Basic rules for the new extension of the ERTEs

The RD Law 30/2020 published yesterday, extends the duration of the ERTE of outside major until 31 January 2021, although it innovates again with 3 new classes of ERTE and bonuses.

On this occasion, the Government has used up the last day of validity of the old ERTEs due to force majeure to publish the new regulation affecting Temporary Redundancies, which has left many companies (and workers) without an effective deadline to carry out negotiations in those ERTEs that had been processed due to objective causes (economic, technical, organisational or productive).

The Royal Decree-Law 30/2020 published yesterday (30/09/2020), has extended the validity of the employment regulation proceedings that had been processed due to the causes of Article 22 of Royal Decree-Law 8/2020, that is, due to force majeure, until 31 January 2021. Although the extension operates automatically, the company will have to submit a new collective application for employment benefits, and only those companies whose CNAE is listed in the annex published in the BOE, or which are considered to form part of its value chain, will obtain the desired social security bonuses:

Those companies will be considered whose turnover, during 2019, has been generated, at least 50%, in operations carried out directly with those included in any of the CNAE codes in the Annex, as well as those whose actual activity depends indirectly on that actually carried out by these companies included in said codes.

The regulation once again creates two types of ERTE with their own autonomy: due to an impediment or due to activity limitations.

The ERTE due to impediment may be applied by those companies that are prevented from carrying out their activity in any of their workplaces as a result of new restrictions or health containment measures adopted by Spanish or foreign authorities after 1 October 2020.

Allowances: after prior authorisation by the labour authority -a new ERTE must be processed-, the exonerations will reach 100% of the company contribution during the closure period until 31 January 2021 (companies with less than 50 workers as of 29 February 2020) and 90% in the case of companies with 50 or more workers.

The ERTE due to activity limitations will be applied by those companies whose activity is limited as a result of decisions or measures adopted by the Spanish authorities. Bonuses: As in the previous case, after prior authorisation from the labour authority -a new ERTE must be processed-, the company may apply the following exonerations:

• Up to 50 workers: 100%, 90%, 85% and 80% exemption for the months of October, November, December 2020 and January 2021.
• Companies with 50 or more workers: 90%, 80%, 75% and 70% exemption for the months of October, November, December 2020 and January 2021.

As regards ERTEs for economic, technical, organisational and/or productive reasons linked to COVID-19 –(ERTE ETOP)-, which are initiated with the entry into force of the regulation and until 31 January 2021, article 23 of Royal Decree-Law 8/2020, of 17 March, will continue to apply to them. The processing thereof may be initiated while an ERTE is in force due to force majeure.

In addition, those proceedings in force that end during the entry into force of this regulation may be extended provided that an agreement is reached during the consultation period.

As a counterpart to the automatic extension of ERTEs and the new granting of exemptions, the regulation also provides for the maintenance of certain limitations provided for in the previous legislation:

• The ban on dividend distributionswill remain in force
• The safeguarding of employment is maintained with the same deadlines (6 months from reinstatement). However, those companies that receive new exemptions will be committed to a new employment safeguard period of 6 additional months.
• The provision that does not consider force majeure and objective reasons for dismissal and the interruption of the calculation of temporary contracts affected by a contract suspension will remain in force until 31 January 2021. The regulation has not clarified whether the consequence of failing to comply with this limitation should be interpreted as nullity or unfairness of the dismissal.
• The generic prohibition on working overtime, establishing new outsourcing or contracting new direct or indirect contracts during the application of the ERTEs regulated in this regulation will also be applicable.

In favour of bargaining or workers, the unemployment protection measures provided for in the regulation have also been extended:

• The non-requirement of a minimum period of contributory employment (vesting period) to access the benefit;
• The amount of the benefit will be determined by applying the percentage of 70% to the regulatory base (and not 50%, which would be applicable after 6 months of receiving the benefit);
• The non-replenishment of benefits (zero counter) will be maintained until 30 September 2020, although benefits consumed from this date will not be taken into account for those who, before 1 January 2022, access unemployment benefit due to the termination of a fixed-term contract due to individual or collective dismissal for economic, technical, organisational or production reasons, or due to a dismissal for any reason declared unjustified.

Finally, an extraordinary cessation of activity benefit is established for self-employed workers affected by a temporary suspension of all activity as a result of a decision by the competent authority and for those who cannot cause entitlement to the ordinary cessation of activity benefit or to the cessation of activity benefit regulated in articles 327 of the LGSS.