Codul Muncii – Ce se modifică începând cu 01 Mai 2011?

In the Official Gazette, Part I, no. 0225 of 31 March 2011, Law 40/2011, for amending and supplementing Law no. 53/2003 – Labor Code, was published.

Amendments to the Labor Code are as follows:

1. Article 1 – (1) ‘This code regulates the employment relationship”, as compared to “implements all individual and collective labor relations.”

2. 16 – (2) Brings the obvious completion “Before entering the service, the individual employment contract shall be entered in the register of employee records, which is transmitted to the Territorial Labor Inspectorate” electronically.
If before the employer had to register the contract with the Labor Inspectorate within 20 days and then to hand the employee a copy of it, article 16 – (3) comes with completion “The employer is obliged, before commencement of work, to hand the employee a copy of the employment contract.”

In the Official Gazette, Part I, no. 0225 of 31 March 2011, Law 40/2011, for amending and supplementing Law no. 53/2003 – Labor Code, was published.

Amendments to the Labor Code are as follows:

1. Article 1 – (1) ‘This code regulates the employment relationship”, as compared to “implements all individual and collective labor relations.”

2. 16 – (2) Brings the obvious completion “Before entering the service, the individual employment contract shall be entered in the register of employee records, which is transmitted to the Territorial Labor Inspectorate” electronically.
If before the employer had to register the contract with the Labor Inspectorate within 20 days and then to hand the employee a copy of it, article 16 – (3) comes with completion “The employer is obliged, before commencement of work, to hand the employee a copy of the employment contract.”

3. Under Article 17, the future employee, in addition to the already specified elements, must be informed on Art 17 paragraph (2) point d – “function / job as specified in the Classification of occupations in Romania or other normative acts and job description with specifying job duties.”

Before the 1st of May, job description was not required to be signed at the same time as the employment contract, but after the 1st of May this becomes a mandatory, as well as the provisions relating to Article 17 paragraph (2), point (d_1) “criteria for evaluation of professional activities, applicable to the employee”

4. Any changes to the individual employment contract entailed the conclusion of an addendum within 15 days from the date on which the employee was ADVISED in writing. Under the new Article 17 (4) – “Any change in any of the items referred to in par. (2) during the performance of the individual employment contract requires the completion of an addendum to the contract, within 20 working days from the date of the modification, except where such amendment is expressly provided by law.”

5. Art 25 – “Mobility clause – By the mobility clause that the parties provide that in consideration of specific work, performance of service obligations by the employee does not take place in a single location. In this case, employees receive additional benefits in cash or in kind”, inserts a new paragraph (2), as follows: “The amount of additional benefits in cash or the nature of the additional benefits are specified in the individual employment contract.”

6. Article 27 (3) from May 1 201 is repealed
That article stated – 27 – “The medical certificate, pregnancy tests, specific medical tests
(3) If the employee presents a medical certificate after the time the individual employment contract and this certificate states that the person concerned is fit to work, the contract remains valid.”
With the repeal it is eliminated the requirement that a pre-employment medical examination should be undergone.

7. Article 29 (4) is amended to read as follows: “The employer may request information in connection with the person seeking employment from his former employers, but only on the activities performed and the duration of employment and with prior notice to the individual in question.”

Until the 1st of May the article stated that: 29 – (4) The employer may request information in connection with the person seeking employment from his former employers, but only on the functions and duration of employment and only with prior notice to the individual in question.”

Thus, in addition to information related to duration of employment, the employer is no longer allowed to request information on the former functions of the individual seeking employment, but instead he can details on his former – which has a broader range of coverage.

8. Article 31 amended trial period.
If until 1st of May the trial period for executive functions was at most 30 days, now is extended to 90 days. This means that at any time during this period both the employer and the employee may waive the employment contract by written notice, without conducting a period of notice under Article 73 (2).
For management positions the trial period increased from 90 days up to a maximum of 120 days.
The number of days of the trial period for persons with disabilities that are being employed remained the same.

(3) of Article 31 is amended.
The trial period for unskilled workers falls under the same provisions as that for persons occupying positions of execution – ie within 90 days.

