Companies using secondment as a method of employee mobility should be familiar with the provisions of Government Emergency Ordinance no. 28/2015 (GEO no. 28/2015) for amending and supplementing Law no. 344/2006 regarding the secondment of employees in the framework of transnational provision of services, published in the Official Gazette no. 476 of 30 June 2015.
GEO no. 28/2015 provides that the regulations of Law no. 344/2006 transposed into the national legislation the Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services.
According to EU rules, the secondment has a different meaning from the one expressed in Article 45 of Law no. 53/2003 – Labour Code, republished, as amended and supplemented. According to the Regulation (EC) no. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, the posting represents the situation in which an employee who carries out his activity in a Member State is sent by his employer in another Member State in order to work for a beneficiary.
Directive 96/71/EC defines the seconded employee as “an employee who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works”, definition that also results from Article 3 of Law no. 344/2006.
Regarding the secondment performed by Romanian employers in other EU states, the only institution that is similar to the secondment is governed by the Labour Code. The absence of a specific legal framework has led, in practice, to a different application and interpretation of the employers, for transnational secondment, notion that should not be confused with the one from the Labour Code.
The normative document aims to clarify the regime according to which employees benefit in performing the activities during the secondment in another EU state.
The document introduces the concept of a seconded employee from the territory of Romania – which is essentially an employee of an employer established in Romania, who normally works in Romania, but is sent to work for a limited period of time in the territory of a EU Member State, while the employer takes one of the following transnational measures:
a) The posting of an employee from the territory of Romania, on behalf of the company and under its coordination, under a contract concluded between the company that performs the posting and the beneficiary of the provision of services operating on the territory of an EU Member State, if there is a labour relationship during the posting period, between the employee and the company performing the posting.
b) The posting of an employee from the territory Romania to a unit or company owned by the group of companies, located on the territory of an EU Member State, if there is an employment relationship, during the posting period, between the employee and the company performing the posting.
c) The transfer of the employee by a temporary employment undertaking to a user company established or operating on the territory of an EU Member State, if there is an employment relationship during the posting period, between the employee and the temporary employment undertaking.
A different concept is the seconded employee on the territory of Romania – essentially an employee of an employer established in another EU Member State, which normally works in a state other than Romania, but which is sent to work for a limited period of time in Romania, when the employer takes one of the measured provided for in Article 4.
The seconded employees will benefit, regardless of the law applicable to the employment, the working conditions established by laws, regulations, administrative provisions, collective agreements or arbitration awards of general application available in the EU Member State on whose territory services are rendered, with respect to: maximum work periods and minimum rest periods; minimum paid annual holidays; minimum rates of pay, including overtime rates; the conditions of hiring of workers, in particular the supply of workers by temporary employment undertakings; health, safety and hygiene at work; protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; equality of treatment between men and women and other provisions of non-discrimination.
The minimum wage represents the minimum rate of pay applicable in Romania for the employee seconded on the territory of Romania. In the same manner, the minimum rate of pay applicable on the territory of the other EU Member State to whose territory the Romanian worker is seconded will apply.
It is important to mention that throughout the secondment period the seconded employee maintains the employment relationship directly with the employer who posted him/her.
Businesses that are not established on the territory of an EU Member State which post workers in Romania cannot benefit from a more favourable treatment than companies established in another EU Member State.
Romanian companies detaching employees in other EU Member States should take into account the application of the minimum wage in the state where the secondment is made, which may result in a significant financial impact on the labour cost as well as the tax cost.
Senior Legal Advisor