Changes To The Contract
As a general rule, the employment agreement may not be unilaterally amended by the employer. Any change in respect of the terms and conditions provided within the agreement shall be based on the parties’ consent and it shall be reflected in an addendum to the employment agreement
By means of exception, some specific provisions of the agreement may be unilaterally amended by the employer, in accordance with the provisions of the Labour Code. One specific exception regards the workplace. The employer may change the workplace of the employee by delegating or assigning the employee to another work place or employer, for a determined period of time. During the delegation or assignment period, the employer shall preserve the employee’s position and all other rights stipulated in the individual employment agreement
The employer may also temporarily change the place and nature of work, without the employee’s consent. This may be done in cases of force majeure, as a disciplinary sanction, or as a measure aimed at protecting the employee. Such changes must be made in accordance with the terms stipulated by the Labour Code.
Change In Ownership Of The Business
The change of the employer within the employment relationship may trigger, in principle, the application of the “transfer of undertaking” rules. The main enactments regulating the “transfer of undertaking, business or part of an undertaking or business” are the Labour Code and the Law No. 67/2006 on safeguarding employees’ rights in cases of transfer of undertakings, businesses or parts of undertakings or businesses. The latter has transposed the Council Directive 2001/23/EC of 12 March 2001 on the approximation of laws of the Member States relating to the safeguarding of employees’ rights in the event of transfer of undertakings, businesses or parts of undertakings or businesses. The above legislation provides protection for employees. In this respect, the transferee employer is liable to observe the rights which the transferred employee had with the transferor employer under their individual employment agreement and the applicable collective bargaining agreement. Both the transferor and the transferee shall be under an obligation to consult their employees about the transfer and to inform them on specific issues. For the purpose of the transfer, no consent from the employees is required. However, the transfer of undertakings, businesses or parts of undertakings or businesses shall not be used as grounds for the transferor or the transferee to perform individual or collective dismissal of employees. If a transfer involves a substantial change in working conditions to the detriment of the employee, the transferee is liable for the termination of the individual employment agreement.
Social Security Contributions
Under Romanian law, the social security contributions (i.e. contributions to the social security system, the health system and the unemployment system) are mainly owed by the employee. However the calculation, withholding and payments of such contributions are made solely by the employer. The aforementioned contributions relate to the salary incomes granted by the employer to the employee, in exchange for his work. The level of the social security contributions is mainly regulated by the Law on State Social Security Budget issued annually
Accidents At Work
There are specific enactments relating to the health and safety of employees. For such purpose, the employer shall provide all employees with insurance for risks of employment accidents and professional diseases.
Discipline And Grievance
Breach of the law, employment agreement, internal rules or other policies enforced at the level of the employer by the employee represents misconduct and entitles the employer to take disciplinary action, provided that the breach is not due to the employee’s professional unfitness. Before imposing a sanction (i.e. other than the written warning) on the employee, a preliminary investigation procedure has to be followed by the employer. During the preliminary investigation stage the employee will be presented the facts deemed as disciplinary misconduct and will be asked to present arguments in his favour. The employee may be assisted by a member of the trade union or by a labour legislation consultant during the investigation stage. The employer’s failure to observe the disciplinary procedure may lead to the annulment of the sanction applied to the employee. The sanction imposed may be challenged before the courts of law by the employee where the judge may consider the sanction imposed to be too severe or to be unjustified, declaring the disciplinary decision as null and void.
General provisions on harassment/discrimination/equal pay are applicable in Romania, to all citizens. In addition, special provisions in respect of the employees are regulated under the Labour Code and other specific pieces of legislation. Thus, all direct or indirect discrimination towards an employee, discrimination by association or victimization based on criteria such as sex, sexual orientation, genetic characteristics, age, citizenship, race, skin colour, language, ethnic origin, religion, political options, social origin, disability, HIV infection, chronic non-communicable disease, family conditions or responsibilities, membership of a disadvantaged group, trade union membership or activity, shall be prohibited. Similar provisions exist in respect of harassment (i.e. including sexual harassment and moral harassment at the place of work). As regards equal pay, the Labour Code expressly provides for the equal treatment principle in the field of remuneration.
