Demande directe (CEACR) - adoptée 1997, publiée 86ème session CIT (1998)

Convention (n° 168) sur la promotion de l'emploi et la protection contre le chômage, 1988 - Roumanie (Ratification: 1992)

The Committee has taken note of the Government's first and second reports, provided in 1994 and 1996, and has examined the legislation supplied by the Government (Law No. 1/1991 of 7 January 1991 concerning social protection of the unemployed and their professional reintegration, as amended by Acts Nos. 72/1991 and 57/1994). The Committee notes that, according to the Government's second report, a new draft law on unemployment is currently being elaborated, which would essentially revise Law No. 1/1991 now in force, with a view to better reflecting the international labour standards in this area. In addition, a draft law has already been prepared and transmitted to the Legislative Council before submission to Parliament concerning the organization and functioning of the National Agency on Employment and Professional Training which would also be responsible, through its tripartite Administrative Council, for the management of the unemployment funds. The Committee hopes that in elaborating this legislation account would be taken of the comments it is making below. It also hopes that the Government's next report would include copies of the new legislation, if adopted, as well as the additional information on the following points:

Part 1 (General provision). Article 2 of the Convention. Please indicate how coordination is ensured in Romania, in law and in practice, between the system of protection against unemployment and the employment policy with the aim of promoting full, productive and freely chosen employment.

Article 3. Please explain the existing national arrangements for consultation and cooperation with the organizations of employers and workers in the elaboration and implementation of the legislative and practical measures called for by the Convention. Please indicate in particular whether these organizations were consulted in the elaboration of the draft legislation mentioned above.

Article 6. Please indicate whether and to what extent foreign workers are covered by the unemployment insurance scheme, taking into account that section 21(a) of Law No. 1/1991, as amended by Act No. 57/1994, requires payment of insurance contributions only by natural and legal persons having their head office in Romania who appoint Romanian personnel.

Part II (Promotion of productive employment). The Committee notes that the Government's reports do not contain the specific information requested under Articles 7 and 8 by the report form adopted by the Governing Body. It hopes that such information would be provided in the Government's next report, taking into account in particular the questions mentioned below. The Committee would also like the Government to refer in this connection to its latest comments on the application of Convention No. 122.

Article 7. The Committee notes from the Government's second report that the level of unemployment in the country has decreased recently to the level of 7.7 per cent registered in the first quarter of 1996. It would be grateful if the Government would continue to supply up-to-date statistics on the number and break-up of the unemployed, accompanied by detailed information on the measures taken to promote productive employment, in particular, by means of social security, employment services and vocational training and guidance.

Article 8. The Committee notes that, according to the Government, the new draft law on unemployment provides for special measures of protection for young persons, single parents with minors and long-term unemployed. It also notes from the Government's reports on Convention No. 122 that special labour market measures are being implemented for handicapped persons, women, young persons and school graduates. The Committee would be grateful if the Government's next report would contain detailed information on the aims and content of the special employment programmes undertaken for these disadvantaged categories of persons. Please indicate whether similar programmes exist in respect of older workers, migrant workers lawfully resident in the country and workers affected by structural change, also covered by this Article of the Convention.

Part III (Contingencies covered). Article 10, paragraphs 2 and 3. Please indicate whether and, if so, by what provisions the contingencies referred to in paragraphs 2 and 3 of this Article of the Convention are covered by the national unemployment insurance scheme.

Part IV (Persons protected). Article 11, paragraph 1. The Committee notes the statistics supplied by the Government on the total number of employees in the country and on the number of unemployed. In order to be able to assess the extent of personal coverage required by the Convention, it would ask the Government to specify in its next report the actual number of employees protected by the unemployment insurance scheme in relation to the total number of employees in the country.

Part VI (Benefits to be provided). Article 15, paragraph 1(a). The Committee notes the statistics on the amount of the national average wage and of the national minimum wage provided by the Government for September 1994. It would like the Government to include in its next report updated information in this respect for the whole reporting period, indicating in particular the manner in which the national minimum wage is established and revised.

Article 20. Section 5(1)(a) of Law No. 1/1991 excludes from the right to unemployment benefit persons who own a certain amount of agricultural land, and section 5(1)(b), as amended by Act No. 72/1991, excludes persons who have their own sources of income and who obtain in these ways an income equal to at least half the national basic minimum wage. The Committee wishes to point out that such exclusions are not contemplated by the Convention. As regards persons who earn income by engaging in authorized activities under the statutory conditions and obtain at least half the national basic minimum wage, who are also excluded by virtue of said section 5(1)(b), the Committee would like the Government to specify the categories of persons affected and the manner in which this exclusion is applied in practice.

