Law no. 213/2020 amending and supplementing the Law no. 53/2003 - Labour Code

The Romanian Parliament has enacted a series of changes regarding the employer-employee relationship, listed as follows.

I. Negotiation, entering into or amendment of the individual labour agreement

Any of the parties may be assisted by an external consultant, specialised in labour legislation or a representative of the trade union to which the party is an affiliate, by choice, upon the negotiation, entering into or amendment of the labour agreement or during the mediation of an individual labour conflict. Thus, the parties can NO longer be assisted by third-parties, by choice, as was the case until this change.

NOTE: in respect to the information supplied, a non-disclosure agreement may be entered into by and between the parties:

•  • prior to entering into the individual labour agreement or
•  • throughout its term, including during the negotiation.

II. Carrying out human resource and payroll activities

Each employer may carry out the human resource and payroll activity, as follows:

•  • with the employer undertaking specific duties;
•  • by assigning, to one or several employees, according to the job description, duties in respect to the human resource and payroll activity;
•  • by contracting specialised external human resources service and payroll activities.

Note: the specialised external human resources service and payroll activities shall be coordinated by an expert in labour legislation.

III. Mediation proceeding

Mediation means the amicable resolution of individual labour conflicts, assisted by An external consultant, specialised in labour legislation, under the terms of neutrality, impartiality, confidentiality and with the free consent of the parties. The external consultant, specialised in labour legislation can be:

•  • an attorney
•  • an expert in labour legislation or, as applicable
•  • a mediator, specialised in labour legislation who, by its active role, shall ensure that the parties act responsibly to settle the conflict, observing the employee rights acknowledged by law or set forth by labour agreements.

For purposes of an amicable and prompt resolution of individual labour agreement, by waiving the provisions according to which individual labour conflicts shall be settled in the court of first instance, upon entering into of the individual labour agreement or throughout its term, the parties may include in the agreement a term stipulating that any individual labour agreement shall be solved amicably, by mediation.

Remarks on the mediation process:

•  • the fee of the external consultant shall be borne by the parties, as agreed;
•  • the parties may freely select their external consultant;
•  • any of the parties may address the external consultant in order to initiate the mediation procedure for the individual labour conflict. The latter shall send a written invitation to the other party, using the communication methods stipulated in the individual labour agreement;
•  • the mediation procedure opening date may not exceed 5 business days after sending the afore-mentioned invitation. The resolution term for labour conflicts shall be suspended during the mediation;
•  • In the event that, following debates, a solution is reached, the external consultant shall draft an agreement comprising of the facts agreed by the parties and the method to settle the conflict. The agreement shall be signed by the parties and by the external consultant and shall enter into force upon its signing or on the date explicitly stated hereinafter;
•  • the mediation procedure shall be completed by drafting a protocol, signed by the parties and the external consultant, in the following situations:

- the parties enterers into an agreement following the conflict resolution;

- the external consultant acknowledges the failure to settle the conflict;

- one of the parties fails to appear on the agreed date, as stipulated in the afore-mentioned invitation.

Note: in case the parties solely reach a partial agreement, as well as in the event of mediation failure or one of the parties fails to appear on the date indicated in the invitation, any of the parties may address the competent court for full resolution of the individual labour conflict.

IV. Mandatory provisions of the internal rules

The internal rules shall comprise provisions on the amicable resolution of individual labour agreements, requests or complaints submitted by the employees.

V. Disciplinary investigation

•  • the employer shall appoint an individual, set-up a commission or use the services of an external consultant, specialised in labour legislation, authorised in this respect, to conduct the disciplinary investigation;
•  • for purposes of conducting the prior disciplinary investigation, the employee shall be summoned, in writing, by the appointed individual, by the chairman of the commission or by the external consultant, stating the subject, date, time and place of the meeting;
•  • During the preliminary disciplinary investigation, the employee shall have the right to state and submit any argument in his/her favour and to provide the commission or person appointed to perform the investigation with any pieces of evidence and motivations he/she deems to be necessary and shall also have the right to be assisted, upon demand, by an external consultant, specialised in labour legislation or by a trade union representative to which the employee is affiliated.