Articles – ASRPM

CONSIDÉRATIONS SUR LA PROMULGATION DE LA LOI DE RÉFORME DES RETRAITES EN FRANCE

Dan ȚOP

L’espérance de vie à la naissance dépasse 80 ans dans les deux tiers des États de l’Union européenne. En Roumanie, en Bulgarie et en Lituanie, il reste aux alentours de 75 ans, les trois pays étant dans le bas du classement européen[1].

Mais l’allongement de l’espérance de vie s’accompagne aussi d’un relèvement progressif de l’âge de la retraite. L’Europe est confrontée au vieillissement de sa population, c’est-à-dire que les Européens seront plus âgés et vivront plus longtemps.

Pour cette raison, les inquiétudes se sont accrues ces dernières années quant à la viabilité des systèmes de retraite publics et à la capacité de l’État à fournir un revenu post-emploi adéquat. Les retraites publiques étant la principale forme d’aide aux Européens âgés, il n’est pas étonnant que l’une des solutions envisagées par les gouvernements consiste à prendre leur retraite le plus tôt possible.

Cela apporterait deux avantages : premièrement, cela réduirait la pression sur la génération active, et deuxièmement, cela assurerait un revenu plus élevé aux personnes âgées[2].

Il n’y a pas d’âge standard de la retraite en Europe. En général, l’âge normal de la retraite se situe autour de 65 ans, bien qu’en fait de nombreux pays européens prennent leur retraite plus tôt[3].

L’augmentation de la durée d’activité est corrélée à l’espérance de vie au Danemark, en Finlande, en Italie, au Portugal et en Slovaquie[4]. En outre, Chypre, la Grèce et les Pays-Bas lient également l’âge de la retraite à l’espérance de vie. Il y a aussi certains pays, dont la Roumanie, qui ont actuellement des âges de retraite différents[5] pour les femmes et les hommes, mais la tendance est d’égaliser les âges auxquels les citoyens doivent prendre leur retraite, quel que soit leur sexe.

Dans le cas de la Finlande, l’âge de la retraite est augmenté, à partir de 2017, de trois mois chaque année. D’ici 2027, l’âge légal de la retraite passera à 65 ans (contre 63 actuellement). Après cette date, pour les générations nées après 1965, l’âge de la retraite sera lié à l’espérance de vie.

Plus précisément, le moment de la sortie du marché du travail sera déterminé par l’espérance de vie calculée pour l’âge de 62 ans. Peu à peu, ils ont décidé de relever l’âge de la retraite pour les Néerlandais aussi : d’ici 2024, il atteindra 67 ans. Pour les personnes nées après 1959, l’âge de la retraite sera d’au moins 67 ans et, étant lié à l’espérance de vie, il sera de 5 ans avant la retraite.

La retraite anticipée est le principal défi pour de nombreux États européens. Une retraite plus rapide signifie une pension plus longue que l’État doit fournir. Les Européens les plus anciens à la retraite sont les Luxembourgeois – plus de 23 ans pour les hommes et près de 27 ans pour les femmes. A l’opposé se trouve la Bulgarie, où les hommes ne bénéficient d’une retraite que pendant 13 ans, et les femmes pendant plus de 19 ans. En Roumanie, la durée moyenne de la retraite pour les hommes est d’environ 14,4 ans et pour les femmes de 20 ans.

Le Conseil constitutionnel de France, par la Décision n° 2023-849 DC du 14 avril 2023 (Loi de financement rectificative de la sécurité sociale pour 2023)[6], a donné son feu vert, avec seulement quelques réserves mineures, à la loi de réforme des retraites, qui fait passer l’âge de la retraite à 64 ans de 62 ans, profondément impopulaire en France et entraînant d’énormes manifestations ces dernières semaines. Le conseil a déclaré que les actions du gouvernement étaient conformes à la constitution et a approuvé le relèvement de l’âge légal de la retraite, tout en annulant plusieurs mesures visant à stimuler l’emploi des travailleurs âgés au motif qu’elles ne faisaient pas partie de la législation.

La réforme sera mise en œuvre à partir du 1er septembre 2023, mais les syndicats et l’opposition ont averti qu’ils ne reculeraient pas et ont exhorté Macron à ne pas l’adopter.

Le président français Emmanuel Macron, bien qu’il ait eu 15 jours pour signer la loi après avoir validé la plupart des mesures incluses dans la réforme du système des retraites par le Conseil constitutionnel français, a promulgué la loi sur la réforme du système des retraites, qui prévoit l’augmentation de l’âge de la retraite par deux ans. Le code de la sécurité sociale est ainsi modifié. Au premier alinéa, les mots “soixante-deux” sont remplacés par “soixante-quatre”. Par ailleurs, le Conseil constitutionnel a rejeté une proposition de l’opposition d’organiser un référendum sur la réforme des retraites. Une nouvelle demande de référendum a été déposée et sera analysée par le Conseil début mai.

Le 17 avril 2023, Emmanuel Macron, le président de la France, s’est adressé aux Français après la promulgation de la loi sur les retraites, montrant[7] que Le Conseil constitutionnel a validé l’essentiel de la loi sur les retraites”. En conséquence, je l’ai promulgué. Les dispositions de cette loi entrent en vigueur, progressivement, à partir de l’automne. Adopté selon notre Constitution, ce changement était nécessaire garantir la pension de chacun de nous et accroître le bien-être de notre nation. Dans les conditions où le nombre de retraités augmente et l’espérance de vie augmente, la réponse ne peut pas être de diminuer les pensions ou d’augmenter les cotisations.”

Dans ce contexte, la question se pose, quel sera l’effet des protestations qui se poursuivent en France pour l’avenir. Serait-il possible de revenir à cet acte normatif qui s’inscrit dans la tendance européenne à l’augmentation de l’âge de la retraite ?

[1] Cristina Dobreanu, Beaucoup de travail, une petite retraite. Comment se situe la Roumanie sur la

carte européenne des retraités, HotNews.ro, 16 mars 2023

[2] En Roumanie, par exemple, près d’un tiers des plus de 65 ans vivent sous le seuil de pauvreté

[3] En Roumanie, par exemple, grâce à la retraite anticipée, l’âge effectif de la retraite pour les hommes est de 64

ans ans (l’âge légal est de 65 ans). Bien que les Roumains prennent leur retraite environ un an plus tôt, ils ne

sont pas les seuls Européens qui le font: les Autrichiens partent aussi plus vite en moyenne de deux ans, et les

Bulgares aussi d’un an

[4] Rapport de l’Organisation de Coopération et de Développement Economiques, 2022

[5] Dan Țop, Droit de la sécurité sociale, 2e édition, maison d’édition Zven, Târgovişte, 2016

[6] Cette décision a été publiée au Journal Officiel de la République Française

[7] www.juridice.ro, 18 avril 2023

CHANGES AND SUPPLEMENTS TO THE LABOR CODE IN ROMANIA BY LAW NO. 283 / 2022

Dan ȚOP*

Law no. 283/2022 for the amendment and completion of Law no. 53/2003 – Labor Code, as well as Government Emergency Ordinance no. 57/2019 regarding the Administrative Code[1], brings 32 amendments or additions to the Labor Code, most of them related to art. 17, regarding the clauses of the employment contract. The normative act, which entered into force on October 22, 2022, introduces new clauses that must be inserted in all contracts, according to the future framework model of the CIM, established by order of the Minister of Labor.

By completing art. 1, with a new paragraph, paragraph 3 which states that “from the provisions of art. 39 para. (1) lit. m1), art. 40 para. (2) lit. j), art. 194 para. (2) specific derogatory provisions may be provided by special laws only for the work or service relationships carried out by the personnel of the public emergency services, the personnel of the defense system, public order and national security, diplomatic and consular personnel, magistrates, the specialized auxiliary staff of the courts and the prosecutor’s offices next to them, respectively for the service relationships of civil servants”, it is expressly provided for the completion of the Labor Code with derogatory norms included in special laws for certain legal work relationships, the enumeration being limiting.

Law no. 283/2022 expressly establishes that, as regards the scope of applicability[2] of the provisions of the Labor Code, it also covers employed persons (to be understood regardless of nationality), who perform legal work for an employer based in Romania, given the addition lit. h to art. 2 of the Labor Code, according to which the normative act applies to “employed persons, who perform legal work for an employer based in Romania.”

Article 5, para. 7 is amended, in the sense that “victimization constitutes any adverse treatment, which comes as a reaction to a complaint or referral to the competent bodies, respectively to a legal action regarding the violation of legal rights or the principle of equal treatment and non-discrimination”, which which constitutes a redefinition of victimization. At the same time, it is expressly instituted, by introducing a new paragraph, paragraph 10 to art. 5, in the responsibility of employers the prohibition to apply any unfavorable treatment to employees and their representatives, “as a result of requesting or exercising one of the rights provided for in art. 39 para. 1.

