Romania: Posted workers

  • Observatory: EurWORK
  • Topic:
  • Posted workers,
  • Working conditions,
  • Relations industrielles,
  • Published on: 05 Octobre 2010



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Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.

In 2009, the number of posted workers to Romania from European Union Member States and from the European Economic Area was 2,338 persons, which represents about 0.05% of total employment in Romania. The Directive 96/71/EC was transposed into Romanian legislation by Law no. 344 of 19 July 2006, regarding the posting of employees for the performance of transnational services, effective from 1 January 2007, the date of the Romanian accession to the EU. The relatively small number of posted workers to Romania is one of the reasons why the subject is not listed in the present social partners' agenda and the information on this category of workers is scarce.

QUESTIONNAIRE

1. Posted workers: basic facts

1.1 Please provide basic data on the workers posted in your country:

a) number (by gender);

The relatively small number of workers from the European Union (EU) Member States and European Economic Area (EEA) posted to Romania is one of the reasons why information on this category of personnel is scarce.

According to data from the Labour Inspection Office (Inspecţia Muncii, IM), in the first half of 2009 the number of EU Member States and EEA workers posted to Romania was 2,338 persons as comparing to 2,239 in the same period of 2008.

The main countries of origin of workers posted to Romania are Hungary (625 persons), Germany (334), Bulgaria (305) and Italy (191).

b) distribution across sectors

According to IM data, a high share of posted workers are working in construction, industry and consultancy services.

1.2 Are there any information on the number (by gender) and distribution across sectors of workers posted to other countries by domestic companies? If yes, please provide details.

There is no data available regarding the number and distribution by sectors of the workers posted by Romanian companies abroad. According to the Ministry of Labour Family and Social Protection (Ministerul Muncii, Familiei şi Protecţiei Sociale, MMFPS), the number of Romanian workers recruited by the National Agency for Employment (Agenţia Naţională pentru Ocuparea Forţei de Muncă, ANOFM) to work abroad has increased from 42,758 persons (of whom 47.4% were male) in 2005 to 52,389 (50.3% male) in 2008, with Germany and Spain as preferred destinations.

Most of the Romanian workers were recruited for farm work (81.1% in 2006 and 65.1% in 2008), hotel and restaurants (11.9% and, respectively, 22.9%), and in much smaller proportions for the manufacturing industry, construction, and other sectors.

Private labour recruitment agencies have brokered the employment abroad of another 14,742 workers in 2006, 17,621 in 2007, and 11,380 in 2008.

According to various media sources the number of Romanians who work abroad is more than two million persons (approximately 1 million in Italy, 700-800,000 in Spain, etc.). A large part of these left Romania without any mediation or recruitment procedure.

Considering the specifics of the work performed by Romanians abroad, it is safe to state that the number of posted workers among Romanians working abroad is very low.

1.3 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to your countries, including affiliation to foreign unions and coverage by foreign collective agreements, in addition and beyond the minimum requirements set by legislation? If yes, please provide details.

No data available.

1.4 Are there any information on trade union affiliation and collective bargaining coverage of workers posted to other countries by domestic firms? If yes, please provide details.

No data available.

1.5 Please refer the main content and results of major studies on posted workers (either in-coming or out-going), both quantitative and qualitative, which have been carried out in your country.

No studies have been made on foreign workers posted to Romania or Romanian workers posted abroad. The very few references to the foreign workers in Romania do not specify numbers, and less so other features (gender, occupation, business areas, etc.).

2. Regulation on posted workers

2.1 Please provide details on the current legislative framework for posted workers in your country:

a) Reference to the law adopting the posted workers directive: number, date, and link to the text, if available, in English;

Directive 96/71/EC was transposed into Romanian legislation by Law no. 344 of 19 July 2006, regarding the posting of employees for the performance of transnational services, effective from 1 January 2007, the date of Romania’s accession to the European Union (see Romanian language text of the law at: http://www.mmuncii.ro/pub/imagemanager/images/file/Legislatie/LEGI/L344-2006.pdf).

In June 2007, Romania set up the Romanian Office for Immigration (Oficiul Român pentru Imigrări, ORI) whose task is to implement the law and policies on immigration, asylum, and foreigners’ integration. The powers of ORI have been defined in a Government emergency ordinance, no. 56/2007, regarding the posting of workers and employment of foreign workers in Romania.

b) A brief account of any amendments or integrations introduced after the initial adoption;

Since its enactment, the Law 344/2006 has undergone no amendments regarding EU and EEA citizens.

c) A description of the current legal framework regarding posted workers, especially:

- as regards the way employment conditions are enforced, as required by art. 3.1. of the Directive (see the briefing note for the text of the article):

i. by law, regulation or administrative provision, and/or

Art. 3.1 of the Directive have been fully transposed into the Law no. 344/2006 (article 6 and 7, as follows):

Article 6 of the law guarantees workers posted to Romania for the performance of transnational services, regardless of the applicable law to the employment relations, the terms and conditions of employment stipulated by Romanian law or/and collective agreement at branch or national level, regarding:

(a) maximum work periods and minimum rest periods;

(b) minimum paid annual holidays;

(c) the minimum wage, including overtime rates;

(d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;

(e) health and safety at work;

(f) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people;

(g) equality of treatment between men and women and other provisions on non-discrimination.