Paragraph (4_1) of that article, which stated “During or at the end of the trial period the employment contract can be terminated only by written notice, at the initiative of either party.” remains in force as paragraph (3) .
This occurred because the distinct trial period for unskilled workers was waives, so that paragraph (4_1) became paragraph (3)

Article 31 (4) of the Labour Code, in force until 1st of May referred to the trial period for graduates of the institutions of education – without mention of the higher education institutions.
Thus, according to relevant articles, the first 6 months of employment were considered the higher education.
As of 1st of May, under Article 31 (5) – “For graduates of higher education, the first six months after onset in the profession is considered the trial period. Exceptions are those professions in which trial period is governed by special laws. At the end of the trial period, the employer necessarily issues a certificate which is endorsed by labor inspectorate under the territorial jurisdiction of which it falls.”

9. Article 32 (3) – “Failure to inform the employee prior to the conclusion or amendment of the individual contract of employment or the trial period within the period provided for in art. 17 paragraph. (4), leads to forfeiture of the right of the employer to verify the skills of the employee in such a manner. “- Is repealed.
The repeal of this paragraph of Article 32 means that the employer has no obligation to inform the employee regarding the trial period. Even if the employee was not notified regarding the trial period, the employer still has the right to check the skills of its employee during this period.

10. Article 33 refers to the number of persons employed on probation for the same position.
While the Labor Code in force until the 1st of May – Article 33 – stated “Hiring of more than three successive persons on trial period for the same job is prohibited”, this provision was amended, becoming – “the period during which successive hiring of persons on trial period for the same job can be undertaken is of maximum 12 months”.
Thus the number of persons on trial period for the same job is no longer limited to three, but is limited in time.

11. Article 34 refers to the General Register of the employees.

Change occurs in paragraphs (3) and (5).

Thus they become:

Article 34 (3) “The general register of employees shall be filled out and sent to Labor Inspectorate in the order of employment and shall include the identification of all employees, date of employment, position / job specification according to the Classification of Occupations in Romania or other acts, such as individual employment contract, salary, benefits and their amount, timing and causes of suspension of the individual employment contract, the period of secondment and individual employment termination date. ”
Article 34 (5) “At the request of the employee or a former employee, the employer is obliged to issue a document certifying the work done by this prson, salary, length of employment, trade and specialization. “

Amendment of Article 34, paragraph (3) entails another change in the Register of Employees. If until the 1st of May it contained the identifications of all employees, date of employment, position / job specification according to the Classification of Occupations in Romania or other acts, such as individual employment contract and the date the individual terminated employment, after the 1st of May it will record items related to salary, benefits and their amount, duration and reasons for the suspension of the individual employment contract and period of deployment.
In this context, the uploading interface for the site of the Labor Inspectorate will have to be modified, in order to include the additional items mentioned in Article 34 (3)

12. Article 35 (1) is amended to read as follows: “Any employee has the right to work at the same employer or at different employers, based on individual employment contracts, benefiting from the appropriate salary for each of them.”
As from the 1st of May 2011 an employee can work for the same employer with two individual employment contracts. At the same time, due to the repeal of Article 35 (3) – “Employees who accumulate more functions are required to inform each employer about the location where he performs the duties that he considers basic”, the employee is no longer compelled to inform the employers about the place where the he performs his basic function.
Thus, an employee who already had the right to cumulate several functions, now enjoys deductions from al workplaces, unless this issue is not governed by special laws.

13. According to Article 36 – “Foreign citizens and stateless persons may be employed by individual contract of employment, under a work permit or residence permit for work issued under the law.”

14. Article 39 and Article 40 which refer to rights and obligations and employees are amended as follows:
– In Article 39 (1), after the letter m) a new point is inserted, n), as follows:
n) “other collective rights provided by law or applicable collective bargaining agreements.”
– In the Article 39 (2), after the letter f) a new point is inserted, g), as follows:
g) “other obligations specified by law or applicable collective bargaining agreements.”
-Article 40 (a), b) is amended to read as follows:
b) establish the duties of each employee, according to the law “;
In Article 40 (1), after the letter e) a new point is inserted, f), as follows: f)
“to establish individual performance objectives and assessment criteria for their achievement.”