At art. 6, according to para. 3, two new paragraphs are introduced, paragraphs 4 and 5, with the following content:

“If employees, employee representatives or union members present a complaint to the employer or initiate procedures in order to ensure compliance with the rights provided for in this law, they benefit from protection against any adverse treatment from the employer.

The employee who considers himself the victim of adverse treatment from the employer within the meaning of para. 4 can address the competent court with a request for compensation and the restoration of the previous situation or the cancellation of the situation created as a result of the adverse treatment, with the presentation of the facts on the basis of which the existence of the said treatment can be presumed.”

The new legal provisions expressly recognize, in favor of the employee, employee representatives or union members, the right to benefit from protective measures against any adverse treatment applied by the employer, in cases where they submit a complaint to the latter or initiate procedures in the purpose of ensuring the respect of their rights, but also the right to address the competent courts that the employee subjected to unfavorable treatment has. We consider that the competent court is the labor and social insurance litigation section of the court.

Amendments to art. 17, refers[3] to the possibility of informing employees about the provisions of the internal regulation, including on electronic support, and informing candidates / employees about certain additional aspects, including about the right and conditions regarding the professional training offered by the employer, aspects that will have to be mentioned and in the employment contract.

The person selected for employment or the employee will also be informed about:

– in the absence of a fixed workplace, the possibility of insurance or settlement of travel by the employer between different workplaces, the amendment of art. 17 para. 3, specifying the information regarding the “workplace or, in the absence of a fixed workplace, the possibility for the employee to carry out his activity in different workplaces, as well as whether the movement between them is ensured or settled by the employer, as the case”.

– the constituent elements of salary income, highlighted separately, and the method of salary payment lit. k, showing, in the new wording, that the information refers to the “basic salary, other constituent elements of the salary income, highlighted separately, the periodicity of the salary payment to which the employee is entitled and the method of payment”.

– the normal duration of work, expressed in hours/day and/or hours/week, the conditions for performing and compensating or paying overtime, as well as, if applicable, the methods of organizing work in shifts, as provided by the new form of letter it

– the duration and conditions of the trial period, if any, according to the new text of art. 17 para. 3 lit. n

At art. 17 para. 3 is added lit. p, regarding the right and conditions regarding professional training offered by the employer and letter q which refers to “the employer’s bearing of the private medical insurance, of the additional contributions to the optional pension or to the occupational pension of the employee, in accordance with the law, as well as the granting, at the initiative of the employer, of any other rights, when they constitute advantages in money granted or paid by the employer to the employee as a result of his professional activity, as the case may be.”

Para. 4 of art. 17 is amended, in the sense that “the elements of the information provided for in para. 3 must also be found in the content of the individual employment contract, with the exception of the information provided for in letter m, o and p”, respectively, ….. the conditions regarding the professional training offered by the employer.

The mentions regarding the use of the electronic signature in labor relations and the indication of the applicable collective labor contract will no longer have to be found in the labor contracts. However, we are talking about the “elimination of some mentions, and not about diminishing the importance of these aspects in labor relations or about non-compliance with certain obligations by employers”[4].

Two new paragraphs are added to Article 17, paragraphs 8 and 9, with the following content: “The Labor Inspectorate provides employees and employers with the framework model of the individual employment contract, established by order of the Minister of Labor and Social Solidarity, through publication on the institution’s website, respectively para. 9 according to which, as I have previously shown, “all the information mentioned in art. 17 para. (3) will be included in the framework model of the individual employment contract provided for in paragraph 8.”

Letter a, article 18 paragraph 1, is amended and will have the following content: “the country or countries, as well as the duration of the work period to be performed abroad”.

The new content of article 19, provides in the three paragraphs that, “if the employer does not inform the employee about all the elements provided by this law, he can notify the Labor Inspectorate. In the case of employers who have established by law their own inspection bodies, the employee addresses them. In the event that the employer does not fulfill the information obligation provided for in art. 17, 18, 105 and 242, the person selected for employment or the employee, as the case may be, has the right to refer the competent court and request compensation corresponding to the damage he suffered as a result of the employer’s failure to fulfill the obligation to inform.”

In article 32, according to par. 2, a new paragraph, paragraph 21, is introduced, according to which “it is prohibited to establish a new trial period if, within 12 months, a new individual employment contract is concluded between the same parties for the same position and with the same attributions”.

The normative act also brings a limitation[5] of the current right of employees to have several employment contracts – the work schedule will no longer be able to overlap. Practically, for the first time, we will have an express prohibition regarding a quite common situation, including in the case of many state employees, who work, overlapping the work schedule, both in the state and in the private sector.

Thus art. 35 para. 1 was amended in the sense that “any employee has the right to work for different employers or for the same employer, based on individual employment contracts, without overlapping the work schedule, benefiting from the corresponding salary for each of them. No employer can apply unfavorable treatment to the employee who exercises this right.”

It can be said that this amendment constitutes the transposition into domestic law of EU Directive 2019/1152, according to which “An employer should not prohibit a worker from carrying out activities for other employers outside the working hours established with that employer, nor apply to the worker an unfavorable treatment for this. Member States should be able to set conditions for the application of incompatibility restrictions, which are interpreted as restrictions on working for other employers for legitimate reasons, such as the protection of the health and safety of workers, including by limiting working hours, the protection of trade secrets, the integrity of the public service or the avoidance of conflicts of interest”.

In article 39 para. 1 after letter m, a new letter is introduced, letter m1, which provides that: “the right to request a transfer to a vacant position that ensures more favorable working conditions if he has completed his probationary period and has been employed for at least 6 months at the same employer”.

At the same time, in the article 40 para. 2, after letter i a new letter is introduced, letter j, according to which the employer has the obligation “to respond with reasons, in writing, within 30 days of receiving the employee’s request, provided for in art. 39 para. (1) lit. m¹, if he accepts or, as the case may be, refuses to comply with the request made by the employee.

Another amendment refers to the rights acquired by the employee prior to the granting of leave, or absence from the workplace, which are maintained for the entire duration of the leave, respectively the period of absence, in article 51, according to paragraph 2, a new paragraph being introduced, paragraph 3, with the following content: “the rights acquired by the employee prior to the granting of the leaves provided for in paragraph (1) and in art. 152¹ times of absence from the workplace under the conditions provided for in art. 152² are maintained for the entire duration of the leave, respectively the period of absence.”

In article 59, after letter b, insert a new letter, letter c, with the following content: “for the exercise of the rights provided for in art. 17 para. (3), art. 18 para. (1), art. 31, art. 39 para. (1), art. 85 and art. 194 para. (2).” It is forbidden to fire employees in such situations.

The new provisions expressly establish the prohibition on employers to order the dismissal of employees during paternity leave and carer’s leave or during absence from the workplace in unforeseen cases, determined by a family emergency caused by illness or accident, which make the immediate presence of the employee indispensable, in article 60 par. 1, after letter h, a new letter is inserted, letter i, with the following contents: “during paternity leave and carer’s leave or during absence from the workplace under the conditions regulated in art. 152².”

It is established for the benefit of the dismissed employees the right to request the employers to present in extenso the reasons that were the basis of the dismissal (even in addition to what is mentioned in the dismissal decision itself), in art. 62, according to para. 3, being introduced two new paragraphs, paragraphs 4 and 5, with the following content: “employees who consider that they have been fired for exercising the rights provided for in art. 17 para. (3), art. 18 para. (1), art. 31, 152¹, 152², 153² and art. 194 para. (2) may request the employer to present, in writing, in addition to the provisions of para. (3), the grounds on which the decision regarding the dismissal was based, respectively, the provisions of para. 4 are not applicable to situations in which special laws establish preliminary procedures whereby the investigation of the facts falls to a competent authority or body.”

Amendment of art. 111 shows that working time represents any period during which the employee performs work, is at the disposal of the employer and fulfills his tasks and duties, according to the provisions of the individual employment contract, the applicable collective employment contract and/or the legislation in force, and in the paragraphs 2 and 3, the Labor Code defines for the first time the notions of “work schedule” as “the activity organization model, which establishes the hours and days when work begins and ends”, and the “organization model of work”, which “represents the form of organization of working time and its distribution according to a certain model established by the employer.”

Art. 118, in the new wording, provides in art. 1 that “the employer can establish individualized work programs for all employees, including those who benefit from carer’s leave, with their consent or at their request, which may have a limited duration in time”, and after paragraph 4 introduces three new paragraphs, paragraphs 5-7, according to which: “any refusal of the request provided for in paragraph (1) must be motivated, in writing, by the employer, within 5 working days of receiving the request. When the individualized program of work has a limited duration, the employee has the right to return to the initial work schedule at the end of the agreed period. The employee has the right to return to the initial schedule prior to the end of the agreed period, in the event of a change in the circumstances that led to the establishment of the individualized schedule. By way of flexible organization of working time is understood as the possibility for employees to adapt the work schedule, including through the use of mu even remotely, flexible work schedules, individualized work schedules or work schedules with reduced working hours.”

