When the Governmental Enactment no. 65/2005 regarding the modification and the completion of the Law no. 53/2003 entered into force, the National House of Pensions and Other Social Insurances Rights established that “ regardless of the type of the individual labour contract concluded by the employees, they will have their contribution period completed in the respective month; so, in the case of a part-time individual labour contract the subscription stage will be established in the same way as in the case of the employee with a full-time job.” As we consider this opinion subjected to interpretations, especially when uttering it, we want to put under attention our point of view with regard to establishing the payments of social insurances, in the light of the present legislation.
The Governmental Enactment no. 65/2005 regarding the modification and the completion of the law no. 53/2003 – the Labour Code casts off the provision under paragraph 3 of article 103 which stipulates that: “in the case of an employee who carries out his/her activity based on a part-time individual labour contract, the contribution period to the social insurance public system shall be proportional to the actual hours worked according to the law.”
In the preamble, the National House of Pensions and Other Social Insurance Rights have given the solution mentioned by us.
The reasoning of this institution is based on the provision under paragraph 1 of article no. 103: “an employee having concluded a part-time individual labour contract shall enjoy all the rights of the employees having concluded a full-time contract, under the terms stipulated by the law.”
As we are in the presence of a “tricky” expression, we can avoid it , starting by:
a) considering that the rights and obligations resulting from the individual labour contract are the same for both parties, as well as for each of them, as the cause of one party’s obligation is constituted by the carrying out of the other’s party.
b) the provisions of article 8 under paragraph 1 of Law no. 19/2000 regarding the social pensions and other social insurance public systems: ”the periods in which the parties paid their social insurance contributions to the Romanian public system is to be considered the contribution period..”
c) the provisions of article 15 under paragraph 2 of republished Law no. 24/2000 regarding the technical legislative norms: “in case of possible parallelisms, these shall be removed either by repealing them or by focusing their contents in unique reglementations”.
By systematically interpreting these reglementations we can sum up: the modified Law no. 53/2003 implicitly points out that, establishing the social insurance contributions proportional with the contribution required by the law for a certain period and not for the working time.
The key to this conclusion is the following expression “ according to the conditions stipulated by the law” which sends to the Law no. 19/2000 regarding the public system of pensions and other social insurances rights, this referral removing the parallelism of the reglementation ,once the settling of the connection between the two laws is carried out.
In the light of the meaning of this expression we find as adequate the ‘silence’ of the law in connection with establishing the contribution period proportionally with the actual worked hours as the modification of the Labour Code does not affect the legal hypotheses specific to the overall old reglementation but it ensures the logical succession of ideas, which are coherent even in the new laconic utterance.
The benefit of the insured is dependent on subscription
One of the main principles of the organization and functioning of the public system of pensions is the principle of subscription.
According to it: “the social insurance funds are based on the contributions dued by the natural and legal entities, as participants in the public system, the social insurance rights being established on the basis of the paid social insurance contributions.
If we accept that a 2- hour working programme unfolded on the basis of a part-time individual labour contract, for which an imposed minimum wage in amount of 83 lei grants the employee a full subscription period, similar to that of an employee with a full-time contract, the social security contributions to the social security budget of both employees being different if we take into consideration their cuantuum, we can therefore admit the fact that the social security contributions /benefits would be considered identical. But the common sense logic shows us that an inequity here is obvious.
It is this way that the provisions of article 23 paragraph 1 letter b) of the law no. 19/2000 regarding the public system of pensions and other social security rights would be broken. It is thus established that the basis for the calculation of the social security contribution for the persons terminating an ensurance agreement is the ensured income which can not be less than ¼ of the average monthly salary on economy.
In 2005 the salary is 921 lei which means that a person can be ensured for a monthly income in amount of approximately 230 lei. An employee who has a 2-hour working programme, entitled to a minimum wage on economy, earns a monthly income of 83 lei.
By applying the percentages stipulated by the law, it clearly results a different level of the two contributions when the subscription period is the same.
The absurdity of this solution becomes evident if we also take into consideration the fact that the budget of social insurances is insufficient for the payments of all the pension contributions, indemnities (allowances) etc.
On the one hand there, a lack of balance would be created in what the relationship between contribution and benefit is concerned and on the other hand an attack to the state social insurances which -is already insufficient- would break out.
The relevance of the contribution versus the time norm
By properly interpreting the modification of the Labour Code and by corroborating the Law no. 19/2000 regarding the public system of pensions and other social insurances rights it must be accepted the solution according to which when existing an individual labour contract the benefit will be granted on the basis of the minimum contribution to a ¼ of the medium gross salary on economy.
To sum up, the partial trait of time of an individual labour contract will have consequences on:
a) the cuantuum of social insurances payment which will be reduced as compared to a minimum wage of 330 lei;
b) the social insurance contribution which will have to “convert” the time, so that the amount of 83 lei could “catch up” with the one of 230 lei.
If the National House of Pensions and Other Social Insurance Rights had established that, regardless of the type of contract (with a work norm comprised between 2 and 7 hours per day), the employees will enjoy all the social insurance contributions of the employees with full-time contracts if these contracts are concluded for a minimum coarse wage on economy in the amount of 230 lei for which the social insurance contributions are paid, then the relationship between working time - social insurances would have been adapted to the requirements of the pension public system.
Thus, taking into account the final end, two different legal institutions would be equal - the labour contract and the insurance contract – the connection between the two being the social insurance contribution and not the (effected) working time, the first belonging to the labour law, and the later to the social securities law and, taken together to the social law.
The 8-hours work duration, as a measure of the working norm, will be relevant only when establishing the employee’s salary rights (the salary and/or other rights raises or additions, the work seniority) and not when establishing the social insurance contribution rights. Moreover, if we take into account the genre-specie relationship between the work norm and the time norm, in keeping with the provisions of article 127 of the Labour Code, the former being expressed not only under the latter’s form but also under the form of the productivity norm, of the personnel norm, of the sphere of attribution or under any other form characteristic to any activity, it becomes clear that the time norm is not decisive.
So the time norm will not stands for the basis of establishing the salary rights or the social insurance contribution rights but for the full norm in all its aspects, “convertible” for the minimum amount of 230 lei.
The subscription period is not identical with the working norm
The full subscription period is not identical with the working norm; which would be the conclusion reached by the National House of Pensions and Other Social Security Rights.
It’s about different legal institutions connected by the subscription just as the legal institutions of the subscription period is different from that of the work seniority, even though one cannot substitute one for the other, but rather find that they are in a genre-species relationship.
The completed standard period is imposed by the law so as to be given the right to anticipated retirement, but also to partial anticipated retirement, and so the minimum standard subscription period is required to give right to the age limit retirement.
The achievement of the both subscription periods is nonetheless conditioned by the carrying out of the payment of the same subscription regardless of the work norm taken in all its aspects.
That is why we consider that there can not be established a connection between the subscription period and the minimum/maximum working time duration only by taking into account the same subscription aspect in the frame of one working relationship.
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