Part VIII Collective Bargaining

1.

THE CONCEPT OF COLLECTIVE BARGAINING

According to Romanian legislation, the aim of collective bargaining is to conclude a collective labour contract and its procedure is set out in SDL. The object of collective bargaining is wages and working conditions in the broadest sense of the word remuneration and introduction of new pa!ment methods, dail! and weekl! work schedules, holida! arrangements, training, job securit!, provisions relating to informing and consulting workers, etc.". #ollective bargaining aims to establish wage levels, working time, the work schedule and working conditions. $argaining ma! also refer to the level of protection of union leaders. %ther t!pes of clauses that ma! e&uall! be negotiated, are clauses regarding the grant of certain personnel rights which are more advantageous than those provided b! labour legislation or clauses regarding certain personnel rights not e'pressl! regulated b! labour legislation. #ollective bargaining ma! also take place within public institutions. (owever, in such cases the parties) rights and obligations established b! statute ma! not be negotiated. #ollective bargaining takes place in good faith. *ood faith is one of the guiding principles of social dialogue or an! form of contractual bargaining. This principle is set out in the #onstitution, in the #ivil #ode and in the L#. +t means, on the one hand, that collective bargaining must take place in good faith and, on the other hand, that bargained contracts must be fulfilled in good faith. +n labour law, good faith has been theoreticall! considered as encompassing lo!alt! residing in the obligation of information" and fidelit! in fulfilling the emplo!ment contract. The +L% #ommittee on ,reedom of Association has repeatedl! emphasi-ed the importance given to the obligation to bargain in good faith in order to maintain balanced professional relations. The principle according to which emplo!ers and unions must bargain in good faith and do their utmost to reach an agreement implies, among other things, avoiding an! unjustified dela! in the bargaining process. .ssential for Romanian collective bargaining is that it cannot take place in pejus, but must start from the statutor! provisions or the provisions of the collective labour agreement concluded at the ne't higher level, as the minimum standard for workers) rights.

%ne could sa! therefore that collective labour agreements are less significant than in other legal s!stems because the e'tremel! detailed statutor! provisions do not leave much room for bargaining between the social partners. +n fact, man! of the collective labour agreements reproduce provisions alread! included in the law and add onl! supplementar! specifications referring to minimum wages or length of holida!s. .uropean legal s!stems generall! provide three possibilities for appl!ing collective labour agreements within individual relations0 mutuall! compulsor!, unilaterall! compulsor! and supplemental. 1nilaterall! compulsor! means that the emplo!ment contract ma! deviate from the collective one onl! in favour of the emplo!ee and his position, and cannot deviate to his detriment. 2utuall! compulsor! means that the parties to the emplo!ment contract are not allowed an! deviation, whether in the emplo!ee)s favour or to his detriment. Supplemental means that the parties can deviate in both directions3 their private autonom! is unrestricted. %f these, the Romanian legislator has chosen the first s!stem unilaterall! compulsor!", in the sense that an emplo!ment contract ma! deviate from the collective agreement onl! in favour of emplo!ees. .mplo!ment contracts must therefore compl! with the minimum provisions set out in the collective labour agreements, from which the! will not be allowed to depart unless it is in the emplo!ees) favour. The same strict perspective applies to the relation between the law and the collective labour agreement, the latter being allowed to derogate from the law, e'clusivel! to the emplo!ees) advantage. 4hat is 5to the emplo!ee)s advantage) and what is not6 The Romanian s!stem does not opt for a global anal!sis or e'amine whether bargaining places emplo!ees in an advantaged position or not, even at the cost of certain concessions. The law simpl! forbids an! particular waiving. +t does not provide the evaluation of the result of each bargaining process, but onl! forbids waiving the rights provided b! law or in the applicable higher contract. Another reason for the relativel! limited scope of rights bargained b! the social partners and included in collective labour agreements is the prohibition of derogating from certain aspects of the law, such as disciplinar! dismissal procedure or the stipulation of more disciplinar! sanctions than those alread! provided for b! law. $esides, according to Article 78 of the L#, emplo!ees are prohibited from waiving of an! of their rights, whether individuall! or collectivel!.

2.

