Posting of Workers Directive-Romania

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The law amending and supplementing the Law n° 16/2017, transposes the Directive 2018/957/EU in Romania.

Posting duration and replacement condition

Apparently, in Romania there is a limit to the aggregation of posting periods. Art 3.6 Directive 96/71/EC, is applicable to long term-posting as well:

The length of the posting shall be calculated on the basis of a reference period of one year from the beginning of the posting.

For the purpose of such calculations, account shall be taken of any previous periods for which the post has been filled by a posted worker”.

More ever, periods predating 30 July 2020, shall not be considered in the calculation of the posting duration.

Article 1(c) (ii)- “original” transposition

The user undertaking established or operating within the Romanian territory, must inform the temporary employment undertaking or placement agency which hired out the worker, of the intention to send the latter to the territory of another Member State, at latest 30 days before the deployment.

Nothing can be urgent!

Expenditure actually incurred on account of the posting

Ambiguous transposition: the employer reimburses expenditure actually incurred on account of the posting, in accordance with the law applicable to the employment relationship. However, prima facie, situations in which such expenditure is not reimbursed, are ruled out (regardless the law applicable to the employment relationship).

The employer must keep and make available evidences of the expenses related to the posting, notably the modalities of payment or reimbursement of expenditure incurred on account of the posting.

Control of remuneration- pending further clarifications

The employer must keep and make available to the labour inspection, a document stating “the total amount of remuneration that the employee will receive during the period of posting”.

Probably about the anticipated period, however, not clear how the total amount can be calculated (e.g.) when the remuneration is determined on hourly basis.

Principle of favourability -confusion

Pursuant to the principle of favourability, the worker posted, may benefit from the terms and conditions of employment laid down by the law applicable to the employment relationship, provided that such terms and conditions are more favourable than those applicable under the host Member State law.

The law applicable to the employment relationship, is not necessarily the law of the Member State in which territory the employer posting the worker is established and must be determined on grounds of Rome I Regulation.

Or, according to the provision at hand, the principle of favourability must be applied in relation to the law of the Member State in which territory the employer is established, deemed to be the law applicable to the employment relationship.

Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides in-depth advice on rights and obligations triggered by the cross-border element of a given legal situation. Our know-how is built on an extensive experience in EU law and is supported by a network of partners across the EU. Social security coordination : • Autonomous application of the social security coordination regulations and ECJ case-law, to any situation involves a cross-border element EU Company law : • Establishment -permanent activities • Establishment -self-employment activities International Private Law : • Law applicable to the employment relationship Labour and employment law : • Freedom of movement of workers-equal treatment, access to social benefits • Employment contracts and termination of employment • Working conditions • Employee benefits • Transfer of undertakings • Authorisations of work for third-country nationals Special regimes : • Posted workers • Frontier workers • Highly mobile workers • Employment of record • Intra-EU mobility of third-country nationals

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