Decision number 654/2021 for amending and supplementing the Methodological Norms on the secondment of employees in the provision of transnational services in Romania, approved by Government Decision number 337/2017 was published in the Official Gazette number 611 of June 18, 2021 and is in force from the same date.
We remind you that on August 13, 2020, by Law number 172/2020, Law number 16/2017 on the secondment of employees within the provision of transnational services was amended and supplemented.
Thus, the legislation of transnational detachments has undergone several notable changes. Among the changes we can mention the redefinition of the allowance specific to transnational secondment, the express definition of the remuneration applicable on the Romanian territory and of the one applicable on the territory of a member state of the European Union or on the territory of the Swiss Confederation.
According to Article 8 of Law 16/2017 amended, employees seconded from Romania in the provision of transnational services benefit, regardless of the law applicable to the employment relationship, the working conditions established by laws, regulations, collective agreements or arbitral awards of general application, valid in the Member State other than Romania, or in the Swiss Confederation, in whose territory the services are provided, in respect of:
- a) the maximum duration of the working time and the minimum duration of the periodic rest; b) minimum duration of paid annual leave;
- c) the remuneration applicable on the territory of a member state of the European Union, other than Romania, or on the territory of the Swiss Confederation, including the payment of overtime, except for the contributions provided by Law number 1/2020;
- d) the conditions for making employees available, especially by temporary work agencies; e) health, safety and hygiene at work;
- f) protection measures applicable to working conditions for pregnant women or those who have recently given birth, as well as for children and young people;
- g) equal treatment between men and women, as well as other provisions on non-discrimination.
- h) the conditions regarding the accommodation of the employees when they are offered by the employer to the employees sent to temporarily perform works or tasks corresponding to the service attributions at a different place of work than their usual place of work;
- i) allowances or reimbursement of expenses for transport, accommodation and meals for employees obliged for professional reasons to travel to and from their usual place of work in the Member State in whose territory they are seconded or if they are temporarily sent by their employer at their usual place of work at another place of work, in accordance with the legislation or collective labor agreement of general application in the host State.
The provisions of Article 8 (i) shall apply exclusively to transport, accommodation and subsistence expenses incurred by seconded employees when they are required to travel to and from their usual place of work in the Member State in whose territory they are seconded or if they are seconded. are temporarily sent by their employer from their usual place of work to another job in accordance with the legislation or collective labor agreement of general application in the host state.
If the effective duration of the secondment exceeds 12 months, the employees seconded from the Romanian territory within the provision of transnational services benefit, regardless of the law applicable to the employment relationship, respecting the principle of equal treatment, in addition to working and employment conditions. provided for in Article 8, by all applicable working and employment conditions which are established in the Member State in whose territory the work is carried out by laws, regulations and administrative provisions and / or by collective agreements or arbitral awards have been declared of general application, except:
- a) the procedures, formalities and conditions for concluding and terminating the individual employment contract, including the non-compete clauses;
- b) supplementary occupational pension schemes.
The period of secondment provided for above may be extended up to 18 months only if the company sends a reasoned notification to the competent authority in the territory of the Member State where the seconded employees work, under the legislation of that State.
Thus, as a result of these amendments to Law 16/2017, GOVERNMENT DECISION (HG) number 654/2021, which entered into force on June 18, provides that if the secondment exceeds 12 months, but not more than 18, companies may apply for a derogating regime – to send a notification (Annex number 2 below) to the territorial labor inspectorate and to request that the rule of extended rights be applied to them after the respective period has elapsed (but not more than 18 months).
As mentioned above, in the case of postings of more than one year, Law number 172/2020 establishes that the user company must grant posted workers all the working and employment conditions applicable to them according to national legislation and collective labor agreements and requires these companies not to intervene on the conditions of contractual termination / termination, including in the matter of non-compete clauses.
We mention that by GOVERNMENT DECISION (HG) number 654 was introduced, among others, the procedure for the notifications described above. Thus, both the necessary legal provisions and the notification framework model now appear in the norms.
