In this article, the Costaș, Negru & Asociații team wishes to approach the particularities of the legal regime of mobility allowances granted to road transport drivers as a result of the analysis carried out on the normative provisions provided for in the Fiscal Code, the Labor Code, Government Decision no. 38/2008 and Regulation no. 561/2006, starting from several situations encountered in the practice of society.
Starting from the premise that for the benefits granted under the mobility clause, the criteria related to delegation do not apply, namely the duration of the trip must be at least 12 hours and must take place in a locality located at a distance of at least 5 km, and given the fact that a company’s employees cannot be granted a daily allowance, because the duration of their trip is not at least 12 hours, we consider that in this situation we will fall under the institution of the mobility clause regulated by art. 25 of the Labor Code, and not under the delegation/secondment regime with daily allowance.
Relevant in this case is the fact that the employees do not have a fixed workplace, and traveling is the normal way of performing their job duties.
From the perspective of transport legislation, Government Decision no. 38/2008 and Regulation no. 561/2006, dump truck drivers may have the status of “mobile workers” within the meaning of the legislation specific to driving and rest times, but this qualification concerns more the organization of working time, road safety, driving and rest times and does not automatically lead to the exclusive application of the delegation regime.
In other words, the notion of “mobile worker” related to transport legislation is not equivalent to the notion of “delegate” within the meaning of the provisions of the Labor Code.
From the perspective of the provisions of the Labor Code, in the situation described, the drivers do not have a fixed job, they carry out an activity with and in different ballast pits/quarries/construction sites, the movement is inherent to the function and there is no temporary change of workplace from a stable place. These elements are specific to the mobility clause provided for in art. 25 of the Labor Code.
Therefore, we consider that the situation presented does not correspond to the classic delegation hypothesis, but to the hypothesis of a mobile activity.
Regarding the allowance granted to road freight drivers, we consider that this can be treated as a mobility benefit and can benefit from the tax treatment provided for in art. 76 paragraph (41) of the Fiscal Code, namely up to 33% of the basic salary can be granted , especially if the individual employment contract specifies that in the absence of a permanent job, the employee will carry out the activity in the company’s quarries/ballast yards/on the field, depending on the contracts/in the geographical area of county x.
It should be noted that the tax authority frequently checks whether the mobility allowance does not mask a salary or daily allowance granted illegally, therefore it is important that there is a real mobility clause, that the mobility is effective, and that the benefit is expressly provided for in the individual employment contract, respectively that there are supporting documents attesting to the mobile nature of the work performed.
Furthermore, regarding employees working as unskilled workers in mines and quarries or, for example, as machinists on earthmoving machines, who have registered their place of work as mobile, we show that the safest option is a mobility allowance granted per day actually worked in a mobile mode.
This would be much easier to justify/prove and document in the event of an inspection by the tax authority or the Territorial Labor Inspectorate.
A fixed monthly amount poses a fairly high risk because the employee may be at the company’s headquarters for an entire month, and the control body may interpret the amount as a salary.
Therefore, for these activities, we consider that an allowance can be granted per day actually worked in a mobile mode, which can be correlated with the timesheet, construction sites and journey sheets.
In response to questions regarding the minimum frequency of mobility, we can state that the legislation does not currently provide for a minimum number of trips or a minimum percentage of mobile activity. However, the mobility must be real and effective and can be proven.
Regarding the situation of an employee who could work for several months on the same construction site, here the control body may assess that that place has become, de facto , a permanent place of work.
The legislation does not currently provide for an exact term of 1 month, 3 months or 6 months, which means that the longer the permanence, the greater the risk of reclassification.
Therefore, if there are construction sites that extend over a very long period of time and the activity performed is almost exclusively in one place, we believe that the most appropriate thing would be to suspend the mobility allowance for that period or to temporarily redefine the place of work.
Furthermore, in the event that the employee carries out his/her activity for a temporary period at the company’s headquarters, there is no need to conclude an additional act, as long as the individual employment contract provides for a mobile workplace and the company’s activity is usually mobile in nature.
In this situation, however, we recommend that the mobility allowance for that period not be granted. As in the previous example, we consider that the formulation “x lei/day actually worked in mobile mode” represents a significantly safer option in the event of an audit.
Finally, regarding the means of evidence that are recommended in the event of an inspection by the tax authority or the Territorial Labor Inspectorate, we mention by way of example:
- for drivers: waybills; tachograph; GPS; freight advice; CMRs, fuel receipts; timekeeping; routes; transport orders; contracts with beneficiaries; work reports, etc.
- for workers / engineers: distinct timekeeping on construction sites; work reports; minutes; daily activity sheets; geo-located photos, equipment consumption, etc.
Basically, the control body monitors whether there is real mobility, whether the allowance is correlated with mobility, whether it is not granted “flat rate” to everyone, and whether it does not mask a salary.
As long as there is consistency between the provisions of the individual employment contract, online records, time sheets & other supporting documents, there should be no risk of sanction from the control body at this time.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by Diana Badiu, from the Cluj Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 16 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro. All rights for materials published on the company’s website and via social media belong to Costaș, Negru & Asociații, reproduction is permitted for information purposes only and with full and correct citation of the source.
