Specificity Of The Maternal Assistant's Employment Relationship

• Author: Ada Hurbean
• Pages: 113-119

SPECIFICITY OF THE MATERNAL ASSISTANT'S EMPLOYMENT

RELATIONSHIP

Associate professor Ada HURBEAN1

Abstract

This paper analyzes the special character of the maternal assistant labor contract regarding the actual

legislation and the jurisprudence in this matter. By trying to find a bala nce between the regulations of the Labor Code

regarding the individual employment contract and the special regulations regarding labor contract of the maternal

assistant, we notice that the institution of the maternal assistant is governed, first of all, by the principle of the best

interest of the child. So, because we have to consider this an axiom, the maternal assistant is, in fact, a genuine

replacement of a parent for the child who is in placement or in custody. That’s why the content o f this labor contract is

all about the growth, care and th e education of the child, without a strict connotation to the specific elements of the

common labor contract, as the work prog ram, the time to work and time to rest and even the subor dination relationship

with the employer. In this context, the common stipulations of la labor Code regarding the individual labor contract are

only the general frame in which the work of the maternal assistant is taking place, because the content of his work is

much more, legally and morally, that the norm.

Keywords: individual labour contract, maternal assistant, child custody, best interest of the child, annual

leave.

JEL Classification: K31

1. Preliminary considerations

The institution of the professional maternal assistant is governed by Government Decision

no. 679/2003 regarding the conditions for obtaining the attestation, the attestation procedures and

the status of the professional maternal assistant and aims to achieve the special protection of the

child separately, temporarily or definitively, by his/her parents. Thus, according to art. 107 in

conjunction with art. 109 of Law no. 272/2004 on the protection and promotion of the rights of the

child, family-type services are those services which ensure the raising and care of the child

separately or temporarily or permanently by its parents at the residence of a natural person or

families, as a result of the establishment this law of the placement measure.

Placement and emergency placement are measures of special protection for a minor2 whose

parents are deceased, unknown, fallen from parental rights, or who have been subjected to the ban

on parental rights, placed under a ban, declared court or missing, when it could not establish

guardianship3. Both are governed by Law no. 272/2004 on the protection and promotion of the

rights of the child.

Emergency placement of the child is determined by the situation of the child abused or

neglected, as well as the situation of the child found or abandoned in the sanitary units.4

In particular, according to art. 1 of Government Decision no. 679/2003, the professional

maternal assistant is a certified natural person, who carries out his/her activity at his/her home

where he/she ensures the growth, care and education necessary for the harmonious development of

the children he/she receives in the placement. Further, Art. 8 of the same normative act establishes

that the maternal assistant carries out his/her activity on the basis of an individual labor contract of a

special nature, specific to child protection. In this case, the employer is the specialized public

1 Ada Hurbean - Faculty of Law and Social Sciences, „1 Decembrie 1918” University of Alba-Iulia, Romania,

adahurbean2016@gmail.com.

2 For other forms of protection of the minor in difficulty, see Laura Cetean-Voiculescu, Ada Hurbean, Consideration regarding the

amendaments to legislation on child protection through the New Civil Code, Challenges of the Knowledge Society. Legal Sciences,

Pro Univesitaria Publishing House, 2012, p. 299-304.

3 Laura Cetean Voiculescu, Dreptul familiei, note de curs și manual de seminar, Hamangiu P ublishing House, Bucharest, 2012, p.

288-289.

4 Idem, p. 290.