Adrián Castro Gálvez Balms Abogados | Marbella-España
As we announced in our previous publication, the Council of Ministers met yesterday to approve the extraordinary measures in the labour sphere due to COVID-19, published today in the BOE. Among the measures approved in Royal Decree-Law 8/2020, about the suspension of labour contracts and reductions in working hours, it stands out:
1. Clarification on ERTE due to force majeure
In relation to ERTE due to force majeure, the aforementioned Royal Decree-Law has come to clarify the circumstances in which it can be given:
- When the company is forced to suspend its activity totally or partially because it is decreed by the competent health authorities.
- In companies that are forced to suspend their activity in urgent and extraordinary situations due to the contagion of the workforce or that have to adopt preventive isolation measures decreed by the health authority, which are duly accredited.
- When companies are prevented from carrying out their activity due to restrictions on public transport, the mobility of people and goods.
This ERTE may be requested by all the people included in the General Social Security Regime, as well as the entities in which they provide services regardless of the corporate form they have.
The procedure being the following:
a) Presentation by the company of request for suspension of contracts and / or reduction of working hours with a report related to the loss of activity as a consequence of COVID-19, as well as the supporting documentation of being in one of the situations indicated above. This will be submitted to the competent Labour Authority.
b) After this, the Labour Authority, optionally, may request a report from the Labour and Social Security Inspection, which must rule within the non-renewable period of 5 days.
c) Resolution of the Labour Authority within 5 days.
2. Measures in relation to ERTE for productive, organizational and technical causes.
For companies that cannot take advantage of the cases assessed in the previous point, because they are not within one of the specific cases, they may take advantage of the ERTE procedure for productive, organizational and technical reasons, which is made more flexible in this legal text. Being as follows:
a) Initiation by request of the entrepreneur, which must consist of:
- The causes of suspensions or reductions in working hours.
- The number and professional classification of the workers affected by the measure.
- Number and professional classification of workers habitually employed by the company in the last year of activity.
- Specification of suspension or reduction measures.
- Criteria taken into account for the designation of those affected.
- Representatives of the workers who are members of the negotiating committee. If there are no workers, they will be represented by the most representative unions in the sector to which the company belongs and withstanding to form part of the negotiating committee of the collective agreement of application or by three workers of the company. Having a maximum period to be constituted of 5 days.
- In addition to accompanying a justifying memory of the causes that motivate the measure.
b) Period of consultations with the workers' representatives or the representative commission foreseen in the previous point should not exceed the maximum period of 7 days.
c) At the end of the consultation period, the company must notify the labour authority of the result. If it had not been possible to reach an agreement, the company will communicate to the workers' representatives and the labour authority what is its decision on the suspension or reduction measures.
d) The report of the Labour and Social Security Inspection, whose request will be optional for the labour authority, will be evacuated within the non-extendable period of 7 days.
3. Measures regarding contributions
If the company had fewer than 50 workers registered on February 29, and it receives a record of suspension of contracts and reduction of hours due to force majeure, the General Treasury of Social Security will exempt the company from the payment of contribution fees for the duration of the suspension period.
If the company had 50 or more workers, in a situation registered with Social Security, the exemption from the obligation to contribute will reach 75% of the business contribution.
4. Unemployment protection measures
As a protection measure for workers, the Government has approved that workers affected by an ERTE can access contributory unemployment benefits, even if they lack the minimum period of paid employment necessary for it.
Likewise, the time that the aforementioned benefit is received will not be computed to consume the maximum periods of perception established.
All the measures previously described will be in force as long as the extraordinary situation derived from COVID-19 is maintained.
From Balms Abogados we remain at your disposal to resolve any question that may arise regarding the application of these new measures approved by our Government.
The 12th Congress of the Spanish-Austrian Lawyers Association took place in Malaga on the 22nd of October.