Although this individualized work program could be requested by employees until now[6], Law no. 283/2022 introduced a series of details regarding the flexible organization of work time specific to individualized work programs. Thus, on the one hand, we have the division of working time into two periods (a fixed one in which the staff is simultaneously at the workplace and a variable one, chosen by the employee), provisions that existed previously, but also telework, work at home, flexible or even reduced-time programs, these novelties being brought by the new regulation.

The application for switching to an individualized work program is not granted only to those who will benefit from the carer’s leave, when it can be taken[7], but can be submitted by all employees. If the employer is obliged to grant carer’s leave, the obligation does not exist regarding the individualized work schedule. The employee can submit the request, but the employer can refuse it. The only obligation the employer has is to respond to the employee, motivated and in writing, why he does not agree with this change in the schedule, within five working days from the date of submission of the request.

Article 145 para. 4 was amended, with the following content: “when determining the duration of annual leave, the periods of temporary incapacity for work, those related to maternity leave, paternity leave, maternal risk leave, leave for caring for a sick child, carer’s leave and the period absence from the workplace under the conditions of art. 152² are considered periods of performed activity.”

After article 152, two new articles are introduced, articles 152¹ and 152². According to art. 152¹ para. 1 the employer is obliged to grant carer’s leave to the employee in order for him to provide care or personal support to a relative or a person who lives in the same household as the employee and who needs care or support as a result of a serious medical problem, with a duration of 5 working days in a calendar year, at the written request of the employee.

Para. 2, provides that by special laws or by the applicable collective labor agreement, a longer duration than that provided for in paragraph can be established for caregiver leave. (1), and para. 3 that the period provided for in para. (1) is not included in the duration of the annual vacation and constitutes seniority in work and in the specialty.

By derogation from the provisions of art. 224 para. 2 of Law no. 95/2006 regarding health reform, provides para. 4, the employees who benefit from the carer’s leave are insured, during this period, in the social health insurance system without paying the contribution. The period of the carer’s leave constitutes a contribution period for establishing the right to unemployment allowance and allowance for temporary incapacity for work granted in accordance with the legislation in force.

According to paragraph 5, serious medical problems, as well as the conditions for granting carer’s leave are established by joint order of the Minister of Labor and Social Solidarity and the Minister of Health.

Within 30 days from the date of publication of this new law (that is, until November 18, 2022), we should see in debate a draft order that contains not only the conditions for granting this type of leave, but also what are the medical problems for which can be requested.

Art. 152² paragraph 1 provides – the employee has the right to be absent from the workplace in unforeseen situations, determined by a family emergency caused by illness or accident, which make the immediate presence of the employee indispensable, under the conditions of prior notification of the employer and with the recovery of the absent period until the full coverage of the normal duration of the employee’s work schedule, and in para. 2 that the absence from the workplace provided for in para. (1) cannot last longer than 10 working days in a calendar year. The employer and the employee establish by mutual agreement, according to para. 3, the way to recover the period of absence, specified in para. (1), within the limit of the number of days provided for in para. (2).

So employees have the possibility to ask for 10 working days in a calendar year, but they can only be granted if the employer is informed about them before the actual absence. These days must be recovered later by the employee, the method of recovery to be the subject of an agreement with the employer. The rights enjoyed by the employee are also maintained during the absence due to the emergency. Moreover, employers are not allowed to fire the employee during the absence from work[8] for family emergencies. Leave for family emergencies are considered periods of activity, and their request will not affect annual leave.

After article 153, two new articles are introduced, articles 153¹ para. 1, according to which paternity leave is the leave granted to the father of the newborn child under the conditions provided by the Law on paternity leave no. 210/1999 with subsequent amendments and additions.

It should be stated that previously, by Emergency Ordinance no. 117/2022 for the amendment and completion of the Law on paternity leave no. 210/1999, European Directive 1.158/2019 was transposed, which contains measures regarding the balance between professional and private of parents and carers, as a new legal regime has been established for this type of leave.

The father of the newborn child who is an employee has the right to a paid paternity leave of ten working days, and if he takes a childcare course (basic theoretical and practical notions for the care of the young child), the duration of the leave is increased by five days. Before, the duration of paternity leave was the same, i.e. 15 days, but it was structured differently, i.e. it was five working days, to which another ten could be added, if the father completed a childcare course[9]. A really important change in 2022 in relation to paternity leave is that it will be granted for its maximum duration of 15 days and for the birth of other children, not just the first, after the father has taken the childcare course. In other words, the childcare course is done only once, but it will be taken into account when determining the duration of paternity leave for the following children of the employee, not just once, as it was before.

Para. 2 introduces caregiver leave is the leave granted to employees in order to provide care or personal support to a relative or a person who lives in the same household as the employee and who needs care or support as a result of a serious medical problem. In para. 3 states that a caregiver is an employee who provides care or personal support to a relative or a person who lives in the same household as the employee and who needs care or support as a result of a serious medical problem. In the sense of art. 152¹ para. (1), as well as para. (3), relative means the son, daughter, mother, father or husband/wife of an employee.

Art. 153² paragraph 1 provides that the employer has the obligation to grant paternity leave at the written request of the employee, in compliance with the provisions of Law no. 210/1999 with subsequent amendments and additions, and para. 2 that the granting of paternity leave is not conditioned by the period of activity provided or by the length of service of the employee. The clarification introduced now regarding the granting of paternity leave also means that the employer cannot establish, through the internal regulation, any condition contrary to the legal provisions[10].

In article 229, according to para. 4, a new paragraph, paragraph 5, is introduced, with the following content: “collective labor contracts at the activity sector and unit group level are published on the website of the Ministry of Labor and Social Solidarity, in accordance with the provisions of art. 145 para. 2 of the Social Dialogue Law no. 62/2011[11], republished, with subsequent amendments”.

Although the number of these collective labor contracts at the sectoral and/or unit group level is decreasing, the main obstacle is in the legal act that should have facilitated these negotiations, i.e. in the social dialogue law, and most of them are concluded at the unit level, only the first ones are published on the website of the ministry of labor, and now we have not only a provision in the dialogue law that establishes this matter, but also an identical one in the Labor Code. of course, for those with collective labor contracts at unit level, the same problem of accessibility for (future) employees[12] remains.

In article 242, after letter two new letters are introduced, the letters j which refer to “rules regarding notice” and k, regarding “information on the general policy of training employees, if any.”

Paragraphs 1-3 of article 243 are amended and will have the following content:

,,(1) The employer has the obligation to inform each employee of the provisions of the internal regulations, on the first day of work, and to prove the fulfillment of this obligation.

(2) Making employees aware of the provisions of the internal regulation can be done on paper or in electronic format, provided that, in the latter case, the document is accessible to the employee and can be stored and printed by him.

(3) The internal regulation produces its effects towards the employee from the moment of his knowledge.”

In accordance with the new legal provisions, employers have the obligation to update their internal regulations, the Labor Code supplementing its content with two new chapters, namely: a chapter dedicated to the rules regarding notice in case of dismissal and a second chapter dedicated to information on to the general employee training policy, if any. Also, the Labor Code imposes on employers the obligation to inform each employee of the provisions of the internal regulation, on the first day of work, and to prove the fulfillment of this obligation. Making employees aware of the provisions of the internal regulation can be done on paper or in electronic format, which is a novelty[13], provided that, in the latter case, the document is accessible to the employee and can be stored and printed by him. The internal regulation will produce its effects towards the employee from the moment of becoming aware of it.

It can be noted that the new regulation establishes a sanctioning regime regarding non-compliance with the newly introduced rights and/or obligations.

Thus, article 260 paragraph 1, letter r is amended, in the sense that non-compliance with the provisions of art. 5 para. (2)-(9) and of art. 59 lit. a) and c), with a fine from 4,000 lei to 8,000 lei.

In article 260 para. 1, after the letter s, two new letters are introduced, the letters t and u, with the following content: not granting the carer’s leave to employees who meet the conditions provided for in art. 1521, with a fine from 4,000 lei to 8,000 lei, respectively, the violation of the obligation provided for in art. 1532, with a fine from 4,000 lei to 8,000 lei.”

Article 277 is amended and will have the following content:,, for the purposes of this code, management positions are those defined by law or by internal regulations of the employer.”

It should also be stated that in accordance with Article II of Law no. 283/2022, for the employee who has employment relationships established prior to the date of entry into force of this law, additional information regarding the conditions applicable to the employment relationship shall be communicated by the employer, upon request, within a maximum of 30 working days from the date of receipt of the request written by the employee.

