Aspects of posting (from the perspective of the salary state
and the public servant). Proposals de lege ferenda
Associate professor Ana VIDAT1
Abstract
If the contracting parties resort to the conclusion of individual labor
contracts/individual administrative contracts2, the adaptation of gainful activity to
technological or economic developments may require the modification of those legal acts
on the basis of which the activity is carried out – also in view of the intrinsic dynamics of
the work / service3. The "pacta sunt servanda" principle is also applicable in the scope of
the contracts noted above. Its application implies that, as far as possible, the parties
understand to maintain, throughout the execution of the contract, the clauses initially
foreseen. Obviously, however, that a valid contract can not remain "frozen" if, in the
meantime, new elements or requirements arise during its execution.
Keywords: individual employment contract; individual administrative; change
contract; posting.
JEL Clasification: K23, K31
1. Introductory issues
A). Modification of the individual labor contract/individual administrative
contract involves a change in the merits (the place of work, the type of work, the
salary, etc.) and not just an interruption of the execution of the respective contract4.
However, the mechanism of changing the legal relationships of
employment/legal relationships of service must not bring about any deterioration of
the rights of employees/public servants; in the case of employees, we are talking
about mandatory provisions of the law that exclude any transaction, renunciation or
limitation in relation to the rights recognized by law (according to article 38 of the
Labor Code).
B). a). During the execution of the individual labor contract, the
amendment regarding any of its clauses5 is usually done by agreement of the
parties and an additional act is concluded in this respect.
1 Ana Vidat – Department of Law, Bucharest University of Economic Studies, Lawyer, member of
the Bucharest Bar Association, Romania, ana. vidat@yahoo.com.
2 To be seen Ion Traian Ştefănescu, Tratat teoretic şi practic de drept al muncii, fourth edition,
revised and added, Universul Juridic Publishing House, Bucharest, 2017, p. 24; Alexandru Țiclea,
Tratat de dreptului muncii, Legislaţie. Doctrină. Jurisprudenţă, Xth ed., updated, Universul Juridic
Publishing House, Bucharest, 2016, p. 28.
3 Ion Traian Ştefănescu, op. cit., p. 22-28.
4 In a way, the suspension of the individual employment contract is a change, but not the contract
itself, but its execution as a normal way of its existence (through execution).
5 To be seen Ion Traian Ştefănescu, op. cit., p. 412-413.