Transnational posting of workers in the framework of service provision

Now. The employer making the secondment must have concluded a transnational service provision contract with the beneficiary of the services provided.

Throughout the entire period of secondment, the employee will maintain their employment relationship directly with the employer who seconded them.

The employer who ordered the detachment.

The employer has the obligation to establish in the content of individual employment contracts:

• the duration of the work period to be performed abroad;

• the currency in which the salary rights will be paid, as well as the payment methods;

• benefits in cash and/or in kind related to carrying out activities abroad.

Companies established in a member state that post employees to Romania have the following obligations:

• to send to the territorial labor inspectorate in whose territorial area the activity is to be carried out a declaration in Romanian regarding the posting of its own employees;

• to present and make available to the labor inspectors, at their request, during the period of transnational posting, copies of the following documents: the employment contract or an equivalent document, proof of payment of the salary, attendance sheet;

• the obligation to provide the above-mentioned documents for 3 years after the end of the transnational posting period, at the request of the Labor Inspectorate or the territorial labor inspectorates, within a maximum of 20 working days from the moment of receiving the request;

• the obligation to provide a translation into Romanian of the above-mentioned documents;

• the obligation to designate a person to liaise with the competent national authorities and to send and receive documents and/or opinions, if applicable.

The following situations represent posting:

• the posting of an employee under a service contract;

• the posting of an employee to a unit or undertaking belonging to the group of undertakings (intra-group);

• the making available of an employee, by a temporary work agency, to a user undertaking (AMT).

The employer has the obligation to grant employees from Romania, during the period of secondment, the minimum wage applicable on the territory of the member state, as defined by the law and/or practice of the member state, on the territory of which the employee is seconded.

During the period of secondment, the employee will benefit from expenses generated by the secondment - any expenses with transport, accommodation and meals, incurred for the purpose of the secondment, as well as a specific allowance for transnational secondment - an allowance intended to ensure the social protection of employees granted in order to compensate for the inconveniences caused by the secondment, which consist of the employee's removal from his usual environment.

The specific allowance for transnational posting is considered part of the minimum wage, to the extent that it is not granted as reimbursement for expenses generated by the posting, namely transport, accommodation and meals.

Therefore, allowances specific to posting consist of the expenses generated by the posting, respectively the transport, accommodation and meals expenses, these should not be considered as part of the minimum wage (remuneration). If their purpose is to reimburse the expenses generated by the posting, respectively the transport, accommodation and meals expenses, these should not be considered as part of the remuneration. The employer should reimburse the posted workers for the respective expenses, in accordance with the internal law and/or with the national practices applicable to the employment relationship.

The specific indemnity for transnational detachment aims to compensate for the inconveniences caused by the detachment, which consist of removing the employee from their usual environment, is considered part of the minimum wage, to the extent that it is not granted as a reimbursement of expenses generated by the detachment, respectively transport, accommodation and meals.

The amounts granted as expenses generated by the detachment, such as transport, accommodation and meals, as well as other facilities, are amounts of money that do not represent consideration for the work performed by the employee. These amounts have a precise destination without being freely used by the employee, but only for the purpose for which they were granted.

The specific allowance for transnational posting is granted by law, not being subject to negotiation, as it is intended to ensure the social protection of employees granted in order to compensate for the inconveniences caused by the posting, which consist in removing the employee from his usual environment.

Yes. According to the law, the employer can establish that these amounts of money for expenses generated by the detachment and the specific allowance for transnational detachment can be granted according to the country where the services are provided.

Employees posted from Romania within the provision of transnational services benefit, regardless of the law applicable to the employment relationship, from the working conditions established by legal acts, administrative acts, collective agreements or arbitration awards of general application, valid in the member state, other than Romania, on whose territory the services are performed, with regard to:

• the maximum duration of working time and the minimum duration of rest periods;

• the minimum duration of paid annual holidays;

• the minimum wage as defined in art. 2 paragraph (1) letter f), including compensation or payment for overtime;

• the conditions of making employees available by temporary employment agencies;

• health and safety at work;

• the protective measures applicable to working conditions for pregnant women or women who have recently given birth, as well as for children and young people;

• equal treatment between men and women, as well as other provisions on non-discrimination.

The competence to carry out inspections and verifications regarding the observance by employers of the clauses and conditions of employment during the transnational posting of an employee from the territory of Romania to the territory of a member state lies with the competent authorities of the state where the posting was ordered.

The salaries of temporary work agents are considered transnational postings within the framework of transnational service provision.

The temporary employee concludes a temporary employment contract with a temporary employment agent who makes him available to a user other than the one where the temporary employment agent is established to work for the period stipulated in the provision contract under the supervision and management of this one, the provisions regarding delegation from the Labor Code do not apply to him.

The employer has the obligation to complete the general register of employee records with the date on which the transnational posting begins and the date on which it ends, the state in which the transnational posting is to take place, the name of the beneficiary/user to whom the posted employee will perform the activity, as well as the nature of this activity.

The salary received by the temporary employee for each assignment cannot be lower than that received by the user's employee, who performs the same or similar work as the temporary employee. The basic working and employment conditions applicable to temporary workers should be at least those that would apply to workers if they were recruited by the user undertaking to occupy the same job.

He will benefit from the expenses generated by the posting - any transport, accommodation and meal expenses, incurred for the purpose of the posting, as well as a specific allowance for transnational posting - the allowance intended to ensure the social protection of employees granted in order to compensate for the inconveniences caused by the posting, which consist in the employee's removal from his usual environment.

Given that the activity performed by the employee seconded to the employer's clients with whom he has concluded service contracts is not carried out in consideration of the specifics of the work, but as a result of the service tasks unilaterally ordered by the employer, the employee cannot be assigned a mobility clause to cover an extended geographical area, such as Europe, even if he temporarily carries out his activity in another country.

They can address the territorial labor inspectorates and/or the competent courts in Romania or the courts in another state according to the existing international conventions regarding judicial competence and can file a complaint against their employer directly.

Within subcontracting chains, the contractor to whom the posted employee's employer is a direct subcontractor may be jointly and severally liable with or in place of the latter for the outstanding net wage rights related to the minimum wage granted. The liability is limited only to the rights of the posted employee obtained under the contractual relationship between the contractor and its subcontractor.