Compulsory Training Obligations
Employers with more than 20 employees are under a legal obligation to issue and apply, annually, professional training plans, after consulting the trade unions/ employees’ representatives in this respect. In addition, the employer shall ensure the participation of all employees in professional training programmes as follows: at least once in two years for employers having more than 21 employees; at least once in three years for employers having less than 21 employees.
As a general rule, employers may not withhold from the wages of their employees any amount of money, except for specific cases and under certain conditions provided under the law. However, the employer may withhold any amounts held as damages, provided that the employee’s debt is outstanding and has been ascertained as such by a final court decision .
Payments For Maternity And Disability Leave
Employees who have paid income tax within the 12 months prior to childbirth shall benefit from childcare leave until the child reaches the age of two years, upon request, or, where they have a disabled child, three years, and a monthly allowance. Such allowance ranges between RON 1,250 to 85% of the average net income of the last 12 months in the past 2 years prior to childbirth, but no more than RON 8,500. The above provisions are applicable either to the mother or father. Disability payment is to be paid to the employee during disability leave. Payment is due by the employer from the first until the fifth day of leave; starting with the sixth day of disability leave, the corresponding leave is paid from the budget of the Sole National Fund of Social Health Insurance. The allowance for temporary work incapacity is granted for no more than 183 days per year. A longer period of paid leave is available in case of certain diseases, such as heart diseases, tuberculosis and AIDS.
The employer is under a legal obligation to provide all employees with insurance for risks of employment accidents and professional diseases. Such insurance is part of the social security system, being guaranteed by the state, and it assures the social protection of employees against diminishing or losing their work capacity or against their death following work accidents or professional diseases.
Absence For Military Or Public Service Duties
Considering that the mandatory military service in Romania was suspended, there are no provisions within the Labour Code regarding the effects of the military or public service duties over the individual employment agreement.
Works Councils or Trade Unions
The right to establish trade union organisations and to become a member of such organisations is guaranteed under Romanian law. For such purpose, employers cannot ban access to trade unions. At least 15 people working in the same unit are required to set up a trade union. A person may only belong to one trade union organisation within an employer at the same time and there are certain people, such as public officials, members of the military and members of government ministries who may not establish a trade union.
In defending the rights of their members, trade unions have the right to undertake any action provided for by the law. This includes the ability to bring a court action on behalf of their members based on an express mandate from the persons concerned (the action cannot be continued if the person concerned opposes or renounces the trial). The representative trade union is entitled to receive from employers any necessary information for the negotiation of collective bargaining agreements and other agreements relating to employment relations. Employees who are elected to the management body of a trade union are protected against all forms of constraint or the limiting of the exercise of their functions.
As regards the works councils, the European Directive on the establishment of European Works Councils has been implemented within Romanian law. The main provisions regulate the creation of a European works council (or an alternative procedure) for informing and consulting employees at the European level.
Employees’ Right To Strike
Employees shall be entitled, based on the provisions of the Labour Code, to strike, with a view to defend their professional, economic, and social interests. Any limitation or prohibition of the right to strike may only intervene in those cases and for those employee categories expressly provided for by law.
Employees On Strike
No employee may be forced to participate in a strike. Participating in or organising a legal strike does not represent a breach of the employees’ duties and cannot have negative implications for their employment relationship. During the strike, the individual employment agreements of the employees participating to the strike are suspended.
Employers’ Responsibility For Actions Of Their Employees
According to the general rules of civil law, employers are responsible for the damages caused by their employees, in the exercise of their work duties. Therefore, the employer is liable to pay any compensation resulting from the employee’s actions. However, the employer may request the employee to return the compensation he/she was paid as a result of his/her actions.