Employees transfer to a new employer is a process regulated by the Labor Code and applicable European legislation. In such cases, employees retain their employment contracts, while both the transferor and transferee employers must comply with a series of essential rights and obligations during the process, including prior notification and maintaining existing employment conditions. This article outlines the legal steps involved and the implications for all parties concerned.
Rights and obligations during the process of employees transfer in Romania
According to the applicable legal provisions, the takeover of employees is possible in the event of a transfer of the undertaking, the unit, or parts thereof, in accordance with Article 173 of Law No. 53/2003 – the Labor Code, republished with subsequent amendments and completions, as well as the provisions of Law No. 67/2006 on the protection of employees’ rights in the event of a transfer of an undertaking, a unit, or parts thereof.
Taking into account the provisions of Article 173 paragraph (2) of the Labor Code, in conjunction with Article 5 paragraph (1) of Law No. 67/2006, all rights and obligations of the transferor (the person who ceases to be the employer of the employees) arising from the individual employment contracts and from the collective labor agreement in force at the time of the transfer shall be fully transferred to the transferee (the person who becomes the employer of the employees).
The employees transfer in Romania cannot constitute grounds for individual or collective dismissal of employees by either the transferor or the transferee, as provided in Article 173 paragraph (3) of the Labor Code and Article 7 of Law No. 67/2006.
As a result of the assignment/merger, the transfer of employees also occurs implicitly. Therefore, the rights and obligations of employees arising from existing employment contracts are fully transferred to the transferee.
In the case of employees transfer in Romania, individual employment contracts continue to produce legal effects, being taken over by the new employer. The transfer implies a modification of the individual employment contract regarding the employer and possibly the place of work. This modification occurs on the date of the transfer of the undertaking, unit, or parts thereof, being expressly provided by law and not representing the willful agreement of the parties (employee – employer).
Individual employment contracts and the employees transfer process
Individual employment contracts are not terminated; instead, they are transferred to the transferee, who becomes the new employer under the terms of the merger/assignment contract concluded between the two companies, which must also include provisions regarding the transferred employees. Prior to the date of the transfer, both the transferor and the transferee are obligated to inform in writing the employees’ representatives or, if such representatives have not been established or appointed, their own employees, at least 30 days before the transfer date, regarding:
a) the date of the transfer or the proposed date of the transfer;
b) the reasons for the transfer;
c) the legal, economic, and social consequences of the transfer for the employees;
d) any measures envisaged in relation to the employees;
e) the working and employment conditions.
Additionally, pursuant to Article 174 of the Labor Code, the transferor and the transferee are required to inform and consult, prior to the transfer, the trade union or, as the case may be, the employees’ representatives regarding the legal, economic, and social implications of the transfer of ownership on the employees.
Furthermore, according to the provisions of Article 9 of Law No. 67/2006, the transferee is obligated to comply with the provisions of the collective labor agreement applicable at the time of the transfer, until its termination or expiration.
By mutual agreement between the transferee and the employees’ representatives, the clauses of the collective labor agreement in effect at the time of the transfer may be renegotiated, but not earlier than one year from the date of the transfer. According to Directive 2001/23/EC, in conjunction with Article 8 of Law No. 67/2006, if the transfer results in a substantial modification of the working conditions to the detriment of the employee, the employer is held responsible for the termination of the individual employment contract.
Thus, if the employment contract is terminated, the employer is considered liable only to the extent that the employee has suffered damage as a result.
However, if the contract termination occurs at the employee’s own initiative, through resignation, without any negative impact on their rights or working conditions, the employer is no longer considered responsible for the termination of the employment relationship.
Nevertheless, it should be noted that the employees transfer in Romania must be recorded in the General Register of Employees – REGES-ONLINE, taking into account the fact that the employees will be working for a new employer.
For the implementation of Law no. 19/2020 regarding granting free days to parents for the supervision of children, in the situation of temporary closure of the educational units, was published, in the Official Gazette no. 230/2020, the Government Decision no. 217/2020.
At the same time, in the Official Gazette no. 231/2020, was published the Government Emergency Ordinance no. 30/2020 for the modification and completion of some normative acts, as well as for the establishment of measures in the field of social protection in the context of the epidemiological situation determined by the spread of the SARS-CoV-2 coronavirus, the ordinance that modifies and completes the Law no. 19/2020.
