SOME CONSIDERATIONS REGARDING THE POSTING OF THE ROMANIAN WORKERS TO E.U. AND NON-E.U. COUNTRIES

2. SOME CONSIDERATIONS REGARDING THE POSTING OF THE ROMANIAN WORKERS TO E.U. AND NON-E.U. COUNTRIES Ana ŞTEFĂNESCU Ph.D. in Law, Lecturer at „Dunărea de Jos” University Galaţi Faculty of Legal, Social and Political Science Email: ana@anacioriciu.ro Eduard NICOLAU Labor inspector within Labor Inspectorate European Structural Funds legal adviser within (U.N.O). email: edinicolautr@yahoo.com

3. Law no. 344 / 2006 regarding the posting of employees on the occasion of the provision of transnational services, which transposes Directive no. 96 /71/EC, expressly stipulates through its content that it regards only the posting from E.U./E.E.S. into Romania, which could lead to the conclusion that for the matter of the posting of the workers from Romania to E.U./ E.E.S. the domestic regulations from the Labor Code would be applicable. Nevertheless, as a result of the adherence of Romania to the E.U. the Community dispositions have priority over the contrary ones stipulated under the domestic laws. Contrary it is the view related to posting – in the case of posting which is transnational, usually, the worker remains under the authority of his/her employer, for whose benefits the worker continues to perform his/her activity. Hence transnational posting is similar from the point of view of its content to delegation, the way it is regulated under the Romanian legislation. It is obvious that in what posting of the Romanian workers to the non-E.U. countries is concerned the domestic regulations under the Labor Code are applicable, provided that under the legislation of the non-E.U. country of destination a similar legal instrument allowing the posted Romanian to enter the labor force market by means of transfer-cession of the existent individual labor contract.

4. The procedure of posting Romanian workers into E.U. countries Taking into account the specific of posting of Romanian workers into E.U. countries and the provisions of the Government Decision no. 500/2011 regarding the electronic general record of employees, we can appreciate that in order to post Romanian workers into E.U. countries, the Romanian employer, which has already identified the commercial relationships which make him fall under the dispositions of Directive 96/71/EC, gets through the following steps: 1. concludes with its employees an addendum (to the existent individual labor contract), regarding the temporary exercision (for at least 24 months) of some works or duties corresponding to the labor responsibilities outside their working place (in the framework of some services with transnational character), mentioning: • the duration of posting; • the currency in which the salary rights will be paid, as well as their payment methods; • provisions in money and/or in kind related to the provision of the activity; • weather conditions; • the main regulations from the labor legislation from that country (which refers to the maximum work periods and minimum rest periods; the minimum periods of the paid annual holidays; the minimum pay rates, inclusively the payment of overtime; the conditions of hiring-out workers, especially by the temporary employment undertaking; safety, health and hygyene at work place; measures of protection applicable to labor conditions and employment conditions of pregnant women or women who have recently given birth, of children and of young people; equality of treatment between men and women, as well other dispositions on non-discrimination); • the geographical customs whose non-observance could lead to jeoperdizing his life, liberty or personal safety; • worker’s repatriation conditions, as the case may be;

5. 2. has to make inquiries on which are the main national provisions of the state of destination resulting after the transposition of the directive, verifying, especially if he must communicate to an authority the posting of its employees; 3. prior to posting, has to conclude the agreement/convention for provision of services with the employer where he is posted; 4. obtains the forms A1 from the Romanian National House of Pensions and Social Insurances, accompanying the posted employees during the provision of transnational services (these forms exclusively make the proof of the maintenance of its holder to the social security system from the posting state); 5. prior to the posting, will register into the electronic record of employees – known under the name of „REVISAL” – the duration of work period which is to be perform abroad, the normal duration of the working time and its distribution, the salary, increments and their quantuum, explaining under the column other details „posted worker in the framework of transnational services into....” (the current „REVISAL” does not allow to operate the posting into E.U. as such but as an explanation); 6. prior to the posting, shall submit to the territorial labor inspectorate the „REVISAL” filled in with the information mentioned under point 5; 7. prior to posting, shall fill in the professional records of the posted employees with the addenda regarding the posting; 8. during the posting (as he maintains the employment relationships with its workers, the same as in the case of the delegation), shall continue to draft collective records of attendance, pay slips; 9. ensure the payment of the salaries to the posted employees and pay the tax on salaries, as well as the related social contributions, on the Romanian territory, subject to the application, under certain conditions, of the fiscal provisions from the country of destination; 10. takes measures so that the posted workers shall observe the labor field, especially ensuring, the implementation of the contractual obligations which he has taken towards the beneficiary; 11. names a person (amongst the posted workers) who will be the contact person with the Romanian authorities.