Article 7 "For the purposes of this law, the concept of minimum wage is as by law or/and collective agreement applicable".

ii. by collective agreements or arbitration awards which have been declared universally applicable;

In Romania, the provisions of the collective agreement produce effects as follows:

  • the national collective agreement – for all the workers employed in Romania, irrespective of ownership (state owned, private, Romanian, foreign, or Romanian and foreign joint ventures);
  • the sectoral collective agreement – for all the workers employed in all ventures operating in the sector for which a collective agreement was signed, irrespective of ownership (state owned, private, Romanian, foreign, or Romanian and foreign joint ventures);
  • the collective agreement for a holding company or a group of companies – for all the workers employed by the employers affiliated to the group, irrespective of ownership (state owned, private, Romanian, foreign, or Romanian and foreign joint ventures);
  • the company collective agreements – for all the workers of the employer, irrespective of ownership (state owned, private, Romanian, foreign, or Romanian and foreign joint ventures).

If at the company level a collective agreement is in force, its provisions have priority. If at company level no collective agreement is in force, the collective agreement at branch level is applicable; if at the branch level no collective agreement was concluded, the national unique collective agreement is applicable.

Art. 10 of the Law no. 344/2006 provides that 'the provisions hereof do not limit the application of more favourable working conditions for the workers posted to Romania'.

- whether the law requires the application to posted workers of:

i. the whole system of labour law or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

The Law no. 344/2006 request only minimum terms expressly identified with reference to the list in art. 3.1 of the Directive.

ii. the whole content of collective agreements or arbitration awards which have been declared universally applicable or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

The Law no. 344/2006 request only minimum terms expressly identified with reference to the list in art. 3.1 of the Directive.

- when the employment conditions are set by collective agreements or arbitration awards, please specify which is the legal instrument which make them universally applicable:

Not the case.

- when the employment conditions are set by collective agreements, please specify which collective agreements are relevant:

Not the case

d) whether the legal framework sets a maximum period for considering a worker a “posted worker” rather than a “resident worker”. If yes, please specify this maximum period.

Art. 8 (2) of the Law no. 344/2006 provides that 'the length of the posting shall be calculated based on a reference period of one year from commencement date'.

e) whether there are special rules for certain sectors (for instance, construction). If yes, please specify the sectors and briefly illustrate such special rules.

According to the Law no. 344/2006, the provisions regarding the minimum length of the paid annual leave, the minimum wage, and the payment of overtime do not apply to workers sent to Romania to perform first phase erection works, or commissioning of industrial facilities, when the period of posting is of maximum eight days. These exceptions do not apply to construction projects pursuing the building, repair, maintenance, alteration, or demolition of structures, and are similar to those contained in the Appendix to Directive 96/71/EC.

2.2 Monitoring of implementation of regulation

a) whether a monitoring system for collected data and information on the number and employment conditions of posted workers was set up. If yes, please provide details on such system (bodies involved, structure, methods of collection and dissemination of information, etc.) and its effectiveness;

The IM is, by law, the institution with responsibilities for monitoring system, collecting data and information on the number and employment conditions of posted workers.

Employers must notify the local labour inspectorate in the jurisdiction of which they conduct business, five days prior to commencement of operations, with information regarding the posting of their employees and any subsequent changes regarding such employees.

b) whether measures were introduced to make the information on the terms and conditions of employment generally available to foreign service providers and to the posted workers concerned.

On the web site of ORI, information can be found, in English language, with regard to the legislation on terms and conditions for the employment of foreign workers in Romania, at (http://ori.mai.gov.ro/detalii/pagina/en/National-legislation/121). This is however not specifically directed towards posted workers but concerns migrant workers in general.

c) whether the law envisages the implementation of special labour inspections devoted to verify the number and employment conditions of posted workers. If yes, please provide details on how these are organised and on their effectiveness and outcomes.

Art. 12 and 13 of the Law no.344/2006 provide that the public authority in charge of implementing the provisions of the law, for the purpose of the observance of the rights of posted workers in Romania, is the Labour Inspection Office (Inspecţia Muncii, IM), to which the employees that feel that their rights have been violated may refer their cases.