*Professor PhD, School of Advanced Studies of the Romanian Academy, President of the Association for the

Study of Labor Relations in Romania

[1] Published in the Official Gazette of Romania, Part I, no. 1013 of October 19, 2022

[2] Raluca Mihai, Modificări în domeniul dreptului muncii – Legea nr. 283/2022 pentru modificarea și

completarea Legii nr. 53/2003 – Codul Muncii, precum și a Ordonanței de Urgență a Guvernului nr. 57/2019

privind Codul Administrativ, www.juridice.ro, 28.10.2022

[3] Dan Dascălu, Ioana Cercel, Sonia Bălănescu, Angajații vor beneficia de noi zile de concediu, de îngrijire a unei

rude bolnave sau pentru urgențe familiale. Ce modificări au fost aduse Codului Muncii? www.juridice.ro

24.10.2022

[4] Simona Voiculescu, Două elemente care nu vor mai trebui cuprinse în contractele de muncă, www.avocatnet.ro,

18 octombrie 2022

[5] Simona Voiculescu, Posibilitatea de a lucra cu mai multe contracte unde programul se suprapune va dispărea

avocatnet.ro, 29 septembrie 2022

^[5] Published in the Official Journal of the European Union, L 186/105 of 17 July 2019

[6] Dan Ţop,Tratat de dreptul muncii, ediţia a IV-a, editura Universul Juridic, Bucureşti, 2022, p.461

[7] Lucia Tozaru, Salariații care au nevoie de concediul de îngrijitor vor putea cere și un program individualizat

de muncă, www. avocatnet.ro, 26 octombrie 2022

[8] Lucia Tozaru, Salariații vor avea dreptul la zece zile de absențe pentru urgențele familiale, pe care le vor

recupera ulterior, www.avocatnet.ro, 20 octombrie 2022

^[8] Published in the Official Gazette of Romania, Part I, no. 845 of August 29, 2022

[9] Felicia Roșioru, Dreptul individual al muncii, editura Universul Juridic, București, 2017, p. 528.

[10] Dragos Niculescu, Concediul paternal trebuie acordat salariatului, indiferent de vechimea într-o companie,

avocatnet.ro, 31 Octombrie 2022

[11] Republished in the Official Gazette, Part I, no. 625 of August 31, 2012

[12] Dan Năstase Dubla reglementare privind publicarea CCM-urilor încheiate la nivel de sector de activitate și

grup de unități. În cazul celor la nivel de unitate se păstrează „misterul”, www.avocatnet.ro, 25 octombrie

2022

[13] Raluca Mihai, art. cit.

VOLUNTARY INCREASE OF THE ESTABLISHED SALARY IN THE INDIVIDUAL EMPLOYMENT CONTRACT

Dan ȚOP *

Given the current context of rising prices for electricity, gas, fuel and food, which leads to a decline in the living standards of people on incomes at the minimum gross basic wage in the country guaranteed in payment and taking into account the need for incentives employers who can grant the voluntary increase of the salary established in the individual employment contract at the level of the minimum gross salary per country guaranteed in payment, in order to support their employees, by not taxing and not including in the calculation base of compulsory social contributions / month, the Emergency Ordinance no. 67/2022 regarding some fiscal measures, as well as for the modification and completion of art. 59 of Law no. 207/2015 on the Fiscal Procedure Code[i].

According to art. 1 of this normative act, starting with June 1, 2022, in the case of employees who carry out activity based on the individual employment contract, employed full time, at the place where the basic position is, no income tax and social contributions are due mandatory for an amount of 200 lei representing income from salaries and assimilated to salaries in the following situations:

a) employers voluntarily increase, at any time between June 1 and December 31, 2022 inclusive, the level of gross monthly basic salary by 200 lei, respectively from 2,550 lei to 2,750 lei, for employees working on the basis of individual contracts of labor, in execution on June 1, 2022, which provide a level of gross monthly basic salary on the same date, without including bonuses and other additions, equal to the level of the minimum gross salary per country guaranteed in payment established by Government Decision no. 1071/2021 for establishing the minimum gross basic salary per country guaranteed in payment;[ii][iii]

b) the level of the gross monthly basic salary established according to the individual employment contract, without including bonuses and other additions, is 2,750 lei, in the case of newly employed persons between June 1 and December 31, 2022 inclusive.

Although, in fact, the employee will benefit from the increase of the minimum wage by 200 lei, this increase will not be seen neither to the pension, nor to any other indemnity that he can receive, in these cases being taken into account only the salary incomes or the assimilated ones. respectively, on which the income tax and the obligatory social contributions are paid[iv]. Thus, as well as the amounts received in meal[v] or gift vouchers are not taken into account for the establishment of the pension because for them CAS is not paid; and when establishing the sick leave allowance, these 200 lei received in addition will not be taken into account, because the social health insurance contribution (CASS), amounting to 10%, is not stopped from this amount, and the employee who benefits of an increase of the net by 200 lei starting with June 1, he will receive, following a medical leave for temporary incapacity for work, the same amount that he would have received even if he did not have this increase.

Although it was said[vi] that even for the allowance for parental leave will not be taken into account these 200 lei, because the calculation of the allowance is only the income that is subject to income tax, 10%, not the case for this money , The Labor Inspectorate specified that the granting of the 200 lei implies a modification of the gross monthly basic salary, even if for them no income tax and compulsory social contributions are due, for pension and health, but, the employee will receive the salary at the level resulting from the change, a level that will be taken into account when determining the rest or medical leave allowance[vii].

The situation is similar to the 400 lei for telework[viii], and they are also non-taxable, if they are granted as long as the employee does not work at the company’s headquarters. In the event that the employee resigns from work where he received an additional 200 lei each month between June and December 2022 and is left with days off for these months, their reward will not be taken into account[ix] this plus 200 lei. Thus, the employee will receive only the amount related to the salary from the employment contract for each day of rest left unfulfilled.

The increase is optional, not mandatory, so employers may decide not to grant it[x], at the same time, tax facilities will not apply to sectors of the economy where differentiated minimum wages are granted (such as construction or, from June 1, the food industry , in both fields being established a mandatory minimum salary of 3,000 lei).

It should also be noted that those who are employed in the next period, full time, are entitled to a gross salary of at least 2,550 lei, and not 2,750 lei.

Article 1 para. 2 of the Emergency Ordinance no. 67/2022 expressly states that the amount of 200 lei is not taken into account for the application of personal deductions.

The amount of 200 lei provided by the Emergency Ordinance no. 67/2022 decreases depending on:

a) the period of the month for which the salary increase was granted;

b) the date from which the new employees are employed at a level of the salary established according to par. 1lit. b

c) the fraction of the month for which the incomes from salaries and assimilated to salaries are determined;

d) the date from which the individual employment contract ends.

So, although it is a fixed amount, it cannot be granted in full if, for example, that employee does not work all month, or is absent without reason.

The provisions of the Emergency Ordinance no. 67/2022 are not applicable to salaried staff according to the Framework Law no. 153/2017 on the remuneration of staff paid from public funds[xi].

Increasing the minimum wage of workers by 200 lei is an option, not an obligation, but if employers decide to do so, they cannot choose to increase the salary of only some of those paid with the minimum gross because it would be a discriminatory measure.

The law establishing a differentiated minimum wage in the field of agriculture and the food industry does not differentiate between the working hours of individual employment contracts. Even those who work less than 8 hours a day will have to receive at least 17.92 lei gross per hour worked. The situation is similar for construction workers.

The newly concluded employment contract must include the amount of 2,750 lei, and not the amount of 2,550 lei, and the 200 lei to be given “in hand”, because that means that they are partially paid “illegally”[xii].

Another aspect that could lead to conflicts between employees and employers, because there may be employees who receive these 200 lei, and employees who will not receive them, although they also have the minimum wage, respectively 2550 lei. Such a measure could not be considered illegal or discriminatory, as the employer is the only one able to assess the granting of this facility, so in relation to each employee who is employed with a minimum wage.

It would be advisable for the employer to inform the employees who could benefit from the amount of 200 non-taxable lei and about their tax regime, and, of course, to conclude an additional act[xiii] to the individual employment contract with each employee benefiting from this facility.

