The Government is extending the scope of the TERs and their exemptions, but also the limitations linked to them

The RD Law 24/2020 published this Saturday, extends the duration of the ERTE of force majeure until the end of September and allows the application of exonerations also to the ERTE for objective reasons.

As usual, last Saturday 27/06/2020, the last update of the regulation of the ERTE was published in the BOE (Royal Decree Law 24/2020, of 26 June, on social measures for the reactivation of employment and protection of self-employment and competitiveness of the industrial sector), through which, among many other measures, the duration of the ERTE of force majeure is extended until 30 September 2020.

The aforementioned regulation also regulates, through a single Transitional Provision and two final ones, the incorporation into our legal system of the Council’s Directive (EU) of 19 December 2016, with regard to the repatriation of fishermen, which is not the object of this summary, although it is worth mentioning that it has meant the modification of article 8.2 of the Workers’ Statute (ET).

As for ERTE due to force majeure, the regulation insists again on providing them as a transitional solution aimed at the reincorporation of workers, extending their maximum duration until 30/09/2020 and prohibiting the initiation of new procedures for this procedure, except in the event of new restrictions and/or recurrences that justify it.

Together with this extension, the Royal Decree also extends the facilities for access to unemployment benefits provided for in article 25 of RD 8/2020), such as the non-application of previous contributions – shortages – or the expiry of their maximum duration, and the prohibition on dismissal for reasons related to the COVID and the interruption of temporary contracts.
Once again, it points out that the companies are obliged to notify within 15 days the resignation of the abovementioned ERTE, although it leaves it up to the company to decide how quickly it should reactivate the activity of the company and, therefore, of its workers.

Specifically, the companies affected by an ERTE may not work overtime, establish new outsourcing of the activity, or contract new employees, either directly or indirectly, under the threat of sanctions by the Labor Inspectorate. Nevertheless, it provides for the hiring of personnel as an exception if the persons affected by the ERTE “cannot, due to training, qualification or other objective and justified reasons, carry out the functions entrusted to them, after the company has informed the legal representation of the workers“.

As the most important novelty to be highlighted, the rule has sought to promote the use of TRE for objective reasons (those that require negotiation with workers’ representatives), which would have been requested for objective reasons prior to 27/06/2020, or which are processed later, but as an uninterrupted continuation of the processing of a TRE due to force majeure that ends (retroactive application), granting it the main effects foreseen until now, only for those procedures processed due to force majeure.

It seems clear that the standard has left an unspecified gap for those ERTE’s that are processed for objective reasons after the enactment of the standard, and that until now had not previously processed an ERTE due to force majeure, or having done so, had already renounced its use.

In the above cases (ERTE for objective reasons in force on 27/06 or continuing one of force majeure), there is also the possibility of applying significant exemptions during the months of July, August and September, which replace the old percentages for ERTE of partial force majeure.

The summary of the social security exemptions can be found in the following table published by the Ministry of Labour

 

 

Notwithstanding the above, with the obtainment of the exemptions, the law has also established the obligation to maintain employment for a period of 6 months, starting its calculation with the publication of the law. In the same sense, the prohibition to distribute dividends for the fiscal year in which the ERTE has been applied will also be applicable to the ERTE for objective reasons that benefit from these exonerations, in both cases, with the obligation to return the amount of the exonerations in case of noncompliance with one or another obligation.

The Royal Decree also expressly provides for greater flexibility in the use of this measure, and the possibility of alternating and combining days of activity with periods of reduced working hours. The company may notify these situations on the expiry of the month through the application of certfic@2, without prejudice to the obligation of the company to notify the management entity, prior to their effectiveness, of any withdrawals and variations in the measures of suspension and reduction of working hours.

Last but not least, the Royal Decree Law has extended the support measures for SELF-EMPLOYED WORKERS.

In the first place, the beneficiaries of the extraordinary benefit will not have to pay social security contributions for the month of July and will have a 50% exoneration in August and 25% in September, which will mean a minimum saving of more than 500 euros per self-employed person during the next three months.

For those whose activity is still very much affected by the effects of the pandemic, they will be able to access the benefit for cessation of ordinary activity if their turnover in the third quarter is 75% lower than that of the same period last year, provided that their net income in the period does not exceed the amount equivalent to 1.75 times the minimum wage in the quarter. This possibility, which will be compatible with the activity, implies a minimum economic benefit of 930 euros per month per worker, since it represents an economic benefit equivalent to 70% of the regulatory base plus the exemption of the quotas for common contingencies.

To access this ordinary benefit compatible with the activity, it is not necessary to wait until the end of the quarter. Self-employed workers who consider that they may be eligible for the benefit may apply for it at any time. Subsequently, compliance with the requirements will be verified. Self-employed persons can waive the benefit during these three months if they are able to resume their activity.

In addition, for the first time, specific aid is established for seasonal self-employed workers. Where appropriate, they will be eligible for the extraordinary benefit (70% of the regulatory base plus exemption from social security contributions) with effect from 1 June to 31 October.

Self-employed workers whose only work in the last two years was under the Special Regime for Self-Employed Workers or the Special Regime for Sea Workers during the months of March to October and who had been registered with those regimes as self-employed for at least five months a year during that period may apply for this aid. In addition, their income in 2020 may not exceed 1.75 times the minimum wage (23,275 euros).