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03.10.2003

The Dark Working Code

Beyond the European encouragements and beyond the triumphal statistics which are being interpreted by the governors in a manner that reminds us of the 15 % economical raise Romania used to put on rapport during the sinister 80's the Romanian economy has still a long way to reach the functional market economy status. Its weakness and its inefficiency which are essentials to it can be clearly seen every time, starting with the too much expensive and imported in quite a worrying percentage aliments and ending with the inefficiency of the huge state owned energetic section, all these are cutting down the expenses list of most Romanians to only two major articles: food and electric power.

The engine that drives the development of the Romanian economy and is in the same time its only chance is none other than its private sector. But it happens that within this particular sector one can not find huge salaries, twice as necessary personnel nor spending time in coming to work as it often can be found within the state owned sector. Within the private sector it was created and it still needs to be consolidated a new attitude towards work, based upon such true values as competition, individual recognition and being decompensated strictly according to one's worth, the importance of a quick adaptation to new conditions. But in order that this should happen it is quite imperative for the working market to be free, thus the market relationships could support these values and, as a whole, to sustain the competitive characteristic of the economy. The work market has to be, with no doubt whatsoever subject to reglementations, but these reglementations should, on one hand to ensure the balance between the two involved parts and on the other hand not to limit concurrence or free initiative.

Judging from this point of view, the new Working Code which was adopted by the Parliament will cause serious unbalance within the work market and the Romanian economy because it is imposing taught and unjustified conditions to the employers. This one has to pay the employee a fee (compensation) of 25 % minimum
(acc. Art. 21) if he wishes that a non-concurrency clause should be added to the working contract; this thing
is immoral, because not working for the concurrence, thing that can be translated by "being loyal" is quite a common duty for an employee who was hired full work load, for which he has no reason to be specially compensated, especially with such a big percentage (naturally, the parliamentarians that voted the new Code this level of transitory increase and compensations can look rather modest). As a plus, the non-concurrency clause is no longer available after the working contract ceased its functioning (as the law foresaw) if the
contract is ceasing out of reasons which do not involve in any way the employee; but these ones can be economical reasons, which do not necessarily involve the employers' illwill, so he is deprived arbitrarily of
an advantage he had paid for.

The employer can ask for information from the former employees of the one that is soliciting to be hired only if they are previously announcing this one (acc. Art. 29); this foresight is at its best useless (it can have no other reason than to allow him to pull some strings at his former working place in order to obtain good references) and abusive, because the information concerning the employee's labour conscription are not linked to the private sphere, which should be indeed protected.

The employers have the duty to "communicate on a periodic base to his employees the financial and economical situation of the unit" (acc. Art. 40). This foresight is unnatural because its only possible purpose is to give the employees' a chance in knowing in time the uncertainty of his working place. Thus, he has a contract in which there is set a warning of discharge which foresees exactly this kind of situations. And if every employee will analyze the situation and the possibilities of the society's developing it might just be that their work would be seriously affected by these concerns and end up in his even wanting to leave the business for a decrease of the financial figures which does not indicate anything seriously. By not having competencies within the analysis field, the employees might be more confused than helped by this apparent facility.
On top of it all, all these data given to the employees can be exploited by the concurrency, thus given it an undeserved advantage.

The employer has the obligation of offering an alternative-working place within the unit to the employees that do not correspond professionally speaking to the job from a physical or psychical point of view. If within the unit there are no such jobs the employer has to find for the employee a working place through the unemployment office, following uncertain conditions and only after he has done so he has the right of firing him. These measures are making it very difficult for the firm's activity to develop and in the same time discourage the employee in finding on his own a new working place.

The employees posses not only the right of benefiting of professional formation in general and especially
when fired, but they posses also "the right of protection against being fired" (the law is strictly and excessively referring to the employee - employer relation, so this is not about the social protection offered by the state) with no specification of the cases: thus, the employee possesses this right no matter if he was fired for indiscipline or incompetence. The code foresees indeed the obligation of the employee of accomplishing his job, but it makes no reference to the quality of the work. (acc. Art. 64, 69, 39).