* Prof. PhD, Associate Researcher at the Institute of Legal Research of the Romanian Academy

[i] Published in the Official Gazette of Romania, Part I, no. 494 of May 18, 2022

[ii] Published in the Official Gazette of Romania, Part I, no. 950 of October 5, 2021

[iii] Lucia Tozaru, Because they are non-taxable, the 200 lei extra at the minimum wage is not quantified at the

pension or other allowances, www.avocatnet.ro, May 19, 2022

[iv] Dan Țop, Labor Law Treaty, 4th edition, Universul Juridic publishing house, Bucharest, 2022, p. 513

[v] Lucia Tozaru, loc.cit

[vi] Lucia Tozaru, Labor Inspectorate: Even if the 200 lei are non-taxable, they are taken into account for the

holiday allowance medical, www.avocarnet.ro, June 3, 2022

[vii] By Law no. 296/2020 for the amendment and completion of Law no. 227/2015 on the Fiscal Code, published

in Official Gazette of Romania, Part I, no. 1269 of December 21, 2020 was introduced in the Fiscal Code the

possibility for the employer to bear, free of charge, the expenses with the utilities at the place where the

telemarketers activities such as electricity, heating, water and data subscription, and the purchase of

furniture and office equipment, within the limits established by the employment contract or the internal

regulations, within the limits of a monthly ceiling of 400 lei corresponding to the number of days in the

month in which the natural person carries out activity in telework regime

[viii] Alexandru Țiclea, Treaty on working time and rest time, Universul Juridic publishing house, Bucharest,

2020, pp. 242

[ix] Alina Andrei, Tax exemptions for increasing the minimum wage: Five important aspects for companies

who want to benefit from facilities, www.juridice.ro, May 30, 2022

[x] Published in the Official Gazette of Romania, Part I, no. 492 of June 28, 2017, with amendments and

completions subsequent.

[xi] Simona Voiculescu, Employees do not have the right to increase the minimum wage by 200 lei, but here is

what should be retained if, however, I receive it, www.avocatnet.ro, June 1, 2022

[xii] Dan Țop, Discussions on the need for a legal definition of additional acts to employment contracts,

Law no. 9/2020, pp. 44-52

OVERVIEW AND PERSPECTIVES OF LABOR LAW AGAINST THE CORONAVIRUS PANDEMIC (COVID-19): ROMANIA
Dan ŢOP
On March 11, 2020, representatives of the World Health Organization declared[1] the situation generated by COVID-19 as a pandemic[2]. At the same time, the National Committee for Special Emergency Situations in Romania decided to suspend the school courses until March 22, with the possibility of extension. Separately, the universities in the country suspended their activity until March 31 and moved the courses into the online system.
Law no. 19/2020 regarding the granting of free days to parents for the supervision of children, in the situation of temporary closure of the educational establishments[3], provides that free days are granted to one of the parents for the supervision of children, in the situation of temporary closure of the schools where they are enrolled, as a result adverse weather conditions or other extreme situations so decreed by the competent authorities with responsibilities in the field. This regulation is not only incident to the coronavirus epidemic, but is of general applicability, for all periods when courses are suspended, including due to extreme weather events.
The provisions apply to parents who cumulatively fulfill the following conditions:

a) have children up to 12 years old, enrolled in a school or have children with disabilities up to 18 years old, enrolled in a school;
b) the job occupied does not allow work at home or teleworking.

The paid days off are granted only after all the options provided by law for the activity (telemarketing, remote work) are exhausted and with the obligation to ensure the continuity of the activity, including by delaying the work program or implementing flexible working forms.
Decree 195/2020 on establishing the state of emergency on the territory of Romania[4], through art. 49, stipulates that during the state of emergency, courses in all units and educational institutions are suspended.
At the recommendation of the Ministry of Labor and Social Protection, among the measures to make the labor relations more flexible is the temporary modification of the place of work at the employee’s domicile, in which case an additional act must be concluded to the individual employment contract which should include, among others, the fact that the employee will work at home; the period in which this measure is applied, as well as other aspects characteristic of the work at home, regulated by art. 108-110 of the Labor Code.
Another recommendation concerns the operation of the telework activity, following the conclusion of an additional act to the individual employment contract, under the conditions provided by Law no. 81/2018 regarding the regulation of the telemarketing activity[5], when fulfilling the specific duties of the position, occupation or occupation that the employee holds implies the use of information and communication technology[6].
It should be mentioned that during the period of emergency, according to art. 33 of the Decree 195/2020 regarding the establishment of a state of emergency in the territory of Romania, it is possible for the employer to modify the place of work at the employee’s domicile or in the telework by a unilateral act, without the need of the employee’s agreement. As such, the change of the work place in such situations can be that place without the conclusion of an additional act to the individual employment contract.
Emergency Ordinance no. 30/2020 for the modification and completion of some normative acts, as well as for establishing measures in the field of social protection in the context of the epidemiological situation determined by the spread of the SARS-CoV-2 coronavirus[7], in art. XI provided that during the state of emergency established by Decree no. 195/2020 regarding the establishment of the state of emergency on the territory of Romania, for the period of temporary suspension of the individual employment contract, at the initiative of the employer, according to art. 52 paragraph 1 bed c of the Labor Code, as a result of the effects produced by the SARS-CoV-2 coronavirus, the benefits that the employees receive are set at 75% of the basic salary corresponding to the job occupied and is supported from the unemployment insurance budget, but no more of 75% of the gross average wage earning[8] provided by the Law of the state social insurance budget no. 6/2020, and through art. XV, that other professionals, as regulated by the Civil Code, who do not have the status of employers and interrupt the activity totally or partially based on the decisions issued by the competent public authorities according to the law, during the period of emergency established by Decree no. 195/2020 regarding the establishment of the state of emergency in the territory of Romania, benefits from the general budget consolidated by an allowance equal to the minimum gross basic salary per country guaranteed in payment[9] established for the year 2020.
Decree no. 240/2020 regarding the extension of the state of emergency on the Romanian territory[10] has in art. 46 that the Government establishes special measures to support employers and to protect employees and their families. In this respect, the recommendation of the previous decree is maintained, so that central and local public institutions and authorities, autonomous administrative authorities, autonomous administrations, national companies and companies and companies in which the state or an administrative-territorial unit is a sole or majority shareholder, the companies with private capital I introduce, where possible, during the state of emergency, the work at home or in telework regime, by unilateral act of the employer. During the period of work or work at home, employees perform their duties specific to their position or occupation, in accordance with the legislation governing work at home and teleworking.
Although in art. 51 shows that the validity of collective labor contracts and collective agreements is maintained during the state of emergency, however, a number of important restraints and limitations are foreseen, thus, during the state of emergency, it is prohibited (art. 52) to declare, trigger or conducting collective labor conflicts in the units of the national energy system, from the operating units from the nuclear sectors, from the units with continuous fire, from the health and social assistance units, from telecommunications, radio and public television, from the railways, from the units which ensures the public transport and sanitation of the localities, as well as the supply of the population with gas, electricity, heat and water.
Also, regarding the execution of the individual employment contracts the following are stipulated:
The modification of the individual contract of employment of the contract staff in the institutions in the field of defense, public order and national security is carried out (art. 53) according to the Labor Code and the following derogatory rules:

a) the delegation may regard the fulfillment of tasks or tasks for which the employee has the adequate professional training, even if they are not suitable for the duties of the service;
b) the delegation can be extended without the agreement of the employee;
c) by posting can change the way of work without the agreement of the employee.

The modification of the service report of the civil servants employed in the institutions in the field of defense, public order and national security is carried out according to the Administrative Code and the following derogating rule: the delegation can be arranged for a period of more than 60 days without the consent of the public official.
During the state of emergency, depending on the specific activity and needs, for the personnel from the public sector, the employer stipulates the art. 54.

a) it may order unilaterally the interruption of the leave of rest, of additional rest, without payment, of studies and for professional training of the employed personnel and the resumption of the activity;
b) may unilaterally dispose of or approve the total / partial leave of rest or additional rest of the employed personnel.

By exception from the provisions of the Government Emergency Ordinance no. 111/2010 regarding the leave and the monthly allowance for the raising of children, the entitled person retains the incentive of insertion in the situation of job loss due to the effects of the COVID-19 epidemic.
In art. 56 it is provided that the notice terms provided in art. 81 paragraph (4) of the Labor Code do not start to flow, and, if they have started to run, it is suspended for the entire duration of the state of emergency, in the case of personnel employed in health units, social assistance, medical-social assistance and in the institutions of the field of defense, public order and national security. During the state of emergency, for these categories of personnel the provisions of art. 81 paragraph 8 of Law no. 53/2003 regarding the Labor Code.
Emergency Ordinance no. 37/2020 regarding the granting of facilities for loans granted by credit institutions and non-bank financial institutions to certain categories of borrowers[11], established that the obligation to pay the installments related to the loans, representing capital rates, interest and commissions, granted to the borrowers by the creditors up to on the date of entry into force of this emergency ordinance, it shall be suspended at the request of the debtor for up to 9 months, but no later than December 31, 2020.
Today, not only a medical pandemic is manifesting, but also an economic pandemic, that is, the global crisis that is spreading and rapidly deepening. The so-called “freezing of real economies” occurs in almost all countries. Romania is, as a matter of fact, almost all the countries of the world, in a deep economic crisis, which is expanding. Each country must have its own approach, depending on the specific national situation.
In order for Romania to be able to ensure a revival of the national economy, it was considered necessary to mainly consider[12] the following five primary factors:
Demand for products and services, internal and external;
Ensuring supply chains of companies and population at home and abroad;
Providing liquidity and financing for companies and the population;
Making substantial investments, public and private, domestic and foreign;
Providing healthy, fit and available human resources to work.
In order for Romania to be able to ensure a revival of the national economy and reach the 5 primordial factors, a number of public policies are needed, such as: investments (in infrastructure; in strategic production units for society); supporting the distribution and marketing of products; local investment plans for public works ((road infrastructure, utility routes – gas, electricity, etc.)

