Directive (EU) 2019/1158¹ of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU has as one of its main motives the elimination of the discrepancy in terms of gender inequalities in the labour market, together with their differential treatment in terms of real chances of employment and job retention.
In the explanatory memorandum, in addition to the principle of (…) work-life balance (…), mentioned in paragraph (6) of the introductory part of the directive, other underlying arguments are also found. Among the most consistent are the unrestricted access of children with disabilities to (…) human rights and fundamental freedoms on an equal basis with other children (…), the extended working hours of parents, reintegration into the workplace following childbirth, the ageing of the population linked to the drastic drop in the birth rate and fair pay for such leave.
At national level
Emergency Ordinance No. 117 of 26 August 2022, hereinafter referred to as GEO, supplements and amends the Paternal Leave Act No. 210/1999, published in the Official Gazette No. 654 of 31 December 1999.
A number of considerable changes have rightly found their place in national legislation, as the explanatory memorandum presents it¹.
Article 1, para. (1) reiterates one of the most important reasons for the amendment, as the aim is to (…) facilitate the reconciliation of work and family life for workers who are parents. In addition, Alin. (2) of the same article has been amended, no longer mentioning the term of 5 working days, but the term of 10 working days, as Article 2 has in its content. By O.U.G. has been added, Para. (3), where the categories of persons who will benefit from parental leave and the related allowance are established. Among those mentioned are: a. those who work on the basis of sports activity contracts, as per Art. 67¹, para. (1), Lit. (a)-(e) of the Law on Physical Education and Sport No. 69/2000; b. those who work under an individual labour agreement, as stipulated in the Law on the Organisation and Functioning of Cooperatives No. 01/2005; c. directors who work on the basis of mandate contracts according to the Law on Companies No. 31/1990; d. those who work on the basis of management contracts according to the Law on Management Contract No. 95/2006; e. those who work on the basis of management and administration contracts according to the Law on Health Reform No. 95/2006; f. those who hold a position of public dignity.
Article 2 brings a legislative novelty of great interest in labour law, as the effective period related to it will constitute seniority in work and in service, along with the specialty, thus being taken into account in the establishment of all rights granted in relation to them, considering the correct application of the Law on recognition of diplomas and professional qualifications for regulated professions in Romania No. 200/2004.
Article 3 states that the legislative provision relating to fathers performing military service on term is amended, as they are entitled to (…) a leave of 10 working days granted at the birth of their child (…). Article 4 provides for the legal possibility for fathers to receive an increase of 5 working days in the duration of their 10-day parental leave, which may finally be accumulated to 15 working days, if they can prove this on the basis of the certificate of completion of the childcare course. This can be defined as a branch of modern medicine dealing with the normal development, health care and upbringing of children.
Article 4¹ states, by way of originality and novelty in the legislation, that the employer is obliged to approve the paternal leave provided for in Art. 1 and to (…) inform employees of the right established under this law. Article 4² and Article 4³, para. (2) provides for a matter of real concern, as Directive (EU) 2019/1158 states, by way of explanatory memorandum, that no parent, irrespective of gender, should receive equal treatment in terms of opportunities, thus benefiting from conditions that are not unfavourable to them, together with the exclusion of any worsening of working conditions.
As regards the last amendment, Article 5 provides, also as a novelty, for offences applicable to the employer who does not respect the provisions mentioned in the previous paragraph, relating to Article 4, regardless of the index it has. The amount of the fine is between 4,000 lei and 8,000 lei, depending on the extent of the abuse, together with other sociological factors that may lead to the identification of the amount that the employer owes to the State through the abusive behaviour. Whether we are talking about a refusal to grant paternal leave, or a partial acceptance by reducing the number of days granted or even the way to terminate it, any abuse is legally sanctioned in a pecuniary manner by the finding and application of sanctions by labour inspectors. The employer may pay the amount of the infringement on the spot or within 15 days.
Finally, the amendments that the Paternal Leave Law No. 210/1999, published in the Official Gazette No. 654 of 31 December 1999, underwent by the Emergency Ordinance No. 117 of 26 August 2022 are topical, leading to a clear approach to normality, as it is necessary that the discrepancies in the rights and obligations that parents have depending on gender are unjustified, discriminatory, in most cases. From a financial point of view, women are statistically less likely to be employed under an individual or collective employment contract, and they are also less likely to be employed under management-type contracts, for example, because of the simple and disturbing fact that, for the employer, they may give birth at some point during the contractual relationship. From a social point of view, births are seen as a brake on career advancement, perhaps even a partial or complete halt to professional success. Practically, during that period, they benefit, according to Romanian legislation, from a suspension of the applicable employment contract, together with an impossibility to dismiss them. In addition, the employer pays them the maternity allowance, amounting to 85% of the average monthly income earned by the employee in the last 6 months before the maternity leave. Payment is made for the 126 days of maternity leave, including in the event of stillbirth. This is why it is necessary to bring the national legislation into line with the European legislation, together with amendments to reduce the discrepancy between the rights and obligations of the parent who is responsible for the upbringing and care of the newborn child.
Author: Mateia Maria