INDIVIDUAL LAW OF LABOR

Editura Universitara
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41,00 Lei 29,93 Lei

ISBN: 978-606-28-0729-0

DOI: 10.5682/9786062807290

Publisher year: 2018

Edition: I

Pages: 302

Publisher: Editura Universitară

Author: Radu Stefan Patru

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Labor law is a dynamic, alert branch of law, giving expression to the importance of work for society, but also for each person. For these reasons, labor law has undergone a rapid evolution in recent decades, representing a branch of law in the Romanian legal system.

In this paper, we approached labor law in terms of individual labor relations, for these reasons, the individual employment contract is the main institution of labor law analyzed. In the content of the paper, other relevant institutions for this matter are approached, such as legal liability, health and safety at work, labor jurisdiction, etc.

Throughout the paper we referred to the situation of civil servants, presenting comparative elements between their legal regime and that of employees, even if in our opinion the service relations of civil servants are not currently integrated into labor law.

Considering the fact that the individual labor law and the collective labor law cannot be separated in a rigid way, they together make up the content of labor law, in the paper I highlighted the relevance of collective bargaining for certain institutions of individual labor law.

It is an approach that I considered useful, mainly through the proposals of the law ferenda formulated, especially since, at present, collective bargaining, especially at higher levels is almost non-existent.

I affirm the satisfaction of publishing this monograph which was conceived during a relatively long period of reflection on the main aspects of individual labor law, in a particularly important year for Romania, respectively the centenary year.

For the elaboration of this paper, we consulted the legal doctrine, the judicial practice and the normative acts published until May 1, 2018.

This paper is addressed equally to law practitioners - magistrates, lawyers, notaries, legal advisers, and law theorists - teachers, doctoral students, master students, being a useful study material for law students and for students in education economic superior.

At the same time, the paper is addressed to every person who has the quality of employee, civil servant or employer and who is inevitably interested in his employment relationship.

Finally, I would like to thank the University Publishing House, thanks to which this book saw the light of day.

Dr. Radu Stefan Patru

Bucharest, May 28, 2018

Radu Stefan Patru

University assistant within the Department of Law - Academy of Economic Studies, holder of the disciplines Labor Law and Business Law, also carrying out consulting activity, especially in the field of labor law. Education: Doctor of Laws from the Academy of Economic Studies, since 2014, with the thesis entitled Contracts and collective labor agreements. Publications: Monographs and courses in prestigious publishing houses in the country, for example: Contracts and collective labor agreements, Hamangiu Publishing House, Bucharest, 2014, Corporate law course for distance education, ASE Publishing House, Bucharest, 2018, articles scientific journals in prestigious journals in the field of Legal Sciences, such as Law, Romanian Journal of Labor Law, Legal Tribune, etc., participating in numerous national and international conferences with the publication of articles in the collective volumes of conferences.

Content

ABBREVIATIONS / 13

FOREWORD / 15

CHAPTER I LABOR LAW AS A BRANCH OF LAW SOURCES. PRINCIPLES / 17

Introductory considerations / 17
Work through the prism of different categories of legal relations / 18
Definition and structure of labor law. Individual law and collective labor law / 19
Civil servants / 21
Sources of Labor Law / 21
Common sources / 22
Normative acts / 22
Jurisprudence / 23
Users / 24
Specific sources / 25
Specific internal sources / 25
Regulation of organization and functioning / 25
Rules of procedure / 26
Occupational safety and health instructions / 28
The collective labor contract / 28
The correlation between the internal sources specific to the labor law / 33
Specific international sources / 34
O. I. M / 34
U. E / 35 standards
The relationship between U. E. norms and O. I. M. norms. The priority applicability of U. E. norms in domestic law in case of conflict / 36
Council of Europe rules / 37
Principles of Labor Law / 37

