Human resources management in international contexts

In the context of globalisation, the detachment of a company’s staff from one country to another has become an almost “everyday” practice. This makes it necessary to have a very good understanding of the different regulations depending on the sector: labour law, social security, taxation.

With regard to labour law, which refers to the principles of equal treatment and protection of deployed foreign workers, as well as the obligations of all foreign companies deploying staff abroad, the following should be considered:

• at EU level: EU Directive 96/71/EC, Directive 2014/67/EU, Regulation (EC) 593/2008 of the European Parliament and of the Council.
• at Italian level: Legislative Decree 136/2016
• at Romanian level: Law 16/2017

With regard to social security, and therefore to know where and when contributions are paid, reference should be made to Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009.

As far as taxation is concerned, in order to know where and when taxes are paid on wage income reference should be made to:

• bilateral double taxation agreements between the two countries of interest (the sending and the receiving country
• tax legislation of the country of origin (e.g. Italy) and the country of destination (e.g. Romania).

1. In terms of labour law, current legislation highlights several key points, including greater clarity on minimum wages and obligations for foreign companies wishing to detach

It is very important to underline that in the employment relationship with detached workers the same conditions of work and employment applyduring detachment as for workers doing similar work in the place of detachment (e.g. Italy), the so-called minimum levels of terms and conditions of work and employment, with reference to:

• Maximum working time and minimum rest period
• Minimum paid annual leave
• Minimum rates of pay, including overtime pay
• Health, safety and hygiene at work
• Equal treatment between men and women.

In addition, in order to ensure adequate economic protection for posted workers, the minimum wage must include the following wage elements:

• Basic salary
• Allowances based on length of service
• Super allowances
• Payment for overtime, night work and public holidays
• Secondment allowances (to compensate for the inconvenience of moving workers from their normal environment)
• Travel allowances.

2. Social security obligations in the context of detachment within the European Union

Article 11(3)(a) of Regulation (EC) No 883/2004 provides, as a general rule, that a person employed in an EU Member State is subject to the legislation of that Member State.

In the case of an employee who is temporarily transferred for work from Italy to Romania, the employer will have to request for the employee to be detached model A1 from the competent body in his country. This A1 model will be able to certify which social security legislation applies to the holder of the model (in our example, it will remain under Italian legislation).

Form A1 must be kept handy and presented by the employee or by the company to the authority in the country where they work (Romania) to confirm their social insurance status and to indicate the country where their contributions are to be paid. Detachment involves the temporary transfer of the worker to another country on behalf of the company for a maximum period of 24 months. If all the conditions for detachment are met, form A1 is automatically issued to certify that the person concerned remains subject to the legislation of the State from which he/she was detached (EC Regulation 883/2004 and EC Regulation 987/2009).

In accordance with Article 12(1) of Regulation (EC) No 883/2004, a person employed in one Member State (Italy) for a legal person operating in that Member State (Italy), who is detached to another Member State (Romania) to work as an employee on behalf of the legal person, remains subject to the legislation of the first Member State (Italy), provided that the intended duration of the activity does not exceed 24 months and that the role of the detached employee is not to replace another detached person.

Failure to submit Form A1 may entail the obligation to pay social security contributions in Romania through the local procedures provided for such cases.

3. Taxation: where and when to pay taxes on wage income

In the case of an Italian worker detached from Italy to Romania under a secondment contract to work for a Romanian legal entity, the obligation to declare and pay tax on the wage income received from abroad is incumbent on the individual detached in Romania.

In order to determine the tax regime applicable to such salary income obtained by non-resident individuals detached to Romania, the provisions of Article 127 and paragraph 43 (4) of the Romanian Tax Code in conjunction with the provisions of the double taxation convention concluded between Romania and Italy must be taken into account.

As a general rule, wage income earned by non-resident individuals working in Romania is taxable if the individual is present in Romania for one or more periods exceeding in total 183 days in any period of the 12 consecutive months ending in the calendar year in question or in the period and under the conditions specified in the double taxation convention concluded between Romania and Italy and only if the individual proves his residence in Italy by means of a tax residence certificate issued by the competent Italian authority.

In addition, salary income earned by non-resident individuals working in Romania and present in Romania for a period of less than 183 days in any period of the 12 consecutive months ending in the calendar year in question or in the period and under the conditions specified in the double taxation convention concluded between Romania and Italy is taxable in Romania if at least one of the following conditions is met:

• The salary is paid by or on behalf of a resident employer;
• The salary is paid by a permanent establishment in Romania belonging to the non-resident employer.

If the non-resident individual, as a detached worker providing work in Romania, exceeds 183 days of actual presence in Romania or exceeds the period provided for in the double taxation agreements, he/she must pay tax from the first day he/she obtains income from the salaried activity carried out on Romanian territory.

With regard to the taxes owed by foreign workers detached on the territory of Romania for dependent activities carried out in Romania, another obligation for the non-resident individual is that provided by the Order of the Ministry of Public Finance 1099/2016, which determines the procedure for establishing tax residence in Romania: “the non-resident individual is obliged to register with the competent tax body the Questionnaire for establishing tax residence upon arrival in Romania, within 30 days from the date on which 183 days of presence in Romania are completed” (art. 14 OMFP 1099/2016).

4. Conclusions

We are aware that the concepts presented above are not easy to understand, which is why we summarise what we think you should know if you decide to come to Romania as a detached worker or as an individual wishing to be self-employed in Romania.

1. If you are a worker detached from an Italian company to a Romanian company

• Don’t forget to have with you the A1 form valid for the initial detachment of maximum 24 months (or for the duration of the detachment), which will allow you to pay contributions in your country of origin – Italy. Without the A1 form you will have to pay contributions in Romania (the company will have to do this on your behalf)
• The obligation to pay taxes in Romania on your salary is your responsibility as an individual and not that of the company you work for. Be careful, consult a trusted employment advisor and start all the necessary paperwork within the legal deadlines.
• After the 183 days of presence in Romania, don’t forget to fill in and submit the Questionnaire for establishing tax residence to the competent tax authority.
• As a detached worker, you have the option to register with AIRE or remain resident in Italy, where you may have your centre of interest. Be cautious and inform yourself from reliable sources about the timetable and procedure to follow.
• When you arrive in Romania, you will need to open a tax position in Romania to meet your tax obligations. Don’t forget to close it when you decide to leave Romania to return to work in your home country.

2. If you are an individual who decides to settle in Romania
   • On arrival you will have to open your tax position in Romania
   • You may need to register with AIRE in Italy
   • After the 183 days of presence in Romania you will have to fill in and submit to the competent tax agency the Questionnaire for the establishment of your fiscal residence
   • Both taxes and contributions will have to be paid in Romania
   • You will have to comply with the obligations for filing tax returns

We are at your disposal for any needs, clarifications or practices to follow.