Law 172/2020 amending Law no. 16/2017, regarding the posting of employees providing transnational services, transposes Directive 2018/957 into Romanian law. Law 172/2020 was published in the Official Journal of Romania on 13 August 2020 and its provisions are in force as from 16 August 2020.
Below you will find an review of the obligations to respect when posting workers to Romania.
Table of contents
- Prior obligations for companies posting workers to Romania
- Working conditions applicable to workers posted in Romania
- Documents to be stored during the posting in Romania
- Immigration requirements for posting of non-EU workers
- Penalties for non-compliance
- Regulatory Framework
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1. Prior obligation for companies posting workers to Romania
Undertakings agreed in an EU or EEA Member State, which post employees to Romania, shall submit a notification on the transnational posting of workers, in Romanian language, to the local Labor Inspectorate under whose jurisdiction they are going to operate, within at least one working day before starting work.
Specifically, the Posting Declaration sent to the Territorial Labor Inspectorate must include the following elements:
- the receiving institution (the identity and detail of the Territorial Labor Inspectorate to whom it is addressed);
- the identity of the foreign enterprise (the ‘Posting Company’);
- the data of the designated representative;
- the identification data of the posted employee / employees;
- the estimated duration of the posting;
- address (es) of the workplace.
1.1. How to send the notification of posting
The posting company can submit the notification in letter format, by direct submission to the Labor authorities, or by e-mail, postal services.
The foreign undertaking shall notify the competent Labour Inspectorate of any change in the elements included in the original posting declaration. The notification of change is submitted at the latest on the day the change occurs.
1.2. Appointing a legal representative in Romania
According to the Law, the notification of posting shall include the designation of a legal representative in Romania. Nevertheless, if the company has no legal representative in Romania, it should designate one of the posted workers as a contact person with the Romanian authorities.
In any case, the representative shall hold the documents necessary for the control of compliance to the working conditions and make them available to labour inspectors at their request.
2. Working conditions applicable to workers posted in Romania
Foreign companies who post their workers to undertakings established in the territory of Romania are subject, during their posting, to the rules provided by Romanian law. Consequently, workers posted to the Romanian territory in the framework of the transnational provision of services shall benefit, irrespective of the law applicable to the employment relationship, from the working conditions provided by the Romanian legislation and/or from the collective labour agreement concluded at sectoral level regarding:
- maximum length of working time and minimum period of regular rest time;
- paid annual holidays;
- conditions of assignment of workers by temporary work agencies;
- health and safety at work, etc.
2.1. Minimum wage and working hours in Romania
The minimum wage applicable for a worker posted to Romania is stipulated by the Romanian legislation and/or the collective labour agreement concluded at sectoral level. Accordingly, wages include basic wages, allowances, benefits, as well as other additional payments.
The basic wages cannot be lower than the national minimum wage.
Still, Romanian minimum wage cannot include meal costs, transportation costs, housing costs, per-diems, assignments allowance, etc.
According to Governmental Decision no. 1071/2021, starting from 1 January 2022, there are two levels of minimum wage in Romania:
- 2,550 RON per month (ca. 520 EUR)– standard minimum wage;
- 3,000 RON per month (ca. 610 EUR)– minimum wage for the construction sector.
In Romania the standard working hours are 8 hours per day and 40 hours per week.
3. Documents to be stored during the posting in Romania
The Labour Inspectorate is the competent authority to enforce compliance with the terms and conditions of employment by undertakings posting workers to Romania. During the posting, and for the subsequent 3 years, the home company has the obligation to hold and make available to labour inspectors, upon request, copies of the following documents:
- employment contract or equivalent;
- wages and proof of payment;
- length of their working time and attendance book/register.
Furthermore, the foreign undertaking has the obligation to provide, upon request of the Labour inspectorates, the aforementioned documents within 20 working days from receipt of the request.
The posting company shall also provide a translation into Romanian of the above-mentioned documents.
3.1. The Cooperation between the Italian and Romanian Labor Inspectorates to foster information exchange
Recently, the Italian National Labour Inspectorate and the Romanian Labour Inspectorate have signed a protocol of mutual cooperation, the Memorandum of Understanding regarding the collaboration and information exchange in the area of work inspection.
The document first aims at improving cooperation between the Romanian and Italian control and monitoring authorities on preventing and combating illegal practices in the field of transnational posting. Moreover, the signing of the memorandum aims at promoting and ensuring the correct application of national and European legislation to protect the rights of workers on the territory of the two states.
4. Immigration requirements for posting of non-EU workers
Posting to Romania from an EU country of a Non-Eu citizen, lawfully resident in that EU country, involves a series of aspects and conditions from immigration, labour and social security perspective, such as: nationality of the applicant, type of residence in the EU, domain of activity, job title, type of activities to be performed while in Romania, length of posting, salary, etc.
Firstly, as a non-EU citizen holder of a permanent residence permit card issued in another Member State, a third-country worker may enter Romania and stay on visa waiver (on business trip) for maximum 90 days within 6 months period.
However, under a business trip status, workers should attend business meetings and conferences. They are not allowed to perform any professional activities in Romania.
4.1. Relevant documents for non-EU citizens
Therefore, in order to be posted and perform work activities in Romania, a Non-Eu citizen needs to obtain a work authorization, long stay visa and residence permit. Nevertheless, if the Non-EU citizen holds a valid permanent residence permit in an EU country, he can come on assignment in Romania (Van der Elst category), as far as his work contract with the company is valid, without the obligation to apply for a work authorization and long stay visa.
Finally, the entry procedure to Romania for a non-EU worker involves a second step. In fact, after his arrival to Romania based on the long term visa, a non-EU worker shall obtain the Romanian residence permit from the local Immigration Office where he will reside.
In any case, the posting company must submit the Posted Worker Notification.
5. Penalties for non-compliance
According to the Government Decision no. 337/2017 of 18 may 2017, in the context of posting of workers to Romania by foreign employers, the Romanian authorities may impose fines from Ron 5,000 to Ron 9,000 for the following:
- failure to submit to the local labour inspectorate the posting declaration
- not holding and making available to the labor inspectors, on their request, copies of the employment contract or equivalent documents, wages and proof of payment, time-sheets, etc.
- no translation into Romanian of the requested documents
- no local contact person confirmed. This is important to liaise with national authorities and to send and receive documents and/or notices, if necessary
- not providing the documents required by the authorities after the end of the posting period, at the request of the Labor Inspectorate, within 20 working days from receipt of the request.
Besides, in case the posting declaration is not complete or has wrong information, the authorities may issue fines between Ron 3,000 – 5,000.