CONFERENCE ON ACCESSIONBrussels, 14 June 2001

TO THE EUROPEAN UNION

- ROMANIA -CONF-RO 21/01

POSITION PAPER OF ROMANIA

CHAPTER 13 – SOCIAL POLICY AND EMPLOYMENT

Romania accepts the entire Community acquis on Chapter 13 “Social Policy and employment” in force on 31 December 1999. Romania does not request any transition period or derogation and declares that it will be able to entirely apply this acquis upon accession.

Romania is prepared to further examine the development of the acquis and to systematically inform the Accession Conference or the Association Council on the legislation and implementation measures adopted in order to apply the new acquis or, whenever necessary, of the difficulties that might arise in transposing the new acquis.

As regards this chapter, Romania refers to at the information provided throughout the screening process and agrees to continuously communicate this information to the Member States of the European Union.

Romania has unilaterally assumed the date of 1 January 2007 as a working hypothesis for concluding the preparations for accession to the European Union.

1 Labour Law

The Labour Code is the Romanian framework law in the field of labour and it expresses the general principles regulating labour relations, rights and obligations of the employees, and labour jurisdiction. The new legislation explicitly or implicitly modifies the provisions of this Code, adopted in 1972, extending the scope of its application to all sectors of activity, whether public or private, and allows its adaptation to the new organisation and operation of the Romanian society.

The Romanian Labour Law has fully transposed the provisions of the Community acquis in the following fields: protection of employees’ rights in case of collective redundancies, working hours of seafarers and the manning of ships, holiday leave and other leaves of the employees.

In the field of collective redundancies, Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies is transposed into the Romanian legislation in its essential provisions by Government Emergency Ordinance (GEO) No 98/1999 replacing the previous legislation in the area and provides a unitary, non-discriminatory framework for the implementation of social protection measures for persons made redundant through collective redundancies in all sectors
of activity, irrespective of the type of ownership and business structure. GEO No 98/1999 was amended by GEOs No 185/1999 and No 77/2000; as a consequence, the pecuniary compensations for the persons made redundant through collective redundancies are supported from the employers’ own funds. Only the severance payments under way and those owed to the employees made redundant from undertakings included in the Phare RICOP Programme will be supported from the Unemployment Fund.

The legislation in force defines collective redundancies and regulates the access of the employees made redundant to social protection measures, provides for the exceptions to which it is not applicable, states the information and consultation procedures before collective redundancies.

In its third section (“Collective Redundancies”), Chapter 7 “Redundancy”, the new draft law of the Labour Code includes provisions that will fully transpose the provisions of Directive 98/59/CE. Sections IV and V respectively include provisions concerning the control, penalization of illegal redundancies and consequences of redundancies. Following the dialogue with the social partners , the new Labour Code will be finalised by the end of 2001. The deadline for the coming into force of the new Labour Code is the end of 2002.

Council Directive 1999/63/EC as well as Commission Recommendation 1999/130/EC of 18 November 1998 are harmonised according to the internal legislation, through the adoption of the Government Ordinance No 16/2000 which ratifies the International Labour Organisation Convention 180 concerning the seafarers’ working time and the manning of ships, convention which is in conformity with the above-mentioned Community provisions. It should be emphasised that after ratification, international conventions become part of the national law in the field, being applied with priority.

The organisation of working time, regulated by Directive 93/104/EC of 23 November 1993, is fully transposed by the Labour Code, the Decree Law No 95/1990, Law No 6/1992 on holidays and other employees leaves and Law No 108/1999 on the establishment and the organisation of the Labour Inspection. Thus, Council Recommendation 75/457/EEC of 22 June 1975 on the principle of the 40-hour week and the principle of four weeks’ annual paid leave was complied with.

The 2000-2001 single collective agreement concluded at national level provides for the possibility to effect 120 extra-hours only with the explicit provision of the manager and the consent of the employee. Only in exceptional cases, for over 120 extra-hours per year the consent of the trade union in that undertaking is necessary. Compensatory time-off is granted for the overtime worked.

The 120 extra-hours stipulated by law for one year, broken down by weeks, lead to a number of working hours that cannot exceed the maximum limit referred to in the Community acquis. The new Labour Code will transpose provisions on granting adequate resting time , and weekly and daily rest periods.

The Community acquis concerning the safeguarding of the employees’ rights in the event of transfers of the undertakings, businesses or parts of businesses, the posting of workers in the framework of the provision of services, the obligation of the employer to inform the employee on the requirements applicable to contracts or the labour relations, the promotion of the employees’ participation in the profits and enterprise results, the measures that have to be carried out in case of employer’s insolvency, are partially transposed into the national legislation.