The IM communicates to counterpart institutions in the other EU or EEA Member States data regarding cases of abuse or illegal conduct, and puts forth an annual activity report that reflects the findings of their inspections, including inspections into how the rights of posted workers are observed.

2.3 Please specify if particular rules have been devised to deal with specific situations of posted workers:

a) the current rules for the posting of temporary agency workers in your country, especially whether the law requires the application to temporary agency workers of:

i) the whole legislation on temporary agency work or only minimum terms expressly identified with reference to the list in art. 3.1 (see the briefing note for the text of the article).

No. No specific regulations have been enacted for workers posted through temporary employment agencies. The rules referred to above apply to all categories of workers.

ii) the types and requirements for temporary agency work established by national legislation (compared to those envisaged by the legislation of the country of origin). For example, can temporary agency workers be posted under contractual arrangements – such as indefinite duration staff leasing - which would not be available for national temporary work agencies?

Not the case.

b) the current rules for employment conditions in public procurement, notably whether the law:

i) requires explicitly the application of specific terms and conditions of employment to be awarded public procurement contracts. If yes, please specify what kind of terms and conditions of employment must be applied (comprehensive terms or only minimum levels?).

Not the case.

ii) requires explicitly the application of specific collective agreements to be awarded public procurement contracts. If yes, please specify what kind of agreements must be applied (national, sectoral, territorial) and to what extent (the whole agreement or only certain and minimum provisions?).

Not the case.

iii) allows awarding authorities to require the application of specific collective agreements to be awarded public procurement contracts. If yes, please specify to what extent this possibility is used (almost always, often, rarely, almost never) and what kind of agreements are more often considered for such clauses (national, sectoral, territorial).

Not the case.

iv) envisages specific clauses in the case of posted workers. If yes, please briefly illustrate the contents of such rules.

Not the case.

3. Positions and actions of the social partners and government on posted workers

3.1 Please indicate the positions and main initiatives that the social partners and the government have taken with reference to posted workers, either in-coming or out-going, and especially indicate:

a) the presence of a debate on the relevance and consequences for national labour law and industrial relations institutions of recourse to posted workers. If such debate is present, please refer its main contents and whether it refers to specific sectors.

Romanian authorities decide, annually, on the quota of work permits to be issued to foreign workers for non EU citizens. The controversies between the social partners and the government break out particularly during the public consultation period preceding the issuance of the annual government decision regarding work permits.

However, issues related to EU and EEA workers posted to Romania do not represent a subject for debates.

b) any positions expressed or actions taken in view of the recent rulings by the European Court of Justice (cases Laval un Partneri - C-341/05, Rüffert - C-346/06, Commission v Luxembourg – C-319-06).

In 2009 (14-16 May), a delegation of 135 trade union members of National Trade Union Confederation Cartel Alfa (Confederaţia Naţională Sindicală Cartel Alfa, Cartel Alfa) participated at the eurodemonstration at Prague, organized by European Trade Union Confederation (ETUC).

One of the trade unions’ demands was to reach a social pact pursuing, as priorities, social justice, solidarity, and jobs in a higher number and of better quality. Along this line of demands, the unions also requested a ban on the implementation of the decisions of the European Court of Justice, which favour the freedom of the labour market, against the provisions of the collective agreements.

The representatives of Cartel Alfa stated that such a measure would demonstrate that the Government cares for the social implications of the recent developments in the domestic labour market, and would guarantee the equality of treatment and pay for the posted migrant workers.

3.2. The main campaigns or initiatives undertaken by the social partners specifically aimed at posted workers or firms posting workers. If such campaigns or initiatives are present, please indicate their main features and whether they refer to specific sectors.

No information available

c) Any kinds of joint action undertaken by the social partners with regard to the issue of posted workers

No information available

4. Collective disputes and case law on posted workers

When posted workers deem that their rights are violated with regard to working conditions, they or their representatives may approach the IM.

Any labour disputes arising from the breach of the posted workers rights regarding working conditions can be settled, according to Art. 14 of Law no. 344/2006, by the relevant courts of law of Romania or of another state, in accordance with the international conventions regulating jurisdiction.

4.1 Please indicate whether collective disputes involving posted workers are frequent or increasing in recent times.

No data are available on the number of labour disputes involving workers posted to Romania.

4.2. Please provide information on any major collective disputes which concerned the utilisation of posted workers in your country. Please include for each case:

Not the case

4.3 Please provide information of existing case law in your country involving posted workers. Please include:

Not the case.

Commentary

The number of EU Member States and EEA posted workers to Romania is relatively low, which explains the absence of a case law in the matter. Whatever information exists is scanty and scattered, and therefore insufficient to serve as a starting point for a study or survey on this topic. Overall, the issue of posted workers is not on the agenda of the social partners.

PhD Constantin Ciutacu, Institute of National Economy, Romanian Academy

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