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Minimum Wage Fixing Convention, 1970 (No. 131) - Romania (RATIFICATION: 1975)

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The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition
In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 131 (minimum wage) and 95 (protection of wages) together.
Minimum wage
Article 2 of Convention No. 131. Appropriate sanctions. In its previous comments, the Committee requested the Government to provide information on the sanctions which may be imposed in relation to the minimum wage. It takes note of the Government’s indication in its report that section 260(1) of the Labour Code provides for fines in case of non-payment of the national guaranteed minimum wage and that the government decisions which are adopted to set the level of the minimum wage provide additional sanctions in case of employment contracts setting wages lower than the national minimum wage.
Article 3. Criteria for determining minimum wage levels. In its previous comments, the Committee requested the Government to provide information on the factors to be taken into consideration in fixing the minimum wage level. It takes note of the Government’s indication that these factors are: (1) the evolution of the macroeconomic indicators; (2) the minimum consumption basket; and (3) the European and national objectives of Romania that include convergence towards the minimum wage levels of the Euro area.
Article 4(2). Participation of the social partners. In its previous comments, the Committee requested the Government to provide detailed information on the consultation of the social partners for the fixing of the minimum wage. The Committee takes note of the Government’s indication that: (1) the level of the national minimum wage is determined by the National Tripartite Council for Social Dialogue (NTCSD); (2) the decision of the NTCSD is then submitted to the Economic and Social Council (ESC) for endorsement; and (3) the decision endorsed by the ESC is subsequently approved by the Government.
Protection of wages
Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)
The Committee notes that in June 2017 the Governing Body approved the report of the tripartite committee set up to examine the representation submitted by the Federation of Free Trade Unions of the Chemical and Petrochemical Industries (FSLCP) under article 24 of the ILO Constitution (document GB.330/INS/7/1). Noting that the representation concerned issues related to the application of Articles 11 and 12 of Convention No. 95, the Committee will examine these matters in its comments below.
Article 4 of Convention No. 95. Partial payment of wages in kind. In its previous comments, the Committee requested more information on the conditions in which the partial payment of wages in kind may be authorized. It notes the Government’s indication in its report that in accordance with section 166(3) of the Labour Code, such payment is only possible if expressly stipulated in the applicable collective or individual labour contract, and if the conditions established under section 165 of the Code are respected. Section 165 provides that where payment in food, housing or other facilities is stipulated in the collective or individual labour contract, the amount of money due for the work performed shall not be lower than the gross national minimum wage. The Committee notes that the terms “other facilities” may cover a large range of possible allowances in kind and that, while the threshold of payment in cash corresponding to the minimum wage is an important protective measure, section 165 does not address the determination of the value attributed to allowances in kind. The Committee recalls that in accordance with Article 4(2), appropriate measures shall be taken to ensure that: (a) allowances in kind are appropriate for the personal use and benefit of the worker and his family; and (b) the value attributed to such allowances is fair and reasonable. The Committee therefore requests the Government to provide information on the measures taken or envisaged in this respect.
Article 11. Protection of workers’ wage claims in the event of the employer’s bankruptcy. With regard to its previous comments on this matter, the Committee notes that pursuant to section 161 of Law No. 85/2014 on insolvency prevention procedures and insolvency procedures, wage claims are ranked third in the order of privilege, after debts resulting from the expenses related to the insolvency procedure and debts from loans granted to the debtor during the observation period.
Article 12. Regular payment of wages and final settlement upon termination. The Committee notes that, in its report, the tripartite committee requested the Government to provide information on the application of Article 12. It takes note of the Government’s reference to section 166(1) of the Labour Code which provides that wages shall be paid at least once a month and section 166(4) which provides that the employer may be obligated to pay damages to cover the loss resulting from unjustified delays in the payment or the non-payment of wages. In addition, the Committee notes that wage claims, including claims concerning the final settlement upon termination, may be brought before labour courts, in application of sections 266–275 of the Labour Code and are adjudicated under an emergency procedure.

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In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 131 (minimum wage) and 95 (protection of wages) together.

