Last updated: 27 January 2023
- Filed under:
- Legal News
- Mihaela NITU
New regulations on the social dialogue entered into force on December 25, 2022, with the publication of the Law no. 367/2022 in the Official Gazette no. 1238 of December 2022.
This new law, repealing the former regulation, came along with major changes for the employers.
Let’s take a closer look at what’s new.
The new regulation brings from 21 to 10 the number of the employees requiring the initiation by the employer of the collective bargaining with the elected representatives1 of the employees unless there is a trade union in the company.
It will also be noted that at a company level, the employees can be represented as following:
- The representative trade union(s): the rate of participation of the employees in a trade union for the latter to be considered as representative in a company is lowered from 50%+1 to 35%+1 under the law no. 367/2022;
- The representative trade union federation at the level of sector of activity: by delegation of authority granted by a non-representative trade union and conditional upon the federation having adherents within the company;
- The elected representatives of the employees (unless there is a trade union). Unless the number of representatives is agreed between the parties, it must be of: (i) 2 persons in a company with less than 100 employees; (ii) 3 persons in a company with a headcount between 101 and 500 employees; (iii) 4 persons in a company with a headcount between 501 and 1.000 employees; (iv) 5 persons in a company with a headcount between 1.001 and 2.000 employees; (v) 6 persons in a company with more than 2.000 employees.
Another matter of great importance is the regulation of the conflicts of interests. Therefore, it is forbidden under the law to elect, as representatives of the employees, members of the management staff and staff involved in the decision-making process within the company.
The main responsibilities of the employee’s representatives are the following:
- Take part in the drawing up of the internal regulation;
- Refer to the labor inspection any infringement of the legal provisions, of the relevant collective agreement;
- Take part in the negotiation of the collective agreement.
Information and consultation of the employees
First of all, the employer must inform and consult the employees on the following matters:
- The progress of the activity of the company and the economic situation; every year post-reporting of the financial statements to the competent authorities.
To this effect, the employer shall make available to the representatives of the employees/the union at least: (i) the financial statements that are relevant for the collective bargaining; (ii) detailed information on the headcount and the social protection policy ; (iii) any other relevant information required by the trade union organizations / the representatives of the employees or by their experts.
- The decisions entailing important changes relating to work organization, contractual relationships, company transfer, mergers and acquisitions, collective layoffs, production unit closing, etc.
Such information and consultation will be made considering the following aspects:
- The employees will be informed and consulted prior to implementing such decisions;
- The employer who received a request for information and consultation of the employees (who may, for example, see a threat to the certain jobs) shall start the consultation process within 10 days from the date of receipt thereof;
- In order to prepare the consultation meeting, the employer shall provide the employees, upon request thereof, with all the necessary information deemed to enable a relevant analysis of the matter under review;
- The decisions of the Board of Directors or of the assimilated bodies on the matters subject to information and consultation of the employees shall be communicated in written in the 2 working days following the meeting, under penalty of a fine which may amount to between 15,000 Lei (about €3,000) and 20,000 Lei (about €4,000).
Last but not least, it is important to note that the employer is under no obligation to invite neither the representative trade union, nor the representatives of the employees to take part in the meetings of the Board of Directors / any other assimilated body deliberating on professional and social matters directly impacting the employees.
The collective agreements may be negotiated: (i) at a company level; (ii) at a group of companies level; (iii) at sectoral level, and (iv) at national level.
Collective bargaining is mandatory for companies hiring at least 10 employees and is initiated by one of the social partners.
The employer shall initiate collective bargaining at least 60 days before the expiration of the collective agreement in force or of the enforcement duration provided for under the addenda thereto. The bargaining usually lasts for maximum 45 days, but the parties may agree on a longer duration. Collective agreements may provide for periodic review of any of the clauses agreed by the parties. However, collective agreements may not provide for rights inferior to those provided for by collective agreements concluded at superior levels (e.g., such as at those at sectoral level). In the same way, individual employment agreements may not provide for rights inferior to those provided for by the relevant collective agreements.
Duration of the collective agreement
The collective agreement is entered into for a fixed term between 12 to 24 months.The parties may also decide one 12-month extension thereof.
The collective agreement enters into force starting with the registration date to the Labor Inspection or at a later date agreed by the parties.
If in a company there is no collective agreement, the employer or any party having a right to take part in the collective bargaining may, at any time, initiate collective bargaining.
The collective agreement ends: (a) upon expiration of its validity or at the end of the works for which it was intended; (b) at the date of dissolution or judicial liquidation of the company; (c) by mutual agreement of the parties.
A collective agreement may not be terminated unilaterally.
1. The representatives of the employees must be elected by 50% + 1 of the overall number of employees of the said entity and their term of office is limited to 2 years.