Who can benefit from free days for child supervision?
According to the provisions of Law no. 19/2020, the employees can benefit from free days for the supervision of the children, if they fulfil the following conditions cumulatively:
- They have children up to 12-years old, enrolled in school or children with disabilities up to 18-years old, enrolled in school;
- Their job does not allow work from home or teleworking.
According to GD no. 217/2020, in case of suspension of courses or temporary closure of the educational units, according to Law no. 19/2020 and Decree no. 195/2020 regarding the establishment of the state of emergency on the territory of Romania, are established as paid free days for one of the parents the working days until the end of the decreed emergency situation, except for the working days during the school holidays.
By parent it is understood, according to GEO no. 30/2020:
- The natural parent, according to the Civil Code;
- Adopter;
- The person who has the child/children in foster care for adoption;
- The person who has guardianship or fosters children;
- The designated person, according to the provisions of Law no. 272/2004;
- The parent or legal representative of the adult person with a disability enrolled in an educational establishment.
According to GEO no. 30/2020, also the following categories will benefit from paid free days for the supervision of children:
- The parent or legal representative of the child with a serious disability not enrolled in school, who has opted for the allowance under the conditions of Law no. 448/2006 republished, only in the conditions in which the activity of the day service is suspended due to unfavourable weather conditions or other extreme situations decreed by the competent authorities with attributions in the field.
- The parent or legal representative who in care, supervision and maintenance of the adult person who has a certificate of the disability degree or a certificate of the disability degree with a personal assistant for which he/she has opted for the allowance under the conditions of Law no. 448/2006, republished, only if he/she benefits from day services, whose activity was suspended as a result of adverse weather conditions or other extreme situations decreed by the competent authorities with attributions in the field.
Who can’t benefit from free days for child supervision?
The person/parent who is in the following situations does not benefit from free days for the supervision of children:
- Is on leave to raise the child up to 2 years, respectively 3 years, in the case of the disabled child;
- Opted for leave without pay as a result of the other parent’s request for a period of at least one month from the total period of childcare leave;
- Is on leave for the care of the child with disabilities up to the age of 7 years;
- Is the personal assistant of one of the dependent children;
- Is on vacation leave or leave without pay;
- Has the labour relations suspended due to temporary interruption of activity of the employer or his/her spouse is in this situation, according to the Labour Code republished;
- The other parent does not make income from wages and assimilated to wages, income from independent activities, income from intellectual property rights, income from agricultural activities, forestry and fish farming, subject to income tax.
What is the procedure for granting free days?
Free days are granted at the request of one of the parents, deposited at the employer of the person who will supervise the child during the period when the competent authorities decide to close the educational units;
The request must be accompanied by an affidavit on the other parent’s own responsibility, stating that he/she did not request at his/her place of work free days that would suit him/her according to Law no. 19/2020, respectively that is not in vacation leave or leave without payment or in another situation provided by law.
This condition does not apply to the single person in the single-parent family, respectively the granting of the right will be made only on the basis of request.
The application must also be accompanied by a copy of the birth certificate/certificates of the child/children.
The employees from the following units can also benefit from free days, but only with the agreement of the employer:
- The national energy system, from the operating units from the nuclear sectors;
- Units with continuous fire;
- The sanitary and social assistance units;
- Telecommunications, public radio and television;
- Railways;
- Units that provide the public transport and the sanitation of the localities;
- The supply of the population with gas, electricity, heat and water;
- Food trade;
- Production and distribution of medicines and sanitary equipment;
- Fuel distribution;
- The personnel of the pharmaceutical units.
The employers in these fields of activity grant the free days under the conditions of the present law, only after the options provided by the legal regulations in force for carrying out the activity are exhausted and with the obligation to ensure the continuity of the activity, respectively through individual work programs, shift work, work at home and teleworking.
What is the amount of the allowance for free days?
The allowance for each free day is 75% of the basic salary corresponding to a working day, but not more than 75% of the national gross average wage.
The allowance is subject to taxation and payment of social insurance contributions under the conditions provided by the Fiscal Code.
