The Ministry of Inclusion, Social Security and Migration has recalled in a statement that businesses affected by DANA can request an ERTE due to force majeure, as well as the self-employed, the benefit for cessation of activity.
However, as Alfredo Aspra, labor lawyer and managing partner of Labormatters Abogados, recalls, companies affected in the most serious cases by natural disasters, health crises, serious accidents that prevent the continuity of activity, interruptions in the supply of essential services or governmental or administrative decisions, in which it is impossible to resume activity, may lead to collective dismissal due to force majeure..
This dismissal due to force majeure, explains Aspra, “occurs due to the impossibility of carrying out the provision of the service due to the occurrence of force majeure that definitively makes the provision of work impossible, after verification of its existence by the competent labor authority, which regulate articles 51.7 of the Workers’ Statute (ET) and 31 to 33 of Royal Decree 1483/2012, of October 29, which approves the Regulation of procedures for collective dismissal and suspension of contracts and reduction of working hours.
However, companies cannot claim that workers who interrupted their work and left their jobs if they were exposed to serious and imminent riskas is the case of a natural disaster of the dimensions of the Dana suffered these days, since article 21 of the Occupational Risk Prevention Law (LPRL) supports it.
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Within the scope of the Autonomous Communities, when the procedure affects workers who carry out their activity or who are assigned to work centers located entirely within the territory of an Autonomous Community, the competent labor authority will be considered the body that determine the respective Autonomous Community. When the affected workers carry out their activity or are assigned to work centers located in the territory of two or more Autonomous Communities, as well as when they provide services in Departments, entities, organizations or entities included in the General Administration of the State, this Administration will be which must act as labor authority.
The procedure begins with a request from the company addressed to the competent labor authority, accompanied by the means of proof deemed necessary, and simultaneous communication to the legal representatives of the workers.
The competent labor authority will, on a mandatory basis, obtain a report from the Labor and Social Security Inspection, and may carry out or request any other actions or reports it deems essential. However, Aspra explains, the request for the report from the Labor and Social Security Inspection will not be mandatory in cases where temporary force majeure is determined by impediments or limitations in the normal activity of the company.
The labor authority must issue its resolution within a maximum period of five days. counting from the date of entry of the application in the registry of the body competent to process it.
It is also important that, if other facts, allegations and evidence other than those provided by the company in its request appear in the procedure and can be taken into account in the resolution, the company and the legal representation of the persons must be given. workers the appropriate hearing process, which must be carried out within just one day. In cases of reduction of working hours and suspension of contracts, The resolution declaring the existence of force majeure will also define until what date it takes effect..
The company is responsible for deciding on the termination of employment contracts or on the application of measures to reduce working hours or suspend contracts, which will take effect from the date of the event causing the force majeure. And, as is mandatory, it must inform the representation of the workers and the labor authority of its decision.
In this regard, the managing partner of Labormatters warns that in the event that the procedure has been initiated, but the existence of the alleged force majeure has not been verifiedthe appropriate procedure for collective dismissal or suspension of contracts or reduction of working hours for other reasons can be initiated.in accordance with the provisions of the aforementioned Royal Decree 1483/2012, of October 29.
In accordance with the provisions of articles 121 and 122 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, the resolutions of the labor authority may be the subject of an appeal by the interested parties before the superior hierarchical body of the one that issued them, whose resolution may be challenged before the social jurisdiction.
Finally, Aspra points out that workers and their legal representatives may challenge business decisions on the termination of contracts or on measures to reduce working hours and suspend contracts that affect them in the terms established in articles 15 and 24 of the aforementioned Royal Decree.
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