Law no. 361/2022 on the Protection of Whistleblowers in the Public Interest and Law no. 367/2022 on Social Dialogue are the most relevant legislative updates in 2023 concerning the employer-employee relationship, establishing important obligations of which those in the labour market need to be aware of. In this article you will find a summary of the main novelties contained in the two legal acts.
1. Protection of Whistleblowers in the Public Interest. Law no. 361/2022
Perhaps the newest and boldest legislative intervention is Law 361/2022 which establishes the formal legal framework for the protection of whistleblowers in the public interest
1.1. What are whistleblowers?
Whistleblowers are individuals who report irregularities considered to be violations of the law, committed in a professional context, including in the context of employment relationships that have been concluded, not yet begun, during the recruitment process or pre-contractual negotiations.
The purpose of this law is to raise awareness in the labour market regarding any potential breaches of the law and to establish the protective legal framework against any form of retaliation that may be suffered by those who choose to come forward by reporting such irregularities.
The whistleblower’s role has recently gained increased notoriety and has been the subject of high profile investigations, which is why additional protection for whistleblowers was a legislative imperative that needed to be met.
Reporting can be done either internally, through the means provided by the employer, or externally, through authorities with special attributions for this purpose.
1.2. Internal reporting
The following categories of employers are required to ensure internal reporting channels and establish the secure procedure behind it:
- regardless of the number of employees ⇒ authorities, public institutions, other legal entities governed by public law;
- at least 50 employees ⇒ private legal entities and structures without legal personality.
Concerning private legal entities with less than 50 employees, as there is no obligation to set up an internal reporting channel, the whistleblower reporting a breach of the law must use the external channel.
The following may group and use or share resources in terms of receiving reports of breaches of the law and regarding subsequent actions:
- between 50 and 249 employees ⇒ private legal entities;
- less than 10,000 inhabitants or less than 50 employees ⇒ TAUs.
1.3. External reporting
The following authorities are specifically created to ensure the reporting process:
- public authorities and institutions which, according to special legal provisions, receive and deal with reports of breaches of the law within their area of competence;
- the National Integrity Agency;
- other public authorities and institutions to which the Agency forwards reports for resolution.
1.4. Obligations and limitations common to both types of reporting
- the obligation of confidentiality in relation to the personal data, the identity of the whistleblower or of any third person referred to;
- obligations regarding information, processing of the report, appointment of persons with specific attributions in this regard;
- express prohibition of any form of retaliation, threats or attempts to retaliate against whistleblowers;
- the obligation to keep reports for a period of 5 years.
2. Law no. 367/2022 on Social dialogue
2.1. Representing the interests of employees and workers
The new law on social dialogue brings to the forefront an increased protection of the interests of employees and workers in relation to their employers. Thus, according to the new provisions, for employers with at least 10 employees/workers, their interests will be protected by specially appointed representatives.
Representatives will be appointed by a vote of half + 1 of the total number of employees/workers, and their term of office will be for a minimum of two years. The number of representatives shall be agreed between the employer and the employees/workers.
It is important to note that, in the absence of an agreement, the law imposes limitations on the maximum number of representatives in relation to the number of employees/workers, ergo it is preferable to establish the representative(s) by mutual agreement between the parties in order to avoid the limitations.
2.2. The collective labour agreement
Firstly, collective negotiations have become compulsory even in establishments with at least 10 employees/workers, as opposed to the old regulation which required a minimum of 21 workers. In this context, it is important to point out that only collective negotiations become compulsory, without the conclusion of a collective agreement also being required by the regulations in force.
Also, the number of days for negotiations has been reduced from 60 days to 45, and the initiative to negotiate can now belong to any of the social partners, in addition to the employer or the employers’ organisation. In addition, the new regulation emphasises the employer’s obligation to provide the trade union side and/or employee/worker representatives with the information necessary for the negotiation of collective agreements.
Another important novelty is the reintroduction of the national collective labour contract, despite the controversy behind it and its declaration as unconstitutional by the Constitutional Court in the past, following a thorough analysis of this practice prior to the entry into force of the former regulation, i.e. Law 62/2011 on social dialogue.
Last but not least, both the obligations under the Social Dialogue Law and those under the law on the Protection of Whistleblowers in the Public Interest are imposed under a heavily regulated sanctioning framework, and this material focuses exclusively on the most significant novelties introduced by the two legal acts. Thus, the implementation of all the measures and compliance with the obligations by the persons concerned require, however, an exhaustive analysis of the two regulations, applied according to the characteristics of each employer.