Regimul juridic al concedierii colective prin prisma legislației europene și a Codului muncii al Republicii Moldova
The legal regime of collective redundancy in the light of the European legislation and of the Labour Code of the Republic of Moldova

Summary/Abstract: On 24 May 2018, the Parliament of the Republic of Moldova adopted the Law of RM No 85/2018 „For amending and supplementing the Labour Code of the Republic of Moldova No 154/2003”, aimed at adjusting the national legislation to Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies. Thanks to these additions, operated in the Labour Code of the Republic of Moldova (hereinafter – the CM of RM), the Moldavian legislator has expressly enshrined the institution of collective redundancy. The present study aims at the multi-faceted elucidation of the legal regime of collective redundancy in the light of national legislation, of the European standards, as well as of doctrinal opinions. The identification and configuration of the circumstances and of the data underlying this research helped the authors of the study to scientifically elucidate the concept of collective redundancy and to determine the general procedure for its accomplishment. In order to achieve the goal the following objectives were set: – analysis of the notion of „collective redundancy” in the light of the doctrine and of the Moldavian legislation; – emphasizing and elucidating the cumulative conditions of collective redundancy; – outlining the procedure for collective redundancy, a procedure that is complex and involves going through several stages; – revealing the role of the employer, of the legal representatives and of the employment agency in the process of operating the collective redundancy;– emphasizing the conceptual shortcomings, as well as the practical ones, in the application of the national regulations on the procedure for the implementation of the collective redundancy; – assessing the degree of harmonization of the Moldavian legislation in the field of collective redundancies with Directive 98/59/EC and with the interpretations given by the Court of Justice of the European Union to its provisions. As a result of the researches carried out, the objectives set out above were achieved, in particular: – the authors have analyzed the legal definition of the notion of „collective redundancy”, provided in Article 1851 (1) of the CM of RM, and have concluded that it is not comprehensive, as the Moldavian legislator did not emphasize the finality of such a measure ordered by the employer. Therefore, the authors have mentioned that the notion of collective redundancy means that measure ordered by the employer (most often in crisis or economic recession) that resides in dismissal, within a period of 30 days, of a certain number of employees, in relation to the total number of employees of that employer, for one or more reasons not imputable to the employees, and which establishes for the employer, in addition to the obligations incumbent upon him in the case of individual redundancy, additional obligations concerning the notification and consultation of the employees’ representatives and of the employment agency in order to avoid or mitigate the negative impact of such a measure; – a systematization of the opinions of the Romanian authors on the cumulative conditions of the collective redundancy and of the procedure applicable to such redundancy was made; – there were emphasized the shortcomings in the legal framework of regulation of collective redundancies and, at the same time, proposals and recommendations have been formulated in order to bring the legislation in line with the theoretical and practical solutions, elaborated by doctrine and case law. Thus, the inappropriate place of the institution of collective redundancy has been revealed, being placed inappropriately in Chapter IV „Guarantees and compensations granted to employees in connection with the cessation of the individual labour contract” in Title VI „Guarantees and compensations” of the CM of RM. From the conceptual point of view and from the point of view of legal technique, the legal regulations on collective redundancy should be placed in Title III „Individual labour contract”, Chapter V „Cessation of the individual labour contract”, according to Article 88 of the CM of the RM, reserved for the redundancy procedure in the case of liquidation of the unit, reduction of the staff number or of the staff records. In addition, the authors have put forward several de lege ferenda proposals in order to amend the Moldavian legislation on collective redundancies, namely: a) so that the labour law be better adjusted to the rules of Directive 98/59/EC, the phrase „provided in Article 86 (1) z)” in the text of Article 1851 (2) of the CM of RM is going to be excluded, since the current drafting of Article 1851 (2) of the CM of the RM restricts the possibility to assimilate the cessation of the individual labour contract with the redundancy; b) the need to confer the extensive meaning to notions of „unity” and „redundancy” in the matter of operating the collective redundancies; c) the reference period for the minimum number of redundancies must be fixed in calendar days; d) in the CM of the RM it is to be expressly stated the right of employees’ representatives to use the services of some experts to identify some measures to avoid collective redundancy or to diminish their negative impact; e) in the text of the CM of the RM it must be enshrined the right of the employees’ representatives to send (after receiving the employer’s notification) any objections to the employment agency; the legal recognition of the right of the collectively dismissed persons to re-employment. Regarding the theoretical and practical implications of the study, the most relevant opinions and conceptions presented in the doctrine in matters of collective redundancies were synthesized. It is the first study in which a scientific research is conducted on the main legal issues related to the mode of operation of collective redundancy through the CM of RM. Therefore, this article can certainly serve as a starting point for research also for other labour law specialists and not only.

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