6. The procedure of posting Romanian workers into non-E.U. countries Due to the specificity of posting Romanian workers into non-E.U. countries and taking into account the provisions of Government Decision no. 500/2011 regarding the electronic record of employees, we can summarize the steps which we consider that should be followed by the Romanian employer: 1. shall answer the request of posting by submission of information regarding the types of employees taken into consideration by the foreign employer (positions, level of education, specific duties from the job description records, other legal information); 2. shall ask the foreign employer information regarding the elements enumerated at the above-mentioned procedure, point 1, which he is required to observe related to his own comparable workers (who perform the same work or a similar one); 3. prior to disposing the posting, shall require from the foreign employer a statement regarding non-discrimination of the workers who are about to be posted compared to his own comparable workers; 4. prior to disposing the posting, shall analyze the rights which are more favorable to the Romanian workers during the posting, by comparison to the ones of the comparable workers from the headquarters of the foreign employer (in order to grant them); 5. prior to disposing the posting, shall require from the foreign employer to prove that the posting of his workers is made on vacant jobs and that are met all the conditions requited by the legislation of the respective state in order to effect the posting; 6. shall agree with the foreign employer over the workers who will be posted, the duration of posting, the labor and salary conditions; 7. shall inform beforehand the workers whom he has decided to be subjected to the measure of posting with regard to the elements enumerated at point 2 and, moreover, shall communicate to them the travel and accommodation rights, as well as the quantuum of the posting allowance;

7. 8.shall analyze the possible reasons of rejection formulated by the workers and shall answer them in writing; 9.prior to disposing the posting, shall conclude the agreement/convention with the foreign employer regarding the posting of workers, case in which we recommend to stipulate under it also the foreign employer’s obligation to submit all the information necessary to review the fulfillment of the obligations towards the posted workers (payment of salaries, and of their related contribution etc.); 10. prior to disposing the posting, shall draft and communicate the posting dispositions (individual) to the workers and to the foreign employer, which shall obligatorily contain, the duration of posting (at least 1 year), the elements enumerated at points 2, 4 and 7, as well as the same duties from the job description record (annex to the individual labor contract from Romania), mentioning that they will be met for the benefit and under the authority of the foreign employer; 11. prior to disposing the posting, shall register under „REVISAL” the period of posting, the name of the employer where the posting is made, as well as the gross base salary, inclusively the increments to which are entitled the posted employees; 12. prior to disposing the posting, shall submit to the labor territorial inspectorate the „REVISAL” filled in with the information mentioned under point 11; 13. prior to disposing the posting, shall fill in the professional records of the posted employees with the posting dispositions; 14. within 5 days from the posting of employees, shall communicate to the agency for labor force occupancy the jobs which became vacant as a result of posting; 15. in maximum 20 working days from completion of the posting, shall fill in and submit of „REVISAL” also related to the cause of suspension of the individual labor contracts (which is represented by the posting itself); 16shall keep into existence the individual labor contracts of the posted workers (being allowed to employ on the places which became vacant other workers only during the posting).

8. Some observations regarding the institution of temporary employment into E.U. and non-E.U. countries • Related to the temporary employment, which falls under the incidence of the notion of communitary as well as of the national posting, we mention that the Romanian temporary worker concludes a contract of temporary employment with a temporary Romanian employment agency, in order to its hiring-out to a user from a E.U., respectively a non-E.U. country, in order to temporary work under the supervision and management of the latter one (for a mission). • These special contracts, conluded for each mission, are registered, as such, into the REVISAL and are submitted to the territorial labor inspectorate. • During the entire duration of the mission performed to the user from a E.U., respectively a non-E.U. country (which can not execeed more than 24 months), the temporary Romanian worker benefits from the salary paid by the Romanian temporary employment agency. It is also the one who withholds and pay all the social contributions, as well as the tax on salary.

9. When the user is from a E.U. country, Directive 96/71/EC is applicable, with all the particularities from the Code regarding the temporary employment (not the ones regarding the delegation or posting) and from the Directive regarding the laws applicable to some clauses of the contract of temporary employment. • When the user is from a non-E.U. country, the hiring-out keeps the effects of amendments and not the ones of suspension (as in the case of posting into such a country), but it must be verified if into the user’s country there is a legal instrument allowing the hiring-out without cessioning the labor relationship. • As it can be observed, given the special character of the work of Romanian workers though the temporary employment agency into E.U. and non-E.U. countries, compared to their posting into the same countries, this one presuposses a procedure distinctive from the two ones already expressed, which shall make the object of another paper.