Employee Representation and trade unions

Feb 12, 2023

The protagonists of the social dialogue are, on the one hand, the employer or the management (also known as employers’ organizations constituted under the law) and, on the other hand, the employee or trade union, i.e., the employees’ representatives. 

This article seeks to identify how employees can join together to participate in collective consultation and bargaining, pursue their professional, economic, and social interests and defend their individual and collective rights.

Employees may associate and be represented either by a trade union, an employee representative, or representatives elected according to the law. 

  • Trade unions. Constitution. Membership. Organization. Operation.

The trade union is defined in Article 1, paragraph (8) of Law 367/2022 on social dialogue as “the form of voluntary organization of employees/workers to defend, upholding the rights and promoting their professional, economic, cultural-artistic, sporting or social interests in their relations with the employer”.

How can a trade union be set up?

The union can be formed:

  • at least 10 employees working in the same establishment;
  • at least 20 employees working in different establishments but in the same collective bargaining sector. The National Tripartite Council for Social Dialogue determines the collective bargaining sector and is approved by the Government decision;

Who can belong to a trade union?

The new Social Dialogue Act, in its Article 3, regulates a wide range of persons who can join or could join a trade union, as follows: 

  • any person working under an individual employment contract or in a legal employment relationship;
  • under-age employees, from the age of 16, even without the prior consent of legal representatives;
  • any person who is a civil servant or public official with special status;
  • any person who is a cooperative member or farmer;
  • any self-employed person;
  • the unemployed.

According to Article 4 of Law 367/2022, persons holding public office or equivalent positions, magistrates, military personnel of the Ministry of National Defence, the Ministry of Internal Affairs, the Romanian Intelligence Service, the Protection and Guard Service, the Foreign Intelligence Service and the Special Telecommunications Service, units and/or sub-units subordinated or coordinated by them, may not belong to or be members of a trade union organization.

Does an employee have to belong to a trade union?

No employee can be forced to join or not join a trade union, either in the unit where they work or in another unit. At the same time, an employee may not belong to two or more trade union organizations but may belong to only one trade union at the same employer.

How are trade unions organized?

Each trade union has its statute and can draw up its own internal rules. The leadership of the trade union organization is freely elected, with the employer or employers’ organizations having no right to interfere in the organization of trade unions. 

The persons who are members of the leadership of trade union organizations enjoy a number of rights, including the fact that this period is considered seniority and that they cannot be dismissed for disciplinary reasons or any other reason related to the fulfillment of their mandate in the leadership of trade union organizations. However, for one category of employees, i.e., civil servants and civil servants with special status, the service relationship will be suspended by right for the period they are in a management position. 

Trade unions can acquire legal personality and have their own assets.

The functioning of trade union organizations. What are the benefits for an employee who belongs to a trade union?

Employees who belong to a trade union enjoy the protection offered by the union. Trade union organizations are thus obliged to defend the rights of their members as laid down in labor law, collective labor agreements, individual employment contracts, or, where applicable, in the Staff Regulations of Civil Servants or agreements concerning the employment relationships of civil servants. Trade union organizations have the right to submit legislative proposals in areas of trade union interest. 

Trade unions may represent employees before their employer and before the courts, the courts of law, other state institutions, or authorities. For employees, trade union organizations may take any action on their behalf, including taking legal action on behalf of employee members, but only at the express written request of employees.

  • Employee representatives. Appointment. Operation

Employee representatives are defined in Article 1, paragraph (9) of Law 367/2022 on social dialogue as “persons elected in accordance with the procedure established by this law and mandated by employees/workers to represent them, according to the law”. 

In what situations are employee representatives elected?

Employee representatives are elected if at least 10 employees are employed in the same establishment and no trade union has been formed. The new Social Dialogue Act differs from the Labour Code, which stipulates that the employer must have at least 21 employees to elect representatives. In any case, being a special law, the provisions of Law 367/2022 apply in priority. 

Employee representatives are elected from among the employees in the same unit, and to receive the vote of confidence of the employees, the representative(s) must obtain the vote of at least 50% plus 1 of the total number of employees in the unit. Here too, there is a difference from the provisions of the Labour Code, where, in Article 221 para. This is in contrast to the provisions of the Labour Code, which stipulates in Article 221 (2) that the votes of at least 50% of the employees must be taken into account. 

An employee representative may have a maximum term of office of 2 years.  

Who can be an employee representative?

Only an employee who works for the employer under an individual employment contract and only after reaching the age of 18 can be an employee representative. 

The new Social Dialogue Act does not set an express number of employee representatives that can be elected. Still, this number is set according to the number of employees and is only based on an agreement with the employer. If they disagree, Article 58(2) of the Directive stipulates that the employer shall determine the number of representatives. (2) of Act 367/2022 has set a maximum limit on the number of representatives, depending on the number of employees with the same employer, as follows:

  • 2 representatives, for employers with less than 100 employees;
  • 3 representatives, for employers with between 101 and 500 employees;
  • 4 representatives, for employers with between 501 and 1,000 employees;
  • 5 representatives, for employers with between 1,001 and 2,000 employees;
  • 6 representatives, for employers with more than 2,000 employees.

Persons who hold managerial positions within the employer or participate in the enterprise’s management at the employer level may not be elected as employee representatives. 

Employee representatives have a number of rights, including the fact that the number of hours allocated for the performance of the employee representative’s mandate is determined from the normal working hours and that they cannot be subject to dismissal for disciplinary or other reasons related to the performance of the mandate received from the employees. 

Functioning of employee representatives. How does the work of employee representatives impact the interests of employees?

Employee representatives are obliged to defend the interests of employees when negotiating and drawing up internal rules within the employer and when negotiating and concluding the collective labor agreement. If irregularities or infringements of the legal provisions or the collective labor agreement are detected, the employees’ representatives shall refer the matter to the territorial labor inspectorate. 

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