CHAPTER II - INDIVIDUAL EMPLOYMENT CONTRACT / 43
Introductory aspects / 43
Notion / 45
Legal features / 46
Common features with other contracts / 46
Features specific to the individual employment contract / 49
Formation of the individual employment contract / 53
Substantive conditions / 53
Capacity / 53
Consent / 63
Object and cause of the individual employment contract / 67
Formal conditions regarding the individual employment contract (written form ad probationem). / 69
Registration of the individual employment contract; the personal file of the employees / 70
Other conditions / 73
Medical examination / 73
Conditions of seniority in work / 74
Studies / 76
Approval, authorization or attestation / 76
Trial period / 77
Internship / 81
Declarations of assets and interests / 86
Content of the individual employment contract / 87
Essential and mandatory clauses / 91
Specific and optional clauses / 97
The specific and optional clauses provided by the Labor Code / 97
Specific and non-mandatory clauses, not provided by the Labor Code / 103
Execution of the individual employment contract / 109
Nullity of the individual employment contract / 113
Notion / 113
Legal regime / 114
Effects / 115
Modification of the individual employment contract / 116
Delegation / 117
Detachment / 119
Force majeure (art. 48 Labor Code) / 126
As a disciplinary sanction (art. 48 of the Labor Code) / 126
In the interest of the employee (art. 48 of the Labor Code) / 127
Unforeseen / 127
Transfer / 129
Suspension of the individual employment contract / 133
Termination of the individual employment contract / 147
Termination of the individual employment contract by law / 147
Termination of the individual employment contract by agreement of the parties / 153
Termination of the contract as a unilateral will of one of the parties / 154
Resignation / 154
Termination of the individual employment contract due to the unilateral will of the employer - Dismissal. / 157
International and domestic legal framework / 157
Prohibitions on dismissal / 157
Dismissal for reasons related to the person of the employee (art. 61 letters a) - d) Labor Code) / 159
Disciplinary dismissal (art. 61 letter a) Labor Code) / 159
Dismissal in case of pre-trial detention or house arrest for a period longer than 30 days (art. 61 letter b) Labor Code) / 161
Dismissal for medical reasons (art. 61 letter c) Labor Code) / 162
Dismissal for professional misconduct (art. 61 letter d) Labor Code) / 163
Dismissal for reasons not related to the employee / 166
Individual dismissal / 167
The effective character of the termination of employment / 167
Real cause / 168
Serious cause / 168
Collective redundancy / 169
Notion / 170
Legal regime / 171
The dismissal decision. / 175
Control and sanctioning of illegal dismissals / 176
Individual performance goals vs. social criteria for separation in collective redundancies. / 177
The legal regime of the individual performance objectives of the employees / 178
Social criteria / 179
The situation of the individual labor contracts in case of the transfer of the enterprise, of the unit or of some parts of them / 180
Termination of the employment relationship of civil servants at the initiative of the public authority or institution. 183
Different types of individual employment contracts / 186
The individual employment contract for a determined period / 186
General aspects / 186
Norms of the European Union in the matter / 187
Validity conditions of the individual employment contract concluded for a determined duration / 187
Cases in which fixed-term employment contracts can be concluded / 187
Legal regime / 188
Termination of the individual employment contract for a determined period / 190
Working through a temporary work agent / 190
Notion / 190
Norms of the International Labor Organization and of the European Union in the matter / 191
Legal regime / 191
Termination of the temporary employment contract / 195
Individual part - time employment contract / 195
General aspects. notification une / 195
Norms of the International Labor Organization and of the European Union in the matter / 195
Legal regime / 196
Termination of the individual part-time employment contract. 198
Home work. Telemunca / 198
Notion / 198
International standards in the field / 199
Legal regime / 199
Termination of the work contract at home / 201

CHAPTER 3 - WORKING TIME AND REST TIME / 202
Regulations under O. I. M. and U. E / 202
Working time. Notion / 202
Duration of working time / 203
Additional work / 205
Night work / 206
Labor regulation / 208
Rest time / 209
Lunch break / 209
Daily rest / 210
Weekly rest / 210
Legal holidays / 211
Holidays / 213
Rest leave / 213
Paid days off / 216
Unpaid leave / 216
Free ticket / 216
Vocational training leave / 217
Special regulations on rest time for employees in the budget system / 218
Collective bargaining on working time and rest time / 220

