|
THE RAPE OF ROMGAZ |
 |
The Romanian government has a troublesome penchant of shattering the
trust of foreign investors and dragging the nation’s economy and
investment potential down a rabbit hole by enforcing its not infrequent
and often foolish whims through actions sometimes reminiscent of a
kleptocracy. On November 30th, in an act of outright theft, the Romanian
government stole the profits of Romgaz, a private energy company, by
forcing it to make a “donation” to the state budget of $122,000,000 --
the bulk of the company’s profits that would otherwise have been
distributed as dividends or used by the company for the benefit of all
of the shareholders. It did this by calling a shareholder’s meeting of
Romgaz, a company in which it owns 85% of the shares, and voting itself
a donation – an obvious conflict of interest and a serious act of
oppression against the minority shareholders in violation of the basic
precepts of corporate law.
Romgaz is Romania's main gas producer, and is one of the holdings of
Fondul Proprietatea – which makes the government’s purloining of the
Romgaz funds all the more disgraceful. Romania’s actions are in blatant
disregard of Fondul Proprietatea’s property rights, and are suggestive
of the very acts that Fondul Proprietatea was formed to remedy. The only
legal way for the state as a shareholder to obtain money from Romgaz is
through the award of dividends; anything else amounts to a forceful
taking of funds to which all of the shareholders are entitled.
But theft is not the government’s only folly here. Believe it or not,
the Romanian government intends soon to float a 15% minority interest in
Romgaz for €290-€370 million. Who could seriously consider a Romgaz
investment after such a brazen theft? And what of the predictable
detrimental effect of the government’s actions on the share price in the
proposed listing of Fondul Proprietatea on the Bucharest Stock Exchange
in January? What a ghastly message the government has sent to investors.
The Romgaz confiscation will result in a lawsuit brought by Franklin
Templeton Investments on behalf of Fondul Proprietatea against the
Romanian State. Romania will undoubtedly lose the case, the purloined
money will be returned with interest and costs and, all the while,
Romania will see its reputation sink to avaricious depths rather than
the heights expected of an EU member state. |
|
[ Up
to Contents ] |
|
A ROMANIAN EMPLOYMENT GUIDE |
|
Introduction |
Romania offers foreign investors a highly skilled and, simultaneously, a
rather inexpensive labor force that have helped turn many investments
into highly profitable ventures. The problem is that it is easier to
divorce your spouse in Romania than it is to fire a Romanian worker.
Joining the European Union triggered Romania’s adoption of EU compatible
labor legislation that increased employees’ job protection rights, but
it is questionable whether the newly adopted labor laws have created
greater efficiency, productivity or beneficial labor relations in the
work place. More likely, they have wrought hair-raising havoc through
the rigidity of some labor regulations, which has been further
exasperated by the global economic and financial crisis in restricting
the ability of Romanian enterprises from properly restructuring their
businesses and saving them from calamity.
This publication has previously addressed significant matters in the
labor field; this article provides a basic guide for both employers and
employees seeking either to initiate labor relations, or to terminate
such relations, with as little cost and damage as possible. |
|
[ Up
to Contents ] |
|
The Individual Labor Agreement |
Conclusion of an individual labor agreement
An individual labor agreement must be concluded in the Romanian language
in written form with each employee. According to the Labor Code, it is
the employers’ obligation to have the agreement concluded in written
form and registered with the labor inspectorate; consequently, in case
of any failure to comply with this obligation, employers risk fines. On
the other hand, employees are entitled to prove the existence of a work
relationship even in the absence of a written employment agreement.
Therefore, it is essential for employers that are avoiding the
conclusion of employment agreements in written form to be aware that
they are the ones to be sanctioned for this and not their employees.
 As
a rule, an individual labor agreement is concluded for an unlimited
duration. The conclusion of individual labor agreements for a limited
duration is possible but only for maximum of two years and only in
specific situations established as such by the Labor Code, as for
instance: a temporary increase in the employer’s activity, seasonal
activities, or temporarily replacing employees whose employment has been
suspended. Employers’ associations have often expressed their discontent
with regard to these constraints on concluding individual labor
agreements for a limited duration, seeking to increase the length of the
agreements, as well as expand their applicability.
Before the entering or amending a labor agreement, the employer must
advise the employee of the scope of the position, the obligations to be
undertaken by the employee and any risks associated with the job. There
are special provisions in the Labor Code for hiring foreign employees.
For more details, please see our April 2008 Romanian Digest
article – “Employment Forever. Living with Romania’s Labor Law”.
In addition to the essential clauses required for inclusion in an
individual labor agreement as set forth in the Labor Code, i.e., clauses
referring to salaries and bonuses, working time, leave and days off,
such agreements may also include specific clauses with regard to the
following: professional training, a non-compete clause, a mobility
clause, or the confidentiality clause. These specific clauses have
become increasingly significant for both employers and employees. In a
fast changing economic environment, the confidentiality or non-compete
clause has proven to be essential in labor relations. Both employers and
employees who were not sufficiently diligent in drafting such clauses
have found themselves caught up in long-lasting and costly trials which
are usually not beneficial for either side. That is why close attention
to these clauses should be paid before the conclusion of an individual
labor agreement.
