Employment

Employment Flash No. 18/2020 – News regarding posting of workers for transnational provision of services

17.08.2020 – The Law no. 172/13.08.2020 on amending and completing the Law no. 16/2017 regarding the posting of workers for transnational provision of services was published within the Official Gazette no. 736 dated August 13^th, 2020.

This law aims at aligning the Romanian legislation in line with the European legal framework, as amended by the most recent directive adopted in this field. Out of the main amendments and completions established by means of this new normative act, we mention the following:

• The law at hand brings amendments and completions to the definitions for a series of terms: employee posted on Romanian territory, specific allowance for transnational posting, administrative financial sanction, user undertaking, and administrative cooperation.
• This law introduces two new definitions, namely for the following terms:
  • remuneration applicable on Romanian territory – the sum of money that comprises the minimum salary, as it is defined by Law no. 16/2017, the compensation for overtime, the compensation for work on weekly rest days, the compensation for work on legal holiday days, the compensation for night work, other compensations and allowances that are mandatory according to national legislation, as well as those provided by the collective employment agreements with general applicability;
  • remuneration applicable on the territory of a EU member state, other than Romania/Switzerland – the sum of money established by internal law and/or the national practices of the member state where the worker is posted, represented all the constitutive elements of remuneration that are mandatory according to internal law, normative acts with law power and administrative acts or collective conventions or arbitration awards, that have been declared as having general applicability or that apply according to Art. 3, Para. 8 of Directive 96/71/CE within the respective member state3
• For the situation when the posted worker has been made available to the user undertaking (established or providing activity on Romanian territory) through a temporary work agent and the worker has to work on the territory of a member state, other than Romania, in the context of transnational provision of services, the worker in question is considered to be posted on the territory of that member state by the temporary work agent with whom he/she is in a labor relation.

In this case, the user undertaking established or providing activities on Romanian territory has the obligation to inform the temporary work agent that made the worker available, at least 30 days prior to the starting of activity on Romanian territory.

• In case the employee that was made available to a user undertaking (established or providing activity in a member state other than Romania) by a temporary work agent that operates on Romanian territory, has to work on the territory of another member state, other than the one where he/she usually works, in the context of transnational provision of services by the user undertaking, the worker in question is considered to be posted on the territory of the respective member state by the temporary work agent with whom he/she is in a labor relation.

In this case, the temporary workforce agent has the obligation to inform employee as regards the amendment of the workplace.

• As regards the conditions of which the posted workers benefit, regardless of the applicable law, two new benefits are introduced in this category, as follows:
  • The conditions regarding the accommodation of employees, when such are offered by the employer to the employees sent to execute temporary works or duties corresponding to their work attributions in another workplace than their usual workplace;
  • The allowances or the reimbursement of the transport, accommodation and meal for the employees obliged, for professional reasons, to    travel to and from their usual workplace to another workplace, according to the national legislation or the applicable collective labor agreement (if such expenses are borne by the employees in question)
• It is also provided that if the total duration of the posting exceeds 12 months, then, on the basis of the equal treatment principle, the posted employees benefit of all the applicable terms and conditions of employment which are provided within the legislation of the member state where work is carried out, except for procedures, formalities and conditions of the conclusion and termination of the employment agreement, including non-compete clauses, as well as the conditions regarding occupational pensions schemes.
• By way of exception, the above term of 12 months may be extended until 18 months, conditioned upon the submission of a well grounded notification in this respect to the relevant territorial labor inspectorate (for Romania, the procedure will be later adopted).
• For posting to Romania, the law provides that the labor inspectors have the right to compare the remuneration granted to the posted employees with the remuneration to which they are entitled to as per the national legislation – in this respect, the law sets forth that the employers posting employees in Romania have the obligation to make available to the labor inspectors specific documents to prove the remuneration granted and its constitutive elements.
• The law also provides that employers posting employees from Romania have the obligation to inform them (apart from the other related obligations from the Labor Code), in writing, before the posting starts, on the following elements:
  • the constitutive elements of the remuneration to which the employee will be entitled, according to the applicable law from the host country and their level;
  • the total amount of the remuneration of which the employee will benefit during the posting period, by distinctly highlighting the allowance specific to the posting, when granted;
  • the expenses effectively generated by the posting, such as transportation, accommodation and meals, as well as the manner of granting/reimbursing them, respectively the way of providing transport, accommodation or meals, as the case may be;
  • the link to the national official website created by the host country according to the European legislation on transnational posting of workers.
• The law also introduces a series of administrative sanctions applicable for non-compliance with the information obligations, in the relation with the temporary work agent, as well as in direct relation with the employee to be posted, the highest amount provided in this regard being of RON 20,000.

Note: With a deadline of 60 days from the entering into force of the present law, the Labor and Social Protection Minister will subject to the Government approval the amendment and completion of the Methodological Norms on posting of workers for transnational provision of services on Romanian   territory.

The Romanian version of this newsletter is available here.