Given the current situation caused by the Coronavirus (COVID-19) and the measures announced by the government, we want to answer some of the questions you may have regarding the ERTE (Temporary Employment Regulatory File).

What is an ERTE?

In the event of a COVID-19 epidemic, according to article 47, a temporary employment regulation file (“ERTE”) can be processed in case of objective causes or force majeure.

The ERTE involves the suspension of employment contracts or working time reduction (absence in complete reference periods: days/weeks/months. May be followed or alternate).

Effects of the ERTE

• The obligation to pay and work (totally or partially) is suspended and affects the accrual of vacations (during the suspension they do not accrue, and the reduction causes a decrease in the redistribution of the same).
• The obligation to pay salaries disappears. The company must pay social security contributions for the affected employees during the period of the suspension and/or working time reduction.
• The employees can access unemployment benefits (total or partial, depending on the suspension).

Should the employer continue to pay for the workers in ERTE?

In theory, the company maintains the obligation to list its part. However, there is the possibility of applying Article 24 of Law 17/2015 on the Civil Protection System; in fact, the Ministry’s guide to the Coronavirus contemplated its possible application if an area is declared as an area seriously affected by a Civil Protection emergency. But the express declaration is necessary.

It will be necessary to be attentive to the measures that the Government is adopting and approving in the coming days.

Steps to process an “ERTE” by force majeure

  1. To start the procedure, it is necessary to obtain the authorization of the relevant Labour Authority after processing the appropriate file. The company must start the procedure by means of a request from itself addressed to the relevant Labour Authority, together with those means of proof deemed necessary, and simultaneous communication to the employees’ representatives. It is not necessary to carry out a negotiation procedure with the employees’ representatives.
  2. Prepare the documentation for the labor authority (electronic processing): Memory of causes that justify the ERTE and the rest of the documentation requested in the official forms.
  3. Request the Labour Authority the ERTE. The competent authority depends on where the affected work centers are located.
  4.  The Labour Authority collects the Labor Inspection Report and performs the pertinent tests it deems appropriate. And it gives the company a hearing for a period of 1 day if it handles facts, allegations or evidence other than those provided. It dictates resolution within 5 business days confirming or not the existence of force majeure.
  5. A request is received from the Labor Authority.
  6.  A) If the possibility of judicially challenging the resolution or processing an ERTE for objective causes is denied.                                                             B) If authorized autor the company decides who it applies to, and informs the labor authority of its decision.

What information we need to process an ERTE?

  • How many employees would ERTE affect?
  • A detailed description of what the Coronavirus means and how it affects your business. And why does it force you to stop / suspend productive activity.

We can start preparing the documentation. But in any case, we must wait to advance in its processing, since we are at the expense of the Government publishing the streamlining of the procedure and benefits in this regard.

Posted by Comunicacion