Aspects on the practical utility of the transfer in the field of the employees and the public servant. Proposals de lege ferenda

• Author: Ana Vidat
• Pages: 144-149

Aspects on the practical utility of the transfer

in the field of the employees and the public servant. Proposals de lege

ferenda

Associate professor Ana VIDAT

1

Abstract

The transfer institution aims to ensure the continuity of the individual labor con-

tract/individual administrative contract

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and seniority, the new unit being subrogated to

the contractual rights and obliga tions assumed by the first unit. Regarding the practical

utility of the transfer, it should be stressed that the employment/ service relationship

3

does

not cease with the first employer, a nd a new contract with the second employer is con-

cluded; thus, the same individual labor contract/individual ad ministrative contract is

ceded definitively from the first to the second employer.

Keywords: individual employment contract; individual administrative; change

contract; transfer.

JEL Clasification: K23, K31

1. Introductory issues

A) The current Labor Code no longer regulates the transfer of employees,

neither on request nor in the interest of the service – as a definitive way of mod-

ifying the individual labor contract.

As judiciously pointed out in the literature

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, the solution adopted by the

legislator is justified by the new economic realities

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, but also by the legal norms

that no longer have any negative effect on the employee who resigns and is em-

ployed by another employer – without make use of transfer.

B) Framework Law no. 153/2017 on the remuneration of staff paid from

public funds

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resorts to the legal transfer of the transferring institution within the

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Ana Vidat - Department of Law, Bucharest University of Economic Studies, Romania,

ana.vidat@yahoo.com.

2

To be seen I.T. Ştefănescu, Tratat teoretic şi practic de drept al muncii, 4th ed., revised and added,

Universul Juridic Publishing House, Bucharest, 2017, p. 24.

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Idem, p. 22-28.

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To be seen I.T. Ştefănescu, Ş. Beligrădeanu, Prezentare de ansamblu şi observaţii critice asupra

noului Cod al muncii, „Dreptul”, no. 4/2003, p. 25.

5

For example, in Austrian labor law, transfer is permitted provided that this possibility is expressly

provided for at the conclusion of the individual employment contract (www.natlex.ilo.org);

according to the Labor Code of the Russian Federation, the permanent transfer to another unit is

allowed only with the written consent of the employee (www.natlex.ilo.org); in the Labor Contract

Act in Portugal, the transfer is allowed provided that this measure does not harm the employee

(www.natlex.ilo.org).

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Republished in the "Official Gazette", Part I, no. 492 of 28 June 2017.