Legal Alert no. 1

New legal provisions in the field of employment relationships

• Two additional public holidays

Law no. 52 of March 3, 2023 for completing para. (1) of art. 139 of Law no. 53/2003 – Labour Code ("Law no. 52/2023") was published in the Official Gazette of Romania no. 186 of March 6, 2023 and entered into force on March 9, 2023.

According to Law no. 52/2023, starting from March 9, 2023, the days of January 6 and 7 became days in which employees benefit from free time.

New legal provisions in the field of social dialogue

1. New law on social dialogue
   

Law no. 367/2022 on social dialogue ("Law no. 367/2022") was published in the Official Gazette of Romania no. 1238 of December 22, 2022 and entered into force on December 25, 2022.

Law 367/2022 represents the new framework law in the field of social dialogue. From its entry into force, it repeals    Law no. 62/2011. Its main provisions are the following:

► At the employer with a minimum of 10 employees and where there is no union, the interests of the employees can be promoted and defended by their representatives, chosen and mandated specifically for this purpose, according to the law;

► Employees’ representatives are elected by the vote of at least half plus one of the total number of employees in the respective unit;

► Any intervention from the employer in the election of employee representatives or in preventing these elections is prohibited;

► The employer will facilitate the representative election procedures only at the employees' request;

► The number of elected employees’ representatives is established by mutual agreement with the employer, depending on the total number of employees in the unit;

► Collective bargaining is mandatory for companies having at least 10 employees, as well as at the collective bargaining sector level. The duration of the negotiation is a maximum of 45 days;

► The possibility of concluding a collective bargaining agreement at the national level is foreseen.

1. New business sectors for collective bargaining and the affiliation to a specific sector 

Decision no. 171 of March 1, 2023 regarding the establishment of collective bargaining sectors and their related CAEN codes ("Decision no. 171/2023") was published in the Official Gazette of Romania no. 190 of March 7, 2023 and entered into force on the same date.

Decision no. 171/2023 redefines collective bargaining sectors, expanding their number from 30 to 58, with the aim of encouraging collective negotiations at business sector level, in order to increase the number of collective bargaining agreements and protect resources and employees.

Also, by Order no. 798 of March 14, 2023 published in the Official Gazette of Romania no. 259 of March 29, 2023 and entered into force on the same date, the procedure for the affiliation to the collective bargaining sectors of the units defined according to art. 1 point 21 of Law no. 367/2022 regarding social dialogue ("Order no. 798/2023") was approved. 

The units referred to in Order no. 798/2023 are defined as a form of organisation of an employer, operating as an enterprise, company, cooperative organisation, public institution/authority or any other form of organisation, according to the law, with legal personality, in which employees perform work in a specific field of activity.

According to Order no. 798/2023, employers have the option of establishing their affiliation to a collective bargaining sector. The classification in the requested collective bargaining sector is carried out during the period of validity of the collective bargaining agreement, respectively from the date of registration of the request, and is extended by law if there is no other request from the respective employer.

New legal provisions in the field of human resources

1. New whistleblowing legislation
   

Law no. 361/2022 on the protection of whistleblowers ("Law 361/2022") was published in the Romanian Official Gazette no. 1218 of 19 December 2022 and entered into force on 22 December 2022.

Law no. 361/2022 constitutes the general framework for the protection of individuals who report breaches of the law, occurring or likely to occur within authorities, public institutions, public or private legal entities. The law regulates aspects like the procedures for receiving, investigating, prosecuting and taking action over the breaches mentioned in the reports, the rights and obligations of individuals who make reports or publicly disclose information regarding breaches of the law, their protection against retaliation, etc. Its main provisions are the following:

► Whistleblowers are considered employees and former employees, self-employed individuals, company shareholders, volunteers and interns, but also people whose employment relationships have not yet started or people who make reports, including anonymous ones, related to violations they learned about during recruitment or pre-contractual negotiations;

► Reports on breaches of law can be made through internal and external reporting channels. The whistleblower can report the violation directly through external channels, when internal reporting creates the risk of retaliation or effective remediation of the problem is not possible through internal reporting;

► Anonymous reports will be reviewed and resolved even if the indications of violations of the law are not substantiated;

► The person appointed to resolve the report has the obligation not to disclose the identity of the whistleblower in public interest, nor the information that would allow his direct or indirect identification, except for the situation when his express consent has been obtained or if the disclosure is an obligation imposed by law;

► The reports are registered in a special record keeping, respecting confidentiality requirements and will be kept for a period of 5 years, after which they will be destroyed regardless of the form on which they are kept;

► Private companies with more than 250 employees have the obligation to create and implement internal reporting channels and procedures starting with December 22, 2022, and those having between 50 and 249 employees bear the same obligation starting on December 17, 2023.

1. New retention period for the accounting data and supporting documents

Law no. 36/2023 to amend the Accounting Law no. 82/1991, as well as the Government's Emergency Ordinance no. 28/1999 regarding the obligation of economic operators to use electronic fiscal devices ("Law 36/2023") was published in the Official Gazette of Romania no. 36 of January 12, 2023 and entered into force on January 15, 2023.

Law 36/2023 provides that the entities that use IT systems for automatic data processing have the obligation to keep the data recorded in accounting, on technical media, for a period of five years. Also, mandatory accounting records and supporting documents underlying financial accounting entries, as well as payroll statements, will also be kept for a period of five years.

The five-year period is calculated from July 1 of the year following the end of the financial year in which they were drawn up.

1. New obligations for employers in insolvency, bankruptcy or liquidation procedures

Law no. 26/2023 for the amendment and completion of the National Archives Law no. 16/1996 and Law no. 53/2003 ("Law 26/2023") was published in the Official Gazette of Romania no. 30 of January 11, 2023 and entered into force on January 14, 2023.

Law 26/2023 provides that if the employer is in insolvency, bankruptcy or liquidation procedures, the administrator or the judicial liquidator is obliged to issue, within a maximum of 60 calendar days, a document attesting the activity carried out by the employees and to terminate and submit to the general register of employees the termination of the individual employment contracts..