Wage guarantees in the event of suspension of employment
On 10 March 2020, the Constitutional Court adopted a Judgement on the exception of unconstitutionality of some provisions of Article 27 para. (5) of Law no. 270 of 23 November 2018 on the Unitary Salary System in the Budgetary Sector and of paragraph 8 of Annex no. 6 to the Government Decision no. 1231 of 12 December 2018 for the implementation of the provisions of Law no. 270/2018 on the Unitary Salary System in the Budgetary Sector (Judgement no. 6 of 10.03.2020).
The Court noted that the adoption of Law no. 270/2018 was aimed at introducing a new salary system for the budgetary sector staff. This new system could have led to the reduction of the wage of certain categories of budgetary employees compared to the one previously received. The legislator provided guarantees to compensate for the wage difference (Article 27 paras. (1)-(3) of the Law). These guarantees refer to the payment of the wage difference and the granting of compensation, if under the new law a wage lower than the one received until the suspension of employment relations is calculated or if the wage is lower than 2000 MDL.
The Court noted that the employees who had their employment suspended on the date of entry into force of the law were excluded from the guarantees granted (Article 27 para. (5) of the Law). Therefore, the payment of the difference in wage or the granting of compensation does not benefit only people who had their employment suspended, including due to maternity or childcare leave.
The Court found that the legal norm, which fails to pay the difference in wage or compensatory payments to budget employees whose employment was suspended on the date of entry into force of this law, constitutes an interference with the right to work, guaranteed by Article 43 of the Constitution. In order to examine the constitutionality of that interference, the Court examined: (i) whether the interference is “prescribed by law” and (ii) whether the interference pursues a legitimate aim.
With regard to the “prescribed by law” requirement, the Court held that the impugned rule clearly states that persons who had their employment suspended will not receive the difference in wage or compensatory payments, thus, this rule meets the “prescribed by law” requirement, as well as that the requirement of accessibility and predictability.
With regard to the achievement of a legitimate aim by this rule, the Court noted that the stated aim of the law is to ensure a transparent, fair, attractive, easy-to-manage staff remuneration system capable of reflecting and remunerating performance, where the basic wage is the main element of staff remuneration. Also, the principles of non-discrimination, equity and coherence, in the sense of ensuring equal treatment and equal remuneration for work of equal value (Article 3 para. (1) b) of the same Law) were passed in between the principles of the unitary remuneration system. In this context, the Court found that the reduction of wage payments for persons with suspended employment does not fall within the aims stated by the legislator in the adoption of the Law on the Unitary Salary System in the Budgetary Sector and is contrary to its principles.
The Court noted that, in its opinion, the Parliament acknowledged that the adoption of measures to reduce wage had taken place under the conditions of social and staff policy which was to be included in the level of budgetary expenditure. The Court considered that the declared insufficiency of budgetary resources was not an objective and reasonable reasoning for the restriction of constitutional rights.
In these circumstances, the Court noted that the aims stated by the legislator for not applying guarantees to employees whose employment was suspended upon the entry into force of the Law on the Unitary Salary System in the Budgetary Sector do not fall within any of the purposes of Article 54 para. (2) of the Constitution.
Therefore, the Court concluded that the impugned provisions were contrary to Articles 16 and 43 of the Constitution.