REFERENCES:
[1] www.who.int, accessed march 12, 2020
[2] An epidemic that extends over a very large territory
[3] Published in the Official Gazette of Romania, Part I, no. 209 of march 14, 2020
[4] Published in the Official Gazette of Romania, Part 1, no.212 of march 16, 2020.
[5] Published in the Official Gazette of Romania, Part 1, no. 296 of April 2, 2018.
[6] Mihai R., Working relationships in the context of preventing the risk of coronary heart disease (COVID-19) www.juridice.ro, accessed on march 13, 2020.
[7] Published in the Official Gazette of Romania, Part 1, no.231 of march 21, 2020
[8] Gross average wage for 2020: 5,429 lei (1123 euro), and gross monthly allowance: 5,429 x 75% = 4,072 lei (842 euro)
[9] The amount of the minimum gross basic salary in the country is 2230 lei (461 euro)
[10] Published in the Official Gazette of Romania, Part 1, no. 311 of April 14, 2020
[11] Published in the Official Gazette of Romania, Part 1, no. 261 of March 30, 2020
[12] CNIPMMR, Program of priority measures for the economic recovery of Romania, www. E-News LegislaţiaMuncii.ro. accessed on April 20, 2020

MATERNITY PROTECTION AT WORK IN THE REPUBLIC OF ALBANIA

Ana Maria Alexandra IANCU*

Labour Code of the Republic of Albania [1], Law no. 7961, dated 12.7.1995[2] consists of 205 articles systematized in 19 chapters [3]. Article 1 of this normative act shows that this Labour Code “is based on the Constitution of the Republic of Albania”, and art. 2[4] stipulates regarding the legal regime of the individual employment contract, that it “is regulated by the law of the country in which the employee usually carries on his activity, even if he is sent by the employer to work temporarily in another country”.
By exception, the Code, according to art. 4 “is applicable even to persons whose employment is regulated by the special law, if the special law does not offer the solution of the problems related to labour relations”. In other words, the Labour Code is the common law for all legislation governing labor relations (relationships); They are excluded from the scope of application of the Code according to art. 5, commercial activities or representation of legal persons, as well as family work.
Article 32 letter provide that the employer is obliged to respect and protect the employee’s personality in the employment relationships, as well as to take all necessary measures to guarantee the safety and protection of the mental health and physical health of the employees.
Chapter X deals with the special protection of children and women. The special protection for women is provided by art. 104, thus, pregnant women are forbidden to work in the 35 days preceding the birth of the child and 63 days after the birth of the child, while in our legislation the minimum mandatory duration of the leave is 42 calendar days[5], with no mandatory period preceding the birth.
The first period is 60 days, when the woman is expected to give birth to more than one child. Pregnant or breastfeeding women cannot be employed, according to art. 104 para. 2 at workplaces with difficulties or which endanger the health of the mother and child. The Council of Ministers defines difficult or dangerous workplaces, which endanger the health of mothers and children, as well as special rules regarding working conditions related to pregnant or breastfeeding.
When the pregnant woman, the woman who just gave birth to a child and / or the breastfeeding woman decides to return to her previous job after the 63-day period, but the previous job is not considered appropriate in accordance with the provisions of the law on protection of safety and health at the workplace, the employer takes, according to art. 194 para. 3, the measures necessary to ensure the temporary adjustment of working conditions and / or working hours to avoid any risks to the employee and / or her child.
If the adjustment of working conditions or working hours is technically and / or objectively impossible, or if it is not possible, it may be requested on well-justified grounds, the transfer to another similar workplace which is right for her.
If the transfer, \ is technically and / or objectively impossible to achieve or if it cannot be properly requested, the employee shall receive the allowance, in accordance with the social insurance legislation in force for the entire period necessary to complete it. protect and / or the safety and health of the child.
The Council of Ministers specifies (art. 104 para. 6) the non-exhaustive list of factors, processes and working conditions that affect the safety and health of the mother and / or the mother of the child, as special rules for the working conditions for pregnant women, for women who they just gave birth to a baby and to those who are breastfeeding.
The law on social insurance establishes according to art. 105 paragraph 1, the income that the employee benefits in the case of the birth of a child.
Beyond the period of prohibition of work, provided for in Article 104, the woman may refuse to work in order to receive social insurance income. After the 63-day period after the birth of a child, the woman decides whether she wants to work or benefit from social insurance.
If the woman decides to work after the 63-day period after giving birth to the child, with the agreement of the employer, regarding feeding the child, she has the right to choose as follows, until the child turns 1 year old, by: a break paid by 2 hours within the normal working time; or the duration of work, reduced by 2 hours, with the same salary as if he worked for the normal daily working time (art. 105 para. 3).
Upon expiry of the maternity leave, the employee has the right (art. 105 para. 4) to return to the previous post or to an equivalent position, in conditions that are not less favorable for her and to benefit from any improvement of the conditions of employment, she would benefit during the absence.
The article 105 / a[6] provides that pregnancy tests are prohibited prior to the commencement of employment, if requested by the employer, except where the work requires working under conditions which may have a negative influence on the pregnancy or which may harm the life of the mother or child, or health. During pregnancy, after agreement with the employer, the woman is entitled to medical consultations, when these are necessary to be performed during the work program.
In cases where the employer renounces the contract, when the woman works while being pregnant or returning to work after the child is born, in accordance with Article 30 of the Code, the employer is responsible for certifying that the reason for dismissal was neither the task nor baby’s birth.
In the case of the adoption of a newborn, the woman enjoys according to art. 106, by the right to leave defined by the law on social insurance. Only one parent, the adoptive mother or father, can benefit from the adoption leave.
In Romania, according to art. 50 paragraph 1 of the Law no. 273/2004 regarding the adoption procedure^[7] the adopter or any of the spouses of the adoptive family who make income subject to income tax, called a entitled person ^[8], for the proper fulfillment of the parental obligations, the employees benefit from an accommodation leave during the period in which a child will be entrusted for adoption. This leave is granted, “by hypothesis, to the employee who has adopted a child older than 2 years”^[9], because if the child is less than 2 years old, the leave provided by Law no. 66/2016[10]. This leave has a duration of no more than 1 year, including the period of imprisonment for the adoption time during which the employee will receive a monthly allowance of 1700 lei [11].
During this period, the employer cannot oblige the adoptive parent who has benefited from the adoption leave to work.
At the expiration of the adoption leave, the employer has the right (art. 106 paragraph 3) to return to his position, or to another work position equivalent to it, under conditions that are not less favorable to him and to benefit from any improvement of working conditions, which he would have benefited from during his absence.
Article 107 shows that the termination of the employment contract announced by the employer during the period in which the woman claims to receive social security income due to the birth or adoption of the child is without legal effect.
When the termination of the employment contract is announced before the protection, as defined in article 104, and the notification term remains valid, this deadline is suspended during the protection period. The notification deadline begins to be valid only after the expiry of the protection period.
In some national laws in the U.E. both the prohibition and the possibility of dismissal of pregnant workers are foreseen. Thus, art. L. 1225-4 of the French Labour Code [12] stipulates that the employer cannot order the termination of the employment contract of an employee when she is pregnant, medically established, during the suspension of the contract when she is on maternity leave, as well as for 10 weeks following the expiration of this period. However, the employer may order the termination of the contract justified by a serious deviation, not related to the state of pregnancy or the impossibility to maintain the contract for a foreign reason of pregnancy or birth. Law on the Status of Workers[13] stipulates in art. 53 point 4 that the dismissal decision is null when the decision is motivated by one of the causes of discrimination prohibited by the Constitution or the law or when it was made with the violation of the fundamental rights and public freedoms of the worker. Also, the decision is void when it concerns a pregnant worker, but, as an exception, the decision is sound if it is based on reasons unrelated to pregnancy[14].
Unlike the comparative law, the Romanian law does not refer to all the (exceptional) situations, in which, however, the dismissal of the employees protected by the law can occur. But the dismissal of the plane is not prohibited, pursuant to art. 10 of Directive 92/85 / EEC, such dismissal is possible, exceptionally, for reasons which do not concern their (pregnant) situation.[15].
As in our legislation, art. 128 paragraph 2 of the Labour Code, which shows that pregnant women, women and nursing women cannot be forced to work at night [16] or in the European one, the employer cannot order (art. 108 (1)) to perform the work at night for pregnant women and for women who have given birth to a child, until the child makes a year if it is harmful to the safety and health of the woman and / or the child, who is checked with a medical certificate.
When the pregnant and / or breastfeeding woman decides to return to work after the 63-day period after birth, it becomes inappropriate to work at night, which is confirmed by a medical certificate, but who is not suitable to work During the day, she is transferred (art. 108 para. 2) to a similar day job, because that is appropriate.
If the transfer is technically and / or objectively impossible, the employer benefits from the social security legislation in force for the entire period necessary to protect her and / or her child’s safety and health.
The Council of Ministers sets (art. 108 (4)) specific rules for cases in which night work is allowed for pregnant women, for women who gave birth to a child, until the child is one year old, and for breastfeeding women.
It can be concluded that the provisions analyzed are largely similar to the applicable regulations in the European Union states.

