Controversy over employee information and consultation procedure

The general framework for the information and consultation of employees is governed, in Romania, by Act 467/2006, which transposes EU Directive 2002/14/EC. At company level, the implementation of this legislation encountered difficulties due to the lack of practical arrangements for exercising employees' right to information and consultation. In this context, in December 2013, the Government of Romania invited the representatives of the social partners to discuss a draft government proposal regarding information and consultation procedures. The representatives of employers, particularly of small and medium-sized enterprises, are of the opinion that, if enacted, the new decision may have negative financial and bureaucratic consequences on a large number of companies.

Context

The general framework of employee information and consultation is regulated by Act 467/2006, which transposes Directive 2002/14/EC into Romanian law, and stipulates the right of management and labour to ‘define freely and at any time through negotiated agreement the practical arrangements for informing and consulting employees’.

Up to December 2013, in Romania, the practical arrangements for exercising the employees' right to information and consultation were not subject to another piece of legislation.

In early December 2013, the Social Dialogue Committee of the Ministry of Labour, Family, Social Protection and the Elderly (MMFPSPV) started examining a draft Government Decision regarding the procedures for information, consultation and other ways of involving employees in companies’ decision-making processes.

Content of draft project I & C procedures

The new decision will apply to all employees in companies incorporated in Romania with at least 20 employees, and its main provisions are as follows;

• Employees who wish to set up an information and consultation process at their workplaces shall form a representative body. Together with the employer’s representatives, the body will draw up a formal written summary of the means by which the company’s employees are to be informed, consulted and involved in their company’s decision-making mechanisms.
• To negotiate this written summary, the employees’ representative body may request expert assistance.
• The cost of any expert assistance needed will be met by the company, which will also make sure the employees’ representative body has the financial and material resources it needs to fulfil its role. This includes expenses for meetings, travelling and accommodation for both body members and any expert commissioned to assist it.
• The written summary shall define the procedure for employee information and consultation. It will set out the frequency of meetings, the financial and material resources to be allocated and, if applicable, the rules for the election of employees’ representatives to the company’s management and inspection structures.
• The employees’ representative body shall have the right to be informed and consulted, to meet with the employer’s representatives at least once a quarter, and to meet at any time the representative body it deems necessary.
• The company’s management shall send an agenda to the representative body at least three business days in advance of the meetings scheduled by the company’s management or inspection structures. It will also supply copies of all the documents made available to any general meeting of shareholders, such as business and financial reports, operational and employment projections, any significant changes in the organisation of the company, relocation of production, mergers, production slow-downs, shutdown of units or parts of units, or planned collective redundancies. If the company decides not to supply such information, it must explain why. If the members of the representative body consider that the management’s refusal to withhold information is unjustified, they may appeal to the appropriate court of law.
• The representative body has the right to be notified before any decision is made on matters that greatly affect employees’ interests.
• The members of the representative body shall be entitled to a paid leave of absence for training.

Employers’ reactions

A number of social partners took part in these consultations. Two national employer organisations, the National Council of Private Small and Medium Enterprises of Romania (CNIPMMR) and the Romanian Association of Construction Contractors (ARACO), published their criticisms of the project on their websites.

The CNIPMMR’s opinion is that:

…the draft will have negative financial and bureaucratic consequences for some 26,000 companies, including small and medium enterprises, due to the burden imposed on them to bear the expenses for the employees' representative body. This contradicts the principles enshrined by the Constitutional Court of Romania (CCR), and is in violation of the European directives and practices in other EU Member States.

The CNIPMMR believes the obligation of employers to cover the expenses of an employee representatives’ expert is unconstitutional, and that paying the wages of representatives when they have not performed their professional duties is a breach of property rights.

The ARACO agrees, saying that it also disagrees with the concept that:

the employer should bear the expenses of leave of absence for training purposes of the members of the representative body, without a correlative reduction of salary.

Commentary

Since the conclusion of the Ministry’s Social Dialogue Committee debates on this issue, no other social partners’ opinions have been publicised, and the draft proposals have not been adopted.

However, the outcome of the discussions with the social partners was that a regulation regarding employees' information and consultation procedure is necessary.

This is coherent with the conclusions of the Commission Staff Working Document 'Fitness check on EU law in the area of Information and Consultation of Workers' (2013), which mentioned, among several reasons, ‘the lack of necessary means and enforcement instruments and the low priority given to enforcement and I&C requirements’ in Romania.

Luminita Chivu, Institute of National Economy, Romanian Academy