According to the new provisions, the notification sent to the territorial labor inspectorate must include the following elements:
- the receiving institution (Territorial Labor Inspectorate);
- the identity of the enterprise;
- transnational measure corresponding to the secondment situation;
- the data of the legal representative in our country;
- the reasons invoked for the application of the postponement;
- the identification data of the employee / employees for whom the postponement is requested;
- the duration, respectively the start date and the end date of the period for which the postponement is requested;
- address (es) of the workplace. The notification can be prepared and sent in letter format, by direct submission, or sent by postal or courier services.
It can also be sent in electronic format, by e-mail, or by filling in a form online, which will be accessible in the next period on a single platform managed by the Labor Inspectorate and the territorial labor inspectorates.
According to Law number 172/2020, the notification must be submitted no later than one day before the 12 months of age.
We emphasize that the notification is not mandatory for the companies that post. Basically, if the secondment has exceeded 12 months, the authorities will consider that the extended rights regime for seconded persons applies.
If the secondment lasts less than 18 months, the company has the possibility to request the application of this derogatory regime if it sends the notification to the Labor Inspectorate.
In addition to the model of the notification regarding the extension of the secondment, the model of the secondment declaration was completed, in the sense of specifying the type of transnational secondment declared
We mention that Decision number 654/2021 provides certain details regarding the type of secondment:
- a) the secondment of an employee on the Romanian territory, in the name of the enterprise and under its coordination, within a contract concluded between the seconding company and the beneficiary of the service providing its activity on the Romanian territory, if there is an employment relationship , between the employee and the company that makes the secondment;
- b) the secondment of an employee to a unit or to an enterprise belonging to the group of enterprises, located on the territory of Romania, if there is an employment relationship, during the secondment, between the employee and the enterprise that makes the secondment;
- c) the provision of an employee, by a temporary work agent, to a user enterprise established or which carries out its activity on the Romanian territory, if there is an employment relationship, during the secondment, between the employee and the temporary work agent.
The declaration regarding the transnational secondment of employees, the model of which is provided in annex number 1, must be sent to the Territorial Labor Inspectorate in whose territorial area the activity is to be carried out, at the latest the day before the secondment of the employee on that Member State.
ANNEX number 1: DECLARATION on the transnational secondment of employees
(- Annex number 1 to the Methodological Norms)
- Recipient institution *) ………………………………………………………………………………
- The company that posts employees in Romania:
2.1. Name ……………………………………………………………………………………
2.2.Office**)
……………………………………………………………………………………………….
2.3.Registered no.***)
………………………………………………………………………………….
2.4.[ ] Legal representative in Romania [] Employee appointed as a liaison with the control bodies in Romania
2.4.1. Name and surname
…………………………………………………………………………………………………………………………………….
2.4.2. Home address
…………………………………………………………………………………………………………………………………….
- Home address Beneficient of the provision of services / Unit or enterprise located in Romania / User enterprise:
3.1.Name ……………………………………………………………………………………
3.2.Office ……………………………………………………………………………………………….
3.3. Secondary office (branch / office) ****)
…………………………………………………………………………………………………………………………………….
- Detachment information:
4.1. The date from which the secondment begins……………………………………………….
4.2. The purpose of detachment *****)
……………………………………………………………………………………………………………………..
4.3. Early duration of secondment………………………………………………………………………
4.4.Transnational measure corresponding to the secondment situation:
[] a) the secondment of an employee on the territory of Romania, on behalf of the enterprise and under its coordination, within a contract concluded between the undertaking making the secondment and the beneficiary of the provision of services operating on the Romanian territory, if there is an employment relationship, on the period of secondment, between the employee and the company that makes the secondment;
[] b) the secondment of an employee to a unit or to an enterprise belonging to the group of enterprises, located on the Romanian territory, if there is an employment relationship, during the secondment period, between the employee and the enterprise that makes the secondment;
[] c) the provision of an employee, by a temporary work agent, to a user enterprise established or which carries out its activity on the Romanian territory, if there is an employment relationship, during the secondment, between the employee and the work agent temporarily
- The enterprise mentioned in point 2 will second the following employees:
| Crt. no | Name and surname | Function / Job | Date of birth | Personal identification code | Citizenship ******) |
_______
*) Fill in the name of the recipient territorial labor inspectorate in whose area the activity of the seconded employees is to be carried out.
