LEGAL AND PRACTICAL ASPECTS
Although collective negotiation may be considered an easy process, the employers should avoid certain pitfalls raised by law and practice of the labour authorities, that may trigger fines or refusal of registration of the collective bargaining agreement (CBA).
Under the law, the employers with at least 21 employees are bound to negotiate a CBA at company level. It is important to underline that only negotiation of such agreement is mandatory, not its conclusion.
If there is a CBA concluded at company level, the negotiation must start with at least 45 calendar days prior to its expiry. Nothing impedes the parties to start the negotiations much earlier and to register with the labour authorites a new CBA/addendum to the CBA for example, with several months prior to the expiry of the existing one, even if it shall produce its effects on a later date which is agreed by the parties herein. If such CBA does not exist, the negotiation may start at any time.
As a rule, the initiative of negotiation belongs to the employer, which must send to the employees’ representatives an invitation to collective negotiation, with at least 15 days in advance, stating the date, hour and place of the meeting. If the employer does not initiate negotiation, this must be started by employer within maximum 10 days as of the written request of the employees’ representatives. The latter must send to the employer a written notice in such respect and within 5 calendar days as of the above, the employer is bound to summon in writing the employees’ representatives for the negotiation of the CBA, stating at least the date, hour, place and purpose of the meeting.
The employer’s refusal to start the negotiation of the CBA represents contravention and may be sanctioned with a fine between RON 5,000 and RON 10,000. Although the word “refusal” should imply the existence of a prior request from the employees’ representatives part in relation to collective negotiation, in practice, there are labour authorities that interpret such “refusal” as being the lack of employer’s initiative to start negotiations.
The lack of employees’ representatives/trade unions does not exempt the employer from its obligation to initiate collective negotiations. Thus, in case there are no employees’ representatives/trade unions in a company with at least 21 employees, the safest approach for the employer would be to notify in writing all the employees on its intention to initiate collective negotiation and on their right to elect their representatives for such negotiation. If the employees do not elect their representatives and the collective negotiation are not initiated by employer for such reason, the above notification will evidence the employer’s good faith in case of a labour inspection, eliminating the risk of fine for not observing the obligation to negotiate the CBA.
The collective negotiation cannot exceed 60 calendar days unless the parties agree otherwise, the date of the first negotiation meeting being deemed as the negotiation starting date.
From practical point of view, for speeding up the negotiation process, it is advisable that the employer is the one that prepares a first draft CBA.
The first negotiation meeting is of major importance considering that the parties will establish the main details on negotiation such as: maximum duration of negotiation, place and timeline of the meetings, negotiation team, etc. Moreover, during the first negotiation meeting, the parties should establish the public and confidential information which will be made available by employer and the date until which the employer must fulfill such obligation. The information to be made available by employer will contain at least data on up to date economic and financial situation, as well as on situation of workforce occupancy.
As regards the level of details of the information which the employer has to provide in respect of its up to date economic and financial situation, this issue is arguable. One may argue that the employer does not have the obligation to provide the accounting documents in the form they are submitted to the fiscal bodies, such as the quarterly accounting statement, the accounting balance, etc. Instead, it would be recommendable to prepare a report signed by the company’s legal representative that summarizes the current economic-financial status according to the most recent accounting reports.
The parties are free to establish the number and calendar of negotiation meetings. Although not expressly provided by law, negotiations may also be carried out by e-mail. Nevertheless, it is advisable that the parties have at least three meetings face-to-face, including the first and the last meeting when the CBA should be signed. After each face-to-face negotiation meeting, a minute of the meeting must be prepared and signed by all participants. Although only the content of the first negotiation minute is prescribed by law, the employers should not ignore also the form of the other minutes; the latter should contain information on: the date of the meeting, name of participants, topic of the meeting (i.e. negotiation of CBA), clauses of the CBA subject to negotiation and acceptance/refusal of such clauses, date and time of the next meeting, signature of all participants. The negotiation minutes are very important considering that they must be part of the file submitted with the labour authorities for the registration of CBA. The parties may draft and sign such minutes on a date subsequent to the meeting; signing in counterparts and/or bilingual versions is also accepted by the authorities.
As a rule, the CBA at company level cannot provide inferior rights as compared to those provided by law and CBAs concluded at higher level. Moreover, the individual employment agreements cannot include inferior rights as compared to those provided into the applicable CBAs. The CBA clauses established in the breach of the above-mentioned rules are null and void.