Employment Flash No. 3/2023 – Latest news in the labor law field
29.05.2023 – Latest news in the labor law field
On a series of amendments to the provisions of the Social Dialogue Law and the Labor Code
The Government Emergency Ordinance (GEO) no. 42/24.05.2023 amending and supplementing Law No 367/2022 on social dialogue and Law No. 53/2003 was published in the Official Gazette no. 459 dated May 25, 2023.
First of all, the new normative act introduces a number of important amendments to the recent Law No. 367/2022 on social dialogue, of which the main aspects are as follows:
1. Amendments concerning the representation of the parties in collective bargaining and the organization of collective bargaining, involving, inter alia:
- amendment of the legal deadline for initiating collective bargaining: the employer has 15 calendar days (instead of 5 calendar days) from the date of starting negotiation procedures to convene all the parties entitled to negotiate the collective bargaining agreement and to organize the first negotiation meeting;
- a reconfiguration of the provisions on the representation of employees in collective bargaining, implying, for example (that):
- where there are no trade union organizations representing employees/workers, they may be represented by the trade union federations representative at the level of collective bargaining sector, at the request and based on the mandate of the affiliated non-representative trade unions in the company;
- where there are no organizations representing employees/workers, they may be represented by non-representative trade union federations in the collective bargaining sector, which are members of nationally representative confederations, at the request and based on the mandate of the affiliated non-representative trade unions in the company;
- granting trade union confederations, the right to participate in collective bargaining at sectoral level, on the basis of a mandate received from the member federation and in the interests of the members they represent.
2. Amendments and additions with an impact on trade unions and/or employers’ organizations, as case may be:
- certain amendments to the provisions on inviting the representative trade union organizations to the works of the board of directors or other equivalent body; issues of economic interest are also expressly specified in this context as a subject for discussion;
- third parties may be assigned to assist or represent interests of affiliated trade union organizations, trade union federations or confederations, in their relations with employers or their organizations;
- certain amendments concerning the formalities and procedure for obtaining legal personality for employers’ organizations and for obtaining representation in a collective bargaining sector;
- certain amendments concerning the formalities for obtaining legal personality by territorial trade union organizations and clarification of certain procedures concerning representativity at the level of a group of companies and collective bargaining sector;
- the submission to the courts by trade union and employers’ organizations of the proof issued by the territorial labor inspectorate for the acceptance of the representativity file.
3. Amendments concerning collective disputes and strikes:
- repeal of the provision stating that collective labor disputes may concern claims by employees/workers in defence of collective interests of an economic, professional, or social nature;
- the fact that all trade union organizations will be able to initiate collective labor disputes;
- provisions clarifying that for the duration of participation in the strike, the individual employment contract is suspended at the initiative of the employee (and not by effect of law, as previously provided).
4. Introduction of new regulations on small and medium-sized enterprises (SMEs):
- under certain conditions, all collective labor contracts concluded at collective bargaining sector or national level have to contain specific clauses applicable to each category of SMEs, defined according to the specific legislation in this field; otherwise, the SMEs concerned are not obliged to apply the collective labor contract in question;
- participation in the negotiation of the collective labor contract at sectoral level by a representative of the employers’ organizations representing SMEs, entitled to participate in the negotiation as per the law;
5. Certain correlations and harmonizations of provisions:
- amendment and completion of some key definitions in the field, such as “trade union organization”, “collective bargaining sector”, “depositary of the collective agreement/contract”;
- correlation with certain provisions of the Labor Code;
- harmonizing the provisions applicable to collective agreements to those applicable to collective labor contracts;
- the legal framework for the establishment of collective bargaining sectors and their related NACE codes will be established by Order of the Minister of Labor and Social Solidarity, and not by Government Decision as previously provided;
6. Amendments regarding fines, which will enter into force 30 days after the date of publication of the new GEO in the Official Gazette, respectively:
- any interference by public authorities, employers, and their organizations in the election of employee representatives or in preventing such elections from taking place will be punishable by a fine of RON 30,000 to RON 50,000;
- any act of interference by employers or employers’ organizations, either directly or through their representatives or members, in the establishment of trade union organizations or in the exercise of their rights shall be punishable by a fine of between RON 20,000 and RON 25,000;
On the other hand, the amendments and additions to the provisions of the Labor Code include mainly:
- establishing that carer’s leave days are paid;
- correlation with the provisions of the Social Dialogue Law concerning the obligation for employers with at least 10 employees to initiate collective negotiations;
- establishing the tribunal as the competent court jurisdiction for individual and collective labor disputes;
- setting a time limit for appeal of 10 days from the date of notification of the court decision.
It is also established that disputes pending before the courts on the date of entry into force of the new GEO (25 May) shall be heard by the courts competent on the date of referral; the provisions on jurisdiction also apply to cases pending before the courts on the date of entry into force of the GEO.
The Romanian version of this newsletter is available here.