Article 20(b). Section 2(1)(a) of Law No. 1/1991, as amended by Act No. 57/1994, specifies that the entitlement to unemployment benefit is linked to the cancellation of the contract of employment on the unit's initiative on the grounds specified in section 130, subsection 1, clauses (a) to (f) of the Labour Code. That implies that persons dismissed on other grounds specified in section 130(1) would not be entitled to unemployment benefit, including, under clause (i), persons who are dismissed because they have committed "a serious fault or continuously violate their obligations at work, including the standards of conduit". The Committee further notes that, according to section 2(1)(a) of Law No. 1/1991, the entitlement to unemployment benefit might be refused to persons who cease to be members of a handicraft cooperative through their own fault. The Committee points out in this respect that, under Article 20(b) of the Convention, the benefit could be refused only in cases when it has been determined by the competent authority that the person concerned had deliberately contributed to his own dismissal. It would therefore like the Government to indicate whether in practice, the above-mentioned provisions of the legislation are applied in such a manner as not to deprive of the entitlement to unemployment benefit persons who have not deliberately contributed to their own dismissal or to their exclusion from membership of a handicraft cooperative. Please supply copies of the relevant judicial decisions, including those dealing with cases of dismissal under the provisions of section 130(1)(i) of the Labour Code.

Article 20(c). Section 2(1)(c) of Law No. 1/1991 as amended entitles to unemployment benefit "persons whose contract of employment has been cancelled on their initiative on grounds which by law do not, upon reinstatement, interrupt service in employment". In view of the fact that Article 20(c) of the Convention authorizes refusal of benefit only when the employment was left voluntarily without just cause, the Committee would like the Government to explain in its next report how protection against unemployment is ensured to persons who leave employment voluntarily with just cause on the grounds other than those referred to in section 2(1)(c) of Law No. 1/1991.

Article 20(f). Section 9 of Law No. 1/1991, as amended by Act No. 57/1994, stipulates that the unemployed person, during the period of 270 days for which the benefit is paid, is bound to attend courses of qualification, requalification or further training or, where applicable, other forms of vocational training provided by the Directorate of Labour and Social Welfare. Section 19(1)(d) of Law No. 1/1991, as amended by Act No. 57/1994, further provides that unemployment benefit would be withdrawn "on the date of dropping out or failure to complete the courses for reasons attributable to the recipients". As Article 20(f) of the Convention limits the possibility to withdraw the benefit only to cases when the person concerned has failed without just cause to use the facilities available for training, the Committee would like the Government to indicate in its next report how this provision is being applied in practice.

Article 21. (a) The Committee notes that section 5(1)(c) of Law No. 1/1991, as amended by Act No. 57/1994, excludes from the right to unemployment benefit persons who refuse to accept, without just cause, an offer of employment which should correspond to "occupational training, level of education, personal situation and state of health of the person concerned, and be situated less than 50 km from their home". It further notes that section 19(1)(c) stipulates that payment of unemployment benefit stops if the unemployed person refuses without justification an offer of employment "in an undertaking, with a fixed or unlimited duration of contract, in a position corresponding to his profession, level of education, personal situation and state of health". The Committee would like the Government to explain the reasons for the difference between the two sets of criteria applied to determine the suitability of the employment offered in the above-mentioned cases, as well as to indicate how these provisions are applied in practice and to supply copies of the relevant instructions or circulars, as well as statistics on the number of cases in which benefits were thus withdrawn. Please indicate also whether in practice the employment offices in offering employment to unemployed persons take account of the other criteria of suitability of employment foreseen by the Convention, such as the age of unemployed persons, their length of service in their former occupation, the length of their period of unemployment and whether the employment is vacant as a direct result of a stoppage of work due to an ongoing labour dispute.

(b) The Committee notes that section 10(1) of Law No. 1/1991 makes it obligatory for persons who have followed training courses organized under the said Law, to accept an offer of employment in the unit to which they are assigned. Please indicate how the suitability of the employment offered is being assessed in such cases.

Article 24. The Committee notes that section 14 of Law No. 1/1991 provides that persons who, while receiving unemployment benefit, lose, fully or partially, their working capacity, conserve their right to social insurance, as if employed, including the right to invalidity pension. Please indicate whether the period of unemployment benefit is also taken into consideration for acquisition of the right to, and calculation of, the old-age and survivors' pensions, in accordance with this provision of the Convention.

Article 25. Please indicate how the provisions of this Article of the Convention are enforced in the national legislation and practice.

Part VIII (Legal, administrative and financial guarantees). Article 27. Section 27 of Law No. 1/1991 stipulates that complaints concerning the right to unemployment benefit and its payment are to be resolved by the judiciary in accordance with the procedure applicable to labour conflicts. Please indicate whether, in accordance with paragraph 1 of Article 27 of the Convention, before filing the case, with the tribunal, the claimant can present a complaint to the body administering the unemployment benefit scheme, whether he is informed in writing of the procedures available, and whether these procedures could be regarded as simple and rapid. Please indicate also the provisions of the legislation which ensure the right of the claimant to be represented or assisted in the appeal procedure by a person of his choice or by a delegate of a representative organization of workers or of protected persons, as required by paragraph 2 of this Article.

Article 29. The Committee notes that the Government's report of 1996 refers to the draft law on the organization and functioning of the National Agency for Employment and Professional Training, which provides for the management of the Unemployment Fund by the tripartite Administrative Council of the said Agency. It requests the Government to provide it with a copy of this law, once adopted. Pending this, the Committee would like the Government to indicate how the representatives of the protected persons and of the employers, if any, are currently associated in the administration of the unemployment insurance scheme.