New Rules on Social Dialogue

On 25 December 2022, the new law on social dialogue, Law No. 367/2022 (hereinafter “Law No. 367/2022“), entered into force, following a long and arduous legislative process that started 4 years ago. Although Law No. 367/2022 largely preserves the structure and content of the previous regulation, it also introduces several substantial changes, of which we mention the following:

▸ Collective bargaining at the unit level has become compulsory for employers with at least 10 employees. Collective bargaining at the level of the collective bargaining sector has also become compulsory;

▸ Law No. 367/2022 provides for the possibility of concluding a collective labour agreement at the national level. We would point out that after the expiry of the last national collective labour agreement in 2011, the previous law on social dialogue, Law No. 67/2011, no longer provided for the possibility of concluding a new national collective labour agreement. Thus, collective labour agreements can now be negotiated at the unit level, group of units level, collective bargaining sector level and national level;

▸ Trade unions can now be constituted more easily, with fewer founder members. In this respect, a minimum of 10 employees from the same unit or a minimum of 20 employees from different units in the same collective bargaining sector is now required to form a union. In order to be representative at unit level, trade union organisations must have a membership of at least 35% of the total number of employees/workers in a legal employment relationship or a work relationship with the unit;

▸ The election of employee representatives has undergone a number of changes, the most important of which are the following:

• Employee representatives can be elected within any employer with at least 10 employees;

• Employers may not intervene in the process of electing employee representatives. At the request of the employees, they may facilitate the procedures for electing employee representatives;

• As was the case under the previous regulation, the number of employee representatives is agreed upon with the employer. If there is no such agreement, Law No. 367/2022 sets the maximum number of employee representatives according to the number of employees working for the employer;

• The persons holding managerial positions that represent the management in relation to the employees or participate in the decision of the management of the company at the unit level cannot be elected as employee representatives;

▸ The maximum duration of collective bargaining has been reduced from 60 days to 45 days. As was the case in the previous regulation, it may be extended by agreement of the parties;

▸ Law No. 367/2022 extends the information employers must make available to the social partners during collective bargaining. The minimum information which the employer is obliged to make available to the trade union and/or employee representatives must allow an analysis of the economic and financial situation and concerns:

• The economic and financial situation of the unit up to date and its outlook for the next contractual period;

• The employment situation, structure and estimated development of employment, and any measures envisaged for the next contractual period;

• Proposed measures concerning the organisation of work, working schedule and working time for the next contractual period;

• Proposed measures concerning the protection of employees’ rights in the event of a transfer of the unit or part of it;

• Measures proposed by the employer to promote improvements regarding the occupational safety and health of employees during the next contractual period.

▸ Law No. 367/2022 provides a number of benchmarks regarding the terms of the collective labour agreement. Thus, these may relate to issues such as:

• Establishing the minimum grading coefficients by categories of employees/workers, taking into account the corresponding occupational standards;

• Measures adopted for the counselling and evaluation of employees/workers;

• Measures for harmonising family life with work goals, working time and rest time;

• Regulations on working conditions and those relating to the occupational health and safety of employees;

• The means of informing and consulting the employees, which exceed Law No. 367/2022;

▸ With regards to the registration of the collective agreement at unit level, it may be registered without the signature of all the participants on the employees’ side only if the signatory party representing the employees covers at least 35% of the total number of employees;

▸ Law No. 367/2022 provides for a more severe sanctioning system. Among the newly introduced/increased sanctions, we mention the following:

• Failure of the employers to start collective bargaining is punishable by a fine between RON 15,000 and RON 20,000;

• Failure of the employers to inform and consult the trade unions/employee representatives on decisions that may lead to significant changes in the organisation of work, contractual relations or employment relations (including, but not limited to: transfer of undertakings, acquisitions, mergers, collective redundancies, closure of production units, etc.) is punishable by a fine between RON 15,000 and RON 20,000;

• Failure by employers to invite the trade union representative at the unit level to participate in the work of the board of directors or other assimilated body, when issues of professional and social interest with an impact on employees or workers are discussed, is punishable by a fine between RON 15,000 and RON 20,000;

• Infringement of the provisions concerning the election of employee representatives by at least half plus one of the total number of employees/workers shall be punishable by a fine between RON 30,000 and RON 50,000.