Tuesday, September 29, 2015

Transnational detachment and Community-wide unification of legislative provisions

The provisions of the Emergency Ordinance no. 28/2015 amending and supplementing Law no. 344/2006 concerning the detachment of workers in the transnational services have led to the correlation of the cross-border detachment to the level of EU regulations.
This was necessary because the detachment had a different meaning at a European level from that attributed by art. 45 of Law no. 53/2003, the Labor Code.
The Emergency Ordinance mentions that the elements that caused its adoption refers to issues such as preventing situations related to significant disturbance of the activity of economic operators affected by legislation concerning the tax treatment of detached workers, as well as correcting the situations arising in practice due to different interpretations of the current legislation regarding the granting of rights of which the employees can benefit from in activities resulting from foreign detachment.
First, the changes imposed by the emergency ordinance refer to the applicability of Law no. 344/2006 concerning the detachment of workers in the transnational services, so that its applicability will refer to:
▪ companies established in a Member State of the European Union, the European Economic Area or in the territory of the Swiss Confederation, in the area of transnational services, which detach, on the Romanian territory, employees with whom they have established labor relations in the conditions of the modified law;
▪ companies set on the Romanian territory which detach on the territory of a Member State of the European Union, European Economic Area or in the territory of the Swiss Confederation, in the domain of transnational services, employees with whom they have established labor relations in accordance with the modified conditions of the mentioned law.
Secondly, changes concern certain definitions, such as those related to employee detached to / from Romania, minimum wages, allowances specific to the detachment or expenses resulting from detachment.
The employee detached in Romania is the employee of an employer established in a Member State of the European Union, the European Economic Area or in the territory of the Swiss Confederation, who normally works in another country other than Romania, but who is sent to work for a limited time in Romania, when the employer takes one of the measures provided by the amended law.
The employee detached from Romania is the employee an employer established in Romania, who normally works in Romania, but who is sent to work for a limited time on the territory of a Member State of the European Union, the European Economic Area or within the territory of the Swiss Confederation, when the employer takes one extent provided by the law modified by the emergency ordinance.
Minimum wage is considered the applicable minimum wage on the Romanian territory for employees detached in Romania, or the minimum wage applicable in the territory of a Member State of the European Union, the European Economic Area or in the territory of the Swiss Confederation for employees detached from Romanian territory.
The charges arising from the detachment refer to any transportation, accommodation and meals costs, incurred for the purpose of the detachment, while the detachment allowance is that paid to compensate the inconvenience of detachment.
Moreover, employees detached on Romanian territory within the transnational services, whatever the law applicable to the employment relation, benefit from the working conditions established by laws, administrative acts, collective agreements or arbitration judgement of universal application valid in the Member State of the European Union, the European Economic Area or the Swiss Confederation, on which territory the services are provided, in regards to the aspects established by law.
The application of more favorable conditions is another key issue in regards to which changes have occurred, since the emergency ordinance stipulates that the provisions of the amended law will not limit the application of employment conditions more favorable for employees detached by companies that are established in a Member State the European Union, the European Economic Area or within the territory of the Swiss Confederation, to companies that are established in Romania, nor any working conditions more favorable to employees detached by companies that are established in Romania to companies that are established in a Member State of the European Union, the European Economic Area or in the territory of the Swiss Confederation.
It is important to note that amendments stipulate that companies which are not established in a Member State of the European Union, the European Economic Area or in the territory of the Swiss Confederation, that detach employees in Romania, can not benefit from more favorable treatment than companies established in a Member State of the European Union, the European Economic Area or in the territory of the Swiss Confederation


The law firm Darie, Manea & Associates has a team of lawyers that present extensive experience, including within the labor law area. If you would like more information on the matter, please do not hesitate to contact our lawyers who will guarantee professional, legal assistance, as well as representation before the competent authorities when required.

No comments:

Post a Comment