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New regulation on transnational secondments

29 March 2017 / Written by PATRASCANU IULIAN / Print article

On the Official Gazette as of 20.03.2017, it was published the Law no. 16/2017 on the secondment (posting) in the framework of the transnational provision of services (Law 16/2017), which will enter into force within 60 days from the publishing date, respectively on 20.05.2017.

This law abrogates the the Law no. 344/2006, the current applicable legal framework. The specific procedure on the employees’ secondment in Romania, as regulated by Government Decision no. 104/2007, will be applicable until the methodological norms of the new law are entered into force. 

The purpose of the Law 16/2017 is to unify and transpose into the Romanian legislation of two EU directives, namely Directive 96/71/CE concerning the posting of workers in the framework of the provision of services and Directive 2014/67/EU on the enforcement of Directive 96/71/EC concerning the posting of workers.

Law 16/2017 establishes a common framework of a set of appropriate provisions, measures and control mechanisms applicable within the Romanian state on the transnational secondment in the framework of the provision of services, including measures to prevent and sanction any abuse and circumvention of the applicable rules. Its provisions aim to guarantee respect for an appropriate level of protection of the rights of seconded workers for the cross-border provision of services, in particular the enforcement of the terms and conditions of employment that apply in according to the national legislation, while facilitating the exercise of the freedom to provide services for service providers and promoting fair competition between service providers, and thus supporting the functioning of the internal market. 

Law 16/2017 shall not affect in any way the exercise of fundamental rights as recognized by national legislation and at EU level, including the right or freedom to strike or to take other action covered by the specific industrial relations systems, in accordance with national law, nor does it affect the right to negotiate, conclude and enforce collective bargaining agreements and to take collective action in accordance with national law.

The new regulations establish additional standards to inform workers and companies about their rights and obligations, including by clarifying the notion of secondment. Thus, the seconded employee in Romania is the worker employed by a company established in one of the EU or EEA member states or in Switzerland, who do not normally work in Romania, but who is sent for a limited time, to work in Romania. On the other hand, an employee seconded from Romania is employee of a Romanian employer, who normally carries out its activity in Romania, but who is sent to work for a limited time on the territory of one of the EU or EEA member states, other than Romania, or in Switzerland.

Law 16/2017 contains provisions that support employees' rights by introducing a system of joint liability of the employers involved in a transnational secondment with respect to the salary rights and by guaranteeing to the seconded employees the right to complain and to institute legal action and/or administrative action against their employers, if their rights are not respected.

Moreover, Law 16/2017 regulates the mutual cooperation between national authorities responsible for secondment and the possibilities of applying national control measures. The Labor Inspectorate is the authority responsible for the exchange of information and administrative cooperation with the competent authorities of EU and EEA member states and Switzerland. Also, the National Agency for Fiscal Administration will ensure recovery of penalties applied to entities established in Romania which second employees abroad.

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