Plea of unlawfulness. Decision of the Court of Auditors on pay in relation to the provisions of the collective labor agreement at the Romanian Naval Authority. Applicable law No 153/2017

DREPTUL MUNCII ŞI ASIGURĂRILOR SOCIALE

Abstract

The Court of Appeal finds that, in the present case, the limits within which salary rights may be negotiated are those laid down by law (Law No 153/2017on the salaries of staff paid from public funds), and the negotiation of rights may be individual or collective.

It was not argued during the trial that the legal limits imposed on salaries by Law No 153/2017 on the salaries of staff paid from public funds were exceeded, so the court will not even consider this issue. What will be examined is how the defendant's salary was determined, the relationship between individual and collective bargaining and the need for a reasoning note/report approved by the Director General for exceeding the salary limits imposed by the collective agreement.

Given that the date for setting such salaries is 01 June 2018, the provisions of Article 38 of Law No 153/2017 on the salaries of staff paid from public funds are directly applicable.

As regards the application of Law No 153/2017 on the pay of staff paid from public funds, the Court notes that the provisions of Article 38 of the Law on the unitary pay of staff paid from public funds provide for the phased application of that law.

Applying the provisions of Art. 39, "(1) until the full application of the provisions of this law, for newly appointed personnel, for personnel appointed/employed in the same public institution/authority in the same kind of functions, including personnel promoted in functions or professional grades/steps, the salary shall be at the level of salary for similar positions in the institution/public authority in which he/she is appointed/supervised or in their subordinate institutions, if there is no similar position for payment", the salary established in the second part of 2018 referred to the similar position previously held by [. ..].

With regard to the infringement of the terms of the collective labour agreement by individual negotiation of the level of pay, the Court has regard to the provision contained in Article 162 para. (1) of the Labor Code according to which wages in collective agreements have a minimum level.

In the same sense are the provisions of Art. 132 para. (4) of the Social Dialogue Law no. 62/2011, which stipulates that individual employment contracts may not contain clauses establishing rights at levels lower than those established by the collective employment contract. The conclusion is that collective bargaining for the purpose of concluding a collective employment contract is aimed at establishing rights at a minimum level, no less favourable than the clauses in individual employment contracts concluded within the legal limits.