With respect to the harmonisation of the laws regarding the protection of employees’ rights in the event of transfers of the undertakings, businesses or parts of businesses, as provided by Directive 77/187/EEC of 14 February 1977, it is partially achieved through the adoption of Law No 51/1998 for the approval of Government Ordinance No 48/1997 laying down social protection measures for
employees in the event of transfers of ownership rights over shares or stocks in undertakings, and Law No 108/1999 on the establishment and organisation of the Labour Inspection.

The posting of workers in the framework of the provision of services, which is the object of Directive 96/71/EC of 16 December 1996, will be transposed into the provisions of the new Labour Code draft.

The regulations concerning the employers’ obligation to inform the workers of the conditions applicable to the contract or the employment relationship referred to in Directive 91/533/EEC of 14 October 1991, are mostly transposed into the provisions of the Labour Code, Law No 168/1999 on the settlement of the labour conflicts, Law No 130/1999 concerning the protection of the employed persons and Law No 108/1999 on the establishment and organisation of the Labour Inspection.

The Labour Inspection, a specialised body of the central public administration in the field of labour relations, has control responsibilities on employment. Through the adoption of the new Labour Code, the obligation to inform the employer will be explicitly introduced, both for the work provided on the Romanian territory and in the case where the employee works abroad, thus being achieved the full transposition of the Directive.

With respect to Council Recommendation 92/443/EEC of 27 July 1992 concerning the promotion of participation by employed persons in the profits and enterprise results (including equity participation), this is partially harmonised through Government Ordinance No 23/1996 concerning the profit distribution in state undertakings and Government Ordinance No 26/1995 concerning taxes on dividends. Depending on macroeconomic development, Gross Domestic Product, and budget deficit cutting, the development of new financial participation schemes and the revision of existing ones are taken into account.

Council Directive 80/987/EEC on steps to be taken in the event of employer insolvency, is partially transposed into the national legislation by Law No 64/1995 regarding bankruptcy and judicial reorganisation procedure, republished in 1999, which provides for the payment of debts generated from labour contracts of at least 6 months before the initiation of the procedure.

The full transposition will be carried out through the new Labour Code draft and a legislative act related to the setting up of the Guarantee Fund for Workers’ Protection in the event of the insolvency of their employer. The deadline for its drawing up, as provided by this legislative act, is 2003 and for its adoption is 2004.

Council Directive 97/81/EC of 5 October 1997 concerning the Framework Agreement on part-time work, concluded by UNICE, CEEP and the ETUC will be transposed by adopting the new Labour Code project. It will introduce the concept of “part-time work contract” and will impose on the employer the obligation to include in this contract, additional to the clauses existing in any work contract, clauses referring to work duration and organisation, the conditions that can modify the working programme and the limits for extra hours. The part-time employee enjoys the rights recognized by law and the collective labour contracts of the full-time employees. The full-time employee who wants to take a part-time job, and the part-time employee who wants to take a full-time job within the same unit, have priority in obtaining a job corresponding to their professional qualification.

The regulations on supplementing the measures to encourage the improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship that form the object of Council Directive 91/383/EEC of 25 June 1991, will be transposed by the end of 2002 through the adoption of the new Labour Code which will introduce the concept of “temporary work mission” that defines the period in which the services of a person are available to an user through an availability contract concluded between the temporary work agent and the user.

Also, by adoption of the draft law regarding the Insurance for industrial injuries and occupational diseases, until 2002, the National Insurance Fund for Industrial Injuries and Occupational Diseases will be created. The Fund will be a public tripartite organism. At territorial level, a joint system will develop in two components: a public one and a private one. The insurance will be compulsory for all employees developing an activity on the basis of a legal form of employment. The contribution will be exclusively paid by the employers, and the services provided by the insurance body will be guaranteed by the state taking into account that they are part of the social protection.

Council Directive 99/70/EC of 28 June 1999 concerning the framework agreement on fixed-work, concluded by ETUC, UNICE, and CEEP is partially transposed into the provisions of the Labour Code and Law No 108/1999 on the establishment and organisation of the Labour Inspection. The employees with fixed-term contracts have, by law, the same rights and obligations as the employees with open-ended contracts, but there is no limitation to the period on which an employment contract can be concluded in the above-mentioned conditions. Also, there is no provision regarding the prohibition and limitation of the successive conclusion of a number of fixed-term contracts.

By adopting of the new Labour Code, new concepts such as “temporary work”, “temporary work mission” and “temporary work agent” will be introduced. Temporary work will allow the employers, called “users”, to use for temporary works the services of a temporary work agent, who hires and provides the users with one or more temporary workers. In a special chapter, this draft sets more precisely the conditions under which a fixed-term contract can be concluded, specifying its maximum term, the restrictive possibilities of term extension, the duration of test periods, the indemnity at the termination of a temporary contract and the conditions for concluding such a contract.

As regards Council Directive 94/45/EEC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees, Romania will transpose its provisions until the accession date, as Community-scale undertakings and undertakings groups will be established and developed in the national economy, as defined in the Directive.

