Solving work conflicts. Past and future

Author:Roba Roxana Maria1
Position:Lecturer PHD, University of Medicine, Pharmacy, Science and Technology Tg. Mures, Department of Law and Public Administration, Romania,
Pages:336-343
SUMMARY

This study aims to analyze the evolution of regulations on the resolution of labor disputes, starting with the provisions of the Law for the organization of trades, credit and labor insurance from 27 January 1912 and up to present days. Some of the key rules found in the current legislation will be analyzed and commented on, following with suggestions for a future regulation. The study uses the logical, historical and experimental method. The conclusions are that over the past 100 years, some of the legal provisions have been kept so far while others have suffered criticized amendments.

 
CONTENT
336 ROBA ROXANA MARIA
SOLVING WORK CONFLICTS. PAST AND FUTURE
Roba Roxana Maria1
Lecturer PHD, University of Medicine, Pharmacy,
Science and Technology Tg. Mureş,
Department of Law and Public Administration, Romania,
robaroxana@yahoo.com
Abstract
This study aims to analyze the evolution of regulations on the resolution of labor disputes,
starting with the provisions of the Law for the organization of trades, credit and labor insurance from
27 January 1912 and up to present days. Some of the key rules found in the current legislation will
be analyzed and commented on, following with suggestions for a future regulation. The study uses
the logical, historical and experimental method. The conclusions are that over the past 100 years,
some of the legal provisions have been kept so far while others have suffered criticized amendments.
Keywords: Private Law, Labor Law, labor disputes, employee, employer.
Back in time, 100 years ago, the provisions in force in the field of labor disputes
were those contained in the Law of 27 January 1912 for the trades, credit and labor
insurance which on section 97 provided the following: "Every corporation will have
established a committee for justice, called to solve the misunderstandings between
craftsmen and company of craftsmen, or between craftsmen and employers, arising from the
application of the present law and the exercise of the profession, for any amount. It will first
try to reconcile the parties. If it fails, it will judge urgently and will pass the judgment by a
majority of votes, marking in the judgment book that it has attempted reconciliation."
Regarding the composition of the committee for justice, it was made up of
three members, as stipulated in paragraph 98 of the same normative act: a trainee
of the peace court, and in the absence of the court’s trainee, as president, a member
chosen by employers and one elected by craftsmen, traders and workers.
The election of these members was settled each year by the employers on the
one hand, and by the craftsmen, traders and workers on the other hand, with the
occasion of the special gatherings. The committee for justice was composed of a
1 The study was presented at the National Conference "100 Years of Law" Târgu-Mureş, on 21
octombrie 2018.
Law Review vol. VIII, issue 2, Jul
y
-December 2018, pp. 336-343
Solving work conflicts. Past and futur 337
total of six elected representatives, one representative for each quarter appointed
by the local judge by drawing lots, as stipulated by the same paragraph in the
normative act.
The meetings were held at the headquarters of the peace court after 8 pm2. In
front of the court panel, the parties independently present themselves and defend
themselves3. Paragraph 101 of the Law of 27 January 1912 on the organization of
professions, credit and labor insurance provided:
"If the parties had not consent to reconciliation, and if they both had stated that they
would be content with the committee’s decision, the judgment would be final and
enforceable."
The adoption of this normative act was considered to be "a crowning of the 15
years of lawmaking in the labor relations"4.
The Law of 1929 on labor contracts5 followed which in Article 120 stipulated
that: "Up to the establishment of professional jurisdiction, all the cases arising from the
application of this law shall be judged by the first instance courts, urgently and for choice;
the decision shall be given within a maximum of one month from receipt of the complaint,
without the right to object, with appeal to the tribunal within 10 days off from the date of
issuance. The tribunal’s judgment can be challenged with a second appeal within 5 days of
the judgment issuance. Until the date set in paragraph 1 of this Article, they will preserve
their conformity established by their organizing laws and according to those procedures in
the provinces where there are special industrial courts. The judge's decision will be
enforceable by law and the suspended sentence will only be obtained by registering the
amount."
The normative act that repealed the Law of 1929 on Labor Contracts is the
Labor Code of 19506 (Law No. 3 of 30 May 1950) containing provisions on the
resolution of labor conflicts in Chapter 16 entitled "Labor Jurisdiction".
This normative act establishes a different jurisdiction depending on the nature
of disputes, as follows:
The committees for resolving labor disputes, the Ordinary Courts, and
Administrative Hierarchical Bodies resolve disputes arising from the establishment
and enforcement of working conditions provided by law, by the collective
agreement, by the employment contract, or by internal regulations.
