Romanian Labour Code - Title II - Chapter - 7 - Employment by temporary employment agency

Romanian Labour Code

General provisions
(Title I - art. 1-9)
The individual employment contract
(Title II - art. 10-107)
Working time and
rest period
(Title III - art. 108-153)
Remuneration
(Title IV - art. 154-170)
Health and safety
at work
(Title V - art. 171-187)
Vocational training
(Title VI - art. 188-213)
Social dialogue
(Title VII - art. 214-235)
Collective labour agreements
(Title VIII - art. 236-247)
Labour disputes
(Title IX - art. 248-253)
Labour Inspectorate
(Title X - art. 254-256)
Legal liability
(Title XI - art. 257-280¹)
Labour jurisdiction
(Title XII - art. 281-291)
Final and transitional provisions
(Title XIII - art. 292-298)

page 1 of 1

TITLE II - The individual employment contract

CHAPTER 7 - Employment by temporary employment agency

Art. 88. [legal definition: work, employee, agency, user undertaking]
(1) The employment by temporary employment agency, hereinafter called “temporary employment”, is an activity performed by a temporary employee who, at the direction of the temporary employment agency, carries out an activity for the benefit of a user undertaking.
(2) A temporary employee is a person working for an employer – temporary employment agency, and made available to a user undertaking for the duration necessary to perform certain precise and temporary tasks.
(3) A temporary employment agency is a company authorized by the Ministry of Labour and Social Solidarity that temporarily provides the user undertaking with skilled and/or unskilled personnel employed and paid for this purpose. The conditions for the establishment and operation and the authorization procedure of the temporary employment agencies shall be established by Government Decision.
(4) A user undertaking is an employer whom the temporary employment agency provides a temporary employee for the performance of precise and temporary tasks.

Art. 89. [legal definition of temporary employment mission]
A user undertaking may only resort to temporary employment agencies for the performance of precise and temporary tasks, called temporary employment missions, only in the following cases:
a) for the replacement of an employee whose individual employment contract has been suspended, during the suspension;
b) for the performance of a seasonal activity;
c) for the performance of specialized or occasional activities.

Art. 90. [length of temporary employment mission]
(1) A temporary employment mission shall be established for a period that may not exceed 12 months.
(2) The duration of the temporary employment mission may be extended only once for a period that, added to the original duration of the mission, may not exceed 18 months.
(3) The conditions under which a temporary employment mission may be extended shall be provided for in the temporary employment contract or may be subject to an addendum to that contract.

Art. 91. [assignment contract]
(1) A temporary employment agency provides the user undertaking an employee under a temporary employment contract, on the basis of an assignment contract concluded in writing.
(2) An assignment contract shall include:
a) the reason for the use of a temporary employee;
b) the end date of the mission and, where appropriate, the possibility to change it;
c) the characteristics of the position, in particular the necessary skills, the location of the mission and the work schedule;
d) the actual working conditions;
e) the work and personal protection equipment that the temporary employee is required to use;
f) any other services and facilities benefiting the temporary employee;
g) the value of the contract concluded with the temporary employment agency, and the remuneration the employee is entitled to.
(3) Any clause prohibiting the user undertaking to hire the temporary employee after the fulfilment of the mission shall be null and void.

Art. 92. [equal treatment]
(1) The temporary employees shall have access to all services and facilities granted by the user undertaking, under the same conditions as the latter’s other employees.
(2) The user undertaking shall provide the temporary employee with work and personal protection equipment, except for the case when the assignment contract provides that this is the responsibility of the temporary employment agency.

Art. 93. [circumstance prohibiting the employment of a temporary employee]
A user undertaking may not enjoy the services of the temporary employee if it intends in this way to replace one of its employees whose employment contract has been suspended as a result of the participation to strike.

Art. 94. [temporary employment contract]
(1) A temporary employment contract is an employment contract concluded in writing between the temporary employment agency and the temporary employee, usually covering the length of a mission.
(2) A temporary employment contract shall contain, besides the elements provided for in Articles 17 and 18 (1), the conditions of the mission, the length of the mission, the identity and headquarters of the user undertaking and the way the temporary employee is to be remunerated.

Art. 95. [temporary employment contract concluded for several missions]
(1) A temporary employment contract may also be concluded for several missions, subject to the duration provided for in Article 89 (2).
(2) Between two missions, the temporary employee shall be at the disposal of the temporary employment agency and shall enjoy a wage paid by the agency, which may not be lower than the national minimum gross wage.
(3) For each new mission, the parties shall conclude an addendum to the temporary employment contract, which shall detail all elements provided for in Article 93 (2).
(4) A temporary employment contract shall cease at the end of the last mission for which it was concluded.

Art. 96. [payment of temporary employee wage]
(1) During the entire mission, the temporary employee shall enjoy the wage paid by the temporary employment agency.
(2) The wage received by the temporary employee for each mission may not be lower than the wage received by the employee of the user undertaking performing the same activity or an activity similar to the activity of the temporary employee.
(3) Insofar as the user undertaking does not have such employees, the wage received by the temporary employee shall be set taking into account the wage of a person employed under an individual employment contract that performs the same or a similar activity, such as it is established in the collective labour agreement applicable to the user undertaking.
(4) The temporary employment agency shall retain and transfer all contributions and taxes owed by the temporary employee to the state budgets and pay for him/her all contributions owed under the terms of the law.
(5) Should the temporary employment agency fail to comply with the obligations regarding the payment of the wage and the contributions and taxes within 15 calendar days from the date when they became outstanding and due, they shall be paid by the user undertaking, at the request of the temporary employee.
(6) The user undertaking having paid the amounts owed according to paragraph (5) shall, for the amounts paid, subrogate into the rights of the temporary employee against the temporary employment agency.

Art. 97. [probationary period for the temporary employee]
A probationary period for the accomplishment of the mission may be established in the temporary employment contract, whose duration is set according to the demand of the user undertaking, but which may not exceed:
a) two working days, when the temporary employment contract has been concluded for a period shorter or equal to one month;
b) three working days, when the temporary employment contract has been concluded for a period between one and two months;
b) five working days, when the temporary employment contract has been concluded for a period exceeding two months.

Art. 98. [temporary employee protection]
(1) During the mission, the user undertaking shall be responsible to ensure the working conditions of the temporary employee, according to the legislation in force.
(2) The user undertaking shall forthwith notify the temporary employment agency of any accidents at work or occupational diseases it took knowledge of and whose victim was a temporary employee supplied by the temporary employment agency.

Art. 99. [extension of temporary employment]
(1) At the end of the mission, the temporary employee may conclude an individual employment contract with the user undertaking.
(2) Should the employer hire a temporary employee after a mission, the length of the mission performed shall be taken into account when assessing the pecuniary rights and other rights provided for in the labour legislation.
(3) If the user undertaking continues to enjoy the work of the temporary employee without concluding with him/her an individual employment contract or without extending the assignment contract, it shall be deemed that an individual employment contract of unlimited duration has intervened between that temporary employee and the user undertaking.

Art. 100. [temporary employee dismissal]
A temporary employment agency dismissing the temporary employee before the term provided for in the temporary employment contract, for other reasons than disciplinary, shall observe the legal regulations regarding the cessation of the individual employment contracts for reasons not related to the person of the employee.

Art. 101. [temporary employee equal treatment]
Except for contrary special provisions, as provided for in this chapter, the legal provisions and the provisions included in the collective labour agreements applicable to the employees working for the user undertaking under an individual employment contract of unlimited duration shall equally apply to the temporary employees during the mission to the user undertaking.

page 1 of 1