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The employment relationship

Country specific laws
What laws and regulations govern the employment relationship?

At present, the General Labour Law (2/00) is the main statute that governs all aspects of the employment relationship. On September 15 2015 it will be replaced by the new General Labour Law (7/15). There is also other derivative legislation on various lateral aspects of the employment relationship.

The recruitment and hiring of foreign non-resident (expatriate) employees is subject to the following specific legislation:

  • Decree 5/95;
  • the Regulations on the Exercise of Professional Activities by Foreign Non-resident Employees (Decree 6/01);
  • the Visa Law (2/07); and
  • the Visa Law Regulations (Presidential Decree 108/11).

Collective labour law is governed by the following statutes:

  • the Trade Union Law (21-C/92);
  • the Law on the Right to Collective Bargaining (20-A/92); and
  • the Strike Law (23/91).

Who do these cover, including categories of worker?

The General Labour Law (2/00) applies to all categories of worker. Both the General Labour Law and the new General Labour Law (7/15) exclude from the scope of application the following categories of worker:

  • employees hired on a permanent basis by the diplomatic or consular representatives of other countries, or at the service of international organisations, who perform their activities within the scope of the Vienna Convention;
  • members of cooperatives and non-governmental organisations whose employment is regulated by the organisation’s articles of association or, if there are none, by the Commercial Law;
  • family employees;
  • occasional workers;
  • consultants and members of the administration or directorship bodies of companies or social organisations provided that they carry out only tasks that are inherent to such positions without any subordination pursuant to an employment contract; and
  • public servants or employees performing their professional activity within the public, central or local administration, in a public institution or in another government agency.

Foreign non-resident (expatriate) employees are subject to specific statutes; however, the General Labour Law applies to them on a complementary basis.

Misclassification
Are there specific rules regarding employee/contractor classification?

Yes. Article 3.3 of the new General Labour Law (7/15) defines an ‘employment contract’ as “a contract whereby an employee undertakes to make available his professional activity to an employer’s benefit, within its relevant organization and under its guidance and authority, in consideration for remuneration”. The definition of ‘employee’ is set out in Article 3.27 of the same law: “Any natural person, national or foreign resident, who freely undertakes to make his professional activity available to an employer, in consideration for remuneration, within the employer’s organization and under its authority and guidance.”

Under Article 1154 of the Civil Code, a ‘services agreement’ is the “agreement whereby one of the parties undertakes to make available the result of his/her intellectual or manual work, with or without pay”.

Contracts
Must an employment contract be in writing?

No. However, certain specific types of employment contract (eg, fixed-term employment contracts and training contracts) must be in writing.

Are any terms implied into employment contracts?

Yes. For example, employment contracts for an unlimited term are always subject to an implied probation period of 60 days.

Are mandatory arbitration/dispute resolution agreements enforceable?

Under the General Labour Law (2/00), all labour disputes fall under the sole jurisdiction of the provincial labour courts. Any agreements providing for alternative means of dispute resolution are invalid and unenforceable.

Once the new General Labour Law (7/15) comes into force on September 15 2015, agreements to arbitrate will be valid and enforceable. However, all arbitration proceedings will be subject to the procedural rules set out by the law. Conciliation and mediation proceedings will also be possible before the General Inspectorate of Labour Services and the Public Attorney’s Office.

How can employers make changes to existing employment agreements?

In general, employers may make unilateral amendments to existing employment agreements if this prerogative has not been expressly excluded by the employment contract or a legal provision. The new General Labour Law (7/15) grants employers broader prerogatives to vary certain aspects of the employment relationship unilaterally (eg, workplace and working hours).

Foreign workers
Is a distinction drawn between local and foreign workers?

Yes. National and foreign resident employees (ie, foreign citizens holding a residency permit) are subject to the same rules on recruitment, hiring and termination as set out by the General Labour Law (2/00). Foreign non-resident employees (ie, foreign citizens holding a work visa) may be hired only on a fixed-term basis (ranging from three to 36 months) and are subject to recruitment and hiring requirements, plus specific immigration restrictions.

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