SPECIALIZED LABOR DEPARTMENT
We put at your disposal a department of Labor Lawyers that will advise you in the ERTE, ERE or TEMPORARY SUSPENSION OF CONTRACTS as a consequence of the Coronavirus.
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RELEVANT INFORMATION ABOUT THE ERTES
Although we offer you the possibility to receive personalized, individual and face-to-face information, we provide below a list of the most relevant information.
Which companies can request an ERTE?
Unlike what happens with the ERES or collective dismissals, where there is a differentiation according to the size of the companies (for example, in a company with more than one hundred and up to three hundred workers, if it has to dismiss for economic or productive reasons, if the number of affected workers does not reach ten percent, the terminations can be carried out individually) if we are dealing with an ERTE, understood to suspend contracts or reduce the working hours of the workforce;if the number of affected workers does not reach ten percent, the terminations can be carried out individually) if we are before an ERTE, understood to suspend contracts or reduce the working hours of the staff, even if the affected worker is only one worker;it is necessary to resort to the procedure, specifically regulated, of the ERTES, where it comes into play, in an important way, the representation of the workers if there is -committees of company or personnel delegates-, and in defect of this representation the most representative Unions (Basically UGT and CCOO at state level and CIG in the Community of Galicia) and more representative of the sector (here already there is more diversity) subjects with which it is necessary to negotiate within what is called period of consultation. The role of the Labor Authority is, to say the least, subsidiary (communication of the beginning and end of the consultation period), and of mere supervision of the formalities of the process.
On the other hand, if force majeure is used, the existence of force majeure, as a cause for the termination of employment contracts (ERE’S), or the suspension of contracts or reduction of working hours (ERTE’S), must be confirmed by the labor authority, regardless of the number of workers affected, following a procedure processed in accordance with the provisions of the applicable regulations.
What are the requirements for an ERTE due to force majeure?
To resort to an ERTE, either due to force majeure, economic or technological causes:
- Basically, to meet the requirements that the last regulation issued by the Government has established for the existence of force majeure;force majeure, which very briefly would be, because it is impossible to catalogue them here, to be in situations that have their direct cause in losses of activity as a consequence of the COVID-19, including the declaration of the state of alarm, that imply suspension or cancellation of activities, temporary closure of premises of public affluence, restrictions in public transport and, in general, in the mobility of people and/or goods, lack of supplies that seriously prevent the continuation of the activities of the company, in general, of the mobility of people and/or goods, lack of supplies that seriously prevent the continuation of the ordinary development of the activity, or in urgent and extraordinary situations due to the contagion of the workforce or the adoption of preventive isolation measures decreed by the health authority, which are duly accredited. Remember that these situations must be “verified” by the Labor Authority (the corresponding one depending on the scope of the Company).
- It is understood that there are economic causes when the results of the company show a negative economic situation, in cases such as the existence of current or expected losses, or the persistent decrease in the level of ordinary income or sales.
- It is understood that concur productive causes when changes occur, among others, in the demand for products or services that the company intends to place on the market. This is, to put it very simply, lack of activity or orders..
All these causes must respond to an idea of temporary nature, because if they are understood to be persistent or definitive (more difficult in the case of force majeure) we would not be facing an ERTE but an ERE or collective dismissal (the “T” of temporary gives us the key).
We offer you a face-to-face meeting in our office and a study of your case totally free of charge, and if you cannot travel we will attend you by phone 91 402 51 96.
For us, personal and direct service is fundamental.
The problem of companies whose ERTE is denied once it has been submitted
It could happen that the Labor Authority does not “establish” the situation of force majeure (or also because of formal defects in the processing) and in that case the options are several, from correcting those defects (but most likely it would be necessary to correctly initiate a new file unless the Administration allows the correction) to appealing the administrative decision, but this, when it has practical effects, may be too late.
The alternative that we recommend, although it is a somewhat longer procedure, is to opt for the ERTE for economic or productive reasons, and as far as possible, agreed, because in that case the Labor Authority has a role of mere depositary of the agreement, and the effects, although delayed, would not normally have any uncertainty.
Even if there is disagreement, the company can take the decision to modify the contract (suspension of contracts or reduction of working hours) and it would be up to the affected party to claim or not before the labor courts.
The importance of having an expert team in labor law
There is no doubt that the alternative of carrying out ERTE’S on behalf of the employer without the help of a professional who knows the matter, is a lawful option and may involve savings by not having to face the cost of the lawyer’s fees, but it would be a decision that would never be advisable, and either with other firms or with ours with which the advice is finally sought, it will always be the best decision, and more economical in the long run, since in addition to the tranquility that any action of an expert gives us, the matter of the ERTE’S is particularly complex, and it is not the first case in which, in our experience, we see in the daily activity business actions taken without due support (such as, for example, giving a notice of suspension of the contract because of “the effects of COVID 19”) without due administrative processing, which on the one hand makes useless the efforts of the company to stop paying wages and social security contributions, and on the other hand does not allow the employee to access the unemployment benefit.
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