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Newsletter ArchiveCCE-R Partners
Business transfer – Remarks concerning the protection of employees Date: 2009-04-13
1. Legal frame
By the Law no. 67/2006 concerning the protection of employees in case of business transfer, published in the Official Gazette no. 276/28.03.2006 (“Law no. 67/2006”), the harmonization of the valid legislation to the European legislation was intended, i.e. by implementation of the Directive 2001/23/CE of the Council for the harmonization of the legal provisions of the member states concerning the observing of the employees claims in case of total or partial business transfer. The Law no.67/2006 became effective on the day Romania entered EU.
2. Protection of employees in case of business transfer
Law no. 67/2006 partially includes the provisions of the European Directive concerning the observing of the employees claims from the individual labour agreements and the collective agreement. Pursuant to Art. 5, the rights and duties of the assignor from the individual labour agreements and the collective agreement are totally transferred to the assignee. Pursuant to art. 7, the business transfer may not be a reason for individual or collective lay off of the employees by the assignor or the assignee. A gap of the text of Law no. 67/2006 is to be mentioned, which has not taken the rule of the Directive 2001/23/CE over the fact, that the above mentioned interdiction of layoff of the employees does not include the layoff due to economic, technical or organizational – technical reasons. This may lead to interpretations of practical layoffs due to the above mentioned reasons and/or the legality of such layoffs.
There is also to be mentioned that the purpose of the collective business transfer pursuant to Law no. 67/2006 is the protection of the employees, so that it supposes the approval of the employees exposed to the business transfer. However, the specialized literature also shows the opinion that the transfer of the employees requires their express approval in order to be effective.
However, we point out that a protection measurement which grants a right to the employee should not be converted into an obligation of his. In this case the freedom of the employees that are to be transferred to express their approval concerning the freedom of labour, the option of profession and the work place should be considered. Accordingly, the employee is fully entitled to decline the transfer.
In case of the above mentioned decline, taking into consideration the fact that the employer offered to his employee the possibility of transfer, whereas the employee declined the transfer, it may be accepted that the employer fulfilled his protection duty pursuant to Law no. 67/2006. By declining the transfer, the employee also took over the possible negative effects of the decline, meaning the termination of the agreement, as long as his position at the assignor does no longer exist.
Andreea Suciu, Attorney-at-law
S.P.R.L. Radnóczy & Menzer NÖRR STIEFENHOFER LUTZ
Attorneys – Tax Advisers – Auditors
28C, General Constantin Budisteanu Str., RO-010773 Bucharest
Tel.: 0040 21 312 58 88
Fax: 0040 21 312 58 89
E-mail: andreea.suciu@noerr.com
Web: www.noerr.com
By the Law no. 67/2006 concerning the protection of employees in case of business transfer, published in the Official Gazette no. 276/28.03.2006 (“Law no. 67/2006”), the harmonization of the valid legislation to the European legislation was intended, i.e. by implementation of the Directive 2001/23/CE of the Council for the harmonization of the legal provisions of the member states concerning the observing of the employees claims in case of total or partial business transfer. The Law no.67/2006 became effective on the day Romania entered EU.
2. Protection of employees in case of business transfer
Law no. 67/2006 partially includes the provisions of the European Directive concerning the observing of the employees claims from the individual labour agreements and the collective agreement. Pursuant to Art. 5, the rights and duties of the assignor from the individual labour agreements and the collective agreement are totally transferred to the assignee. Pursuant to art. 7, the business transfer may not be a reason for individual or collective lay off of the employees by the assignor or the assignee. A gap of the text of Law no. 67/2006 is to be mentioned, which has not taken the rule of the Directive 2001/23/CE over the fact, that the above mentioned interdiction of layoff of the employees does not include the layoff due to economic, technical or organizational – technical reasons. This may lead to interpretations of practical layoffs due to the above mentioned reasons and/or the legality of such layoffs.
There is also to be mentioned that the purpose of the collective business transfer pursuant to Law no. 67/2006 is the protection of the employees, so that it supposes the approval of the employees exposed to the business transfer. However, the specialized literature also shows the opinion that the transfer of the employees requires their express approval in order to be effective.
However, we point out that a protection measurement which grants a right to the employee should not be converted into an obligation of his. In this case the freedom of the employees that are to be transferred to express their approval concerning the freedom of labour, the option of profession and the work place should be considered. Accordingly, the employee is fully entitled to decline the transfer.
In case of the above mentioned decline, taking into consideration the fact that the employer offered to his employee the possibility of transfer, whereas the employee declined the transfer, it may be accepted that the employer fulfilled his protection duty pursuant to Law no. 67/2006. By declining the transfer, the employee also took over the possible negative effects of the decline, meaning the termination of the agreement, as long as his position at the assignor does no longer exist.
Andreea Suciu, Attorney-at-law
S.P.R.L. Radnóczy & Menzer NÖRR STIEFENHOFER LUTZ
Attorneys – Tax Advisers – Auditors
28C, General Constantin Budisteanu Str., RO-010773 Bucharest
Tel.: 0040 21 312 58 88
Fax: 0040 21 312 58 89
E-mail: andreea.suciu@noerr.com
Web: www.noerr.com
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