Recent Employment Law Changes: What Employers Should Be Aware Of
The new framework template of the individual employment agreement, updating internal regulations or the new provisions that can be negotiated by the CBA are some of the aspects that any employer should know about.
Updating the template individual employment agreement used by employers
The new framework template of the individual employment agreement will soon be approved by order of the Minister of Labor and Social Solidarity, but until it is approved, do employers also have to amend the individual employment agreements currently in force?
The framework template of the individual employment agreement approved by the Order of the Minister of Labor and Social Solidarity no. 64/2003 will be updated to correspond to the new legislative changes – something that employers concluding individual employment agreements after 22 October 2022 must consider.
Thus, until the publication of the new framework template agreement in the Official Gazette, as from 22 October, employers must update the template agreements they use, specifying in their content the following provisions that have been amended/completed:
- the place of work or, in the absence of a fixed place of work, the possibility for the employee to work at different places of work and whether travel between them is provided or reimbursed by the employer, where appropriate;
- the basic salary, other elements of earnings shown separately, the frequency of payment of the salary to which the employee is entitled and the method of payment;
- normal hours of work, expressed in hours/day and/or hours/week, the conditions under which overtime is worked and compensated or paid and, where appropriate, the arrangements for the organization of shift work;
- the duration and conditions of the probationary period, if any;
- the employer’s payment of private medical insurance, additional contributions to the employee’s voluntary pension or occupational pension, in accordance with the law, and the granting, at the employer’s initiative, of any other rights where these constitute benefits in cash granted or paid by the employer to the employee as a result of the employee’s professional activity, where appropriate;
- the right to request a transfer to a vacant post offering more favorable working conditions if he/she has completed his/her probationary period and has been with the same employer for at least six months, and the employer’s correlative obligation to reply, giving reasons, in writing, within 30 days as of the receipt of the employee’s request;
- the right to work for different employers or for the same employer under individual employment agreements without overlapping working hours;
- the right to carer’s leave to provide personal care or support to a relative or a person living in the same household as the employee and who is in need of care or support because of a serious medical condition, for 5 working days in a calendar year, at the written request of the employee;
- the right to be absent from work in unforeseen circumstances caused by a family emergency due to illness or accident, which make the employee’s immediate presence indispensable, subject to prior notification of the employer and with the recovery of the period of absence until the employee’s normal working hours have been fully covered;
- entitlement to paternity leave granted to the father of a newborn child under the conditions laid down in the Paternity Leave Law no. 210/1999, as subsequently amended and supplemented.
Do individual employment agreements currently in force also need to be amended?
A common question since the entry into force of Law no. 283/2022 amending and supplementing the Labor Code (“Law no. 283/2022″) has been whether individual employment agreements currently in force should be amended. In practice there have been controversial solutions on this issue, with interpretations that employers should conclude addenda.
We consider that Law no. 283/2022 provides a solution to this situation in the sense that additional information on the conditions applicable to the employment relationship shall be communicated by the employer at the request of the employee who has an employment relationship established prior to 22 October 2022, within a maximum of 30 working days from the date of receipt of the employee’s written request to this effect.
The Labor Inspectorate confirms that the solution is provided by the legislator through Law no. 283/2022, in which sense it has officially communicated that employers are not obliged to conclude addenda to communicate additional information to employees who have individual ongoing employment agreements.
Updating of Internal Regulations
In view of the new provisions that will be applicable to the employment relationship between employees and the employer, the Internal Regulations will need to be updated with certain categories of rules of which employees must be aware, to which end the following will be included in the Internal Regulations:
- rules on notice, both notice given in the case of resignation and notice given in the case of dismissal;
- information on general employee training policy, if any;
- mentions about the employee’s right to bring an action before the competent court and to claim compensation for the loss or damage suffered as a result of the employer’s failure to inform the employee of (i) the essential terms which the employer intends to include in the agreement or amend; (ii) the information to be given to the employee if the employee is to work abroad; (iii) the elements to be included in the part-time employment agreement; (iv) the minimum provisions to be included in the internal regulations;
- mentions about the employee’s right to request the employer to provide additional written reasons for the dismissal decision when the employee considers that he/she has been dismissed for: (i) exercise of rights under the Labor Code in relation to information on the essential elements of the individual employment agreement; (ii) information if the employee is to work abroad; (iii) probationary period; (iv) carer’s leave; (v) right to be absent from work in unforeseen circumstances; (vi) paternity leave; (vii) expenses for participation in training programs;
- the specification that the employer is prohibited from applying any unfavorable treatment to employees and employee representatives as a result of applying for or exercising the above-mentioned rights;
- the specification that the rights acquired by employees prior to the granting of the leaves referred to in Article 51, paragraph (1) of the Labor Code, of the carer’s leave and absences from work in unforeseen circumstances caused by a family emergency due to illness or accident shall be maintained for the entire duration of the leave or period of absence;
- the specification that for the purposes of determining the length of annual leave, periods of temporary incapacity for work, maternity leave, paternity leave, maternity risk leave, leave to care for a sick child, carer’s leave and periods of absence from work due to unforeseen circumstances shall be considered as periods of work performed;
- the specification that, if employees, employee representatives or trade union members lodge a complaint with the employer or initiate proceedings for the purpose of enforcing the rights provided for in this law, they shall be protected against any adverse treatment by the employer;
- the specification that the employee who considers himself/herself to be the victim of adverse treatment by the employer may apply to the competent court for compensation and for the restoration of the previous situation or the annulment of the situation created as a consequence of the adverse treatment, stating the facts on the basis of which the existence of such treatment may be presumed;
- the specification that a new probationary period is forbidden if, within 12 months, a new individual employment agreement is concluded between the same parties for the same position and with the same powers and duties;
- the specification that the employer may establish individualized work programs for all employees, including those on carer’s leave, with their consent or at their request, which may be of limited duration in time, and that any refusal of the request to establish individualized programs must be justified in writing by the employer within 5 working days as of receipt of the request;
- the specification that when the individualized work program is of limited duration, the employee has the right to return to the original work program at the end of the agreed period and that the employee has the right to return to the original program before the end of the agreed period if the circumstances which led to the establishment of the individualized program change.
New provisions that can be negotiated by the CBA
the legislator has set the duration of carer’s leave at 5 working days in a calendar year, with the possibility of a longer period being set by collective bargaining agreement. The social partners may thus agree on a duration of carer’s leave exceeding the 5 working days/year laid down by the legislator.