Starting with 01.07.2013, the national minimum gross basic wage guaranteed to be paid is 800 lei, therefore employers have the obligation to take the necessary measures to comply with legal requirements.
According to the Government Decision no. 23/2013 published in Official Gazette no. 52/2013, the national minimum gross basic salary guaranteed to be paid is set at 800 lei per month for a full-time program of 168,667 hours as average per month in year 2013, representing 4.74 lei / hour.
Based on head. II, art. 164 of Law no. 53/2003 republished, the national minimum gross basic salary guaranteed to be paid corresponding to the normal work schedule is established by Government decision, after consultation with trade unions and employers.
An employer may not negotiate or establish basic wages under the individual labor contract below the national hourly minimum gross basic wages, being obliged to guarantee in payment a monthly gross wage at least equal to the national minimum gross basic salary.
According to art. 160 of Law no. 53/2003, salary comprise the basic salary, increments, emoluments, as well as other additions.
The basic salary is the main element of salary and is determined for each employee according to the importance and complexity of the job duties, level of education, qualifications and training. This is the fixed part of the salary, being a benchmark by which other rights of employees are computed, as for example increments, various emoluments etc.
Employers who have employed staff at the national minimum wage, are forced by law to increase salaries so that they are not below the minimum level valid from 01.07.2013.
According to art. 17, para. 5, any change to the basic salary and other constituents of wages during the performance of the individual employment contract requires the conclusion of an addendum to the contract, within 20 working days from the date of the amendment, unless that such a modification is expressly provided by law.
In terms of the steps that the employer must take to comply with these provisions under the law, there are multiple interpretations.
It should be noted that the basic salary change entails making a mandatory registration in the General register of employees (Revisal). According to art. 4, para. 2 of the Government Decision no. 500/2011 on the general register of employees, wage changes are recorded in the register not later than the working day preceding the expiration of 20 working days. Exceptions are situations where changes occur as a result of a court decree or by effect of law when a registration in the registry is in the day the employer is presumed by law to have taken note of their content.
Therewith, according to art. 164 of the Labor Code republished, the employer must notify the employees on changing the national minimum gross basic salary guaranteed to be paid.
Given the need for applying the legal provisions of GD no. 23/2013 on the amendment of gross monthly basic salary, according to art. 17, para. 1 of Law no. 53/2003, prior to the amendment of the individual employment contract, the employer must inform the employee of the terms upon which they intend to modify.
The obligation to inform the employee shall be met by the employer at the time of signing the Addendum, as provided in art. 17, para. 2 of the Labor Code.
According to art. 41 of Law no. 53/2003, the employment contract may be amended only by mutual consent (by signing an addendum, in this case), but as an exception, unilateral modification of the contract is possible only in the cases and under the conditions laid down in the Labor Code.
We must keep in mind that, salary increase according to GD no. 23/2013 is mandatory and is not element of negotiation between the parties (employee – employer).
As can be noticed, at first glance it goes without saying that, for changes resulting from the law / normative acts (such as GD no. 23/2013), there is no obligation of drafting an addendum to the employment contract.
However the employer must inform the employees on contractual elements change.
Taking into account the provisions of art. 5 of Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, is considered that any change in the employment contract must be a written document provided by the employer, stating explicitly that the writing document is not compulsory in the event of a change in the laws, regulations, administrative or other statutory provisions or collective agreements.
It follows, again, as a result of legislative changes, that the employer is obliged to change individual employment contracts of the employees so that gross monthly basic salary may not be below the minimum wage per economy, modification is made unilaterally, by the effect of law.
In this sense, we could say that would be enough for the employer to issue a collective decision to include all employees whose gross monthly basic salary has to be increased to 800 lei, a decision which would be notified to employees and attached to each personnel folder.
However, in practice, given that the law leaves room for interpretation and that, including that there are different views on the Territorial Labor Inspectorates related with the application of the provisions, the cautious version in case of a control of labor inspectors, would be issuing an addendum to the employment contract.
In this way, must be considered that employers have the obligation to record the change of the basic salary in the General register of employees no later than the working day preceding the expiration of 20 working days, respectively latest on 25.07.2013.
Failure to register changes in the General register of employees in the legal terms entail fines from 5.000 up to 8.000 lei, as provided in art. 9, para. 2 lit. b of GD no. 500/2011.
Also, according to art. 3, para. 1 of GD no. 23/2013, has to be taken into consideration that, employers which set wages in the employment contract under the minimum legal level risk fines between 1.000 and 2.000 lei.
As mentioned, there are different views at the Territorial Labor Inspectorates on the documents to be issued based on changes in the national minimum gross basic wage guaranteed to be paid. Please find below some opinions in this regard:
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ITM Opinion |
Source: |
ITM Constanţa: “In case the amendments affect the salary, and the employee in question is paid with the minimum legal wage per economy and the government intervenes with a mandatory minimum gross wage change, this is done by issuing a decision amending the salary, without need for an addendum.”
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ITM Constanta |
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ITM Bihor: “Salary change requires to sign an addendum to the employment contract, within 20 working days from the date of change.”
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ITM Bihor |
ITM Buzău: “Employers must record the change of the national minimum gross basic salary guaranteed to be paid, into the General register of employees and to transmit it to the Labor Inspectorate Buzau, at the latest on the working day before the expiry of 20 working days.” |
ITM Buzau |
