Important changes to the Labour Code in the light of the EU legislation
A few significant amendments to the labour legislation were brought by the Law 283/2022 on the amendment and completion of the Labour Code, which came into force on 22nd of October 2022.
The Law 283/2022 is aiming to transpose two EU directives regulating the work relations, namely the Directive 2019/1152 on transparent and predictable working conditions in the European Union and the Directive 2019/1158 on work-life balance for parents and carers.
Even though the framework model of the individual employment agreement reflecting these new amendments has not been yet approved by the labor authorities, the employers have the obligation to implement them already in their current individual employment agreements and employment offers. Moreover, the internal regulation must be also amended with new additional rules.
It is important to underline that the European Court of Justice established in its case-law with reference to applying a directive, the obligation of a national judge to ascertain the priority of the directive, as element of the European law, and not to apply the national law, if the latter contravene to the provisions of the European law. Therefore, in case of unclear rules brought by these new amendments, the provisions of the two directives are relevant.
Among the amendments brought by Law 283/2022, we shall point out below some of the most relevant ones:
The applicability of the Labour Code is extended to any employed person who performs work for an employer headquartered in Romania.
The minimum mandatory information that the candidate/employee must be informed of are supplemented.
In addition to the elements which were already covered by the employer’s obligation to inform provided for in art. 17 para. (3) of the Labour Code, the candidate or the employee, as the case may be, shall be informed also on the following:
- in the case where the employee does not have a fixed workplace, he must be informed if the travel between his different workplaces is ensured or settled by the employer, as the case may be
- the other components of the salary incomes that must be shown separately from the base salary, and as well as the method of salary payment
- the conditions of the probationary period, if exists
The wording of this new clause should be trated carefully because adding additional conditions to those provided by the Labour Code on probationary period exposes the employer in case of litigation.
- the funding by the employer of the private medical insurance, of the additional contributions to the optional pension or to the employee’s occupational pension, under the law, as well as the granting, on the employer’s initiative, of any other rights, when they constitute benefits in cash granted or paid by the employer to the employee as a result of his professional activity, as the case may be
In order to have more context on the scope of the abovementioned benefits in cash granted or paid by the employer, is of relevance the Directive 2019/1152 which provides that information on remuneration to be provided should include all elements of the remuneration indicated separately, including, if applicable, contributions in cash or kind, overtime payments, bonuses and other entitlements, directly or indirectly received by the worker in respect of his or her work. The provision of such information should be without prejudice to the freedom for employers to provide for additional elements of remuneration such as one-off payments. Thus, there may be additional elements, such as one-off payments, which is not mandatory to be included into the information on remuneration provided to the candidate/employee.
It is also important that employers identify correctly from a fiscal perspective the benefits in cash which will be listed into the employment offers and individual employment agreements.
The issue of flexible benefits that employees can take themselves, based on a budget allocated on a salary benefits platform, arises, in which case a legal formulation should be found to mention this possibility into the employment offers and individual employment agreements, as an alternative to the distinct highlighting of the salary elements granted.
- the normal working time expressed in hours/day and/or hours/week, the conditions for performing and compensating or paying overtime, and, if the case, the arrangements for organising shift work
- the right and the conditions on the professional training provided by the employer
New rules on the possibility of parallel employment relations are provided.
Any employee is entitled to work at different employers or at the same employer, based on different individual employment agreements, benefitting from the corresponding salary for each of them, but without overlapping the work schedule. Also, it is now expressly provided that no employer can subject the employee to an adverse treatment for exercising this right.
Additional employee’s rights and corresponding employer’s obligations are set out.
Of all the new amendments, we briefly mention below some of the most relevant on the matter:
- Employee’s right to request the transition to a vacant position that ensures more favorable working conditions, provided that the employee successfully completed the probationary period and had worked for at least 6 months at the same employer and corresponding Employer’s obligation to provide a written motivated answer to the abovementioned employee’s request, within 30 days as of receiving such request.
On this front, the Directive 2019/1152 provides additional information, stating that Member States shall ensure that a worker with at least six months’ service with the same employer, who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply. And that where employers have the possibility to offer full-time or unlimited employment contracts to workers in non-standard forms of employment, a transition to more secure forms of employment should be promoted.
Considering the the wording of the Labour Code is different than the one of the directive and seems to be more fabourable to employees, one may argue that the vacant positions with higher salary rights and/or higher hierarchic positions should be also framed into the definition of a vacant position that ensures more favorable working conditions.
The employers should have in place an internal process on implementing this new legal obligation. As it may be noted, the employer’s answer needs to be provided irrespective whether the answer to employee is positive or negative.
- Employer’s right to request for individualized work schedule and the corresponding Employer’s obligation to provide a motivated reply in case of a negative answer within 5 working days as of the date of receiving such request.
Also, in this case, an internal process should be set up by employers.
The provisions mandatory to be included in the internal regulation are updated.
The employers may now have to update their internal regulation with the following provisions mandatory to be included therein:
- Rules on termination notices
When establishing the scope of the rules on termination notices, the provisions of the Directive 2019/1152 may be of relevance. In this regard, the directive provides that the employees should be informed, inter alia, on the procedure to be observed by the employer and the worker, including the formal requirements and the duration of notice periods, where their employment relationship is terminated.
- Information on the general policy on the employees’ training, if exists
In case there is no general policy on the employees’ training at the employer’s level, the internal regulation should include an express mention in such respect.
Rules on the communication of the internal regulation
In order for the internal regulation to become binding on the employees, the employer has to inform each employee of its provisions, on the first working day, and to prove the fulfillment of such obligation.
Informing employees of the internal regulation’s provisions can be done on paper or in electronic format, provided that, in the latter case, the document is accessible to the each employee and can be stored and printed by them.
New days off are provided:
- Carers’ leave
From now on, the employer shall grant the employee the carer’s leave, at the written request of the latter, in order for him/her to provide personal care or support to a relative or a person living in the same household as the employee and being in need of care or support as a result of a serious medical problem.
The leave is granted for a duration of 5 working days in a calendar year, unless a higher duration is established by special derogatory law or by the applicable collective bargaining agreement. This leave does not suspend the individual employment agreement and the law does not provide whether this is paid or not.
* The serious medical problems and the conditions for granting the carers’ leave will be established by ordinance of the labor authorities, which is expected to bring more clarity on the subject.
- The right to days off in unforeseen situations
The employee has the right to be absent from work in unforeseen situations due to a family emergency caused by illness or accident, which make the employee’s immediate presence indispensable, with the prior information of the employer.
The right to take these days off is subject to the recovery of the period absent until the full coverage of the normal duration of employee’s working hours, according to a schedule agreed between the employer and the employee. The absence from work shall not have a duration higher than 10 working days in a calendar year.
For details, you may contact:
Ileana Lucian, Partner firstname.lastname@example.org
Silvia Dumitrache, Senior Associate email@example.com
Laura Ghinea, Senior Associate firstname.lastname@example.org