LEVEL OF BARGAINING

#ollective labour agreements are concluded at three levels0 enterprise, group of enterprises, and sector. To note that the SDL changed these levels of negotiation0 it removed the national level and replaced the branch level with the sector level. At each level, the collective labour agreement must compl! with the collective labour agreements concluded at a higher level, and all collective contracts, regardless of their level, must compl! with the law. .mplo!ment contracts must compl! with collective agreements and the law. The law therefore establishes the general labour relations framework3 collective agreements substantiate and develop the statutor! provisions, and emplo!ment contracts materiali-e the provisions of the collective agreement at enterprise level for each emplo!ee. #onse&uentl!, emplo!ment contracts cannot include clauses establishing rights at a level lower than that set b! collective labour agreements and these in turn cannot include clauses establishing rights at a level lower than those established b! law. .&uall!, collective labour agreements at enterprise level ma! provide more favourable clauses for emplo!ees than those at a higher level. +f a collective contract concluded at a certain level stipulates emplo!ee rights that are inferior to the ones stipulated in the law or in the collective agreement applicable at the higher level, the clauses shall be considered as nul and shall be automaticall! considered as replaced b! the more favourable clauses. (owever, the SDL does not stipulate the term for such a nullit! to be invoked in court. *iven the silence of the law, the practice continues to appl! the provision in the L# according to which the nullit! of the collective labour contract cannot be invoked as long as the collective labour contract is in force. ,or a time, Romania used to have the uni&ue collective labour contract concluded at the national level, that had to be renegotiated ever! : !ears, and imposed a uni&ue regime for all emplo!ees, it was applicable erga omnes and practicall! dubbed the provisions of the Labour #ode. The last such general collective agreement applicable at the level of the countr! was concluded for 9;;<= 9;/;3 the SDL removed later on the possibilit! of collective negotiation at the national level. The clauses of a collective labour agreement are considered de jure automaticall!" integrated within emplo!ment contracts, without an e'press provision within the collective labour agreement in this regard and without allowing the social partners to e'clude certain provisions from this automatic insertion. ,ailure to observe a provision within the collective labour agreement ma! be opposed b! both the union and an! individual emplo!ee, because it also constitutes a breach of emplo!ment contract provisions.

The absence of a collective contract at a certain level entails in principle the applicabilit! of the collective agreement concluded at the higher level. 1nlike the regime previous to the SDL, the collective labour contract concluded at the level of group of companies and at the sector level shall appl! onl! to those who have concluded them, the contracts no longer have erga omnes applicabilit!. Since the collective agreements concluded at the level of the compan! are few, most emplo!ees are currentl! under no collective labour contracts.

I.

Co!"an# Level

$ipartite collective bargaining in Romania is mandator! for all enterprises with more than 9/ emplo!ees, according to Article /9>, paragraph / of SDL. $argaining is, however, not compulsor! at higher levels than that of the enterprise. #ertainl!, the obligation to bargain does not constitute an obligation to reach an agreement, which would contravene the principle of contractual freedom. Although collective bargaining ma! not !ield a happ! outcome, the parties are legall! obliged to take part in dialogue. #onsensus will result in the conclusion of a collective labour contract3 failure ma! lead to a collective conflict. +ndeed, the failure of collective bargaining and conclusion of a collective labour agreement can lead to a collective conflict that needs to be settled b! means of mediation, conciliation or arbitration, otherwise, it ma! lead to strike. The emplo!er or the emplo!ers) organisation initiates collective negotiation with at least :? da!s before the e'pir! of the collective labour contracts. This provision was interpreted in practice in the sense that, if there had been no collective agreement previousl!, the collective negotiation could be initiated at an! time b! the parties. According to the law, bargaining is alwa!s initiated b! the emplo!er. ,ailure to compl! with the obligation to bargain constitutes a contravention and is sanctioned b! a fine. $argaining ma! still take place on the emplo!ees) initiative. The emplo!er must summon the parties to bargain the collective labour agreement within /; da!s from the date on which the trade union or the emplo!ees) representatives formulated the re&uest. The information the union delegates or the representatives of the emplo!ees shall be provided with and the deadline to provide this information b! the emplo!er shall be decided upon the first negotiation meeting.

The regime of confidential information provided b! the emplo!er is the one defined under the Law no. :@<A9;;@ regarding the general framework of information and consultation of emplo!ees. Among this information0 a" b" updated economic and financial report3 emplo!ment report.

As the law does not e'pressl! specif! the number of persons entitled to participate in bargaining on behalf of the emplo!er or the union, the number will be settled b! the parties) common agreement. The parties do not need to be represented b! an e&ual number of persons. Similarl!, persons outside the respective compan! such as specialists, law!ers, technical e'perts and academics ma! participate in the bargaining process if both parties agree. 4hen the meeting calendar has been agreed upon, the parties have to take into account that the bargaining period cannot e'ceed @; calendar da!s. This term is imperative.

II.

Gro$" o% &nit'

The emplo!ers that intend to negotiate a collective labour contract at the level of group of units can voluntaril! set up a group of units, both b! court decision and b! a written document, or an! other written convention concluded among the parties. Representative trade union federations at the level of activit! sectors can participate in the collective bargaining at the level of group of companies in which the! have affiliated trade unions, on the demand at on the basis of the mandate given b! these latter.

