According to art. 42 of Law no. 53/2003 – Labour Code, the place of work can be unilaterally modified by the employer by delegating or seconding the employee to another place of work than the one provided for in the individual employment contract. In these two situations, the employee’s position and other rights provided for in the individual employment contract remain unchanged.
Delegation is defined as the temporary exercise, at the employer’s request, by the employee of work or tasks corresponding to the duties of the job outside his place of work.
Secondment is the act whereby the employee is temporarily transferred to another employer, at the employer’s request, for the purpose of carrying out work in the employer’s interest. Exceptionally, the type of work may also be changed, but only with the employee’s written consent.
Delegation involves a change in the place of work, but the other elements of the individual employment contract are maintained. In the case of delegation, the individual employment contract is not suspended, neither the work nor the payment of wages.
In the case of secondment, the employee’s individual employment contract with the original employer is suspended for the period of the secondment in respect of the essential elements, and the rights and obligations of the employer to whom the secondment was made are temporarily transferred.
During the period of secondment, the employee benefits from the rights that are more favourable to him, either the rights of the employer who ordered the secondment or those of the employer to which he is seconded.
The employer who seconded the employee is the one who takes care of the formalities in the Revisal (the date on which the secondment starts and the date on which the secondment ends, as well as the identification data of the employer to which the secondment is made), and is also the one who is obliged to take the necessary measures to ensure that the employer to which the secondment was ordered fulfils its obligations towards the seconded employee in full and on time. The employer to whom the secondment has been ordered will pay the employee’s salary rights and will fulfil its obligations regarding the calculation, withholding and remittance of the corresponding contributions and tax.
If the employer to whom the secondment has been ordered does not fulfil its obligations towards the seconded employee, these will be fulfilled by the employer who ordered the secondment.
When there are conflicts between the two employers or when neither employer fulfils its obligations, the seconded employee has the right to return to the original place of work and to take action against either employer to enforce the unfulfilled obligations.
The delegation may be ordered for a maximum of 60 calendar days in 12 months and may be extended for successive periods of up to 60 days only with the employee’s agreement. If the employee refuses to extend the delegation, he/she cannot be disciplined.
The secondment may be ordered for a maximum period of 1 year and, exceptionally, may be extended for objective reasons requiring the employee to be present at the employer to which the secondment was ordered, with the agreement of both parties, every 6 months. The employee may refuse the secondment only exceptionally and for good personal reasons.
In both cases, the employee is entitled to payment of transport and accommodation expenses, as well as to a secondment or delegation allowance, as the case may be, as established either by law or by collective agreement. Although the Labour Code provides that these expenses can be established by the collective labour contract, we believe that they can also be regulated by the individual labour contract, based on the idea of negotiation with the employee.
The secondment/delegation allowance can even be established in the individual employment contract, when there is no applicable collective labour contract or when the parties, by mutual agreement, establish a higher amount through collective bargaining. Where the allowance is provided for in the collective labour agreement, the individual allowance may not be lower than the level set by collective bargaining, even if the maximum deductibility ceiling is exceeded.
The individual employment contract concluded with the employer who ordered the secondment is considered suspended under the express and limited conditions provided for by the Labour Code, but produces effects towards this employer and the employee.
Author: Atty. Felicia Cioflan