References:
* PhD student at Legal Research Institute „Acad. Andrei Rădulescu” of Romanian Academy of Bucharest; member of Association for the study of the professional labour relations
[1] https://www.wipo.int/edocs/lexdocs/laws/en/al/al066en.pdf
[2] Amended by: Law no.8805 of 13.03.1996; Law no. 9125 of 29.07.2003); Law no. 10053 of 29.12.2008; Law no. 136/2015 of 5.12.2015
[3] Dan Ţop, Regulation of the individual labor contract in the Working Code of the Republic of Albania, Revue européenne du droit social no. 4 (45) 2019, p.
[4] Amended by Law no. 9125 of 29.07.2003
[5] Dan Ţop, Treated by labour law, Mustang Publishing House, Bucharest, 2018, p. 330
[6] Added by Law no.1212 of 29.07.2003, article 31, amended by Law no.136 / 2015 of 5.12.2015,
[7] Republished in the Official Gazette of Romania, Part I, no. 739 of September 23, 2016
[8] Septimiu Panainte, Individual labour law., Hamangiu Publishing House, Bucharest, 2017, p. 138
[9] Raluca Dimitriu, The presence of women in the labour market, 21 dec. 2017, www.juridice.ro
[10] Dan Ţop, New regulations regarding maternity protection at work, Romanian Labor Law Magazine no. 10/2015 p. 13-18
[11] Dan Ţop, Treated by labour law,op. cit, p.357
[12] Code du travail, 80° édition, Annoté. Edition spéciale à jour des ordonnances Macron, intégralement Consolidées, Dalloz, Paris, 2017.
[13] Approved by the Royal Legislative Decree no. 2/2015, published in the Official State Bulletin, number 255 of October 24, 2015, subsequently amended.
[14] M. C. Palomeque López, J. M. Álvarez de la Rosa, Derecho del trabajo, 25^a ed., Editorial Universitaria Ramón Areces, Madrid, 2017, p. 717-718.
[15] Alexandru Ţiclea, Adelina Duțu, Discussions regarding the ban on dismissal of pregnant employees, in Law no.9/2018, p. 56
[16] Dan Ţop, Treated of Labour law, op. cit, p. 469

SPECIAL PROTECTION OF DISADVANTAGED YOUNG PEOPLE IN ROMANIA
Dan Ţop*
1. General considerations
Romania shall ensure, in compliance with the principle of transparency, a special regime of protection and assistance to young people in achieving their rights. In 2006, Law no. 350 of young people[1], which regulates the legal framework necessary to ensure adequate conditions for the socio-professional integration of young people[2].
Even though this institutional and legislative framework was considered sufficient, there were a number of problems waiting to be solved, one of which was the difficult access of young people to the labour market.
Law no. 189/2018 on the integration of disadvantaged young people into the public institutions at local level[3] regulates the facilities for disadvantaged young people for employment in public institutions at local level[4].
It is expressly stated in art. 1 par. 2 that the application of the provisions of the law excludes any discrimination based on political criteria, race, nationality, ethnic origin, language, religion, beliefs, sex, etc., and that the provisions of the law aim to guarantee the protection of disadvantaged young people in order to acquire skills professionals to facilitate their integration into the labour market.
The law follows (Article 2) as objectives:

a) to ensure the integration of disadvantaged young people into the labour market by creating fixed-term employment opportunities in public institutions at the local level;
b) enhancing professional skills and abilities to adapt to the practical requirements and workplace exigencies for work integration;
c) acquiring experience and seniority in work;
d) acquiring specialized seniority, as the case may be;
e) stimulating social inclusion;
f) empowering the local community.

An important provision is in Art. 2, paragraph 2, according to which the employment of disadvantaged young people is made for a period of 24 months, by concluding an individual contract of fixed-term work, according to the provisions of art. 84 of the Labour Code[5]. It can be seen that the maximum duration of the contract, by way of derogation from the common law, can not be longer than 24 months, without the possibility of concluding a new contract.
Employer may be in accordance with art. 3 let. b, a legal person, represented by the authorizing officer of the local public institution, who may, according to the law, employ a labour force based on an individual labour contract and which is financed from the state budget and / or funds local public authorities, except public institutions of national defense, public order and national security.
By a disadvantaged young person, the law takes into account (Article 3) the person between 16 and 26 years of age who is not of working age or who has a working life of up to 12 months and who:
– is in or out of the child protection system;
– has child / dependent children;
– was or is in evidence of the probation service;
– are in the process of carrying out a non-custodial educational measure, out of those provided by Law no. 253/2013 regarding the execution of punishments[6], educational measures and other non-custodial measures ordered by the judicial bodies during the criminal trial, as subsequently amended and supplemented, or other non-positive measures, such as postponement of punishment or execution of the fine by providing a unpaid work for the benefit of the community;

Conditions for employing the disadvantaged young person

The employment of the disadvantaged young person is made by way of derogation from the provisions of art. 31 par. 1 of the Framework Law no. 153/2017 on the remuneration of staff paid out of public funds[7], with the subsequent modifications and completions, the procedure for recruitment and employment of disadvantaged young people comprises the following steps (Article 4, paragraph 1): selection of files consisting of the verification of the documents submitted to the file; interview; the practical test, as appropriate[8].
By way of derogation from the provisions of art. 30 par. 1 of the Labour Code, according to which the employment of the employees in public institutions and authorities and other budgetary units is done only through competition or examination[9], in this case, the candidate’s skills are checked only by interview and at most by practical proof.
The disadvantaged young person may be employed on any job declared vacant by the employer, subject to the specific / general requirements of each post.
The announcement of starting the recruitment procedure for the disadvantaged young people is displayed[10], stipulates art. 5 par. 1 by the employer in a visible place at his headquarters, on the front page of the institution’s website, as well as on the website www.posturi.gov.ro, within a special section created by the administrators of this site “Pasarela”, at least 20 working days before the date set for the selection of files. If the employer deems it necessary, he can also ensure that the ad is published by other forms of advertising.
The announcement will be compulsory, stipulates art. 5 par. 3, the following elements:

a) the number of posts, their names and their main attributions;
b) the deadline for filing the file;
c) the general and specific conditions necessary for filling the positions;
d) the documents requested by the candidates for the filing of the file, the deadline and the time until which they can be filed, the place where the files are filed, the contact details (telephone, e-mail) of the persons in the human resources department;
e) date of publication of the case selection notice;
f) other data necessary for the selection of the files;
g) basic salary and monthly salary set by law, including the gross amount of compensation, allowances, bonuses, prizes, other elements of the salary system corresponding to the post, other rights in money and / or in kind, granted according to the law , as well as any other information on possible salary limitations.

In order to select the files, the disadvantaged young person submits, according to art. 6, a file containing the following documents:

a) Application for registration in the selection of files addressed to the employer;
b) copy of the identity document or any other document attesting the identity, according to the law, as the case may be;
c) copies of the documents attesting the fulfillment of the specific employment conditions;
d) the medical certificate attesting to the appropriate state of health, issued by the candidate’s family doctor or by a health unit authorized according to the law;
e) curriculum vitae;
f) provision or decision issued by the child protection commission, entry / exit from the child protection system or final court judgment delivered by the competent court;
g) a copy of the child’s birth certificate or any other document certifying that he / she has a child / dependent child;
h) the recommendation of the probation counselor at the local probation service, responsible for supervising the observance of the non-custodial measures ordered by the courts, for the category stipulated in art. 3 par. 1 lit. points 3 and 4.