Romania has already created and put into practice the necessary institutions for preparing legislation, controlling and monitoring the legislation in the field of employment relationships, and for guaranteeing workers’ rights from a legal point of view. At the same time, Law No 54/1991 on trade unions establishes an information and consultation procedure at company level for employees’ representatives as regards matters of occupational, economic, social or cultural concern. Law No 130/1999, republished, also provides for the employer’s obligation to make the necessary information for annual collective bargaining available to the employees.

The Ministry of Labour and Social Solidarity, whose organisation and operation are regulated by Government Decision No 4/2001 is a specialised body of central public administration and a legal entity subordinated to the Government, its role being to draw up policies, programmes and draft legislative acts in the field of employment relationships, safety and health at work and control of their implementation. In the field of wages and labour force, it draws up and approves draft legislative acts regarding employment, vocational training, promoting the equality of chances on the labour market and the international movement of the labour force.

The National Agency for Employment is the institution authorized by the law to provide the collective pre-redundancy services, to grant severance payments and to take active and passive measures for the social protection of persons made redundant.

The Labour Inspection, established under Law No 108/1999, is the institution with attributions in controlling the implementation of the provisions concerning labour relations, security and health at work, protection of the employees working in special conditions and the legal provisions regarding the social security rights as well as informing the competent authorities of the deficiencies in the
implementation of the provisions in force, and the persons concerned of the most efficient methods to observe the labour legislation.

2 Social Dialogue

The Romanian legislation on social dialogue is aligned to the acquis communautaire. Along these lines, the institutionalisation of the tripartite social dialogue takes place at all levels of the national economy, along with the laying down of the basis for a bipartite social dialogue. The adoption of Law No 109/1997 on the organisation and functioning of the Economic and Social Council of Romania (ESC) enabled the social dialogue between government, trade unions and employers at national level. Government Decision 314/2001 on the establishment, organisation and functioning of Social Dialogue Advisory Committees at the level of ministries and prefectures has institutionalised social dialogue at sectoral level; it has also created the basis for the implementation of European Commission Decision 98/500/EC on the setting-up of Sectoral Dialogue Committees promoting the dialogue between the social partners at European level.

The bipartite social dialogue relies on the following acts:

  • Law No 54/1991 on the organization and functioning of trade unions.This law will be revised during the year 2001, at the request of the representative trade union confederations at the national level,
  • Law No 130/1996 on collective agreements establishing employers and trade unions organisations’ representatives at national, branch and enterprise level;
  • Law No 168/1999 on industrial conflicts’ settlement.

Former experience and new requirements entail the need to improve legislation in force with a view to strengthening the bipartite social dialogue. In order to ensure social dialogue at European level performance of the social dialogue, the Law on Employers will be adopted by the end of 2001, and higher efforts will be made for the national employers and workers organisations’ to accede to similar EU organisations.

At the cross-sectoral and cross-employment levels, the decentralization of the administrative decision on employment relationships involves the social partners in the coordination of the social policies regarding vocational training, human resources employment, insurance system, social assistance and social protection. Thus, the following tripartite bodies were established: the National Agency for Employment, with employment duties; the National Council for Adult Vocational Training – an administrative authority and advisory body set-up for the purpose of promoting the adults vocational training policies and strategies; the Council for Occupational Standards and Skill Certification - a non-governmental body authorized to develop a new attainment appraisal and skill certification based on occupational standards; the National House for Pensions and other Social Insurance Rights – whose main duties are the administration of the public system and other social insurance rights; the National House for Health Insurance established for the purpose of ensuring a unitary and coordinated functioning of the health insurance system in Romania.

The amendment of Law No 109/1997 and Government Decision 314/2001 by the end of 2002 will lay down new duties enabling the Economic and Social Council to monitor and coordinate the Social Dialogue Commissions within ministries and prefectures, in order to achieve the adequate functioning of the sectoral social dialogue and the efficient implementation of Decision 98/500/EC. The links between the social partners at the level of the Economic and Social Council and the Social Dialogue Commissions within ministries, on one hand, and the Government, on the other, will be developed in order to strengthen the governement capacity to monitor the social dialogue at sectoral level.

The amendment of Law 109/1997 shall also establish new objectives and activities in order to create the institutional support of the sectoral social dialogue. Thus, the Council will get the capacity and competence of an authority directly involved in the establishment of social dialogue policies and strategies. Decision 99/4/EC of the Association Council EU – Romania established the Joint Advisory Committee between the European Economic and Social Committee and the Economic and Social Council of Romania with a view to promoting dialogue between the economic and social interest groups in the European Community and Romania. By the end of 2002, in accordance with its new powers of methodological coordination, the Economic and Social Council will draft the social dialogue general methodology and will support its implementation.