The employee has the right, generally speaking of not motivating his resignation and of resigning without notice (art. 19) if the employer is not respecting his obligations, but this is left entirely to his estimation.
The employee working at home is benefiting of all the rights of the others: it might be that the employer should send daily to his home mineral water on hot days and decorate his home with all necessary working conditions according to the law… (Art. 107). For solving some personal situations, insufficiently presented the employees have the right of unpaid holidays, similar to the "defined by law"! (Art. 148) family events cases

The employer can reject the employee's demand for a holiday destined to the professional formation but only with the syndicate approval and only if this "should seriously harm the activity's development" (art. 150).
The code is foreseeing the employer's obligation of making contributions to the fund, which guaranties the payment of wages, but the specifications are quite vague. Even more, the vaguest of them all is when and why such compensations are being forced upon the employer; thus it would be more logical that if an employer is not respecting his obligation the employee would resign or sue him. This is an inevitable risk, just as it is for the employer the risk that the employee would not show up one day at work.

The employees are patrimonial being responsibles for the damage caused "of their fault and connected to their work" (art. 270); in other words if an employee is damaging other machine than the one he is working on he has no obligation whatsoever. The maximal working time period is strictly limited to 48 hours per week, including the overtimes (overtimes which can not be made if the employee doesn't agree and for which one should pay a minim bonus of 75 %!). Beyond the huge problems this absurd reglementation can create in the fields that are developing a seasonal activity (agriculture, constructions, activities that are benefiting of derogation in other countries) or in medicine or in care taking institutions, there are whole categories of functions (almost all the leadership functions, for instance) which require 10 - 12 hours per day, so a minimum of 50 hours per week. Judging this from the new code point of view their activity will become illegal, even if they agree to work more than 48 hours per week!

Discouraging by law the civic conventions, though created in order to increase the budget funds will probably have a reverse effect; the financial system increase for the employers will force the firing of some employees,
a raise of the tax evasion and even a cut back on wages so that the new obligation can be paid.

The working code which is already being enforced will heavily discourage the new working values which have begun to be created by the newly formed market economy which are in the first place the responsibility (but, not last a mill stone for the state owned institutions which are intending to revive).

Its main fault are, first of all, the ones of the huge majority of the Romanian nowadays and forever legislation: it's about the obsession of putting every aspect under the domination of the law, even if it's not the case, of
the essential vagueness of many reglementations which can only give birth to unnatural interpretations and abuses. Finally, the proclamation more than exhaustive goes hand in hand with the utopia proclamation, with impossible reglementations to put in practice; these on one hand are introducing the compromise in that particular field because the choice made among the reglementations which can be put into practice and those that can't is made arbitrarily, and on the other hand are strengthening the lamentable status the Law in Romania is "enjoying" of. This manner of proclaiming laws is the main factor, which urges to breaking the law, which leads to a noxious "creativity": how can we work 10 hours per day (because we have to finish our work) but officially to work only 9, etc.

Secondly, it is about the specific flaws of this law. Obvious, it is on the employees' side and clearly against the employers, in such a manner that has left the social democracy area and is purely populist. Between the minimal employees' rights and the minimal employers' obligations on one hand and between the minimal employers' rights and the minimal employees' obligations on the other hand which every European law of this field has to state there is a space of free manoeuvres where a party has the liberty of identifying its position based on its ideological options. Still the new Working Code can not be found anywhere in this manoeuvrable space, being obviously taking sides.

The basic principle of the new Code according to which the employee is well without the employers' being well is completely false. The unfavourable consequences of either sides have already begun to show; in order to face the strict reglementations newly enforced the employers have begun to demand the employee an advance resignation. In general, the predictive effects of the new Working Code can not be others than a serious drop
of competitiveness within the business, a growing rigidity of the working market and, in long term an economical drop.