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In this issue:

Law no. 172 dated 13 August 2020 amending and supplementing the Law no. 16/2017 concerning the posting of employees in the framework of provision of transnational services (Law 172/2020) was published in the Official Gazette no. 736 of 13 August 2020 and entered into force on 16 August 2020.

This law transposes at national level, the Directive 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.

The following is a summary of the main legislative changes:

New terms and expressions  

The definition of the employee posted on the Romanian territory is amended in the way that it introduces the maximum duration of the posting, respectively that of 24 months, as it is currently regulated by art. 12 of Regulation (EC) no. 883/2004 on the coordination of social security systems.

The new definition of the posting allowance clarifies its fiscal regime, this being assimilated, from a tax perspective, to the delegation/assignment allowance, according to art. 76 para. (2) lit. k) of the Fiscal Code.

Law 172/2020 introduces the concept of “remuneration applicable on the Romanian territory” and the one of “remuneration applicable on the territory of a member state of the European Union, other than Romania or on the territory of the Swiss Confederation”, which are much broader concepts than the “minimum salary”.

The “remuneration applicable on the Romanian territory” includes, in addition to the minimum wage, the following: bonus for overtime work, bonus for work on weekly rest days, bonus for work on public holidays, bonus for work performed at night, other bonuses and compulsory allowances under national law, as well as those provided for in collective bargaining agreements with general applicability.

The “remuneration applicable on the territory of a member state of the European Union, other than Romania or on the territory of the Swiss Confederation” includes all the constitutive elements of the remuneration that are mandatory according to domestic law, equivalent official and administrative acts, collective agreements or arbitral decisions with general applicability in the state where the employee is posted.

Thus, the minimum working conditions to be observed in the case of employees posted on the territory of Romania or on the territory of a Member State are extended in what concerns the salary rights. These will include not only the minimum salary but also other amounts (allowances, bonuses and other constitutive elements of the salary) enjoyed by the local workers and which are mandatory as per the norms applicable in the respective state.

Novelties concerning the posting of employees by temporary-work agencies

Employees who have been placed at the disposal of a user company in Romania and who have changed their place of activity in a Member State, other than Romania, in the framework of the transnational provision of services, will be considered posted by the temporary-work agent. In this case, the user enterprise active on the Romanian territory will have the obligation to inform the temporary-work agent about the beginning of the employee's activity on the territory of another state, at least 30 days in advance.

Also, the employees who normally work for a user undertaking in one Member State and who have changed their place of work in another Member State, in the framework of the transnational provision of services by the user undertaking, will also be considered posted by the temporary-work agency located in Romania.

Novelties concerning the minimum working conditions for posted employees

The employers have to ensure the accommodation of the posted employees, as well as the coverage of the transport, accommodation and meal expenses both for the workers posted on the Romanian territory and for those posted from the Romanian territory.

The employees posted to Romania will be entitled to the remuneration applicable in Romania, with all its components as defined by Law 172/2020, as well as to overtime payment.

At their turn, the employees posted from the Romanian territory will have the right to the remuneration applicable on the territory of the host state and to the overtime payment.

Introduction of the reference term of 12 months

Employees seconded to Romania for periods longer than 12 months will benefit from all applicable working and employment conditions under applicable national law and collective bargaining agreements, except for those relating to the conclusion and termination of the individual employment agreements, non-compete clauses and contributions to occupational pension schemes.

The same rule will apply to employees posted from Romania on the territory of the Member States, for periods longer than 12 months.

In case of a posting shorter than 12 months, the minimum set of working conditions provided by art. 6 and art. 8 of Law 16/2017 will still be applicable.

The posting allowance

The posting allowance is considered to be part of the remuneration, with the exception of the transport, accommodation and subsistence expenses generated by the posting. The employer will reimburse the employees with the expenses generated by the posting in accordance with the national law applicable to the employment relationship.

Obligation to inform the employees posted from Romania

Romanian companies must inform the employees posted on the territory of a member state regarding: the constitutive elements of the remuneration and their amounts, the link to the official national site of the host member state, the total amount of the remuneration with the distinct highlighting of the posting allowance, the effective expenses generated by the posting and the method of granting/reimbursing, as well as the information provided by art. 18 of the Labor Code.

Obligation to inform the territorial labor inspectorate

The declaration of the employees posted on the Romanian territory will take place before the date of starting the activity at the latest, thus eliminating the requirement to submit the declaration on the working day prior to the date of starting the activity. 

Sanctions

Law 172/2020 introduces new administrative sanctions, mostly for breach of the newly introduced obligations to inform, varying between Lei 6,000 and Lei 20,000.

For more information, please contact Radu și Asociații SPRL team.

 

Prepared by:
Anca Atanasiu – Senior Associate, Radu și Asociații SPRL

For additional information, please contact:
Radu Diaconu – Associate Partner, Radu și Asociații SPRL
Anca Atanasiu – Senior Associate, Radu și Asociații SPRL