15. Article 44, the paragraph referring to the period of delegation, from the 1st of May 2011 will be as follows: “The delegation may be ordered for a period not exceeding 60 days in 12 months and extended for successive periods not exceeding 60 days, only with the employee’s consent. Refusal to accept extension of the delegation cannot constitute grounds for disciplinary sanctions against the employee.”
Even before the 1st of May delegation can be ordered for a period not exceeding 60 days and extended by agreement of the employee with no more than 60 days, but the new regulations limit the delegation period to 60 days in 12 months. As such, delegation can be ordered for a maximum of 60 calendaristic days per year.

16. By amending Article 49, the individual termination of employment de jure shall supersede the suspension o f the contract for a period.
In this context, Article 49, after paragraph (4) two new paragraphs (5) and (6) are introduced, as follows:
(5) Whenever during the period of suspension of the contract there is a cause of lawful termination of the contract, the lawful termination prevails. ”
(6) If the individual employment contract is suspended, deadlines relating to the conclusion, amendment, execution or termination of the individual employment contract, are also suspended, unless the individual employment contract shall lawfully be terminated. “

17. Article 50 refers to the lawful suspension of the employment contract.
The first change leads to the repeal of paragraph (d) – “An individual employment contract is suspended in the following situations: compulsory military service.”
As a result, the employee carrying out their compulsory military service doesn’t have his individual employment contract suspended by the law.
Also under Article 50, after paragraph (h) a new point is inserted, point (h_1), as follows – “individual employment contract is suspended as in the following situations:
h_1) the expiry of the period for which the permits, authorizations or approvals required by the profession were issued. If within six months the employee has not renewed his permits, authorizations or approvals required by the profession, the individual employment contract is terminated by law;”

18. With the amendment of Article 50 and Article 52, referring to the suspension of employment by the employer has other regulations.
Art.52 (1) (b) is repealed. Content of the article was – the individual employment contract may be suspended on the initiative of the employee under the following circumstances: (b) leave for taking care of a sick child aged up to 7 years, or, in the case of a disabled child, for intercurrent illnesses, until the end age 18; “
Since the 1at of May, the employee can not request suspension of the individual work during sick child care up to age 7 years or, if a disabled child for intercurrent diseases before the age of 18.
The introduction of new regulations is through (f) for paragraph (a) of the same Article 52 – “during the suspension by the competent authorities of the notices, licenses or certifications required by the profession.” And (3) – “In the event of temporary reduction of activity for economic, technological, structural or similar reasons, for periods exceeding 30 days, the employer will be able to reduce working hours from five days to four days per week, with a corresponding reduction in salary, until the remedy of the situation that caused the reduction program, after consultation with the representative union or unit-level employee representatives, as appropriate.”
Trough the same article changes are made to paragraph 52 (1) (d) – “in case of interruption or temporary reduction of activity without termination of employment, for economic, technological, structural or similar”, compared to the suspension of the contract by the employer may occur, among other reasons, “in case of interruption or temporary reduction of activity without termination of employment, for economic, technological, structural or similar”
(2) Article 52 shall be amended to read: “In the cases mentioned in paragraph (1) a) and c) if there is innocence in the case, the employee resumes his previous work and under the norms and principles of contractual liability, compensation is paid equal to salary and other rights that were not paid during the suspension of contract.’ – changes suffered with the repeal of paragraph (b) of article (1).

19. Article 53 from the 1st of May 1 is regulated as follows:
Article 53 – (1) “During the reduction and / or temporary interruption of business, employees involved in reduced or discontinued work, who carry out no activity, will receive a benefit paid from salary fund, that can not be less than 75% of the basic salary corresponding to the position held, except as provided in Art. Article 52. (3). “
(2) “During the reduction and / or temporary interruption under par. (A), employees will be available to the employer, who can always order the resuming of business. “