III.

ector Level

After removal, through the SDL, of the national level of collective negotiation and of the branch level, the sector became the highest level of collective negotiation. After negotiation with social partners, the sectors for which collective labour agreements are negotiated and concluded, through Decision /9@;A9;// regarding the sectors of activit! established under the SDL./

/. Bublished in the R%* no. >77 of 9> December 9;//.

$argaining of collective labour contract at the level of sector is not compulsor!. A single collective labour agreement can be concluded at the level of each sector. Cegotiation of collective labour contracts at the level of sector shall be done b! representative unionAemplo!ers) federations. The union federations set up at the level of sector ac&uire representativeness and therefore the right to negotiate the collective labour contract if the! cumulate at least < per cent of the total number of members emplo!ed in that sector. Similarl!, the emplo!ers) federations are representative if the! have as members emplo!ers whose units cover at least /; per cent of the total emplo!ees in that sector, e'cept for the public emplo!ees. +f the number of emplo!ees in the units that are members of the signator! emplo!ers) organi-ations is higher than half of the total number of emplo!ees in that sector, the collective labour agreement applicable at the level of a sector can be e'tended at the level of all units in that sector, through order of the ministr! of labour, famil! and social protection, with approval of the Tripartite Cational #ouncil. The possibilit! to e'tend the collective agreement concluded is a novelt! of the SDL. There was no e'tension prior to this law because the collective labour contracts were generall! applicable at the level the! were concluded for3 in other words, the! were 5e'tended) from the start. At present, since the rule of general applicabilit! of labour agreements concluded at higher levels has been removed, there is a possibilit! to e'tend rules negotiated b! certain units over other units from the same sector. The institution of e'tension through order of the e'ecutive power is consecrated in other .uropean law s!stems as well. +ts purpose is to ensure fair competition in the sector.

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FOR)AL RE*&IRE)ENT AN+ +&RATION

The collective labour contract shall be concluded in writing D ad validitatem re&uested form D and shall be subject to registration. The collective labour contract and additional deeds to it shall be registered b! the parties, as follows0 a" the collective labour agreement at the level of compan!, with the labour inspectorate3 b" the collective labour agreements concluded at the level of groups of units and sectors, with the 2inistr! of Labour, ,amil!, Social Brotection and .lderl!.

The moment when the collective contract is registered is critical because it marks the beginning of its applicabilit!. The parties can negotiate the applicabilit! of the agreement later on but the! cannot appl! it before it has been registered. .ven if negotiations last longer than previousl! estimated, the parties could not agree upon retroactive application of the provisions of the collective agreement. According to Article /:? from the SDL, the 2inistr! of Labour, ,amil! and Social Brotection or, as the case ma! be, the labour inspectorates, shall register the collective labour contracts onl! after checking if the! meet the re&uirements stipulated under the law. +f these re&uirements are met, the collective labour agreements shall be returned to the signatories so that the! fulfil the legal re&uirements. #ases of non=compliance and, therefore, refusal of registration0 a" b" c" the parties have submitted an incomplete file3 the documents have not been signed b! the representative union organi-ations3 the representative of an! part! that participated in negotiations did not agree upon a clause of the agreement and this was written in the negotiation report. Also, failure to invite to negotiations all parties entitled to negotiate the collective labour agreement shall represent a reason to refuse the collective labour agreement negotiated. According to Article /:: paragraph 9" in the SDL, collective labour contracts at the level of sectors and groups of units, and their additional deeds, shall be published in the R%*, Bart E, b! the signatories. Co deadline is stipulated to have it published in the R%*. Cote that the publishing in itself does not entail juridical effects in the sense that a collective labour agreement shall be considered as entering into force on the date when it is registered, not on the date when it is published3 its not being published shall not entail the nullit! of the agreement, or its inapplicabilit! or inopposabilit!. Apart from its publishing in the R%*, the 2inistr! of Labour, ,amil! and Social Brotection shall publish on its site the collective labour agreements at the level of sector and group of units. The collective labour agreement shall be concluded for a fi'ed term, between /9= 9: months.

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The parties can decide upon prolongation of the applicabilit! of the collective labour agreement, under the law, but onl! once, with /9 months the longest period. +f the unit has no collective labour agreement, the parties can agree upon negotiation of such agreement at an! time. The clauses of the collective labour agreements entail effects as follows0 a" for all emplo!ees in the compan!, in case of collective labour agreements concluded at this level3 b" for all the emplo!ees in companies that are part of the group of units for which the collective labour contract was concluded3 c" for all the emplo!ees in the companies belonging to the sector for which the collective labour contract was concluded and which are part of the emplo!ers) organi-ations that are signatories in the agreement. The SDL diminished the rule of erga omnes applicabilit! of all collective labour agreements, a rule which had been fundamental before 9;// for the collective labour law in Romania. Although collective agreements are generall! concluded for a fi'ed term, emplo!ment contracts are usuall! concluded for an indefinite period.

