Employment Flash News No. 3/2017
News concerning the posting of workers in the framework of the provision of transnational services
Following the entering into force of Law no. 16/2017 for the posting of workers within the framework of provision of transnational services on May 20, 2017, Government Decision no. 337/2017 approving the norms for the application of the new law was published within the Official Gazette no. 411 from May 31, 2017 and entered into force at that point.
The main amendments to the existing legal regime of transnational posting brought by the new norms refer to:
I Providing the relevant criteria for identifying the cases of transnational posting and for preventing any abuse/evading of the law to be considered by the Labour Inspection through the territorial labour inspectorates, in the analysis of all factual elements that characterize such posting, as follows:
(i) the factual elements that characterize the activities performed by the companies established in another member state than Romania, or in Swiss Confederation in their country and, as the case may be, in Romania, especially include the following:
- the location where the company has its registered office, the location where the company has its offices, the location where the company pays its taxes and social contributions and, if the case, the location where the company is authorized to carry on the activity or it is registered at the trade registry or the professional authority of its member state of residence;
- the main activity for which the company is authorized and the object of the services agreement/supply of personnel agreement concluded between the services provider/temporary workforce agency and the beneficiary/user, based on which the transnational posting is effected;
- the place for recruiting the posted employees and the place where the employees are posted;
- the law applicable to the agreements concluded by the company with its employees, and also to the agreements concluded with the clients;
- the employment agreements/other types of agreements for employment concluded by the company with its employees, according to the applicable legislation of the member state of residence;
- the location where the company is performing its main activity, and also the location where the company employs its administrative personnel;
- the number of executed agreements and/or the turnover in the member state of residence, having in view the activity performed and also, among others, the specific situations of new companies and small and medium enterprises.
(ii) the factual elements that characterize the work and the situation of the employee posted in Romania especially include the following:
- the employee performs activity in Romania for a limited period of time;
- the beginning and the ending date of the posting;
- the posting is effected on Romania’s territory from another member state or from the Swiss Confederation, where the posted employee is usually performing his/her activity, according to the legal framework established according to EU Regulation no. 593/2008 on the law applicable to contractual obligations (Rome I);
- the documents proving the termination of the posting and the recommencement of the activity by the posted employee in the working place from the member state/Swiss Confederation from which he/she was posted;
- the accordance between the nature of the activity performed by the posted employee and the object of the services agreement;
- the modality for ensuring the transportation, meal and accommodation expenses for the posted employee;
- the previous period in which, at the same working place, the job position was held by the same employee or by other employee who was transnational posted.
The above mentioned criteria (with the exception of the performance of activity in Romania for a limited period of time) will also be taken into consideration by the territorial labour inspectorates when controlling the companies established in Romania who are posting employees in another member state/Swiss Confederation within the framework of performance of transnational services.
In case the labour inspectors, following the general evaluation of all factual elements presented above, ascertain that the conditions of transnational posting are not observed, they will take the appropriate measures according to the national legislation applicable in the case at hand.
II The deadline for submitting the notification regarding the transnational posting to the competent territorial labour inspectorate by the companies established in another member state than Romania, or in Swiss Confederation, was changed from minimum 5 working days before the commencement of activity by the posted employee to at least with minimum 1 working day before the commencement of activity.
III Also, the deadline for submitting any amendment to the information contained within the abovementioned notification is now of 5 working days (as opposed to 5 days in the previous regulation).
IV The fines for not complying with certain provisions of the law (in essence, those regarding the submission of/ keeping and providing specific documents to the relevant authorities and appointing a person to ensure the connection with such authorities) are ranging from RON 5.000 (approx. EUR 1.100) to RON 9.000 (approx. EUR 2.000). Also, the submission of incomplete or erroneous data within the notification to the labour authorities is punishable with a fine ranging from RON 3,000 (approx. EUR 660) to RON 5,000 (approx. EUR. 1.100).