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THE ERTES IN THE DESCALADA: A NEW PIECE IN THE PUZZLE. Second part.

RDL 24/2020: a new milestone in emergency labor law. The prohibition of overtime, outsourcing and new hires. 

RDL 24/2020 is a new legislative milestone in labor law "in" the emergency of COVID 19 and includes the content of the II Agreement in Defense of Employment (II ASDE) reaching between the Government and trade union and business organizations. The purpose of the Agreement is to give continuity to the measures adopted in RDL 8/2020, of March 17, whose end was scheduled for June 30, extending and adapting them to current circumstances already in the second de-escalation phase, although designing helps in the case of potential regrowth. 

The bases or principles on which the measures contained in RDL 24/2020 are based are: 

  1. The persistence of the effects of the health crisis on the operation of companies;
  2. The non-homogeneous nature of the business recovery, and
  3. The possibility that certain activity restrictions may be reinstated for health reasons

As of June 27, 2020, companies will not be able to request ERTEs due to force majeure linked to COVID-19. 

  • The duration of the existing ERTEs due to force majeure linked to COVID-19 will be September 30, 2020.
  • Companies with COVID-19 force majeure ERTEs must reincorporate the workers affected by ERTE to the extent necessary for the development of their activity, prioritizing adjustments in terms of reduction of working hours.
  • In the event of resignation from the ERTE due to force majeure COVID-19, the obligations to notify the labor authority of the resignation are maintained in the same terms as those provided for in RDL 18/2020.
  • Companies with ERTEs due to force majeure COVID-19 are prohibited from carrying out overtime, outsourcing activities or carrying out new direct or indirect hires during the application of ERTEs due to force majeure.

  This prohibition is only excepted in the case that the people in ERTE who provide services in the work center affected by the new hires, direct or indirect, or outsourcing cannot, due to training, training and other objective and justified reasons, perform the functions entrusted to those. The company must, in these cases, previously inform the legal representatives of the workers.  

These company actions may constitute administrative offenses punishable by the ITSS. 

ERTEs due to force majeure after July 1, 2020 (1st DA), linked to outbreaks of the pandemic 

Companies that, as of July 1, 2020, are prevented from carrying out their activity due to the adoption of new restrictions or containment measures that impose it in any of their work centers, may request an ERTE due to force majeure ex art. 47.3 ET 

ERTEs for economic, technical, organizational and production reasons (ETOP) 

The ERTES for ETOP causes derived from COVID-19 that begin on June 27 or later will be subject to the following specialties: 

  • Those provided for in art. 23 RDL 8/2020: participation of the most representative unions in case of non-existence of legal representation of workers and, reduction of deadlines for processing the ERTE (5 days to constitute the commission, 7 days for the consultation period and 7 days for the ITSS to issue its report).
  • The ERTE processing for ETOP causes could begin while the ERTE is in force due to force majeure.
  • If the ERTE for ETOP causes starts after the ERTE for force majeure has concluded, its effects will be rolled back to the date of its termination.
  • The ERTES for ETOP causes that were already in force will continue in the terms in which they had been communicated to the labor authority and until the expected term.
  • Overtime hours, new outsourcing of the activity may not be carried out, or new hiring, be it direct or indirect, may be arranged during the application of the temporary employment regulation files referred to in this article. This prohibition may be exempted in the event that regulated persons who provide services in the workplace affected by new direct or indirect hires, or outsourcing, cannot, due to training, training or other objective and justified reasons, develop the functions entrusted to them, prior information on the matter by the company to the legal representation of the workers.
  • If the date of the business decision is communicated to the labor authority on June 27 or later, the company must make a collective application for unemployment benefits (art. 3.3 RDL 24/2020).
  • These ERTEs will benefit from the exemption of fees only if they are continuation of ERTEs due to force majeure.

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About the Author

Carlos de la Torre Garcia

Carlos de la Torre Garcia

Attorney Of Counsel of the Labor Department of Baker & Mckenzie. Specialist in labor and Social Security advice for national and international clients.

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