Aspects of posting (from the perspective of the salary state and the public servant). Proposals de lege ferenda

• Author: Ana Vidat
• Position: Department of Law, Bucharest University of Economic Studies
• Pages: 530-535

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.