Minimum wage

Article 2 of Convention No. 131. Appropriate sanctions. In its previous comments, the Committee requested the Government to provide information on the sanctions which may be imposed in relation to the minimum wage. It takes note of the Government’s indication in its report that section 260(1) of the Labour Code provides for fines in case of non-payment of the national guaranteed minimum wage and that the government decisions which are adopted to set the level of the minimum wage provide additional sanctions in case of employment contracts setting wages lower than the national minimum wage.

Article 3. Criteria for determining minimum wage levels. In its previous comments, the Committee requested the Government to provide information on the factors to be taken into consideration in fixing the minimum wage level. It takes note of the Government’s indication that these factors are: (1) the evolution of the macroeconomic indicators; (2) the minimum consumption basket; and (3) the European and national objectives of Romania that include convergence towards the minimum wage levels of the Euro area.

Article 4(2). Participation of the social partners. In its previous comments, the Committee requested the Government to provide detailed information on the consultation of the social partners for the fixing of the minimum wage. The Committee takes note of the Government’s indication that: (1) the level of the national minimum wage is determined by the National Tripartite Council for Social Dialogue (NTCSD); (2) the decision of the NTCSD is then submitted to the Economic and Social Council (ESC) for endorsement; and (3) the decision endorsed by the ESC is subsequently approved by the Government.

Protection of wages

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes that in June 2017 the Governing Body approved the report of the tripartite committee set up to examine the representation submitted by the Federation of Free Trade Unions of the Chemical and Petrochemical Industries (FSLCP) under article 24 of the ILO Constitution (document GB.330/INS/7/1). Noting that the representation concerned issues related to the application of Articles 11 and 12 of Convention No. 95, the Committee will examine these matters in its comments below.

Article 4 of Convention No. 95. Partial payment of wages in kind. In its previous comments, the Committee requested more information on the conditions in which the partial payment of wages in kind may be authorized. It notes the Government’s indication in its report that in accordance with section 166(3) of the Labour Code, such payment is only possible if expressly stipulated in the applicable collective or individual labour contract, and if the conditions established under section 165 of the Code are respected. Section 165 provides that where payment in food, housing or other facilities is stipulated in the collective or individual labour contract, the amount of money due for the work performed shall not be lower than the gross national minimum wage. The Committee notes that the terms “other facilities” may cover a large range of possible allowances in kind and that, while the threshold of payment in cash corresponding to the minimum wage is an important protective measure, section 165 does not address the determination of the value attributed to allowances in kind. The Committee recalls that in accordance with Article 4(2), appropriate measures shall be taken to ensure that: (a) allowances in kind are appropriate for the personal use and benefit of the worker and his family; and (b) the value attributed to such allowances is fair and reasonable. The Committee therefore requests the Government to provide information on the measures taken or envisaged in this respect.

Article 11. Protection of workers’ wage claims in the event of the employer’s bankruptcy. With regard to its previous comments on this matter, the Committee notes that pursuant to section 161 of Law No. 85/2014 on insolvency prevention procedures and insolvency procedures, wage claims are ranked third in the order of privilege, after debts resulting from the expenses related to the insolvency procedure and debts from loans granted to the debtor during the observation period.

Article 12. Regular payment of wages and final settlement upon termination. The Committee notes that, in its report, the tripartite committee requested the Government to provide information on the application of Article 12. It takes note of the Government’s reference to section 166(1) of the Labour Code which provides that wages shall be paid at least once a month and section 166(4) which provides that the employer may be obligated to pay damages to cover the loss resulting from unjustified delays in the payment or the non-payment of wages. In addition, the Committee notes that wage claims, including claims concerning the final settlement upon termination, may be brought before labour courts, in application of sections 266–275 of the Labour Code and are adjudicated under an emergency procedure.

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Articles 3 and 4 of the Convention. Periodic review of the minimum wage – tripartite consultations. In its previous comment, the Committee requested the Government to describe in detail the institutional framework which permits tripartite consultations to be held for the review and adjustment of the minimum wage and also to specify the functions and tasks of different advisory bodies to which reference was made in earlier reports, such as the Economic and Social Council, the National Indexing Commission and the Social Dialogue Commissions.

