White Paper: “Dawn raids” and the labour inspection authority in Romania (Detail) - Legal Services Kinstellar
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White Paper: “Dawn raids” and the labour inspection authority in Romania

August 2018 – This Kinstellar White Paper has been prepared by our experts to give insight into the main powers assigned by Romanian law (Law 108/1999 and GD 488/2017) to the Labour Inspection Authority during “dawn raids“.

Why and when is the labour inspection authority coming to conduct a control?

  • The Labour Inspection Authority conducts “dawn raids” under one or more of the following circumstances:
    • because the business entity was scheduled for a general, routine control (known as a background check);
    • because the Inspectorate carries out a thematic control campaign in a specific field of activity or in a particular geographic area;
    • because the inspector wishes to verify personally the manner in which measures introduced by a new legislative act or compulsory measures ordered in a previous control have been fulfilled;
    • because another institution with control duties requested the control;
    • because there is a referral about irregularities in the business entity; or
    • because the inspector noticed a particular fact relating to the business entity that raises suspicion of a serious violation of legal norms or an imminent danger of such.
  • The Labour Inspection Authority can interview and/or observe employers at any time during working hours, with or without prior notice. Frequent inspections are without prior notice, as inspectors want to observe the employer’s workplace during the normal course of business and without the employer’s prior prepartion.

What are the main documents reviewed by the labour inspection authority?

  • Unique Register of Control;
  • Internal Regulations;
  • Collective Labour Agreement or proof that the company has seriously attempted to negotiate and conclude one;
  • Standard Individual Employment Agreement, job description and assessment criteria;
  • Track record of the working hours and presence at the workplace of employees;
  • A document proving the quality of the person representing the company as director;
  • The contract (copy) of the person assigned as officer of health and security at the workplace;
  • Diploma of the person assigned as officer of health and security at the workplace;
  • The Committee of Health and Security at the workplace, where applicable;
  • HR files, including medical exam at employment and periodic medical exams;
  • Documents on employment termination (decision/convention) or various measures taken against employees (disciplinary or professional);
  • The General Register of Employee Evidence;
  • Protection of employees’ private date according to GDPR;
  • Identity cards (copies) of all people representing the company or interviewed by the labour inspector.

What are the powers of the labour inspectors?

  • To have free, permanent and unannounced access to the premises of any employer and to any other place of work organised by natural or legal persons;
  • To request and receive unconditional support and protection from the authorities and public order institutions, as appropriate, in the conduct of a control;
  • To apply distinctive signs with an official seal, during and in connection with the fulfillment of their job duties;
  • To identify people in workplaces or other places under a control or investigation of events and to require that the identification card be filled in (see the model below);
  • To require an employer and its employees to provide the documents and information necessary to carry out the control or to conduct an investigation of events;
  • To communicate notices by which the representative of the controlled employer is invited to submit the documents necessary for the control at the headquarters of the company / territorial labour inspectorate, specifying the date, time and documents requested;
  • To take written statements, photographs and audiovisual recordings, either alone or in the presence of witnesses, employees, employers and/or, as the case may be, their legal representatives as well as other persons who can give information about the subject of the inspection or the event researched;
  • To take samples of products, materials or substances manufactured, used, stored or handled for analysis in specialised laboratories or for the purpose of sampling and to check the classification of the level of harmfulness within acceptable limits at the employer's/owner's work premieses;
  • To have the employer carry out measurements, determinations and expert analysis to prevent events or to determine the causes of events;
  • To impose to the employer (i) measures to remedy any non-conformities found in time; (ii) the destruction or disposal of products posing a serious risk; (iii) prohibiting, restraining, withdrawing a product from the market or recalling it, stating the reasons for the decision, etc.;
  • To reclassify any other type of contract for work-related activities into a labour contract;
  • To order the cessation of work or the decommissioning of work equipment if a state of serious and imminent danger of injury or professional illness is found;
  • To find contraventions and to apply penalties provided by legislation in force, including ordering the suspension or withdrawal of the employer’s operating authorisation; and
  • To notify the criminal prosecution bodies about cases or violations of the legal provisions in the field, where there are indications that a crime has been committed.

What are employers and employeees obligations during a labour dawn raid?

  • Controlled individuals or legal persons have the obligation to provide the labour inspectors with the documents and information they require for the control or investigation of an event.

What is the the labour inspection authority looking for?

A. In the field of labour relations:

  • Individual employment agreements: conclusion, execution, modification, suspension and termination;
  • Undeclared work, additional work, work on legal holidays, work during rest periods, night work;
  • Work by teleworking and work from home;
  • Equal opportunities for women and men, protection of minors, other anti-discrimination laws;
  • Compliance with the legal provisions on salaries and salary payment;
  • Establishing and granting of rights to employees deriving from the law, from the applicable collective labour agreement and from the individual labour contracts;
  • Observance of the legal provisions governing the General Register of Employee Evidence;
  • Observance of the legal provisions regarding the posting of employees within the framework of the provision of cross-border services as stipulated by Law no. 16/2017 implementing Council Directive 96/71 / EC;
  • Employment of foreign citizens in Romania;
  • The work carried out by employment agencies;
  • The work carried out by temporary work agencies; and
  • The implementation of gender equality and gender equality measures.