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CONTENT AN+ INTERPRETATION

Legal literature and case law have identified three categories of clauses that ma! be included in collective labour agreements0 a" clauses referring to rights about which statutor! provisions e'pressl! refer to the collective labour contracts3 b" c" clauses referring to rights for which the effective legislation has no provisions3 clauses for which there are legal provisions, but higher rights have been bargained for emplo!ees through the collective agreement. #ollective labour agreements also include agreements between parties that have signed the collective labour agreements, stating how collective labour conflicts are settled. A collective labour agreement ma! e&uall! include provisions bestowing a higher level of protection on elected union representatives or leading union bodies than that provided b! law or collective agreements concluded at a higher level.

As a rule, ambiguous clauses should be interpreted to the emplo!ees) advantage. (owever, if the emplo!er is not satisfied, he ma! refer to the court to obtain a judicial interpretation that is binding for the parties.

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A)EN+)ENT AN+ & PEN ION

The clauses of a collective labour agreement ma! be amended during its fulfilment with the agreement of the parties at an! time. Re&uests for amendment ma! be initiated b! an! of the parties D the emplo!er or the emplo!ees, while collective labour agreements usuall! stipulate that such re&uests need to be notified in written form to the other part!. The amendment of a collective agreement ma! concern0 D D removing a clause that no longer corresponds to realit!3 supplementing a clause for instance, related to wages, other rights granted to emplo!ees"3 D D reformulating certain provisions, articles3 or introducing new clauses.

.&uall!, a collective labour agreement is amended automaticall! and necessaril! when the imperative norms of the law establish more favourable rights for emplo!ees than those set out in the collective labour agreement. +n such cases, the clauses in &uestion have to be amended or the! become void and counter minimum legal provisions. 4henever a collective labour agreement is amended at higher levels, with the social partners granting more favourable rights for emplo!ees, the collective agreement at the lower level has to be amended, for it cannot contain clauses below the level of those included in the collective agreements concluded at higher levels. The amendment of a collective labour agreement within the enterprise ma! trigger the amendment of individual emplo!ment contracts concluded within the same enterprise, in order to compl! with the provisions of the collective agreement. The SDL includes distinct rules applicable to the collective labour contracts in the public sector and to the collective contracts concluded b! the public emplo!ees.

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According to Article /78 of the SDL, through the collective labour contractsAagreements concluded with state emplo!ees cannot be negotiated or included clauses referring to financial rights or in kind rights, other than those stated b! the current legislation for the respective categor! of personnel. The wages of the budget emplo!ees are established b! law within precise thresholds which cannot constitute the object of negotiations and cannot be modified through collective labour contracts. +n case the wages are established b! special laws within minimum and ma'imum thresholds, the concrete wage levels are determined through collective negotiations, but onl! within these legal thresholds.

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CE ATION OF THE COLLECTIVE LABO&R CONTRACT

Bursuant to Article /?/ of the SDL, a collective labour contract ceases0 a" with the fulfilment of the term or at the end of the assignment for which it was concluded, if the parties do not agree to e'tend its application. Since the social partners agree on the contractual clauses, the! ma! agree to e'tend their application3 b" on the date of the emplo!er)s dissolution or legal li&uidation. +n this case, the collective labour agreement ceases on the da! the court decision to start li&uidation of the debtor)s assets has become enforceable3 c" with the agreement of the parties, at an! time before the term)s e'pir!, if the parties agree that the respective contract ceases. Litigation related to the e'ecution, modification or termination of the collective labour agreement shall be solved b! labour courts. The! are therefore individual conflicts in the sense of the SDL" and cannot trigger the initiation of a strike. A collective labour agreement cannot be unilaterall! denounced. This is wh! a collective labour agreement ma! not be concluded for an unspecified duration. +f one of the parties loses its legal representativeness during the fulfilment of the collective labour agreement, the collective agreement continues to appl!. +n the case of a total or partial transfer of the ownership rights to another compan!, the assignor)s rights and obligations deriving from the applicable collective labour agreement in force at the date of the transfer will be completel! transferred to the assignee. This rule also e'isted previousl! in Romania, but was reiterated b! Law no. @<A9;;@ on the protection of emplo!ees)

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rights in the case of transferring the undertakings, businesses or parts of undertakings or businesses. The same law implements the provisions of #ouncil Directive 9;;/A97A.# on the appro'imation of the legislation of 2ember States relating to the safeguarding of emplo!ees) rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.

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