Another significant aspect which must be taken into consideration before
concluding an individual labor agreement is the observance of all of the
legal provisions applicable to the respective labor relation, including
the provisions of all the collective bargaining agreements that are
applicable. Since the individual labor agreement cannot establish rights
and benefits for employees that are below the limits set by labor
legislation or in collective bargaining agreements, even if accepted by
the employees, and even if included in the individual labor agreements
concluded in written form, such provisions are invalid.
Execution of an individual labor agreement
Individual labor agreements are usually concluded in a standard form
that basically includes all the rights and obligations mentioned as such
in the Labor Code. However, as previously noted, provisions of any
specific applicable laws, as well as all the applicable collective
bargaining agreements must be observed.
Termination of an individual labor agreement
Termination of individual labor agreements on both parties’ consent, or
by an employees’ resignation is not a problem. The act which generates
conflict is a dismissal performed in breach of the procedures and
conditions set forth in labor legislation. According to the Labor Code,
a dismissal may occur either for reasons pertaining to the employee, the
most common being an employees’ bad performance or for disciplinary
reasons; or for reasons not pertaining to the employee, which happens
when the individual labor agreement is terminated by the cancellation of
the employee’s job for one or more reasons not related to the employee.
According to the Labor Code, the cancellation of the job must be actual,
and it must have been for real and serious reasons. Such a dismissal may
be either individual or collective. Employers must perform dismissals in
strict compliance with all the legal provisions applicable or else they
will face the risk of having their reputation tarnished and their funds
diminished by court decisions providing for significant damages payable
to their former employees.
Companies have been increasingly forced by the economy to cut jobs or
even abandon entire divisions, including their corresponding employees.
A company in restructuring needs has to assess very carefully the
collective dismissal procedure and take all the necessary steps in order
to avoid trouble. For a closer look at the collective dismissal
procedure, please see the July 2009 Romanian Digest article – “Collective
Employee Dismissals”. When dismissals do occur, employers are
required to provide 20-days prior notice, except if the dismissal arose
for disciplinary reasons. However, the provisions of collective
bargaining agreements must also be observed, since they regularly
include prior notice terms which are more favorable for employees.
Moreover, such collective bargaining agreements also include specific
provisions regarding severance payments. Employees whose individual
labor agreements are terminated for reasons not pertaining to the
employee are entitled to receive severance payments, as well as
additional compensation, set forth in the respective collective
bargaining agreement. |
|
[ Up
to Contents ] |
|
Social Dialogue |
It is important for employers to be aware of their obligation to
guarantee employees’ rights to free association and representation. It
also important that employees are aware of their rights, and take
advantage of what the law has provided in this regard.
Trade Unions
The right of employees to establish trade unions and to become members
thereof is guaranteed by law, and employers may not forbid the exercise
of this right. Trade unions are independent legal entities that are set
up in order to defend and promote employees’ individual and collective
rights, as well as their professional, economic, social, and cultural
rights. Trade unions take part, through their own representatives, at
the negotiation and conclusion of collective labor agreements, as well
as at discussions or agreements with public authorities and owners’
associations.
Employees’ representatives
In businesses employing more than 20 employees, and where no employee is
a trade union member, employees’ interests may be promoted and defended
by their representatives, who are elected and empowered especially for
that purpose. |
|
[ Up
to Contents ] |
|
Collective Bargaining Agreements |
 It
is mandatory for employers with more than 21 employees to negotiate
collective bargaining agreements (“CBAs”) on an annual basis. The
negotiations take place between the management of the company and the
trade unions or the employees’ representatives, as the case may be.
Consequently, employers in the above-mentioned situation are obliged to
initiate annual negotiations with the trade unions for the purpose of
reaching an agreement. Should the parties fail to agree on a new CBA,
and provided that the employer has initiated the annual negotiation, the
employer will not be in breach of the applicable law.
The CBAs are regularly concluded for a period of 12 months. In case the
CBAs are concluded for a longer period, then negotiations will take
place annually, at least on major issues, such as: salaries, work time,
work schedule and work conditions.
CBAs may be concluded at various levels, as follows: at the company
level, group of companies, branch and at the national level. CBAs
concluded at a lower level cannot settle rights inferior to those set by
the CBAs concluded at higher levels. |
|
[ Up
to Contents ] |
|
Sale or Transfer of Business |
There are specific provisions applicable in case of the sale or transfer
of a company, of a unit of a company or of parts thereof. Such
provisions actually target the protection of employees’ rights in case
of such sale or transfer, since the transfer of the employees, as a
result of the sale or transfer of the company, a unit or parts thereof,
may endanger the protection of the transferred employees’ rights.
However, the employees’ consent to a sale or transfer is not required.
These provisions refer to the sale or transfer between companies of
assets and activities, as well as of the employees performing work in
relation to such assets and activities, which is commonly known as a
“transfer of business”.
The transfer of business is regulated by the Labor Code and by a special
law, i.e. Law 67/2006 regarding employees’ protection in case of
transfer of the company, unit or parts thereof (“Law 67/2006”).