B. In the field of health and safety at work and market surveillance:

  • The organisation and functioning of the occupational safety and health committees;
  • Training, information and consultation of employees;
  • Employers' compliance with the legal provisions regarding medical examination at the start of employment, adaptability and regular medical check-ups;
  • Compliance with regulations on the organisation of employment and preventive and protective measures in order to normalise working conditions;
  • Observance of the criteria for employment for special jobs and the manner in which the employer fulfils measures for the normalisation of working conditions;
  • Employers' compliance with legal provisions in the field of occupational safety and health and the taking of samples, dispose of measurements and determinations, may request information from witnesses, workers, employers and / or, as the case may be, their legal representatives, as well as other persons can provide information on the subject of the control performed;
  • How to apply measures to prevent the presence above the maximum admissible limits of chemical, physical or biological agents at the workplace;
  • The manner in which employers organise first aid activity in the event of injury, fire fighting and workers' evacuation;
  • That the employer identifies or confirms accidents at work and occupational diseases; and
  • Compliance with the legal provisions regarding the placing on the market of products for which it carries out market surveillance actions, takes samples and tests, restricts the marketing of non-compliant products and has measures to eliminate the non-compliances found.

Assessments made by labour inspectors

  • The findings, measures and sanctions imposed by the labour inspectors are recorded in minutes and in notes;
  • Complaints against the minutes of the findings and sanctioning of contraventions concluded by the labour inspectors are resolved according to the provisions of Government Ordinance No. 2/2001, as amended and supplemented;
  • Appeals against administrative acts concluded by labour inspectors are resolved according to the provisions of the Law on Administrative Appeals No. 554/2004, as amended and supplemented.

Fines and other penalties, severe measures

  • Violations cited by labour inspectors that can carry a fine varying between approx. EUR 1,500 – 2,500 per event:
    • preventing in any way labour inspectors from exercising, in whole or in part, their control or from carrying out their investigation of events according to the legal provisions by any action or inaction by the head of the employer, a legal representative, an employee or other persons in locations subject to control, including refusal of the person found at the workplace to fill in the identification card or to provide information about the event being investigated;
    • non-fulfillment or partial fulfillment by the controlled entity of the measures ordered by the labour inspector, within the terms set by the inspector;
    • non-compliance by the head of the employer, his legal representative, employees, pregnant women or other persons in the controlled places with the obligation to provide the labour inspectors, within the time limit set by them, the required documents and information necessary for the control or investigation of events.
  • In the event of repeated misconduct by employers of serious violations of labour law or occupational health and safety regulations, the Labour Inspection Office may request the removal of the legal entity from the trade register.

Hotline labour inspection

  • At the level of the Labour Inspection Authority, there has been organised a structure to centralise and redirect emergency calls relating to employment to the territorial labour inspectorates (Government Emergency Ordinance No 34/2008, as subsequently amended and supplemented).

Identification File

Labour inspector.....................................

ID card no. .....................................

Signature.....................................

Filled in on the day of ....................................., hour ....................................., at the workplace of..................................... located in..................................... Str. ..................................... no. ....................................., District ....................................., County.....................................

Undersigned....................................., son/daughter of ..................................... and of ....................................., born in the year ....................................., month ....................................., day ....................................., resident of ....................................., Str. ..................................... no. ............., block ..........., building ............., Apt. ................, District/County ....................................., legitimate with BI (CI) / passport series .................. no. .............................., issued by ................................ on the date of  ............................, personal identification number......................

I declare on my own responsibility the following:

I preserve activity in the job / profession................................, from .......................... to ................................, headquartered in....................................., Str. ..................................... no. ......................................, District/County .....................................

I. The form on which I support the activity * .....................................

__________

* Where applicable, the following shall be entered: "- work contract concluded in writing, indefinite / fixed / probationary period, - without employment contract / probationary period, other form in which the activity is performed".

II. Working time and rest time

1. Work norm:

- full time..................................... hours/day;

- part time..................................... hours/day, from .................... to ...................... .

2. Work Program Breakdown:

- in shifts:

- shift I from ........ to ........................;

- shift II from ................. to ...........................;

- I provide additional work................. hours/day;

- I provide night work..................... hours/night;

- I provide work at weekly rest: ..........................;

- number of worked hours........ Saturday; number of worked Saturdays / month........................;

- number of worked hours............... Sunday; number of worked Sundays / month ...............;

- I provide work on legal holidays.............. number of worked hours .............../day.

III. Wage rights

I get a monthly salary of................ lei net (in hand) and ................. lei gross on state of payment, for which I signed / did not sign a statement of payment.

I mention that I work with the following people: .............................................. .

This is the statement I give, I support it and I sign it, the above being true, not being forced or intimidated.

Date .................................

Signature .............................

 

For more information please contact Diana Condurache, Managing Associate, at

e-mail

, or at +40 21 307 1688.