New provisions on the detaching of employees as part of the provision of transnational services

In the Official Gazette no. 736 of August 13, 2020, there was published Law no. 172/2020 for the amendment and completion of Law no. 16/2017 on the detachment of employees as part of the provision of transnational services.

The provisions of the new law pursue the guarantee of an adequate level of protection for detached workers as part of the provision of transnational services, especially to ensure compliance with the terms and conditions of employment and the protection of employees’ health and safety under national law, facilitates the exercise of the freedom to provide services to service providers, to promote a climate of fair competition between them and to support the functioning of the internal market.

The normative act revises the meaning of terms and expressions such as: employee detached from the territory of Romania, specific allowance for transnational secondment, administrative financial sanction, user enterprise, administrative cooperation, but also introduces new expressions such as: remuneration applicable in Romania, remuneration applicable in a territory Member State of the European Union, other than Romania or in the territory of the Swiss Confederation.

A number of changes / completions / clarifications are introduced regarding:

– the conditions for making available employees, especially by temporary employment agencies;

– the working conditions they benefit from the employees detached on the Romanian territory according the provision of transnational services, regardless of the law applicable to the employment relationship, are those provided by the Romanian legislation and / or by the collective labor contract concluded at sectorial level, with extended applicability to the entire sector of activity, according to the legal provisions, regarding the remuneration applicable on the Romanian territory, including the payment of overtime, except for the contributions provided by Law no. 1/2020 on occupational pensions, and health, safety and hygiene at work;

the conditions regarding the accommodation of employees, when they are offered by the employer to the employees sent to temporarily carry out works or tasks corresponding to their duties at a job other than their usual place of work;

allowances or reimbursement of transport, accommodation and subsistence expenses for employees obliged for professional reasons to travel to and from their usual place of work in Romania or if they are temporarily sent by their employer from their usual place of work in Romania to another job, in accordance with the applicable national legislation or with collective labour agreement, -conditions and obligations to be complied with if the actual duration of the detachment exceeds 12 months;

the obligation to make available to the control authorities, at their request, documents showing the total amount of remuneration applicable on the territory of Romania from which the employee will benefit during the detachment, with a separate statement of the specific detached allowance, the costs of posting and how to grant or reimburse them, respectively how to provide transport, accommodation or meals, as appropriate, in accordance with national law applicable to employment and/ or practices applicable to the employment relationship, respectively the working and employment conditions applicable to the respective employee;

the obligation of written information, the employee detached from the territory of Romania (for a period longer than 7 days), prior to the detachment, regarding the constitutive elements of the remuneration to which he is entitled and their level; the total amount of remuneration granted during the period of detachment, with a separate statement of the specific posting allowance, when it is granted; the costs actually incurred by the detachment, such as transport, accommodation and meals, as well as the manner in which they are granted or reimbursed, and the manner in which the transport, accommodation or meals are provided, as appropriate; the link to the single official national website created by the host Member State.

Within 60 days from the date of entry into force of this law, the Ministry of Labor and Social Protection will submit for approval to the Government the amendment and completion of the Methodological Norms on detaching employees regarding the provision of transnational services in Romania, approved by Government Decision no. 337/2017.