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