Check the skills of the disadvantaged young person

The employer has the obligation, according to art. 7 par. 1, to establish a selection and evaluation committee, hereinafter referred to as the committee, consisting of 3 members and one secretary, among the employees of the institution. The Commission has the power to carry out the selection of dossiers and to carry out the evaluation of the candidates during the interview and the practical test, as the case may be.
Selection of files is made (Article 7 paragraph 3) within a maximum of 5 working days from the date of expiry of the deadline for their submission based on the fulfillment of the conditions, by reference to the documents in the file submitted and the result of the selection of the files is displayed at the employer’s premises and on its website, with the admission or refusal, accompanied by the mark obtained and the reason for the rejection of the case, as the case may be.
The interview is carried out, stipulates art. 8 par. 1 according to the interview plan drawn up by the commission, the notes being awarded on the basis of the following evaluation criteria:

a) theoretical abilities and knowledge in relation to the specifics of the post;
b) analysis and synthesis ability.

The practical test is carried out according to art. 8 par. 2, on the basis of a plan established by the Commission, mainly considering the following evaluation criteria:

a) Skill and ability to meet practical requirements;
b) communication capacity;
c) the capacity to manage the resources allocated to the practical demonstration.

In order to test in the practical test, the commission may establish according to art. 8 par. 3, and other evaluation criteria.
In order to resolve the complaints, the employer has the art. 9 par. 1, the obligation to set up a three-member appeal resolution board and a secretary, among the employees of the institution, other than those who are members of the commission provided by law.
Candidates declared rejected may lodge a complaint within 24 hours from the date when the result is displayed (Article 9 (2)) and the outcome of the appeal may be appealed to the administrative litigation court, according to the law
The declared candidate is required (Article 10 paragraph 1) to submit to the post within a maximum of 5 working days after the final results are displayed. If the post is not present within the above-mentioned time limit, the position is declared vacant and the candidate who has received the final grade is immediately below the opportunity to fill the post.
If there is no other admitted candidate or the previously admitted candidate does not respond to the communication within 5 working days, the post is declared vacant and the recruitment and recruitment procedure of the disadvantaged young people is resumed according to the provisions of the present law.
The employer is obliged, according to art. 11 par. 1 to request in writing the general directorates of social assistance and child protection, the public social assistance services, the
county employment agencies subordinated to the National Employment Agency data on the number of disadvantaged young people for the purpose of filling the positions declared vacant under this law. Upon request, the General Directorates for Social Welfare and Child Protection, Public Social Services and Territorial Employment Agencies are required to submit the requested data within 10 working days of receipt of the request.
It is provided by art. 11 paragraph 3 that the General Directorates for Social Welfare and Child Protection as well as the public social assistance services are obliged to support the disadvantaged young person for the purpose of drawing up and submitting the file for participation in the selection of files.
According to the law (Article 11, paragraph 4), the employer is obliged to allocate to the disadvantaged young people 5% of the existing and budgeted posts for the contract staff.
The employer may apply for art. 12, to any institution competent to verify the documents submitted by the candidate.
We consider that in this situation we cannot resort to a probationary period for checking the skills of the employee, because the normative act analyzed is limiting such modalities.

Execution of the individual labour contract

Monitoring and control on the conclusion, execution, modification, suspension and termination of the individual fixed-term employment contract provided by law is carried out (Article 13) by the Labour Inspection.
According to art. 17 par. 4, the Labour Inspection reports annually to the Ministry of Labour and Social Justice the number of individual labour contracts concluded according to this law.
Young disadvantaged employees with fixed-term individual labour contract under the conditions of this law will not be treated, stipulates art. 14 par. 1, less favorable than the persons employed on a contract of indefinite duration, on the sole basis of the duration of the individual employment contract, except where the different treatment is justified by objective reasons evidenced by supporting documents.
The execution, modification, suspension and termination of the individual fixed-term contract of employment shall be carried out under the terms of the Labour Code, art. 14 alin.2.

Obligations of the employer

The employer has, according to art. 15, the following obligations:

a) to organize the selection and evaluation of the files for the employment of the disadvantaged young people under the present law;
b) to employ on the vacancies stipulated in art. 11 par. (4) exclusively young disadvantaged;
c) designate a person to coordinate and support the disadvantaged young person in his / her work;
d) to provide adequate equipment – logistic, technical and technological – necessary for acquiring and capitalizing the theoretical and practical knowledge by the disadvantaged young person;
e) not to use the disadvantaged young person for carrying out activities other than those stipulated in the individual labour contract and in the job description;
f) to carry out the evaluation of individual annual professional performances, based on an interview, with the recording of the result in the evaluation sheet;
g) carry out the evaluation of the individual professional performances upon termination of the individual labour contract, with the recording of the result in the evaluation sheet[11];
h) to issue to the disadvantaged young person the certificate proving the activity carried out and the contribution period, copies according to the assessments provided under letter a). f) and g), as well as a recommendation letter[12], within maximum 30 days from the termination of the individual labour contract.

The Ministry of Labour and Social Justice publishes, on its website, in its editable format, the model of the individual professional performance evaluation sheet for the contract staff and the model of the letter of recommendation.

Liability

It is a contravention (Article 17, paragraph 1) and the following facts are sanctioned by a fine:

a) non-observance of the provisions of art. 11 par. (2), with a fine from 250 lei to 500 lei;
b) non-observance by the employer of the obligation stipulated in art. 15 par. (1) lit. h), with a fine from 300 lei to 1,000 lei;
c) non-compliance with the obligation stipulated in art. 11 par. (1), with a fine from 500 lei to 1,000 lei;
d) non-observance of the provisions of art. 11 par. (3), with a fine from 500 lei to 1,000 lei;
e) non-compliance by the employer with the obligation stipulated in art. 11 par. (4), with a fine from 1,000 to 1,500 lei.

The finding of contraventions and the application of the sanctions referred to above are made (Article 17 (2)) by labour inspectors. The provisions of the law are supplemented by the provisions of Government Ordinance no. 2/2001 on the legal regime of contraventions[13], approved with amendments and completions by Law no. 180/2002, as subsequently amended and supplemented[14].
Although not expressly provided, we consider that the provisions of Law no. 203/2018 on measures to increase the efficiency of the payment of the fines[15], within 15 days from the date of delivery or communication of the minutes, it is possible to pay half of the minimum fine.
Also, the Prevention Law no. 270/2017[16] could be applied even if the offenses provided for by the regulation were not found in the list of contraventions to which prevention is applied, and it would be obvious that the immediate application of a sanction, which usually involves a banal omission[17].
The further development of the Romanian labor market is to confirm the usefulness of such regulation in the general context of social policies.

References:
* Professor PhD, President of the Association for the Study of Professional Labour Relations, Romania (National Association of ILERA
[1] Published in the Official Gazette of Romania, Part I no. 648 of July 27, 2006
[2] Dan Ţop, Social Security Law, third edition, Zvem Publishing House, Târgovişte, 2017, p. 238
[3] Published in the Official Gazette of Romania, Part I, no. 639 of 23 July 2018
[4] According to art. 3 let. c, public institutions at the local level – generic name that includes: 1. the specialized apparatus of the mayor; 2. the specialized apparatus of the county council / the General Council of the Municipality of Bucharest; the local councils of communes, towns, municipalities, sectors of Bucharest municipality, county councils and the General Council of Bucharest; 4. providers of social services, of public law, providing services under the conditions laid down by law; 5. operators of community services of local or county public utilities; Public institutions and public services set up and organized by decisions of the deliberative authorities, as appropriate Local Public Administration Law no. 215/2001, republished, with subsequent amendments and completions.
[5] Dan Ţop, Labour Law Treaty, 3rd edition, Mustang Publishing House, Bucharest, 2018, p. 267
[6] Published in the Official Gazette of Romania, Part I, no. 513 of 14 August 2013
[7] Published in the Official Gazette of Romania, Part I, no. 492 of June 28, 2017
[8] Only candidates declared admissible in the selection of files may be present at the interview and the practical test, as the case may be.
[9] Dan Ţop, Labour Law Treaty, op. cit., p. 226
[10] The ad is maintained at the place of view from the employer’s office until the selection of the files is
completed.
[11] The model for the evaluation of the individual professional performances for the contract staff is foreseen in Annex 1
[12] The model of the letter of recommendation is set out in Annex 2.
[13] Published in the Official Gazette of Romania, Part 1, no. 410 of July 25, 2001
[14] Published in the Official Gazette of Romania, Part 1, no. 268 of 22 April 2002
[15] Published in the Official Gazette of Romania, Part I, no. 647 of 25 July 2018
[16] Published in the Official Gazette of Romania, Part 1, no. 1037 of 28 December 2017
[17] Dan Ţop, Lavinia Savu, The regime of contravention sanctions in the field of labour relations according to preventive law no. 270/2017, in Fiat Iustitia nr. 1/2018, p.306