Employment Flash News No. 2/2017
News concerning the posting of workers in the framework of the provision of transnational services
Law no. 16/2017 concerning the posting of workers in the framework of the provision of transnational services was published within the Official Gazette no. 196 from March 21, 2017 and will enter into force after a period of 60 days since its publication, respectively on May 20, 2017, when Law no. 344/2006 concerning the posting of workers in the framework of the provision of transnational services will be repealed.
The new provisions are seeking to implement a common framework containing provisions, measures and mechanisms for control, applicable within the territory of Romania in case of posting of workers in the framework of the provision of transnational services, including measures aimed at preventing and sanctioning any abuse or evading thereof.
The new law is reiterating provisions from the current legislation, while also introducing a series of amendments, including as follows:
- introducing a clear definition for ”transnational posting”, such being the situation in which an undertaking having its registered office in a member state of the European Union or in Swiss Confederation, in the framework of performing transnational services, is posting employees with whom has employment relationships on the territory of another member state, in the cases provided by the law;
- defining the ”undertaking” as being any modality for organizing an economic activity, authorized to perform production, sales or provision of services activities, with the aim of obtaining incomes in competitive conditions, according to the legal framework applicable within the member state in which has its registered office
- defining the ”group of undertakings” as being two or more undertakings acknowledged as being affiliated (an undertaking that is directly or indirectly affiliated to another undertaking, in order to be acknowledged as such, shall fulfil at least one of the following requirements:
a) possesses the majority of the subscribed capital of the other undertaking,
b) controls the majority of the votes attached to the shares issued by the other undertaking,
c) has the power to name more than a half of the members of the board of directors, of the management board or of the supervising board of the other undertaking,
d) is managed on a common base with the other undertaking by another undertaking);
- the possibility of the Labour Inspection, through the territorial labour inspectorates, to perform an overview evaluation of all factual elements that characterize a transnational posting, with the aim of identifying the situations of transnational posting and preventing any abuse and evading of the legal provisions;
- establishment of more clear mechanisms for administrative cooperation between the Labour Inspection and the competent authorities from the member states of the European Union or from Swiss Confederation;
- entailing the employer’s interdiction to unilaterally modify the employment relationship or the working conditions, including the dismissal of the posted employee who filed an administrative action or a court claim with the aim of enforcing the legal provisions, and also after the final decision of the court, with the exception of dismissal for grounded reasons and without connection with the administrative action or the claim filed by the employee. Non-compliance with this obligation represents administrative offence and will be sanctioned with a fine ranging from 3.000 lei (approx. 660 EUR) to 100.000 lei (approx. 22.000 EUR).
News regarding the termination by effect of the law of the individual labour contract
On March 6, 2017, the Supreme Court of Cassation and Justice – Panel for interpretation of various legal issues regarding private law ruled that ”the provisions of art. 56 para. (1) letter f) of Law no. 53/2003 – the Labour Code, republished, shall be interpreted in the sense that such provisions are applicable only when the convict is effectively executing the sanction in the penitentiary, being physically impossible for him/her to be at the working place.”
The Supreme Court’s decision shall be published within the Official Gazette and shall be mandatory as of that moment.