The labor reform has approved a new administrative design for employment regulation files (ERTE) after their massive use during the pandemic. With this new scheme, companies see the possibilities of subscribing to this tool expanded and the reduction of the working day is prioritized over the suspension of employment and, in theory, the latter over dismissal, in cases of economic crisis or of the company itself.
The special conditions of the ERTE due to the pandemic end on February 28, but the Government agreed yesterday with employers and unions to extend the current conditions of the Covid ERTE until May 31 — which still affect more than 100,000 workers — . The objective is that the companies that consider that they must continue with the ERTE transition during this month to the new models approved in the labor reform. There are currently more than 100,000 workers with their employment totally or partially suspended due to the pandemic.
In general terms, before the reform -which entered into force on December 31, except for some issues including several related to ERTEs- the labor regulations included two types of temporary employment adjustments: those known in legal jargon as ETOP (which were produced for economic, technical, organizational or production reasons), which were the vast majority of those that were produced. And, secondly, the ERTEs due to force majeure which, unlike the previous ones, still needed the permission of the labor authority and were limited to companies that were affected by extreme situations such as fires at their facilities, floods or similar. Until the pandemic arrived, and the Government included Covid-19 as a major cause and these ERTEs affected 3.6 million workers in May 2020. Since then, the Executive and the social partners have been agreeing on extensions of these ERTE appropriate to Covid, varying its requirements and aid in each agreement.
Now, the labor reform has approved a definitive design of said tools that modifies these two modalities of ERTE ETOP and force majeure and creates a third type of temporary employment adjustments: the RED mechanism, for when there is a generalized and conjunctural economic crisis (cyclical ERTE) or when there is a sector affected by some type of transition or reconversion (sectoral ERTE). In both novel cases (regulated in article 47 bis of the Workers’ Statute) the Government must authorize their application in a council of ministers. Precisely, the Executive plans to make a first activation of a sectoral ERTE for travel agencies from April.
According to all this, these are the main new characteristics of the ERTE models that will be definitive as of April 1:
ERTES ETOP
They remain as the general adjustments and, predictably, they will continue to be more common and companies will adapt them when they have economic, technical, organizational or production problems. Although the procedures and terms of its administrative processing are shortened and simplified. In these ERTE, the approval of the labor authority is still not required -something that was eliminated in the 2012 reform for extinct or temporary employment adjustments, except for those due to force majeure-; but they must continue negotiating with the legal representation of the workers.
However, the consultation period to negotiate these ERTEs is reduced from 15 to 7 days in companies with less than 50 workers; In addition, the term to set up the negotiating commission goes from 7 to 5 days. In the event that there is no legal representation of the workers in the company, the term to set up the representative commission drops from 15 to 10 days. In addition, the company may extend the validity of the ERTE, during its validity, as long as it previously maintains a maximum consultation period of five days with the negotiating commission.
ERTE due to temporary force majeure
The obligation for the company to request the corresponding labor authority (autonomous or national) the authorization of this ERTE is maintained, accrediting in this request the evidence that the situation of force majeure occurs. At the same time, the company must inform the workers’ representatives. As a novelty, a measure adopted during the pandemic is incorporated into the ordinary law: the labor authority must resolve the request within five days, recognizing or not the existence of force majeure. And, if said period elapses without a response, positive administrative silence will operate and the ERTE will be automatically authorized.
Other news common to ERTEs (ETOP and Force Majeure)
In the ERTE modality of reduced working hours (they can also be temporary suspension of employment), this may be cut between 10% and 70% of the working day. And, as a novelty, the rule establishes priority of the ERTE of reduction of working hours over those of suspension of contracts. Along these lines, and as has been done with the ERTE Covid, the law also includes the possibility that companies can remove or include workers from the adjustment according to needs. Of course, to affect or disaffect employees, the company must also previously inform the representatives of the workers and the offices of the Public Employment Service (SEPE).
In both types of ERTE, the prohibition on workers in companies with one of these adjustments to work overtime, outsource activities or make new hires will be maintained, unless there is no one in the company to perform the outsourced tasks or those of new hiring.
In the case of ERTE ETOP, business exemptions will be 20%, conditional on carrying out training actions, and in the case of force majeure, 90%. In both modalities, this aid will be linked to maintaining employment during the six months after the adjustment and companies will see an increase in the credit available for training.
New Network Mechanism
The labor reform included the creation of a third type of ERTE, inspired by this type of adjustment in Germany, which will come into force on April 1. It is the so-called Red Mechanism. These are adjustments that will be governed by the ERTE ETOP and force majeure of article 47 of the Workers’ Statute with some particularities. The first and most important is that their activation will depend on the Government, which will have to authorize them in a Council of Ministers.
This new modality will include two subtypes of temporary employment adjustments: cyclical, which will be activated when the economic situation and may last a maximum of one year. The second type of ERTE of the Red Mechanism will be the sectoral modality, which will be activated by the Executive when so required by a specific sector of activity that is going through a crisis caused by internal or external causes and needs to go through reconversion or requalification processes of its workers. In this case they will also have a duration of one year, but may have up to two extensions of six months each.
The Government has promised to activate one of these sectoral ERTEs in April for travel agencies, fatally wounded by the Covid pandemic and by the profound changes that these activities are going through due to the irruption of technology and the multitude of reservation websites. tourist.
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