According to Law no. 19/2020, the compensation paid by the employer will be borne by the guarantee fund for the payment of the salary claims.
How can employers settle the amounts paid as allowances?
The employers may request reimbursement only for the amounts representing the net allowance actually received by the parent, as stipulated in GEO no. 30/2020.
Regarding the taxes and social insurance contributions related to the allowance, according to the GEO 30/2020, these are supported from the employer’s budget, under the conditions provided by the Fiscal Code.
Considering the provisions of the GD no. 217/2020, for the settlement of the amounts, the employer must submit to the agencies for the employment of the county, respectively of the municipality of Bucharest, in whose territorial area the employer or its branch/working point is, as the case may be, the following documents:
- A request, dated and signed by the legal representative, which will contain the following elements:
- Employer identification data, including e-mail address
- The bank account
- The name of the legal representative of the employer
- The total amount requested
- The number of employees for whom the amount was requested
- The list of employees who have benefited from the free days, as well as the allowance granted during this period
- Copies of payroll files which establish the indemnity granted
- The affidavit on the own responsibility of the legal representative of the employer, attesting that the list provided with the employees who have benefited from free days contains the persons who fulfil the conditions regulated by Law no. 19/2020 (the model of the declaration is to be approved by order of the president of the National Agency for Employment, which is published in the Official Gazette of Romania, Part I)
- Proof of payment of contributions and taxes for the month in which the allowance was paid.
The documents are transmitted by electronic mail to the address communicated by the employment agencies of the county, respectively of the municipality of Bucharest, within no more than 30 days from the date of the payment of the contributions and taxes related to the compensation.
The employment agencies of the county, respectively of the municipality of Bucharest, have the obligation that, within 24 hours from the receipt of the documents, to communicate the registration number of the request to the employer.
In case the documents cannot be transmitted by electronic mail, they will be transmitted by any other means of communication.
The settlement of the amounts paid by way of allowance is made within 60 calendar days from the date of registration of the documents.
The provisions of Law no. 19/2020 apply to all employees from the public and private sectors.
In the Official Gazette no. 209/2020 was published the Law no. 19/2020 regarding granting free days to the parents for children supervision, in the situation of temporary closure of the educational units.
Thus, in the situation of temporary closure of the educational establishments where they are enrolled, due to adverse weather conditions or other extreme situations so decreed by the competent authorities with responsibilities in the field, free days are given to one of the parents for the supervision of children.
Employees can benefit of free days, if they fulfil the following conditions cumulatively:
- they have children up to 12-years old, enrolled in school or children with disabilities up to 18-years old, enrolled in school;
- their job does not allow work from home or teleworking.
Under these conditions, parents have the right to paid free days, for as long as the competent authorities decide to close the respective educational units.
Of these rights also benefits the single person in the single-parent family, respectively the legal representative of the child, as well as the person designated, according to the law, to exercise the rights and fulfil the parental obligations towards the child.
Free days are granted at the request of one of the parents, submitted to the employer of the person who will supervise the child during the period in which educational units are closed.
The request must be accompanied by a declaration on the other parent’s own responsibility, stating that he/she did not request, at his/her place of work, free days that would suit the parent according to this law.
This condition does not apply to the single person in the single-parent family, respectively the granting of the right will be made only by request.
Due to the specificity of some areas of activity, can benefit from free days, but only with the agreement of the employer, also the employees from different units:
- the national energy system, the operating units from the nuclear sectors;
- units with continuous fire;
- the sanitary and social assistance units;
- telecommunications, public radio and television;
- railways;
- units that provide the public transport and the sanitation of the localities;
- the supply of the population with gas, electricity, heat and water.
The provisions of Law no. 19/2020 apply to all employees from the public and private sectors.
The allowance for each free day is 75% of the salary corresponding to a working day, but no more than the daily correspondent of 75% of the national gross average wage (e.g. 75% of RON 5429/month representing the average gross salary; thus the ceiling = RON 4072/month, this being the maximum monthly gross salary that can be paid to a parent who stays at home according to this law).
The actual number of paid days that can be granted will be determined by the Government, by decision.
The allowance paid by the employer will be borne by the guarantee fund for the payment of salary claims, only during the period when the competent authorities decide to close the educational units, the effective way of applying will be established by a Government decision.
