Temporary Agency Workers under the Romanian Labour Code
With the deadline for the implementation of the Directive on Temporary Agency Work (2008/104/EC) nearing in December 2011, the Romanian Government sought to harmonise legislation regulating temporary agency workers in May 2011, in the context of wider reforms of the Labour Code.
While agency working had been regulated in the previous form of the Labour Code, the amendments introduced in May 2011 were significant.
The main rules now applicable to agency workers, end-users (ie hirers) and temporary work agencies (“TWAs”) under Romanian law can be summarised as follows:
- TWAs must be authorised by the Ministry of Labour;
- Agency workers are employed by TWAs and assigned temporarily to undertake work for an end-user under their supervision and control;
- An end user may only engage agency workers for certain temporary assignments/ tasks, and these cannot exceed 24 months in duration (although the period may be extended, provided that, in the aggregate, the assignment does not exceed 36 months);
- Agency workers are entitled to have access to all services and facilities offered by the end user to the same extent as the end-user’s employees and the end user is also obliged to provide protection equipment (unless otherwise stipulated in the agreement with the TWA);
- The pay of agency workers cannot be less than the minimum wage. Note that the previous version of the Labour Code provided that their pay could not be less than that of comparable employees of the end-user ie those in comparable positions;
- While this provision has not been retained in the new Labour Code, we consider that it may well continue to apply on principles of discrimination, but it is likely that this lack of clarity will give rise to further debate, if not litigation;
- Agency workers are on the payroll of the TWAs which are obliged to pay them as well as to account for all related taxes and contributions in respect of such income. Importantly, if the TWA fails to meet these obligations the agency worker may request that they are discharged by the end user;
- All relevant policies, internal regulations and collective bargaining agreements applicable to employees of the end user shall apply equally to agency workers during their assignments;
- TWAs are not permitted to request payment of any tax or commission from the agency workers themselves.