The rights and obligations of the transferred employees deriving from a
labor agreement or labor relation in force at the transfer date are
transferred in their entirety to the transferee employer. The transferor
and the transferee have the obligation to inform and consult with the
trade union or the employees’ representatives, as applicable, prior to
the actual transfer, with regard to the legal, economic and social
impact of the transfer to the employees.
While the Labor Code provides for only the employers’ general obligation
to inform trade unions, Law 67/2006 provides the detailed regulations
with regard to the procedure to be followed in case of such transfer.
According to this law, the transferor and the transferee are required to
inform in writing the representative of its own employees, at least 30
days prior to the transfer of the business, with regard to the
following: (i) the proposed transfer date; (ii) the reasons for the
transfer; (iii) the legal, economic and social consequences of the
transfer on the employees; (iv) the measures to be taken with regard to
the employees; and (v) the working conditions at the new place of work.
This law, however, does not detail what “measures to be taken with
regard to employees” means, and if such measures include the dismissal
of personnel or not.
Furthermore, the consultation obligation is not detailed enough in the
sense that it is not clear whether there must be an agreement reached
between the transferor and transferee with the employees’
representatives prior to the transfer of business itself, or if the
consultation procedures must result in an actual agreement.
Even though the provisions of Law 67/2006 are unclear in many respects,
the transferor and the transferee should perform the following steps,
prior to the implementation of the transfer of business, in order to
avoid as much as possible any contestation from the trade unions: (i)
consult the trade unions with regard to any envisaged measures; and (ii)
inform the trade unions with regard to the matters mentioned above at
least 30 days prior to the transfer of business date. Such information
will include the measures to be undertaken in relation to the transfer
of business which were subject to consultation.
Since the applicable law does not detail what type of measures should be
subject to the consultation and information process, there is a risk
that the trade unions may argue that the restructuring process of the
company may require the discussion of certain detailed measures, and
therefore, they should have been included in the consultation /
information process. Consequently, when employers intend to perform a
restructuring of their business, they should include the envisaged
restructuring measures in the consultation and information procedure put
in place by Law 67/2006, prior to the actual transfer of business from
the transferor to the transferee. |
|
[ Up
to Contents ] |
|
Conclusion |
 Collective
dismissals and transfers of business happen regularly these days.
Employers have come to realize that implementing such procedures without
strict compliance with applicable laws and regulations does significant
enough harm to them that it may be difficult for them to recover.
Restructuring is a common tool for companies seeking ways out of the
economic crisis. But the companies’ economic interests must be balanced
with their employees’ rights or employees facing job cuts will end up
with favorable court decisions awarding them substantial damages.
Undoubtedly, there should be a well maintained balance. However,
employers’ associations many times have argued that Romania’s labor
laws, envisaged as protecting the “weaker part”, actually turned into a
more powerful tool for employees. Proposed amendments to the current
Labor Code are currently being debated, and it remains to be seen
whether parliament will develop a new framework so that a fair balance
between the protection of employers’ and employees’ rights can be
maintained. |
|
[ Up
to Contents ] |
Editors Note: It is our policy not to mention our clients by name in
The Romanian Digest™ or discuss their business unless it is a matter of
public record and our clients approve. The information herein is correct
to the best of our knowledge and belief at press time. Specific advice
should be sought from us, however, before investment or other decisions
are made.
Copyright 2010 Rubin Meyer Doru & Trandafir, societate civila de avocati.
All rights reserved. No part of The Romanian Digest™ may be reproduced,
reused or redistributed in any form without prior written permission
from the publisher.
|
RUBIN MEYER DORU & TRANDAFIR
societate civila de avocati
Str. Putul cu Plopi, Nr.7, Sector 1
Bucharest, Romania
Tel: (40) (21) 311 14 60
Fax: (40) (21) 311 14 65
E-Mail:
office@hr.ro
VISIT OUR WEB SITE:
http://www.hr.ro
The Romanian Digest Archive
|
AFFILIATED WITH:
Herzfeld & Rubin, P.C.
125 Broad Street
New York, New York 10004
Tel: (212) 471-8500
Fax: (212) 344-3333
http://www.herzfeld-rubin.com
Long Island Office
Herzfeld & Rubin, P.C.
1225 Franklin Avenue, Suite 315
Garden City, New York 11530
Tel: (212) 471-3231
Herzfeld & Rubin LLP
1925 Century Park East
Los Angeles, California 90067
Tel: (310) 553-0451
Fax: (310) 553-0648
Chase Kurshan Herzfeld & Rubin
354 Eisenhower Parkway, Suite1100
Livingston, New Jersey 07039-1022
Tel: (973) 535-8840
Fax: (973) 535-8841
Israeli Affiliated Law Firm
Balter Guth Aloni & Co.
96 Yigal Alon Street,
Tel Aviv, 67891, Israel
Tel: +972-3-511-1111
Fax: +972-3-624-6000 |
|
|
New York — California — New Jersey — Romania |
|
If you no longer wish to receive emails
from us, please send an e-mail with UNSUBSCRIBE
in the subject line to
Romanian.Digest@hr.ro. |
|