In its latest report, the Government fails to provide any concrete information and merely refers to the overall objective of progressively narrowing the gap between the minimum and the average wage and also to the importance of ensuring that the periodic review of the minimum wage does not impact on macroeconomic indicators.

Recalling the need for full consultations and direct participation of employers’ and workers’ organizations at all stages of the minimum wage fixing process, and also noting that the national collective agreement 2007–10 has been denounced by the signatories employers’ associations and is no longer in effect since December 2010, the Committee once again requests the Government to provide detailed information on the form and the manner in which tripartite consultations are conducted for the determination of the gross national minimum wage. It also requests the Government to indicate the legal provisions, if any, which set out the elements to be taken into consideration in revising minimum wage levels, and to forward a copy of any relevant text(s).

In addition, the Committee notes the observations made by the Democratic Trade Union Confederation of Romania (CSDR) according to which following the conclusion of a tripartite agreement in 2008, the Government had committed itself to ensuring the accelerated increase of the gross national guaranteed minimum wage for the period 2008–14. Under the terms of that agreement, the minimum wage should have been raised to 860 Romanian New Lei (RON) (approximately US$244) in 2011, RON1,030 (approximately $292) in 2012, and to RON1,190 (approximately $338) in 2013 but the austerity measures imposed by the Government in 2010 resulted in the decrease of the amount of the minimum wage. The Committee requests the Government to provide any comments it may wish to make in response to the observations of the CSDR.

Article 5 and Part V of the report form. Enforcement measures – practical application. The Committee notes that the gross national guaranteed minimum wage was last revised by Government Order No. 1225/2011 and is now set at new RON700 (approximately $198) for 170 hours of work a month. It also notes the statistical information on the most recent labour inspection results according to which in 2011, fines totalling RON91,000 (approximately $25,700) were imposed on 197 employers for non-compliance with the minimum wage legislation while in the first half of 2012, RON47,700 (approximately $13,500) worth of fines were imposed on 122 employers.

In this connection, the Committee notes that whereas section 260(1) of the Labour Code provides for a monetary fine for non-payment of the minimum wage between RON300 and RON2,000 (between approximately $85 and $568), the Government’s report indicates that under Government Order No. 1225/2011, the non-compliance with the minimum wage legislation carries a fine of between RON1,000 and RON2,000 (between approximately $284 and $568). The Committee requests the Government to provide clarifications on this point and to continue transmitting up-to-date information on the practical application of the Convention.

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The Committee notes the detailed information contained in the Government’s report and attached documents.

Article 4, paragraphs 2 and 3, of the Convention. Tripartite consultations. In the absence of a response on this point, the Committee again requests the Government to supply full particulars on the respective functions and tasks of different bodies in respect of minimum wage fixing, such as the National Indexing Commission, the Social Dialogue Commissions and the Economic and Social Council.

Article 5 and Part V of the report form. Enforcement measures. The Committee notes that the national minimum wage was last revised by Government Order No. 1825/2006 and is now set at new lei (RON) 390 (approximately US$156) for 170 hours of work a month. It also notes that the National Collective Agreement No. 2895/2006, which has been in effect since 1 January 2007, provides for a minimum wage of RON440 (approximately US$176) per month or RON2.59 (approximately US$1.03) per hour. The Committee further notes that, in 2007, 32 collective agreements were concluded at the branch or enterprise level providing for higher minimum wage levels (ranging from RON460 (approximately US$184) in the construction industry to RON620 (approximately US$248) in the oil industry). As regards sanctions, the Committee notes that the non-observance of minimum pay rates in force carries a fine of RON300 to 2,000 (approximately US$120 to 800) by virtue of section 276(1)(a) of the Labour Code (Act No. 53/2003), and eventually an additional fine of RON3,000 to 10,000 (approximately US$1,200 to 4,000)under section 21 of Act No. 108/1999 on labour inspection, in case measures ordered by labour inspectors are not complied with. Finally, the Committee notes the statistical information on the evolution of minimum wages between 2002 and 2007 and on labour inspection results showing that fines totalling RON143,500 (approximately US$57,500) were imposed to 174 employers in 2006. The Committee would appreciate if the Government would continue transmitting up to date information, including all available statistics and official studies or reports, on the practical application of the Convention.

