A new law on social dialogue has recently been adopted in Romania, Law No 367/2022 on social dialogue 1 ("Law No. 367/2022"), repealing the previous regulation, Law No. 62/2011 2.

The new law on social dialogue is a true game changer and brings four significant reforms, respectively:

  • the obligation to perform collective bargaining at both the unit (if it has at least 10 employees) and at the bargaining sector level;
  • the possibility to perform collective bargaining at the national level;
  • new obligations for employers to inform and consult employees' representatives/trade union representatives;
  • extension of the range of cases triggering collective labour disputes.

In addition, unlike the previous regulation, which was strongly criticised by trade unions, the new law on social dialogue gives trade unions greater powers and establishes an easier procedure for setting up and representing employees.

Thus, in the next period, we expect a relaunch of social dialogue in Romania and an increase of the coverage of employees by collective labour agreements. Our question is whether the new "collective umbrella" will be able to successfully combine the current needs of employers with those of employees, or whether it will only become an instrument of coercion against employers.

In this context, this article aims to present the most important aspects introduced by Law No. 367/2022, as well as the obligations incumbent on employers in the new socio-legal context.

01 Establishment and representation of trade union

Law No. 367/2022 simplifies the procedure for setting up trade unions by reducing the number of employees/workers in the same unit who can form a trade union, from 15 to 10 employees/workers in the same unit.

In addition, the law also provides for the possibility of forming a trade union with at least 20 employees/workers from different units in the same collective bargaining sector. In this case, members of trade union management bodies will have access to the units in which they have members for the purpose of carrying out trade union activities, with the obligation to comply with the internal rules of the envisaged units.

Another novelty is that the unemployed have the right to join or remain union members, but will not be considered when determining the number of union members against which the union's representation is established. For public officials who are members of a trade union's governing body, a case of suspension by law of the individual employment agreement has been introduced for this situation, with the obligation for the employer to keep the position and the job of the public official.

Legal personality is acquired similarly to the previous provisions.

As regards trade union representation, the cumulative conditions laid down in the previous rules are largely maintained. A change concerns the number of members of the trade union or, where appropriate, of the component trade unions of the trade union federation, in order to have representation, i.e., at least 35% of the total number of employees/workers in a contractual employment or service relationship with the unit (previously the percentage was 50% + 1 of the number of employees of the unit).

Previously, the social dialogue law did not regulate the institution of employee representatives. Regulations on this were found in the Labour Code.

Law 367/2022 regulates the institution of employee representatives, thereby implicitly repealing the relevant section of the Labour Code. Basically, the law reiterates a number of rules established by the Labour Code, such as:

  1. employee representatives are elected with the vote of 50% + 1 of the total number of employees/workers in the unit;
  2. their duration of mandate is two years.

At the same time, the law also brings a number of changes and/or supplements to existing information, such as:

  1. the number of employees/workers employed in a unit where their interests can be promoted and represented by employee representatives has been reduced from 20 to 10 employee/workers;
  2. it provides the possibility of setting up an initiative group, which will draw up the procedures and/or rules for conducting the elections and communicate them to the employer, who must inform all employees/workers within 10 days of their receipt;
  3. it provides a maximum number of representatives elected according to the number of employees hired in the unit (e.g., two representatives for employers with less than 100 employees/workers; three representatives for employers with between 101 and 500 employees/workers), if there is no agreement between the employer and the employees/workers on the number of representatives;
  4. it provides a maximum number of representatives elected according to the number of employees hired in the unit (e.g., two representatives for employers with less than 100 employees/workers; three representatives for employers with between 101 and 500 employees/workers), if there is no agreement between the employer and the employees/workers on the number of representatives;
  5. at the request of employees, the employer shall facilitate the procedures for the election of employee representatives.

03 Information and consultation obligation

The law introduces new rules on informing and consulting employees, represented in accordance with the law, in particular on recent and likely developments in the activities and economic situation of the unit.

Thus, the employer has the following obligations:

  • to initiate the process of information and consultation after the reporting of the financial statements of the unit for the previous year or, in case of omission, the process will be carried out at the written request of the employees;

N.B. Failure to comply with this obligation constitutes a contravention and is sanctioned with a fine of RON 15,000 to RON 20,000.

  • to ensure that the represented employees are informed and consulted on decisions that may lead to significant changes in work organisation (e.g., transfer of undertakings, acquisitions, mergers, collective redundancies, closures of production units, etc.).

In addition, the new law on social dialogue provides that:

  • the employer must invite the representative trade union to participate at the meetings of the board of directors or other body assimilated to it, if they concern matters of professional and social interest with an impact on employees/workers;
  • decisions of the board of directors or other bodies assimilated to it on matters on which employees/workers are informed and consulted in accordance with the law shall be communicated in writing to the represented employees/workers within two working days of the date of the meeting.

In workplaces where trade unions are not established, the employer is obliged to allow a public information session on individual and collective rights of employees to be held at least once a year, at the request of the trade union federations from the collective bargaining sector of the unit concerned, with the invitation of representatives of these federations.

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Footnotes

1. Published in the Official Gazette, Part I, No. 1238 of 22 December 2022. In force from 19 January 2023.

2. Published in the Official Gazette, Part I, No. 322 of 10 May 2011. Effective from 13 May 2011 until 24 December 2022.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.