Important changes to the Labor Code
The Labour Code was significantly supplemented by Law 283/2022, published in the Official Gazette of Romania as of 19 October 2022. The law entered in force as of 22 October 2022.
This law amends Law 53/2003 - Labour Code by transposing some European Directives, but the amendments are only formalities due to the fact that the employees are already protected by the Romanian legislation, but now the provisions are included expressly in the Labour Code. Below we have prepared a summary of the changes:
1. Content of the individual employment agreement
1.1. In order to ensure greater predictability of employment relationships, the following are amended:
1) In addition to mentioning the place of work or, in the absence of a fixed place of work, the possibility for the employee to work in different places, the obligation to mention whether travel to and from work is insured or paid for by the employer is introduced, as appropriate.
2) The basic salary and the other components of the salary income must be shown separately, and the frequency of payment to which the employee is entitled and the method of payment must be established.
3) In addition to the normal working hours, expressed in hours/day and/or hours/week, there is also the obligation to stipulate the conditions for the performance and compensation or payment of overtime, as well as, if applicable, the arrangements for the organisation of shift work.
4) Reference to the duration of the probation period must be accompanied by the conditions under which it is to be performed, if it exists.
5) If the employee is going to work abroad, the employer is obliged to inform and mention in the agreement the country or countries and the duration of the work period to be performed abroad.
The Labour Inspectorate is obliged to issue to employees and employers the framework model of the individual employment agreement, established by order of the Minister of Labour, which will include all the above-mentioned obligations with the necessary modifications. We also expect that Order 64/2003 which approves the model employment agreement used by employers to be updated in accordance with the above.
2. Obligations to inform new employees
2.1. Two new information obligations are introduced at hiring/amending the employment agreement, regarding the essential clauses of the contract:
a) information on the rights and conditions of professional training offered by the employer
b) information about the employer's payment of private health insurance, additional contributions to the employee's voluntary pension or occupational pension, in accordance with the law, as well as the granting, at the employee's initiative, of any other rights, when these constitute financial benefits granted or paid by the employer to the employee as a result of the employee's professional activity, as appropriate.
2.2. An exception to the obligation to include information clauses in the individual employment agreement is made for those relating to the applicable collective labour agreement, the procedures for using electronic signatures and the rights and conditions relating to professional training. These obligations are still enforceable, but there is no need for them to be included in the employment agreement.
3. Collective labour agreements
Collective labour agreements at sector and group level will be published on the website of the Ministry of Labour and Social Solidarity.
In order to ensure a work-life balance for parents and carers at European level, paid days off or leave to care for family members have been introduced. Thus, provisions are introduced for paternity leave (there are no actual new rules but only references to the special law establishing this leave, law 210/1999) and provisions for a new type of leave: carer's leave. In relation to the carer's leave, an order should be approved within 30 days from the date of publication of this new law, containing not only the conditions for granting this type of leave, but also the medical conditions for which it can be requested. Family members are considered to be the son, daughter, mother, father or husband or wife of an employee.
5. Employee rights
In order to enhance the protection of employees in the employment relationship, the following rights are recognized in favour of the employee:
a) the right to apply for a transfer to a vacant post offering more favorable conditions if the employee has completed his probationary period and has at least 6 months' service with the same employer.
b) the right to receive a reply to the request within 30 days from the employer.
c) the right to be absent from work in unforeseen situations, caused by a family emergency due to illness or accident, which make the immediate presence of the employee indispensable to the family subject to prior notice to the employer and recovery of the period of absence through subsequent additional working hours by the employee. With regard to this point c), we consider it useful to introduce rules in the employee handbook to prevent this right from being used arbitrarily.
d) any employee has the right to work for different employers or for the same employer under individual employment agreements without overlapping working hours. It is therefore necessary to introduce rules on the working hours of employees who combine two jobs into the employee handbook so that the employer can ensure at the time of recruitment and during the execution of the employment agreement that this provision is not infringed.
6. Flexible working time arrangements
The employer has the possibility to establish individualised work schedules for all employees, including those on carer's leave, with their consent or at their request, which may be of limited duration.
Any refusal of an employee's request to establish an individualised work schedule must be justified, in writing, by the employer within 5 working days of receipt of the request.
Where the individualised work schedule is of limited duration, the employee has the right to return to the original work schedule at the end of the agreed period. The employee has the right to return to the original programme before the end of the agreed period if the circumstances which led to the establishment of the individualised programme change.
7. Employee handbook
7.1. Addition of two new provisions to be included in the employee handbook:
a) Rules on prior notice (in Romanian preaviz).
b) Information on general employee training policy, if appropriate.
7.2. It is expressly stated that the employer is obliged to inform the employee of the content of the employee handbook on the first day of work and to provide proof. If the rules are communicated electronically, the document must be accessible to the employee and can be stored and printed by the employee.
8.1. Addition of new prohibitions on dismissal, respectively:
a) prohibition of dismissal of employees for exercising information rights, probationary rights or to participate in vocational training programmes.
b) prohibition of dismissal of employees during paternity leave and carer's leave or during absence from work in unforeseen situations caused by a family emergency due to illness or accident, which make the immediate presence of the employee indispensable to the family subject to prior notice to the employer and with recovery of the period of absence through subsequent additional working hours by the employee.
8.2. Content of the dismissal decision
An employee who considers that he or she has been dismissed for exercising information rights, probationary rights, paternity leave or carer's leave, has the right to request the employer to provide additional written reasons for the dismissal decision. These provisions do not apply if special laws establish prior procedures whereby the facts are investigated by a competent authority or body.
9. Suspension of employment agreement
The rights acquired by the employee prior to the granting of leave, including carer's leave, or in case of absence from work in unforeseen circumstances, are maintained for the duration of the leave.
10. Probationary period
A new provision is introduced prohibiting the establishment of a new probationary period if, within 12 months, of expiry of a prior agreement a new individual employment agreement is signed between the same parties for the same function and duties.
11. Equal opportunities
Employees are also protected from discrimination. Thus, new provisions are introduced:
(i) The scope of victimisation is extended. Victimisation is any adverse treatment in response to a complaint or referral to the competent bodies, or to legal action concerning a violation of legal rights or the principle of equal treatment and discrimination.
(ii) Any unfavourable treatment of employees and employee representatives applied as a result of the request or exercise of one of the rights concerning the execution of the individual employment agreement is prohibited.
(iii) If employees, employee representatives or trade union members lodge a complaint with the employer or initiate proceedings for the purpose of securing compliance with the rights provided by law, they shall be protected against any adverse treatment by the employer.
(iv) An employee who considers himself/herself to be the Victim of adverse treatment may apply to the competent court of law for compensation and for the restoration of the previous situation or the annulment of the situation created as a result of the adverse treatment.
12. New fines are introduced
- For non-compliance with the principle of discrimination and prohibitions of dismissal on grounds of discrimination or for exercising the rights of employees, the amount of the fine is changed from 1000 lei - 20000 lei to 4000-8000 lei.
- Not granting carer's leave to employees is sanctioned with a fine from 4000 to 8000 lei
- Not granting paternity leave to the employee at his request is sanctioned with a fine of 4000-8000 lei.
Regarding the new elements to be introduced in the employment agreement:
- for new agreements to be signed, the provisions of sections 1 and 2 above shall apply, as appropriate, if the situation described in these sections applies to an employee.
- for existing agreements, the information in section 1 must be included where applicable, and in respect of section 2, the information in this section need not be included but will be communicated to employees on request within 30 working days of the date of their request.