The litigations expressly provided by law to the committees, as well as any
other labor disputes between the employees and the respective entity, when the
2 Section 98 of the Law of 27 January 1912 on the organization of trades, credit and labor
insurance.
3 Section 100 of the Law of 27 January 1912 on the organization of trades, credit and labor
insurance.
4 http://www.costelgilca.ro/stiri/document/2580/la-multi-ani-codul-muncii.html
5 Published in the Official Gazette of Romania no. 88 of 5 April 1929.
6 Official Bulletin no. 50 of 8 June 1950.
338 ROBA ROXANA MARIA
employees request them, will also be in the jurisdiction of the committees for the
settlement of labor disputes, according to Article 115.
Regarding the jurisdiction of the ordinary courts, they judged, according to the
provisions of Article 116 of Law no. 3 of 30 May 1950 the litigations that were not
expressly provided by law, in the jurisdiction of the committees for the settlement
of labor disputes or administrative hierarchical bodies; disputes that have been
subject to the committees for settling labor disputes, but which could not be
resolved by the agreement of the members of the committee; labor litigations in
connection with criminal offenses; labor litigations in the private sector.
There is also a jurisdiction of the hierarchical administrative bodies with
regard to disputes arising from the termination of employment contracts or the
reintegration of employees who held accountable positions, as well as complaints
about disciplinary sanctions, except for those relating to the termination of
employment contracts as a disciplinary measure, for the acts provided by Article
20, letter e.
Regarding the composition of the committees for the settlement of labor
disputes, Article 121 provides that they consist of an equal number of
representatives of the administration and of the trade union committee within the
enterprise or institution. The number of members of the committees for the
settlement of labor disputes is set by the administration in agreement with the
trade union management committee. Members of the committees for the
settlement of labor disputes fulfill by rotation also the capacity of President and
Secretary. The President and Secretary positions may not be fulfilled at the same
time by members representing the same Party.
Article 123 of Law no. 3 published on 30 May 1950 provided that the
judgments given are enforceable, against which one could file a second appeal to
the People's Court from the headquarters of the enterprise within 10 days of the
communication of the judgment7.
Subsequently, Law no. 10 of 25 November 19728 entered into force, which
establishes the following jurisdiction for the settlement of disputes9:
Committees for justice within the units judge labor disputes whose subject
matter does not exceed a certain amount set by law or is non ratable in money and
which refers to: disputes between persons employed and entities in connection
with the conclusion and performance of the employment contract; disputes
relating to rights in connection with the termination of the contract or reintegration
into work in cases where the soundness and legality of such measures are not
contested; any other disputes that are not given by an express provision in the
jurisdiction of the courts or other bodies.
7 Article 124 of the Law no. 3 of 30 May, 1950.
8 Published in the Official Bulletin no. 140 of 1 December 1972.
9 Article 173 of the Law no. 3 of 30 May 1950.
Solving work conflicts. Past and futur 339
As regards the jurisdiction of the courts, they used to deal with litigation in
connection with the conclusion and performance of the employment contract,
whose object exceeds a certain amount set by law; challenges against termination
of employment, and disputes about reintegration into work, except those made by
persons in management positions appointed by senior hierarchical bodies, as well
as managers, directors and assignees of central bodies.
On the other hand, the complaints against disciplinary sanctions, which by law
were in the jurisdiction of the court or other bodies, the challenges against the
termination of the labor contract, as well as the disputes concerning the
reintegration of the persons appointed by the hierarchically superior bodies into
the labor force as well as the managers, general directors and their assimilates from
the central bodies, as well as the complaints regarding the granting of salary
grades and salary scales, against the reduction of the tariff for the non-performance
of the all the service duties, as well as the offering of the awards and gratifications
were given to the hierarchically superior administrative body or to the collective
management body, according to the law10.
As regards the burden of proof in labor disputes, Article 178 regulates for the
first time that the proof of the soundness and legality of the disposition or measure
taken by the entity is its responsibility.
This rule has been preserved and extended nowadays, the provisions of Article
272 of the Labor Code expressly stipulating that the burden of proof in labor
disputes lies with the employer, who is obliged to submit the evidence in his
defense until the first day of the hearing11.
Law no. 10 of 25 November 1972 establishes in Article 179 the rule that claims
to any bodies or courts, as well as all procedural acts relating to the settlement of
employment disputes and the enforcement of judgments, are exempt from the
stamp duty.
Mainly regulated to protect the interests of employees, this rule is still
maintained in the Article 270 of the Labor Code.
Analyzing the evolution of the provisions of our legislation on the resolution
of labor conflicts, we can see that certain essential rules have been preserved.
