In the face of the current COVID-19 crisis, society has been shaken by all the changes that have come into our lives. From the governments of different countries, measures have been taken to minimize and deal with this crisis. With regard to the field of employment, in Spain, Royal Decree Law 8/2020 of 17 March has been carried out on extraordinary urgent measures to address the economic and social impact of COVID-19 (RDL 8/2020), which arrived after the Royal Decree Law 463/2020 of 14 March declaring the alarm status for the management of the health crisis situation caused by COVID-19 (RDL 463/2020).
No one, today, knows for sure what the effects of COVID-19 will be on our society, but with the measures taken it is intended to contain and minimize the effects of the pandemic, seeking a subsequent recovery of work and social activity as quickly as possible.
Companies and workers are the engine of today’s society, their protection becomes extremely important for such recovery, so the protection of both sides has been taken as a priority by the government (putting aside now the greatest or least wisdom with crisis management, for it is not time to be divided, but more united than ever).
On 17 March, the RDL 8/2020 was approved to help these companies, first, which are poised to cease or slow down their activity and thus affecting Spanish workers and households. It includes the known as temporary redundancy (in Spanish “Expediente de Regulación Temporal de Empleo, ERTE”) a term so unknown to the great majority until a few months ago and that to this day does not stop appearing everywhere, from the hand of companies like MANGO, El CORTE INGLES, PRIMARK, TENDAM,IAG, ALSEA and other
The ERTE is regulated in Article 47 of the Workers’ Statute, which includes the temporary suspension of the contract or reduction of hours for economic, technical, organisational or production reasons or arising from force majeure.
And this is where doubts begin to arise for all as to its application and consequences, both for companies and workers, with regard to the implementation of an ERTE in the face of the COVID-19 crisis.
The ERTE that is most presenting itself because of the current situation is an ERTE by force majeure, and it is the government that has been accepted in the Royal Decree to frame the suspensions of contract or reduction of hours by COVID-19. There is no legal definition of ‘force majeure’, it should be understood as a fact outside the undertaking, independent of its will, directly or indirectly preventing or minimising work activity in catastrophic situations, administrative decision outside the will and business performance (factum principles). And this must be verified by the labour authority; It is not an authorization, at least direct, only, that will observe the concurrence of the force majeure, such as the contagion of the workforce, the isolation decreed by the health authority, certain activities listed in the Annex and Article 10 of RDL 463/2020 determined by the government, the mobility of persons and/or goods, or lack of essential supplies for the operation of the company.
As regards its processing by COVID-19, a previous consultation period is still not required. The maximum processing period will be 5 days, the ITSS report is not mandatory in this case. The effects are retroactive from the moment of the causative fact. And perhaps, as the most important points in the case of COVID-19 force majeure, they would be the possibility of exemption from the payment of the contribution to the social security or 100% (if you have less than 50 workers) and the right to every unemployed person to be eligible for unemployment benefit even if the requirements normally required, in addition, are not met with the “replenishment” of the time spent by them during the measure.
The procedure for the company will be as follows:
Presentation of the communication form of the concurrence of major cause, relation of affected workers (to which alternative and priority flexibility measures such as telework are not applicable and the selection criteria are exposed), documentation that attested to the loss or decrease of activity as a result of COVID-19, some labour authorities require that the communications that the company makes to the workers be attached and workers’ representatives (if not done, then it can be re-reserved or expanded). The activities included in the CENAEs indicated above in the RDL shall have the presumption of force majeure.
All ERTEs have to bear a duration of the measure and, most recommended to this day, is that in the face of ignorance of the duration of the exceptional situation, we link that date to the alarm states that were decreed the extension of the ERTE.
The labour authority will have 5 days to resolve and, if it is rejected, a remedy of praise may be filed. On the other hand, if no resolution is obtained, by Law 39/2015, positive administrative silence is estimated (art. 24).
All of this means that companies that opt for this measure must state the commitment of the company to maintain employment, although it is not directly required by the regulations. And there are a number of doubts that are not very clear here, such as the causes of non-compliance, whether this clause affects the entire workforce or only the workers affected.
In addition to the ERTE for force majeure, there is the ERTE for economic, technical, organizational or production reasons (ETOP). The first three will be, at least for the time being, the least common to present for the situation by COVID-19. The productive cause may be the option of the company that is not eligible for force majeure, and this will be when there is a variation in demand for products and services that is being put on the market; decreasing this, the company may choose to accommodate the template to the workload. The company will have to certify that the volume reduction, hiring, sales of its services and this creates an imbalance between the staff it has and the one necessary to carry out its service, contracts, sales…
The ERTE process by ETOP is different from those of force majeure, in addition to having other consequences.
In this case, in addition to the communication to the workers, a consultation period is communicated to the workers’ representative and a consultation period is opened and the Work Inspection and Social Security Administration report is empowering. In this case, the effects will be from the moment of communication to the labour authority. Important, it is to know for the company, that in this case there will be no exemption from the payment of the contribution.
On the part of the workers, they must know that while by FORCE majeure ERTE “does not consume” the time used for the benefit, that which is carried out through the causes ETOP does consume it and there is no replacement of that time.
Once there is a positive resolution of the labour authority, the company must communicate this resolution to the State Public Employment Service. The worker must only be discharged as an applicant for employment in order to be able to collect the benefit, to which all workers shall be entitled despite the absence of a contribution period.
The suspension of contracts or the reduction in working hours will not result in compensation for the workers concerned unless otherwise agreed.