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:

  1. 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;
  2. 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:

  1. 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;
  2. b) the delegation can be extended without the agreement of the employee;
  3. 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.

  1. 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;
  2. 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, 25a 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:

  1. 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;
  2. b) enhancing professional skills and abilities to adapt to the practical requirements and workplace exigencies for work integration;
  3. c) acquiring experience and seniority in work;
  4. d) acquiring specialized seniority, as the case may be;
  5. e) stimulating social inclusion;
  6. 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;

  1. 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:

  1. a) the number of posts, their names and their main attributions;
  2. b) the deadline for filing the file;
  3. c) the general and specific conditions necessary for filling the positions;
  4. 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;
  5. e) date of publication of the case selection notice;
  6. f) other data necessary for the selection of the files;
  7. 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:

  1. a) Application for registration in the selection of files addressed to the employer;
  2. b) copy of the identity document or any other document attesting the identity, according to the law, as the case may be;
  3. c) copies of the documents attesting the fulfillment of the specific employment conditions;
  4. 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;
  5. e) curriculum vitae;
  6. 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;
  7. g) a copy of the child’s birth certificate or any other document certifying that he / she has a child / dependent child;
  8. 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.

 

  1. 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:

  1. a) theoretical abilities and knowledge in relation to the specifics of the post;
  2. 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:

  1. a) Skill and ability to meet practical requirements;
  2. b) communication capacity;
  3. 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.

 

  1. 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.

  1. Obligations of the employer

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

  1. a) to organize the selection and evaluation of the files for the employment of the disadvantaged young people under the present law;
  2. b) to employ on the vacancies stipulated in art. 11 par. (4) exclusively young disadvantaged;
  3. c) designate a person to coordinate and support the disadvantaged young person in his / her work;
  4. d) to provide adequate equipment – logistic, technical and technological – necessary for acquiring and capitalizing the theoretical and practical knowledge by the disadvantaged young person;
  5. 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;
  6. 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;
  7. 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];
  8. 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.

  1. Liability

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

  1. a) non-observance of the provisions of art. 11 par. (2), with a fine from 250 lei to 500 lei;
  2. 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;
  3. c) non-compliance with the obligation stipulated in art. 11 par. (1), with a fine from 500 lei to 1,000 lei;
  4. d) non-observance of the provisions of art. 11 par. (3), with a fine from 500 lei to 1,000 lei;
  5. 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