20. Letters (A), (b), (d) of paragraph (1) of Article 56 shall be amended as follows:

Individual employment contract is terminated automatically in the conditions of the law0:
a) “on the date of the death of employee or individual employer, in case of the dissolution of legal person of the employer, the date on which the employer has ceased to exist according to law;”
b) the date of the irrevocable court decision declaring the death or placing under interdiction of individual employer or employee;”
… … … … … … … … … … … … … … … … … … … … … …
d) on fulfillment of the conditions of standard age and the minimum contribution period for retirement pension, from the date the decision for a disability pension, early retirement, partial early retirement pension, pension retirement age to reduce the standard retirement. “
If by May 1 of the individual employment contract shall cease at the date of death of an employee terminated the contract modifications under the new law and the death of the employer and the employer’s legal entity in case of dissolution, the date at which the employer has ceased to exist under the law.
(D) stipulate the termination of the contract of employment “when the decision was old-age pension, early retirement, early retirement or partial retirement of the employee’s disability under the law,” and not “the date of completion of the cumulative standard age conditions and the minimum contribution period for retirement pension from the date the decision for a disability pension, early retirement, partial early retirement pension, pension for old age with reduced standard retirement age. “

21. Article 60, on situations where dismissal of employees can not be ordered, suffers the following changes:
Letter (b) of paragraph (1) becomes: “b) suspension of activity during the imposition of quarantine,” from that in force until the 1st of May. – B) ” during suspension of the quarantine leave;”
Letter (g) of paragraph (1): “during military service,” is repealed entailing the possibility of dismissal of the employee in this situation.
Paragraph (2) changes to read as follows: “The provisions of par. (A) shall not apply to dismissal for reasons that occur as a result of judiciary reorganization, dissolution or bankruptcy of the employer, under the law. “

22. Article 63 (2) changes to read as follows: “The dismissal of the employee for the reason referred to in art. 61, point. d) may be ordered only after prior assessment of the employee, according to the assessment procedure established by the applicable collective agreement or, failing that, the bylaw”. The amendment involves the removal of the reference to the collective labor agreement at national level.

23. In Article 69, after paragraph (2) referring to the consultations that allow the trade union or employee representatives to make proposals on collective redundancies, a new paragraph (2_1) which reads as follows: “The criteria set in paragraph (2), letter d), applies to tie employees after assessing the achievement of performance.”

24. In the same section of the ‘collective redundancies Art 71_1, paragraph (6) is amended, and reads as follows: “Inspectorate of Labor has the obligation to inform the employer within 3 working days and the trade union or employee representatives, as case, on the reduction or extension of the period under paragraph (1) and on the reasons behind this decision “

25.Art 72 is published in the Official Gazette as follows:
(1) Within 45 calendar days from the date of dismissal, the employee fired by collective dismissal has the right to be reinstated as a priority in the re-established job in the same activity, without examination, quiz or trial period.”
(2) When during the period referred to in paragraph (1) the same activities shall resume, the employer will send the employees who were dismissed from positions whose work is resumed in the same conditions of competence a written communication, in which are informed about the resumption of work. “
(3) “The employees have 5 calendar days from the date the employer notifies them under par. (2) to give their written consent to the job offered.”
(4) “In the situation where employees who have the right to be rehired under par. (2) do not express their consent in writing within the period specified in par. (3) or refuse the offered job, the employer may make new appointments for vacant jobs.”
(5) The provisions of art. 68 – 71_2 do not apply to employees of public institutions and public authorities. “
(6) The provisions of art. 68 – 1_2 do not apply to employment contracts entered into fixed term, except where such redundancies take place prior to the expiry of such contracts.”

Before the amendments to Article 72 were published in the Official Gazette, paragraph (a) specified that an employer can not make new appointments to the jobs of employees fired trough collective dismissal for 9 months after their dismissal. .
In this context, the employer is not obliged to fit in the 9 months of collective redundancies to hire new employees, but instead is required to submit a written communication to the redundant employees to inform them about the resumption of work.

26. The last article of the Labor Code that was amended refers to the right of notice. This period of notice, under Article 73 (1), is regulated as follows: “Persons dismissed under Art. 61 points. c) and d), Art. 65 and 66, have the right to notice that can not be less than 20 working days.” In this case, the notice period increases from 15 days to 20 days.