. 54/2003;
Law no. 168/1999 concerning resolution of labour conflicts;
Employers Law no. 356/2001;
Law no. 130/1996 regarding the collective labour agreement;
Law no. 109/1997 on the organization and functioning of the Economic and Social Council;
Government Decision no. 369/2009 concerning the formation and functioning of the social dialog commissions at central and regional public administration level

Amongst the most important aspects regulated by the Social Dialogue Law may be mentioned:

COLLECTIVE NEGOTIATIONS

the levels at which the collective labour agreement may be negotiated

Pursuant to the new legal provisions, collective labour agreement may be negotiated only at company level, group of companies and activity sector, thus eliminating the possibility of negotiation of the national collective labour agreement, while negotiations at branch level have been replaced with negotiations at sector level.
According to Law 62/2001, the activity sector affiliation criteria is represented by the main object of the company’s activity as registered with the trade registry, in accordance with the CAEN code.

the obligation of collective negotiation

In accordance with the new legal provisions, the obligation to perform collective negotiations shall remain at company level, and only for companies that have at least 21 employees.

initiation of collective negotiations

The initiative for performing collective negotiations still belongs to the employer or employers’ organisation, the breach of such obligation being qualified by the Social Dialogue Law as an administrative fine.
However, the newly promoted legal provisions have hardened the sanctioning regime applicable in case of breach by the employer of the obligation to initiate collective negotiations, the quantum of the fine being increased from RON 300-600 up to RON 5,000-10,000.
Also, the new legislation establishes new rules concerning the moment when collective negotiations must be initiated.
According to Law no. 62/2011, the employer has the obligation to initiate collective negotiations with at least 45 calendar days prior to the expiry of the collective labour agreements or of the expiry of the applicability period of the clauses stipulated in the additional acts to the collective labour agreements.
Although, according the newly promoted legal provisions, as opposed to the previous legislation in this field, should the employer initiate collective labour agreements, and such have not been followed by the conclusion of a collective labour agreement, no minimal timeframe for engaging into new negotiations is provided. Thus, if at company level no collective labour agreement has been concluded, and the representative union or the employees’ representatives request in writing the commencement of negotiations, the employer is obliged to act within at most 10 calendar days as of the receipt of such request.
In addition, the new provisions regulate detailed rules concerning the procedure for undertaking collective negotiations, especially, as regards the evolution of the first negotiation meeting.

representation of the parties at collective negotiations

The Social Dialogue Law provides for new rules concerning the representation of employees. An important aspect in this respect is the representation of employees at company level.
Thereby, pursuant to the new legal provisions, collective negotiations at company level shall be undertaken from the part of the employees by the legally constituted and representative union or by employee representatives, as the case may be.
In order for a union to be representative at company level, the new law expressly provides the condition that the number of union members represent at least half plus one of the total number of employees of the company, as opposed to the previous legislation according to which the number of union members should have been at least a third of the total number of employees of the company.
In addition, the new legal provisions do not provide anymore the possibility of obtaining representation by transfer from the union federations or confederations. However, to the extent that the company does not have a representative union, but there exists a union at company level and such union is affiliated to a representative union federation within the activity sector within which the company is part of, negotiations shall be carried by the union federation representatives, upon the request and on the basis of the union’s mandate, together with the elected employees’ representatives.

COLLECTIVE LABOUR AGREEMENTS

the duration of the collective agreement

Pursuant to the new legal provisions, the duration of the collective labour agreement is determined, as it cannot be lower than 12 months and may not exceed 24 months. However, the parties may agree to prolong the application of the collective labour agreement with a period not exceeding 12 months.

applicability of the collective agreement

Concerning the effects of the collective labour agreement at activity sector level, Law no. 62/2011 introduces a new regulation providing expressly that such shall be effective for all employees within the companies from the activity sector for which the collective labour agreement has been concluded and which are part of the employers’ organizations that have executed the collective labour agreement.
Consequently, pursuant to the new legal provisions, the collective labour agreement concluded for one activity sector shall be applicable only to the extent that the company is part of the employers’ organization that has executed the respective labour agreement.
According to the new legal provisions, the collective labour agreements shall become applicable either from the date of their registration at the competent authority, or from a date following the registration if the parties agree in this respect.

registration of the collective agreement

The collective labour agreements shall be registered at the following competent authorities :
- the company collective labour agreement, at the Territorial Labour Inspectorate;
- the collective labour agreements concluded at group of companies level and sector level, at the Ministry of Labour, Family and Social Protection.

publicity of the collective agreements

The new law expressly establishes as incumbent upon the Ministry of Labour, Family and Social Protection the obligation to publish on the institutions’ internet homepage the collective labour agreements concluded at sector level and group of companies’ level.

LABOUR CONFLICTS

The new law does not use anymore the notions of “conflicts of interests” and “conflicts of rights”, and has replaced them with “collective labour conflicts” and “individual labour conflicts”.
As per the previous legislation, the new legislation guarantees the right of employees to engage in collective labour conflicts in relation to the initiation, performance and conclusion of negotiations of the collective labour agreements.
As opposed to the previous legislation, the new law expressly provides that, during the validity of a collective labour agreement, employees may not engage in a collective labour conflict.
According to the new legal provisions, the strike may only be declared if, previously, all possibilities for resolving the collective labour conflict, through the mandatory procedures set forth by the law, have been exhausted, only after the warning strike has been undertaken and if the moment for triggering the strike has previously been notified to the employers by the organizers with at least two working days in advance.
Also as a new development, Law no. 62/2011 expressly provides that, for the duration of the participation at the strike, the individual labour agreement of the employee shall be suspended by law. During such suspension only the health insurance rights shall be maintained. In the previous legislation, employees kept, during the strike period, all the rights arising out the individual labour agreement, with the exception of salary rights.
In what concerns individual labour conflicts, the new legislation brings amendments to the aspects regarding labour jurisdiction as established by Law no. 53/2003 – The Labour Code.
Thereby, the new legislation has provided, inter alia, that the unilateral measures for the performance, modification, suspension and termination of the individual labour agreement, including payment engagements, may be appealed within 45 calendar days as of the date the interested party has become aware of the respective measure, thus implicitly repealing the provisions of the Labour Code that set in this respect a term of 30 days.

UNION ORGANIZATIONS

The newly enacted legal provisions have removed the obligation of the employer to invite the representative union to participate within the Management Board to discuss the professional, economical, social and cultural issues establishing only the possibility of the employer to submit to the representative union such invitation.
The Law no. 62/2033 does not provide anymore a minimum number of days by which the working time of union leaders is reduced in order for them to undertake union related activities, but only provides the possibility that the number of days corresponding to union related activities be negotiated in the collective labour agreement, without the obligation of the employer to pay the salary rights for such days.
Also, the new law has eliminated the provisions that prohibited the termination of the individual labour agreements of union leaders for a period of two years following the expiry of their mandate.