The so-called temporary employment regulation file (ERTE) has become the lifeboat of thousands of companies affected by the economic slowdown caused by the coronavirus. These temporary staff readjustments, either through the suspension of contracts, or through the reduction of working hours, are the option that, to avoid layoffs, the Sánchez Executive has prioritized. For this, it approved a series of provisions in Royal Decree Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19. It was mainly about speeding up the process of files (which are considered justified by force majeure), while guaranteeing the rights of workers.
The avalanche of applications presented since March 18, the day the rule came into force, has already affected thousands of workers who have seen how, in a few days, they have gone from being active to being, temporarily, in unemployment. On the other hand, it is not yet possible to make an accurate calculation of the number of companies that will end up using these ERTEs due to coronaviruses. The truth is that this situation has generated many legal doubts for workers and companies. The labor experts at the Lean office have solved some of the most common questions.
What does it mean to have a suspension ERTE applied to me?
It means that, as long as the extraordinary situation derived from COVID-19 continues, the worker does not have to go to work and the employer does not have to pay his salary. It does not mean, they explain in the document prepared by the firm, that the worker has been dismissed. That is, the employment contract has not been terminated, it is only suspended.
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It is important to emphasize that not all companies can apply an ERTE due to force majeure derived from the coronavirus. Only those that can prove losses of activity as a consequence of this pandemic, including the declaration of the state of alarm, that imply suspension or cancellation of activities, closure of premises, lack of serious supplies, or extraordinary situations due to contagion of the workforce or application of preventive isolation.
If for these reasons, the company dismisses the worker without having previously applied an ERTE, the dismissal could be declared inadmissible or null.
And what does a reduction ERTE mean?
It means that, during the time that this extraordinary situation lasts, the worker will see his workday reduced in the proportion agreed by the company (between 10 and 70%, according to the regulations that regulate it). Consequently, your salary will also be reduced proportionally. When the alarm state ends, the worker will return to having the same working day and the same salary as before the ERTE was applied.
In the event that the employee already had a reduced working day, explains Ignacio de Azúa, a lawyer specialized in labor and a partner at LEAN, he will only have to adjust his hours if the percentage was less than agreed and approved to face the economic slowdown.
If I am on leave or leave, can it also affect me?
Yes, as long as, in that case, the worker has the right to reserve his job.
Who negotiates for workers if there is no committee in my company?
In the event that there is no legal representation of workers in the company, Decree Law 8/2020 establishes that the most representative unions in the sector to which the company belongs will be part of the negotiation commission, with the legitimacy to sign a collective agreement. that is applicable to you.
How long does the labor authority have to authorize it?
Five days. Given the avalanche of files they are receiving, Azúa believes, they will have to end up applying a positive silence system. In other words, if there is no reply within the established period, the company can understand that it is confirmed.
Do ERTE have to communicate me personally?
Yes. The employer must personally communicate to each of the affected employees their new situation, says Azúa. The lack of notification, on the other hand, may justify the challenge of the file for formal reasons.
The agreed measures will take effect from this communication, unless a later date is contemplated in it.
Do I have to go to the employment service?
No, the company will be in charge of managing it directly, so there is no need to make an appointment to SEPE (Public State Employment Service). The agency has reported that it is preparing a procedure for which it will provide further details shortly.
During ERTE, am I still contributing to Social Security?
Yes, the employee will continue contributing as he had been doing before the file. The decree law establishes that this period is considered as effectively quoted for all purposes. However, the employer with less than 50 workers will be exempt from paying this fee. If the company had 50 or more workers registered with Social Security, the exemption from the obligation to contribute will only reach 75% of the business contribution.
Do I have the right to collect unemployment even if I don't have the minimum contribution?
Yes. In the event of suspension of the employment contract, the rule expressly establishes that workers may receive said benefit even if they lack the minimum contribution period required for it. On the other hand, the time that unemployment is being received for this reason will not count for the purposes of consuming the maximum benefit periods established.
How much am I going to charge?
70% of the regulatory base taking into account the average of the 180 days prior to ERTE. The company could apply an improvement, complementing that percentage.
Can I work during the contract suspension?
Yes, but the worker would lose the benefit to which he is entitled, explains de Azúa. By signing a new contract, the employment relationship with the old company would disappear. The duration of the benefit will last until the end of the period of suspension of the employment contract or temporary reduction of the workday for which it is caused.
When does the ERTE application for the Covid-19 last?
This is one of the most difficult questions to answer. In principle, while the circumstances caused by the coronavirus crisis last. In the regulation that regulates the ERTES it is specified that the scope and duration of the measures for suspension of contracts or reduction of working hours will be adapted to the current situation to be overcome. In the opinion of the lawyer, it would be necessary, in addition, to arbitrate a procedure to readjust the workforce in a phased manner, as the economy reactivates.
Lastly, can the company fire me after the ERTE has ended?
No, at least within six months. The decree law includes a provision on safeguarding employment that clarifies that extraordinary measures in the workplace will be subject to the company's commitment to maintain employment for a period of six months from the date of resumption of activity.