One of the rules concerns the composition of the court panel in the first
instance. Thus, the provisions of the Law of 27 January 1912 on the organization of
trades, credit and labor insurance provided that in the composition of the court
10 Article 173 of the Law no. 3 of 30 May 1950.
11 See, in this respect, the Bucharest Court of Appeal’s decision, Section VII for cases concerning
labor disputes and social insurance no. 2265/A of 11 June 2015 page 127 RRDM no. 8/2015, and for
the commentary of this legal provision Alexandru iclea - Încuviinarea şi administrarea probelor în
conflictele de munc, [Confirmation and Management of Evidence in Labor Conflicts]- Revista Romana de
Dreptul Muncii [Romanian Labor Law Magazine] no. 6/2016, p. 17.
340 ROBA ROXANA MARIA
panel, a member chosen by employers and one chosen by craftsmen, traders and
workers shall be attached to the judge.
Currently the provisions of Article 55, para. 1 of the Law no. 304/2004 on the
organization of judiciary12 provide for the composition of the court panel for the
first instance in charge with the settlement of the cases concerning labor disputes
and social insurances a judge and 2 legal assistants. The number of two judges has
been reduced to one judge, by the legislative amendment to Law no. 304/2004
through section 10 of Article 51 of Law no. 76 of 24 May 201213.
Paragraph 2 of the same legal text stipulates that the judicial assistants
participate in the deliberations with a consultative vote and sign the pronounced
judgments. Their opinion is recorded in the decision, and the separate opinion is
reasoned.
The Legal Assistants' Institution was designed to play a role in "involving the
social partners in hearing cases of labor disputes, both to ensure transparency of
the act of justice and to balance the three parties involved in social dialogue: the
state, employers and trade unions, considering that the legal assistants are very
well aware of the realities of labor relations, thus ensuring that the judgments
which will be pronounced in the cases in which they participate will be applicable
and will have the desired effect and efficiency.14
However, at present, their role is much lessened, a circumstance that has
attracted criticism in the doctrine, arguing that since the judgment is pronounced
by all the members of the court panel, there is a contradiction between the
membership of the panel of judges and the existence of a deliberative vote for
some members and advisory for others15.
Moreover, initially, in the regulation of Law no. 92/1992 for the organization
of judiciary16, the way this normative act was modified by the Emergency
Ordinance no. 179 of 11 November 199917 provided that cases of labor disputes and
labor litigation are judged in the first instance by a panel consisting of a judge and
12 Published in the Official Gazette of Romania no. 827 of 13 September 2005, republished on the
basis of Article XIV of Title XVI of Law no. 247/2005 regarding the reform in the field of property and
justice, as well as some adjacent measures, published in the Official Gazette of Romania, Part I, no. 653
of 22 July 2005, the texts receiving a new numbering.
13 Published in the Official Gazette of Romania no. 365 of 30 May 2012.
14 Ovidiu Arbureanu - Considerente privind necesitatea reformrii instituiei asistentului judiciar
[Considerations regarding the need to reform the institution of the legal assistant], published on
https://www.juridice.ro/130123/observatii-pe-marginea-compunerii-completului-de-judecata-in-
litigiile-de-munca.html
15 Marinela Cioroab, Cristina Duvlea - Observatii pe marginea compunerii completului de judecata in
litigiile de munca [Observations on the composition of the court panel in labor litigation], published on
https://www.juridice.ro/366654/considerente-privind-necesitatea-reformarii-institutiei-asistenului-
judiciar.html
16 Republished in the Official Gazette of Romania, Part I, no. 259 of 30 September 1997.
17 Published in the Official Gazette no. 559 of 17 November 1999.
Solving work conflicts. Past and futur 341
two legal assistants, one of which represents the employers' associations and the
other one represents the trade unions. Decisions in these cases shall be taken by a
majority of the members of the panel. Currently, this provision is no longer in
force, which again removed the institution of the judiciary assistant from its
original role.
Another aspect that needs to be emphasized is the fact that in the composition
of the panel of judges, in the case of labor disputes, the participation of the
judiciary assistants is not ensured in the appeal. As a rule, the number of judges in
the appeal should be superior to those who have tried at first instance.
Thus, at present, the role of the legal assistants is rather formal, as can be seen
by reading the provisions of Article 55, para. 1 of the Law no. 304/2004. For the
future, it would be necessary to increase their role by including in their tasks the
duty to ensure the monitoring of the court case law in cases concerning labor
disputes, ie the drafting of reports on the practice of the court in order to issue
preliminary judgments for the solving of legal issues or for solving appeals in the
interest of the law18.
Regarding the feature of the decisions of the first instance court in solving
labor conflicts, by analyzing the normative acts in the field, starting with the Law
of 27 January 1912 on the organization of trades, credit and labor insurance, it can
be noted that enforceability feature is maintained.
