According to the Labor Code, the duration of work is an essential element of the relationship between employer and employee, that must be found in any individual employment contract. The employer has the obligation to inform the employee in advance about it.
Also, in the Labor Code at art. 112 para. (1) we also find the normal duration of working time or full-time work established by the legislator at 8 hours per day and 40 hours per week.
Although the vast majority of employees are employed in full-time employment, according to the Labor Code it should be noted that the law also allows the establishment of other labor standards. Usually they establish a reduced norm compared to the one established in art. 112 para. (1) of the Labor Code and are known as individual part-time employment contracts, being regulated separately in the Labor Code at art. 103 – 107.
At the same time, it is not excluded that by an individual employment contract the parties agree to provide a working time longer than 8 hours per day and 40 hours per week, but not exceeding the maximum duration of 48 hours per week provided in art. 114 para. (1) of the Labor Code.
The essential thing about the duration of the work is that it can be modified only by the agreement of both parties of the legal relationship, employee and employer, after it must be materialized in writing by an additional act to the individual employment contract.
Therefore, according to the Labor Code, there is no possibility of unilateral modification of working hours by either the employee or the employer.
Emergency Ordinance no. 132/2020 expressly regulates an exception to this rule, according to which the employer may reduce the working time of employees by up to 50% of the daily, weekly or monthly duration, specified in the individual employment contract, taking into account active employment of the employer as a result of the institutions of the state of emergency / alert / siege.
Conditions applicable to measures by employers:
- the measure affects at least 10% of the number of employees of the unit
- the reduction of the activity is justified by a decrease in the turnover from the previous month applicable measures or, at most, from the month before its previous months by at least 10% compared to the similar month of the previous year.
Obligations of the employer:
- informing and consulting the union, the employees’ representatives or the employees, as the case may be, prior to the communication of the employee’s decision.
- establishing the work schedule for the whole month for the affected employees.
- Communication of the decision of the affected employee at least 5 days before the effective application of the measures.
Duration – the measure can be ordered by the employer by decision for a period of at least 5 working days, monthly. Also, the reduction of working time can be ordered only during the institutions of the state of emergency / alert / siege, as well as for a period of up to 3 months from the end of the last period in which the emergency / alert / siege area was institutionalized.
Prohibitions during the application of the measures:
- it is forbidden to hire staff for the performance of activities identical or similar to those performed by employees whose working time has been reduced, as well as subcontracting activities performed by employees whose working time has been reduced.
- employees affected by this measure cannot perform additional work at the same employer.
- the employer cannot initiate collective redundancies
- The measure cannot be cumulated with the reduction of the working hours from 5 days to 4 days per week required by art. 52 para. (3) of the Labor Code.
- the employee benefiting from all other rights presented in the individual employment contract or in the collective labor contract, in proportion to the actual time worked
- employees affected by the measure benefit from an indemnity of 75% of the difference between the gross monthly basic salary presented in the individual employment contract and the gross monthly basic salary related to the hours actually worked as a result of the reduction of working time, in addition to salary rights due, calculated at the actual time worked.
Alexandru Nuță – Attorney at law
R&R Partners Bucharest
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