Given the increasingly fluctuating employment force in the European Union and the growing interest of foreign companies to start different projects in Romania, our specialists consider relevant to offer basic information regarding delegation/posting and cross border posting in our country.
1. Delegation and posting within the labor contract (as per the article 43-48 of the Romanian labor code)
According to the Romanian labor code, the place of the work may be unilaterally modified by the employer by delegating or posting the employee to another workplace than the one provided in the individual employment contract. During the delegation or posting, the employee shall retain his position and every right set in the individual employment contract.
The delegation is the temporary exercise by the employee, on employer’s direction, of works or tasks similar to his usual tasks, outside his workplace. A delegation may be directed for a period of maximum 60 days and may be extended, with the agreement of the employee, with maximum 60 days. A delegated employee shall have the right to payment of transport and accommodation expenses, and to a delegation benefit, under the terms provided for in the law or the applicable collective labor agreement.
Posting is an act by which the employer directs the temporary change of the workplace to another employer, for the performance of certain works in its interest. By way of exception, the type of work may be changed during the posting, but only with the written agreement of the employee.
The posting may be directed for a period of maximum one year. By way of exception, the period of the posting may be extended every six months, with the agreement of both parties, for objective reasons that require the presence of the employee with the employer where the posting was directed.
An employee may refuse the posting directed by his employer only by way of exception and for duly justified personal reasons. A delegated employee shall have the right to the payment of transport and accommodation expenses, and a delegation benefit, under the terms provided for in the law or the applicable collective labor agreement.
The rights due to a posted employee shall be provided by the employer where the posting was directed. During the posting, an employee shall enjoy the rights more favorable to him − either the rights with the employer directing the posting, or the rights with the employer he is posted to.
The employer providing the posting has to take all measures necessary so that the employer where the posting was directed fulfils completely and in good time all obligations towards the posted employee.
2. Cross border posting
The cross border posting is regulated by Directive 96/71/EC and was transposed in Romania by Law no. 344/2006 and Government Decision no. 104/2007, both referring only to the posting of citizens from other EU countries to Romania. Regarding the posting made by employers from Romania in other EU countries, there is no specific regulation at present. In these conditions, the cross border posting is interpreted and applied differently by employers.
Even if there is no specific regulation regarding posting of Romanian citizens in other EU countries (except for specific legislation in each state where there is posting), the notion of cross border posting will not be confused with the notion of posting of the Labor Code.
An essential element of distinction between the two concepts is on the effects of posting towards labor contract. In the case of posting governed by the Labor Code, there is a suspension of the labor contract during posting (which implicitly assumes the suspension of payment of wages by employer). In case of cross border posting, the labor contract with employer that post can be actively maintained. In this case, the salary will remain in pay at the seconding employer.
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