ERTES AND DESCALADA
First, just started the confinement, RDL 8/2020, of March 17, arrived, which introduced important flexibility measures to facilitate ERTES of force majeure due to COVID-19, among which the exemption of social quotas and the facilitation of access unemployment benefits for affected workers. Along with the star ERTES of the moment, due to force majeure derived from COVID-19, the procedure for processing ERTEs for economic, technical, organizational and production reasons, the so-called ERTE ETOPs, was also simplified.
According to official figures, at the moment, In Catalonia alone, there are more than 700,000 workers affected by ERTES.
Preparing the de-escalation, the new RDL 18/2020, of May 12, has once again introduced substantial modifications in the regulation of ERTES, with an overlap of rules that is not always easy to interpret. Said RDL regulates matters not addressed to date, introduces new criteria (total force majeure vs. partial force majeure) and modifies previous provisions, such as the sixth additional provision of RDL 8/2020, of March 17.
Thus, there are many questions that arise, both in terms of labor law and in terms of unemployment benefits and Social Security contributions / exemptions.
While awaiting the interpretation of said noma, both the General Directorate of Labor, and the Central Services of the General Treasury of Social Security, this article is intended, taking into account the profuse regulation caused by the derived health crisis of COVID-19, of special depth and intensity in the field of labor relations, shed a little clarity in relation to the various matters that it addresses, trying to answer the most frequent questions that our clients ask us:
1.- Until what date can the company maintain an ERTE due to force majeure?
Until the end of the cause that originated it (alarm status) and, at most, until June 30, 2020This period can be extended by the Council of Ministers, depending on the activity in question or / and if health reasons so require. Therefore, it will be casuistic for each type of company, depending on the activity that it develops.
2.- Once an ERTE has been processed due to force majeure, can workers be disengaged as the company resumes its activity?
Yes. The new regulation allows the company to continue with an ERTE for partial force majeure
(new term), being able to incorporate workers as the restart of their activity increases.
3.- Can a worker whose employment contract is suspended, as a result of force majeure ERTE, go on to provide services with reduced working hours?
In a novel way, like the term "partial force majeure", a worker affected by contract suspension can be transferred to provide services with reduced working hours, having to communicate this circumstance to the SEPE (State Public Employment Service).
4.- ERTEs due to force majeure involved a commitment not to dismiss workers for a period of six months. What could be the legal consequences of breaching this legal commitment?
to) On the one hand, the company must return the exempted contributions to Social Security (in principle, all those exempted), settle them with the corresponding surcharge and interest, in addition to the consequent risk of sanction by the Labor Inspection.
b) On the other, the declaration of inadmissibility of dismissal, with the consequence of the increase in the compensation calculated by the company, going from 20 to 45/33 days of salary per year of service, depending on the seniority of the worker (antiquities prior to February 2012 are calculated at 45 days / year ).
There would also be
possibility that the dismissal was declared void
, in which case the worker should be reinstated and the processing wages paid (from the date of dismissal until the court decision declaring it so). The qualification of nullity of the dismissal corresponds to the social jurisdiction and, therefore, we must be waiting for the jurisprudential criterion. In this case, the payment of unemployment benefit must be regularized with the SEPE, if applicable.
5.- From what date is the employment maintenance clause calculated for a period of six months and in what cases is said obligation contemplated?
The first final provision of RDL 18/2020 already clarifies that the calculation of the six-month period begins from the
restart of activity
, according to the new wording that gives the sixth additional provision of RDL 8/2020. We must understand that the restart of the activity refers to the moment in which the first worker affected by the ERTE rejoins.
This obligation is only applicable to companies that have processed an ERTE due to force majeure, the companies that have processed an ERTE ETOP, derived from COVID-19 pursuant to art. 23 RDL 8/2020.
6.- In the face of which workers will the commitment to maintain employment be understood to be breached, in ERTE due to force majeure?
In principle,
It should only reach workers included in the ERTE
, by virtue of the modification of the original wording of the sixth additional provision of RDL 8/2020, operated by RDL 18/2020, now specifying that the commitment will be understood to be breached if the dismissal or termination of the contracts of any of the people affected by said force majeure files (under art. 22 RDL 8/2020).
7.- Are there exceptions to said prohibition (or legal commitment) not to fire?
Yes, the regulations provide the following exceptions
: disciplinary dismissal (declared appropriate), resignation of the worker, death, retirement, total or absolute permanent disability or serious disability of the worker or end of the call of the discontinuous permanent workers (provided that the lack of call does not suppose a dismissal but a simple interruption of the contract).
8.- After the end of the ERTE due to force majeure, can an ERTE be processed for ETOP reasons (economic, technical, organizational or production)?
If while the ERTE remains in force due to force majeure, the company considers that after its completion it will need to apply an ERTE for economic, technical, organizational or production reasons,
You can start its processing while the force majeure is in force
, its effects going back to the end date of this.
9.- What can the company do if at the termination date of the ERTE due to force majeure it cannot maintain the validity of the employment contracts as a result of the lack of liquidity or treasury?
RDL 18/2020 has modified the sixth additional provision of RDL 8/2020 in the sense that the commitment to maintain employment is not applicable in those companies in which there is a risk of bankruptcy, in the terms of art. 5.2 of Law 22/2003, of July 9, Bankruptcy.
Therefore, the RDL offers the possibility of going to the bankruptcy institutes (pre-competition or voluntary competition) for those companies in crisis that cannot comply with this employment safeguard measure after the end of the ERTE due to force majeure.
10.- Can the company that has filed an ERTE for ETOP causes derived from COVID-19 terminate employment contracts at the end of this?
Yes. RDL 18/2020 modifies, as we have said, the sixth additional provision of RDL 8/2020, relative to the safeguarding of employment, establishing the limitation of the maintenance of employment for six months only for those cases in which the company had presented a ERTE due to force majeure.
Therefore, in the cases of ERTE ETOP, this limitation does not exist, and the company may terminate employment contracts when there are objective causes that so advise (economic, technical, organizational or production).
11.- How will ERTEs be processed for economic, technical, organizational or production reasons that begin between May 13 and June 30, 2020?
They must be regulated, necessarily, by the specialties contained in article 23 of RDL 8/2020, which implies the following differences with respect to the traditional general procedure (according to regulation contained in RD 1483/2012, October 29):
to) If the company does not have legal representation of the workers, the “ad hoc” negotiating committee will be made up of the most representative unions in the sector with legitimacy to form part of the negotiating committee of the applicable collective agreement and, failing that, by 3 company workers chosen from the staff. The commission must be formed in 5 days.
b) The consultation period with the negotiating committee will last a maximum of 7 days, and a Report from the Labor Inspection must be issued within the same period.
12.- Are there more controversial issues?
Yes. We jurists say that "Law is born old." No matter how far-sighted the laws try to be, situations that the legislator did not foresee always escape. Life is richer than the mind of a legislator. And the imaginative and hyperactive legislator often creates more problems than they were trying to solve. It is the work of lawyers to navigate the stormy waters of the gaps, darkness and contradictions of the legal system.
Nieves Rabassó
Lawyer.- Economist
Head of the Labor Law Department of the Alonso-Cuevillas Law Firm
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