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The Committee notes with interest the information provided by the Government. It notes in particular the statistical information supplied by the Government on the manner in which the Convention is applied in practice and the number of employees paid at the minimum wage rate. Furthermore, the Committee notes that under Government Order No. 1037 of 18 October 2001, amending Government Order No. 1116 of 28 November 2000 establishing the level of the gross minimum wage, the latter is currently fixed at 1,750,000 lei for 170 hours of work a month. This information is of particular importance as it indicates to the Committee the manner in which effect is given to the obligations deriving from the Convention and the Committee requests the Government to continue providing full information in future on supervisory measures, difficulties of application and changes in minimum wage rates in relation to the application of the Convention in practice.

Article 4, paragraphs 2 and 3, of the Convention. The Committee notes the adoption of Government Order No. 939 of 29 August 2002 respecting the establishment, organization and operation of the National Indexing Commission, which repealed Government Order No. 843 of 20 December 1991 respecting the establishment, organization and operation of the same Commission. Furthermore, the Committee notes the terms of Government Order No. 314 of 15 March 2001, as amended by Government Order No. 569 of 5 June 2002, in regard to the establishment, organization and operation of social dialogue commissions. Recalling that under the terms of Act No. 109 of 2 July 1997, as amended by Act No. 492 of 1 October 2001, the functions of the Economic and Social Council include issuing opinions on draft legislation, orders and government ordinances, making proposals with regard to wage policy and drawing the attention of the Government to the emergence of economic and social conditions requiring the adoption of new legislation, the Committee requests the Government to indicate the respective competences of the tripartite advisory institutions and bodies referred to above in relation to the fixing and adjustment of minimum wages.

Article 5. Noting that the objective of ensuring compliance with the gross minimum wage at the national level was raised to the rank of a priority measure in the programme of action of the labour inspectorate for 2002, the Committee requests the Government to keep it informed of the progress of the bill to increase the fines currently applicable with a view to improving compliance with the minimum wage legislation.

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The Committee notes the information provided in the Government's report in reply to its previous comments, in particular with regard to Articles 2 and 4 of the Convention.

Article 5, read in conjunction with point V of the report form. The Committee notes the Government's statement to the effect that the application of minimum wage regulations is verified by monthly inspections carried out by the specialized supervisory bodies of the Ministry of Labour and Social Protection and by the territorial General Directorates of Labour and Social Protection. The results of these inspections and any measures taken are indicated in a monthly report.

The Committee requests the Government to communicate the results of these inspections (any violations noted, sanctions imposed, etc.), as well as information on any changes in the minimum wage rates and available statistics on the number of different categories of workers covered by the minimum wage regulations.

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The Committee notes the information supplied by the Government in its report and the new legislation respecting the fixing of the national minimum wage, and in particular Act No. 14/1991 on wages and Government Decision No. 843/1991 on the constitution, organization and operation of the National Wage-Indexing Commission, and Decision No. 133/1991 on fixing the national gross minimum basic wage. It requests the Government to supply information on the following points.

Article 2, paragraph 1, of the Convention. The Committee requests the Government to indicate the provisions relating to the sanctions which are applicable in the event of the non-observance of minimum wages and to supply the text of them.

Article 4, paragraph 3(a). The Committee notes that the annex to Decision No. 843/1991 provides for the participation of one representative of the employers' organization of the private sector and six representatives of trade union confederations in the National Wage-Indexing Commission which proposes to the Government, among other measures, the coefficients for the indexation of wages. It also notes that section 8 of Act No. 14/1991 provides for consultations with the organizations of workers, but not of employers, when the Government takes measures to limit wage increases. The Committee requests the Government to indicate the measures which have been taken to ensure the participation of employers and workers on a basis of equality.

Article 5. The Committee notes the Government's statement to the effect that there is not yet a body responsible for supervising the application of provisions relating to the national gross minimum basic wage and that an institution such as a labour inspection system is considered to be necessary. It hopes that measures will be taken rapidly to give effect to this Article of the Convention and requests the Government to indicate the progress achieved in this respect.