Law 367/ 2022 on social dialogue was published in the Official Gazette of Romania, Part I, no. 1238 of 22 December 2022 ("Law 367/ 2022").
Law 367/ 2022 which will enter into force on 25 December 2022 provides for significant amendments regarding social dialogue and repeals Law 62/2011 on social dialogue.
Some of the most important amendments refer to the following matters:
New rules regarding appointing employees’ representatives
Law 367/ 2022 includes express provisions regarding the procedure and conditions for appointing employees’ representatives, including:
a. the minimum number of employees at a particular employer from which employees may choose their representatives has been reduced from 20 to 10;
b. employees’ representatives must be elected by a vote of at least 50% plus one of the total number of employees;
c. employees may establish an initiative group to set the procedure and/ or regulations for appointing the employees’ representatives; such procedure/ regulations are communicated to the employer, which is obliged to inform all its employees in the relevant business unit; employers are prohibited from interfering in the process of appointing employees’ representatives;
d. in case an employer and its employees do not agree on the number of employees’ representatives that can be appointed, Law 367/ 2022 expressly provides a maximum number of employees’ representatives that can be appointed depending on the number of employees at the employer;
e. employees in management positions who represent the management in dealing with employees or are involved in the management’s decision-making processes cannot be appointed as employees’ representatives.
Additional obligations related to informing employees
Law 367/ 2022 establishes obligations on the part of employers:
a. to invite the trade union representative at the business unit level to the meetings of the board of directors or other corporate governing instance where problems of professional and social interest that impact the employees are discussed. Failure to comply with this obligation constitutes an administrative offence and may trigger a fine up to RON 20,000 (around € 4,000);
b. after reporting the company’s financial statements for the previous year, to inform and consult their employees in regard to recent and probable future business developments and the employers’ economic situation. If the employer does not inform and consult its employees, this will be done at the employees’ request. Failure to inform and consult the employees upon their request, constitutes administrative offence and may trigger a fine up to RON 20,000 (around € 4,000);
c. to inform and consult the employees regarding decision which may lead to significant changes in work organisation and employment relationships, including but not limited to transfers of undertakings, mergers, acquisitions, collective redundancies, closing of a production unit etc;
d. if no trade union has been established, to allow a public information session regarding their employees’ individual and collective rights to take place at least one per year, at the request of the trade union federations in the collective bargaining sector of the business unit, at the invitation of the representatives of these federations.
New requirements regarding trade union and collective bargaining
3.1. In order to establish a trade union, a minimum of 10 employees from the same business unit or a minimum of 20 employees from different business units of the same collective bargaining sector is required.
3.2. A trade union will be considered representative at the business unit level under the conditions including that the number of members of the trade union represent at least 35% of the total number of employees.
3.3. Collective bargaining will be mandatory:
- at business unit level, if the employer has at least 10 employees (the number has been reduced from 21 employees) – either the employer or the employees can take the initiative to commence collective bargaining. Failure to initiate such bargaining constitute an administrative offence which may trigger a fine of up to RON 20,000 (around € 4,000); and
- at collective bargaining sector – the sectors of collective bargaining and the corresponding codes thereof will be established by means of a government decision within 90 days as of the date of entry into force of Law 367/ 2022.
3.4. The maximum time period for collective bargaining has been reduced from 60 days to 45 days; the parties continue to have the option of prolonging such period upon agreement.
3.5. During collective bargaining, the employer must provide the trade union/ employees’ representatives with additional information, such as:
- proposed measures for organising work, working schedules and working time for the subsequent contractual period;
- proposed measures to protect employees’ rights in case of a transfer of an undertaking or parts thereof;
- proposed measures on improving employees’ safety and health at work for the subsequent contractual period.
New rules regarding the collective labour conflicts
4.1. Law 367/ 2022 amends the definition of “collective labour conflict” to state that such a conflict is one between employees and employers that has as its scope:
a. the commencement, performance or termination of negotiations regarding at collective agreement or employment agreements;
b. the failure to grant, in a collective manner, individual rights provided in the applicable collective bargaining agreements, to the extent to which a dispute has been initiated in this regard in the court of law and has not been settled in a maximum of 45 days for:
- at least 10 employees, if the employer has more than 20 employees and fewer than 100 employees;
- at least 10% of employees, if the employer has at least 100 employees but fewer than 300 employees;
- at least 30 employees/workers, if the employer has at least 300 employees.
4.2. The situations in which employees may initiate a collective labour conflict have been extended to include the following:
a. if the employer does not comply with the obligation to make the relevant information available to the trade union/ employees’ representatives, even if collective bargaining has been initiated;
b. if the employer refuses to initiate collective bargaining if agreements between the parties include clauses that are to renegotiated periodically and the period allocated for such negotiation has expired or if the parties do not reach an agreement regarding the renegotiation of such clauses.
By Andrada Popescu, Senior Associate, Noerr