CHAPTER 4 - REMUNERATION / 223
General aspects. Principles / 223
Regulation at the level of O. I. M / 224
Salary regulation at national level / 225
The general regulation of the salary in the Romanian Constitution and in the Labor Code / 225
Forms of pay. Salary structure / 227
Minimum gross basic salary in the country guaranteed in payment / 228
Payment of salary / 229
Salary in the private sector / 231
Salary in the budgetary sector / 232
Other salary rights / 235
Evolution of salaries / 237
Relevance of collective bargaining in terms of pay / 238

CHAPTER 5 - LEGAL LIABILITY / 239
Disciplinary liability / 239
General aspects regarding the legal regime of disciplinary liability / 239
Procedural aspects regarding the applicability of disciplinary liability / 242
Deletion of disciplinary sanctions / 248
Cumulation of disciplinary liability with other forms of liability / 250
The role of the court in the matter of contesting the disciplinary sanctioning decisions / 250
The role of collective bargaining in disciplinary liability / 251
Disciplinary liability of civil servants / 252
Deletion of sanctions applied to civil servants. Administrative record of civil servants / 255
Patrimonial liability / 257
The patrimonial responsibility of the employer towards the employee / 258
Conditions / for incurring the patrimonial responsibility of the employer / 258
Employer recourse action / 259
The patrimonial responsibility of the employee towards the employer / 259
The conditions of the patrimonial responsibility of the employees / 260
Aspects / procedural / regarding / the / applicability / patrimonial responsibility of the employees - a regulatory gap in the Labor Code / 263
Repair liability applicable to civil servants / 266
Contraventional liability / 267
Contraventional liability of civil servants / 271
Criminal liability / 271

CHAPTER 6 - OCCUPATIONAL HEALTH AND SAFETY / 274
International and U.E. regulations in matter / 274
Internal regulation / 275
Specific features of the legal norms that regulate health and safety at work / 275
Main legal obligations in the matter of ensuring health and safety at work / 277
Accident at work and occupational disease / 282
Committee on Safety and Health at Work / 283
Legal responsibility in matters of safety and health at work / 285

CHAPTER 7 - INDIVIDUAL LABOR CONFLICTS. LABOR JURISDICTION / 287
Individual labor disputes / 287
Labor jurisdiction / 290
General aspects / 290
Parties to the labor dispute
Term / 290
Competence. Special rules of procedure
BIBLIOGRAPHY / 295

Labor law is a dynamic, alert branch of law, giving expression to the importance of work for society, but also for each person. For these reasons, labor law has undergone a rapid evolution in recent decades, representing a branch of law in the Romanian legal system.

In this paper, we approached labor law in terms of individual labor relations, for these reasons, the individual employment contract is the main institution of labor law analyzed. In the content of the paper, other relevant institutions for this matter are approached, such as legal liability, health and safety at work, labor jurisdiction, etc.

Throughout the paper we referred to the situation of civil servants, presenting comparative elements between their legal regime and that of employees, even if in our opinion the service relations of civil servants are not currently integrated into labor law.

Considering the fact that the individual labor law and the collective labor law cannot be separated in a rigid way, they together make up the content of labor law, in the paper I highlighted the relevance of collective bargaining for certain institutions of individual labor law.

It is an approach that I considered useful, mainly through the proposals of the law ferenda formulated, especially since, at present, collective bargaining, especially at higher levels is almost non-existent.

I affirm the satisfaction of publishing this monograph which was conceived during a relatively long period of reflection on the main aspects of individual labor law, in a particularly important year for Romania, respectively the centenary year.

For the elaboration of this paper, we consulted the legal doctrine, the judicial practice and the normative acts published until May 1, 2018.

This paper is addressed equally to law practitioners - magistrates, lawyers, notaries, legal advisers, and law theorists - teachers, doctoral students, master students, being a useful study material for law students and for students in education economic superior.

At the same time, the paper is addressed to every person who has the quality of employee, civil servant or employer and who is inevitably interested in his employment relationship.

Finally, I would like to thank the University Publishing House, thanks to which this book saw the light of day.

Dr. Radu Stefan Patru

Bucharest, May 28, 2018

www.editurauniversitara.ro

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