**) To be filled in with the complete address of the enterprise’s headquarters (street, number, locality, state).
***) Fill in the unique registration code or another identification number of the company.
****) To be filled in with the complete address of the secondary office / organized workplace (street, number, locality).
*****) To be completed with the object of the contract concluded between the provider enterprise established on the territory of another Member State or of the Swiss Confederation and the beneficiary of the provision of services / unit or enterprise within the enterprise group located on the territory of Romania / user enterprise.
******) For employees who do not have Citizenship of a Member State of the European Union or of a Member State of the European Economic Area, point II must be completed.
I declare on my own responsibility, knowing that false statements are punishable by the criminal law in force, that the following employees who do not have Citizenship of a Member State of the European Union or a Member State of the European Economic Area and who are seconded under Law 16 / 2017 on the secondment of employees within the provision of transnational services, with subsequent amendments and completions, meet the legal working conditions in……………………………………………………………………….. *).
| Crt. no | Name and surname | Function / Job | Date of birth | Personal identification code | Citizenship |
_______
*) To be completed with the Member State of the European Union or the Member State of the European Economic Area on whose territory the enterprise mentioned in point I sub-point. 2 has established its headquarters.
Society name ………………………………………… …………………………………………………
Name and surname of the legal representative / proxy …………………………………….
Date ……….. ………………………………………………………………………………………………..
Signature …………………………………………. ………………………………………………………..
Stamp Instructions for completion ………………………………………………………
The form must be completed in block letters, using only dotted spaces. All fields are required.
ANNEX number 2: NOTIFICATION regarding the extension of the secondment, provided in article 61 paragraph (3) of the Law number 16/2017 on the secondment of employees within the provision of transnational services
(- Annex number 2 to the Methodological Norms)
- Recipient institution * ……………………………………… ………………………………………….. .
- The enterprise that seconds employees on the Romanian territory:
2.1.Name ……………………………………….. …………………………………………………………….
2.2.Office ** ……………………………………… …………………………………………………………. .
2.3.Registration number *** …………………………………… ……………………………………….
2.4. [] Legal representative in Romania
[] Employee designated as a liaison with the control bodies in Romania
2.4.1.Name and surname ……………………………………. ………………………………………….. 2.4.2.Home address ……………………………………. ………………………………………….. …
- The reasons invoked for the application of the provisions of article 61 paragraph (3) of Law number 16/2017 on the secondment of employees within the provision of transnational services, with subsequent amendments and completions (Law):
- Detachment information:
4.1.Duration and start and end dates of the period for which the application of the provisions of article 61 paragraph (3) of the Law is requested …………………… ……………………..
4.2.Identification data of the seconded employee (s) for whom the application of the provisions of article 61 paragraph (3) of the Law is requested
4.3.Address / Addresses of the workplace **** …………………………………….
4.4.Transnational measure corresponding to the secondment situation:
[] a) the secondment of an employee on the territory of Romania, on behalf of the enterprise and under its coordination, within a contract concluded between the undertaking making the secondment and the beneficiary of the provision of services operating on the Romanian territory, if there is an employment relationship, on the period of secondment, between the employee and the company that makes the secondment;
[] b) the secondment of an employee to a unit or to an enterprise belonging to the group of enterprises, located on the Romanian territory, if there is an employment relationship, during the secondment period, between the employee and the enterprise that makes the secondment;
[] c) the provision of an employee, by a temporary work agent, at a user enterprise established or which carries out its activity on the Romanian territory, if there is an employment relationship, during the secondment, between the employee and the work agent temporary.
_______
* The name of the recipient territorial labor inspectorate is filled in, in whose area the activity of the seconded employees is to be carried out.
** To be filled in with the complete address of the company’s headquarters (street, number, locality, state).
*** Fill in the unique registration code or another identification number of the company.
**** To be filled in with the complete address of the secondary office / organized workplace (street, number, locality).
Legal basis:
– GOVERNMENT DECISION (HG) 654/2021 for the modification and completion of the Methodological Norms regarding the secondment of employees within the provision of transnational services on the Romanian territory, approved by Government Decision number 337/2017;
– Law 172/2020 for the amendment and completion of Law number 16/2017 on the secondment of employees within the provision of transnational services.