Currently, one can see that between the provisions of the Labor Code19 and the
provisions of Law no. 62/201120 there is a difference21.
Thus, according to Article 274 of the Labor Code Decisions given at the first
instance are final and enforceable by law, and according to Article 214 of the Law no.
62/2011 Decisions of the court of first instance are subject only to the appeal.
Regarding the enforceability of the first instance judgments, Article 448, para.
(1) of the Code of Civil Procedure provides that the decisions of the first instance
are enforceable by law when they concern the payment of wages or other rights
arising from the employment legal relationships and of the amounts due to the
unemployed according to law (section 1); compensation for accidents at work
(section 2)
It was argued in doctrine22 that, although according to the Code of Civil
Procedure only some of the court's judgments given at first instance by tribunals
18 https://www.juridice.ro/366654/considerente-privind-necesitatea-reformarii-institutiei-
asistentului-judiciar.html
19 Republished in the Official Gazette no. 345 of 18 May 2011.
20 Published in the Official Gazette no. 625 of 31 August 2012, republished on the basis of Law
no. 76 of 24 May 2012 for the implementation of Law no. 134/2010 regarding the Civil Procedure
Code.
21 Alexandru iclea, Tratat de dreptul muncii. Legislaie. Doctrin. Jurispruden [Labor Law Treaty.
Legislation. Doctrine. Jurisprudence], Universul Juridic Publishing House, Bucharest, 2016, p. 1084.
22 Alexandru iclea, Codul muncii comentat şi adnotat [Labor Code commented and annotated],
Universul Juridic Publishing House, Bucharest, 2017, p. 531.
342 ROBA ROXANA MARIA
are enforceable, as the provisions of the Labor Code are not repealed, the text of
Article 274 of the Labor Code is fully applicable so that all judgments ruled by the
first instance court of law are enforceable. In the same sense23 it was emphasized
that from the correlation of the provisions of Article 214 of the Law on Social
Dialogue with Article 433 and Article 448, para. 1, section 10 of the Civil Procedure
Code, it is clear that judgments handed down by the first instance in solving an
individual labor dispute are enforceable, irrespective of the subject of the
application.
Starting from the provisions of Article 448, para. 1, sections 1 and 2 of the Civil
Procedure Code, the doctrine stated that a decision on the reintegration of the
employee is no longer enforceable by law, first it is necessary the term of appeal to
expire or the court of appeal to hand down a decision24.
In our view, the provisions of the Labor Code relating to the enforceability of
judgments of the first instance, intended to protect the interests of employees, are
in force and enforceable irrespective of the nature of the provisions contained
therein. In support of this idea are the provisions of Article 448, section 10 of the
Civil Procedure Code according to which the judgments of the first instance are
enforceable by law in all other cases where the law provides that the judgment is
enforceable. Concerning the limiting reference in Article 448, para. 1, section 2 of
the Civil Procedure Code, this can be explained by the existence of litigations
regulated by other normative acts and having as subject the payment of salaries
and other rights stemming from the legal relations of labor.
The way of interpreting the legal provisions regarding the enforceability of the
courts’ judgments is of particular importance in case law.
Thus, if a party voluntarily enforces provisions of the judgment that are not
enforceable, then it will no longer have the right to make a major appeal on the
enforced provisions25.
As delayed settlement of labor disputes can be prejudicial to both parties,
namely the patrimony of employers and the interests of employees, a parameter of
our legislation was represented by the settlement of the disputes in question with
expedience.
Thus, Article 270 of the Labor Code stipulates that requests for the resolution
of labor conflicts are to be judged by emergency, and the time limits between trials
should not be longer than 15 days. In the same sense, Article 212, para. 1 and 2 of
23 Ion Traian Ştefnescu, op.cit., p. 509.
24 Radu Rzvan Popescu, Problematica punerii în executare a hotrârilor judectoreşti în litigiile de
munc [Issue of enforcement of court decisions in labor litigation], available on
http://revista.universuljuridic.ro/problematica-punerii-in-executare-a-hotararilor -
judecatoresti-in-litigiile-de-munca
25 Article 467, paragraph 2 of the Civil Procedure Code.
Solving work conflicts. Past and futur 343
Law no. 62/2011 provides that requests for solving individual labor disputes will
be judged with expedience, and the time limits should not exceed 10 days.
In practice, these legal provisions prove to be unrealistic on many occasions
because by setting short-term time limits, the summoning procedure with parties is
not fulfilled, and therefore the settlement of the case is delayed.
Concluding, from the brief analysis of the evolution of some of the regulations
applicable to labor conflicts, it can be seen that some of them have been a
continuance in our legislation over the past 100 years, and have been kept so far
while others have suffered criticized amendments.