capitolul Romanian Labour Code - Title II - Chapter - 1 - Conclusion of the individual employment contract
 

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TITLE II - The individual employment contract
CHAPTER 1 - Conclusion of the individual employment contract
Art. 10. [legal definition of the individual employment contract]
An individual employment contract is an agreement under which a natural person, called employee, undertakes to perform the work for and under the authority of an employer, natural or legal person, against a remuneration called wage.
Art. 11. [clauses prohibited]
The terms of the individual employment contract may not contain provisions contrary to or rights below the minimum level laid down by legal provisions or collective labour agreements.
Art. 12. [length of the individual employment contract]
(1) An individual employment contract shall be concluded for an unlimited duration.
(2) By way of exception, the individual employment contract may also be concluded for a limited duration, under the terms expressly provided for in the law.
Art. 13. [legal capacity of the employee]
(1) A natural person shall acquire legal capacity to work at the age of sixteen.
(2) A natural person may also conclude a employment contract as an employee at the age of 15, with the agreement of his/her parents or legal representatives, related to activities corresponding to his/her physical development, skills and knowledge, unless his/her health, development and vocational training are harmed.
(3) The employment of persons under the age of fifteen years shall be prohibited.
(4) The employment of persons placed under guardianship shall be prohibited.
(5) The employment in difficult, unhealthy or dangerous workplaces may only take place after the age of eighteen; such workplace categories shall be established by Government Decision.
Art. 14. [legal capacity of the employer]
(1) For the purposes of this Code, “employer” means a natural or legal person, which, according to the law, may employ personnel under individual employment contracts.
(2) A legal person may conclude individual employment contracts in the capacity of employer from the moment it acquires legal personality.
(3) A natural person may conclude individual employment contracts in the capacity of employer after acquiring full legal capacity.
Art. 15. [subject matter of the employment contract]
The conclusion of an individual employment contract for the purpose of an illegal or immoral occupation or activity shall be prohibited, on pain of absolute nullity.
Art. 16. [form of the employment contract]
(1) An individual employment contract shall be concluded on the basis of the parties’ written consent, in the Romanian language. The obligation to conclude the individual employment contract in a written form lies with the employer. A legal person, a natural person authorized to perform an independent activity or a family association acting as an employer shall conclude the individual employment contract in writing, before the beginning of the employment relationships.
(2) In case the individual employment contract has not been concluded in writing, it shall be presumed to be of unlimited duration, and the parties may prove by any other type of evidence the contractual provisions and the services provided.
(3) The work performed under an individual employment contract shall be included in employee’s length of service.
Art. 17. [information on employment contract clauses]
(1) Before concluding or amending the individual employment contract, the employer shall inform the person selected for employment or, as appropriate, the employee on the essential clauses to be introduced in the contract or to be amended.
(11) The obligation to notify to person selected for employment or the employee shall be deemed to be fulfilled by the employer upon the signature of the individual employment contract or the addendum, as the case may be.
(2) The person selected for employment or the employee, as the case may be, shall be informed at least of the following:
a) the identity of the parties;
b) the workplace or, in the absence of a permanent workplace, the possibility of working in several places;
c) the headquarters or, as appropriate, the domicile of the employer;
d) the position/occupation according to the Romanian Classification of Occupations or other regulatory documents and the job description;
e) the job-specific risks;
f) the date when the contract takes effect;
g) in the case of an employment contract of limited duration or of a temporary employment contract, its respective length;
h) the length of the leave the employee is entitled to;
i) the conditions under which the contracting parties may give notice and its length;
j) the basic pay, other components of earned income, and the payment frequency for the wage the employee is entitled to;
k) the normal length of work, expressed in hours per day and hours per week;
l) the reference to the collective labour agreement governing the working conditions of the employee;
m) the length of the probationary period.
(3) The pieces of information provided for in paragraph (2) shall also be included in the individual employment contract.
(4) Any amendment to one or more of the items provided for in paragraph (2) during the performance of the individual employment contract shall require the conclusion of an addendum, within 15 days from the written notification of the employee, unless such amendments are made possible by the law or by the applicable collective labour agreement.
(41) While negotiating, concluding or amending the individual employment contract, each party may, according to its wishes, be assisted by third parties, under the provisions of paragraph (5).
(5) As regards the information provided to the employee before the conclusion of the individual employment contract, the parties may sign a confidentiality contract.
Art. 18. [information of employees working abroad ]
(1) If the person selected for employment or the employee, as the case may be, should perform his/her activity abroad, the employer shall communicate him/her in good time, before the departure, the information provided for in Article 17 (2), and information on the following:
a) the length of the work to be performed abroad;
b) the currency of wage payment, and the payment methods;
c) the benefits in money and/or in kind related to the activity performed abroad;
e) the climatic conditions;
e) the main labour law regulations in that country;
f) the local customs whose breach would endanger his/her life, freedom or personal safety;
g) employee repatriation conditions, as the case may be.
(11) The information provided in paragraph (1) (a), (b) and (c) shall also be included in the individual employment contract.
(2) The provisions of paragraph (1) shall be supplemented by special laws governing the specific conditions for working abroad.
Art. 19. [effects of failure to inform]
Should the employer fail to fulfil its obligation of information, as provided for in Articles 17 and 18, the person selected for employment or the employee, as the case may be, shall be entitled to appeal, within 30 days from the failure to fulfil that obligation, to the competent court and seek redress according to the damage incurred following the employer’s failure to inform.
Art. 20. [special clauses of the individual employment contract]
(1) Besides the essential clauses provided for in Article 17, the parties may also negotiate and include other specific clauses in the individual employment contract.
(2) The following shall be considered specific clauses, while the enumeration is not meant to be limitative:
a) clause on vocational training;
b) non-compete clause;
b) mobility clause;
b) confidentiality clause.
Art. 21. [non-compete clause]
(1) When concluding the individual employment contract or during its performance, the parties may negotiate and include a non-compete clause in the contract, requiring the employee, after the cessation of the contract, to abstain from performing, in his/her own interest or for a third party, an activity competing with that performed for the employer, against a monthly non-compete benefit the employer undertakes to pay during the entire non-compete period.
(2) The non-compete clause shall only take effect when the activities prohibited to the employee upon the cessation of the contract, the amount of the monthly non-compete benefit, the time limits of the non-compete clause, the third parties for whom it is prohibited to perform activities, and the geographical area where the employee may reasonably compete with the employer, have been specifically provided for in the individual employment contract.
(3) The monthly non-compete benefit owed to the employee may not be a wage-like benefit, shall be negotiated and shall amount to at least 50% of the average gross wage income of the employee during the previous six months before the cessation of the employment contract or, if the duration of the individual employment contract was less than six months, of the average gross wage income owed to him/her during the contract.
(4) The non-compete benefit shall be an expense made by the employer, deductible when calculating the taxable income, and the tax shall be collected from the beneficiary natural person, according to the law.
Art. 22. [extension of the non-compete clause]
(1) The non-compete clause may take effect for a period of maximum 2 years from the cessation of the individual employment contract.
(2) The provisions of paragraph (1) shall not apply when the cessation of the individual employment contract occurred de jure, except for the cases provided for in Article 56 (d), (f), (g), (h) and (j), or on the initiative of the employer, for reasons not related to the employee.
Art. 23. [limits of the non-compete clause]
(1) The non-compete clause shall not have the effect of absolutely prohibiting the exercise of employee’s profession or specialization.
(2) The competent court may, when referred by the employee or the territorial labour inspectorate, reduce the effects of the non-compete clause.
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