New legislative amendments in labour relations

Law 367/2022 on social dialogue ("Law 367/2022") was published in the Official Gazette of Romania on 19 December 2022. This law promotes and strengthens a proactive and constructive role for trade unions and employers organisations in labour relations.

Once the law 367/2022 has entered into force, Law 62/2011 on social dialogue has been repealed.

I. The current context

As there have been numerous legislative changes in the field of labour law, contradictions have arisen between the provisions of Law 62/2011 on social dialogue and other normative acts, namely Law 53/2003-Labour Code and Law 467/2006 on the establishment of the general framework of the provision of information to and consultation with employees. ("Law 467/2006").

The current provisions restrict the right to establish trade unions by requiring a minimum of 15 employees in an enterprise. In Romania, there are many businesses with fewer than 15 employees who are deprived of the right to form a trade union.

The framework for establishing the minimum requirements of the right to information for and consultation with employees is regulated by Law 467/2006, but it is necessary to establish an active role of trade unions and employee representatives in the decision making process of the employer with an impact on the employment relations. Thus, the provisions of Law 367/2022 complement the provisions of Law 467/2006.

II. Amendments provided by Law 367/2022

In order to remedy the major dysfunctions encountered in practice, Law 367/2022 aims as its major objectives, among other things, to make the establishment, organization and operation of trade union and employers’ organizations more flexible and to strengthen the role of trade unions in exercising their prerogatives.

• The formation of trade unions

At least 10 employees from the same unit or at least 20 employees/workers from different units in the same collective bargaining sector are required to form a trade union.

• Collective bargaining

Collective bargaining is mandatory at the level of companies with at least 10 employees/workers, as well as at the level of the collective bargaining sector.

Law 367/2022 provides the possibility for appropriate trade union or employer organisations, which are not signatories to collective agreements, to accede to collective agreements concluded at collective bargaining sector or unit group level.

• The role of the trade union in the employee information and consultation procedure

The employer has the obligation to invite the representative union at unit level to participate in the discussions of the board of Directors or other similar organ, only when discussing issues of professional and social interest with an impact on employees.

In the absence of a representative trade union at company level, trade union organizations together with employees/workers shall appoint an elected representative.

In establishments where no trade union organisations are established, the employer is obliged to allow a public information session on the individual and collective rights of employees/workers to be held at least once a year at the request of the trade union federations in the collective bargaining sector of the establishment concerned, with the invitation of representatives of these federations.

Information and consultation of employees should include, but not limited to, the following items:

• The likely evolution of the activities and economic situation of the company;
• Decisions that may lead to important changes in the organization of work, in contractual relationships or in employment relationships;
• Transfers of business;
• Acquisitions;
• Mergers;
• Collective dismissals;
• Closing of production units.

Prior to the implementation of decisions bringing changes in work organisation, employers are obliged to initiate and complete the process of informing and consulting employees so as to enable them to formulate proposals for the protection of employees' rights.

If employees/workers believe that there is a threat to their jobs, the information and consultation process will begin upon their written request, no later than 10 calendar days after the request is communicated.

Non-compliance by employers with the obligation to invite the representative trade union at unit level to participate in the work of the board of directors or other similar organ, only to discuss issues of professional and social interest with an impact on employees/workers is sanctioned with a fine of 15,000 lei to 20,000 lei.  The Labour Inspectorate is responsible for the detection of offences and the application of sanctions.

• Representation of employees

In companies with at least 10 employees/workers and no trade union, the interests of the employees/workers can be promoted and defended by their representatives. The number of representatives shall be agreed with the employer and, in the absence of agreement, as follows:

a) 2 representatives for employers with less than 100 employees / workers;

b) 3 representatives for employers with between 101 and 500 employees / workers;

c) 4 representatives for employers with between 501 and 1,000 employees / workers;

d) 5 representatives for employers with between 1,001 and 2,000 employees / workers;

e) 6 representatives for employers who have more than 2,000 employees / workers.

Law 367/2022 became effective from 23 December 2022. The provisions contrary to this law of Law 53/2003-Labour Code will be harmonized within 60 days from the date of publication of the law 367/2022.