A new RDL, which incorporates the Social Agreement in Defense of Employment signed by the Government and Social Agents, has been published.  Among its contents, it is worth highlighting the extension of the ERTES due to force majeure until 30 June 2020, while it also regulates the exoneration of quotas. The possibility of a further extension is envisaged in the event that restrictions on activity linked to health reasons remain in place. The RDL also makes the commitment to maintain employment for 6 months more flexible.

The agreement between the Government and social agents modifies the regulation of the ERTEs due to force majeure caused by the health emergency of COVID-19. As a result, RDL 18/2020, on social measures in defense of employment, in force since 13 May 2020, was published. Its contents are as follows:

1. Extension of the ERTES due to force majeure (Act of God). The duration of the ERTES due to force majeure is extended (RDL 8/2020 art.22) as long as the causes that motivated it persist and, in any case, until 30 June 2020. Two different situations can be contemplated:

a) Complete force majeure, when the activity is affected by causes that prevent its resumption.

b) Partial force majeure, when the causes allow the partial recovery of the activity, until 30 June 2020. In this case, the companies and entities must re-employ the affected workers to the extent necessary for the development of their activity. Priority must be given to adjustments by reducing the working day.

However, if restrictions on the activity continue to exist on 30 June 2020, it is possible to extend their application beyond this date.

2. Exemption from contributions. As a result of the above, the regulation on exemption of contributions during the months of May and June 2020 is also modified. There are two different situations that can be contemplated:

a) Complete force majeure. The TGSS exonerates companies and entities from the payment of its business contribution to Social Security and other concepts of joint collection. The percentage of exoneration depends on the number of workers in the company, as of 29 February 2020:

  • companies with fewer than 50 workers: 100%;
  • companies with 50 or more workers: 75%;

b) Partial force majeure. The TGSS exonerates from the payment of the company contribution and other concepts of joint collection, in the following percentages and conditions:

  • Employees who restart their activity. The percentage of exoneration depends on the number of workers in the company on 29 February 2020:
    • companies with under 50 employees: 85 % in May 2020 and 70 % in June 2020;
    • enterprises with 50 or more employees or assimilated: 45% in May 2020 and 30% in June 2020.
  • Workers whose activities remain suspended. The percentage of exemption depends on the number of workers in the company as of 29 February 2020:
    • companies with fewer than 50 employees: 60 % in May 2020 and 45 % in June 2020;
    • companies with 50 or more people employed or assimilated: 45% in May 2020 and 30% in June 2020.

This exemption will in no case affect employees, since the period in which it applies is considered to be a period of actual contribution for all purposes.

The exemption will be applied at the request of the company, after communicating the situation of total or partial force majeure, as well as identifying the workers concerned and the period of suspension or reduction of the working day.

It is envisaged that, by agreement of the Council of Ministers, the application of the exemption may be extended beyond 30 June 2020.

3. Processing. In case of resumption of activity, the companies and entities must communicate to the labour authority their resignation to the authorized ERTE within 15 days from the effective date. Prior to this, the SEPE must be informed of any changes in the data contained in the initial application for access to unemployment protection. In any case, those changes referring to the termination of the measure of all or part of the persons concerned, either in the number of these persons or in the percentage of their individual working day, must be communicated. 

4. The ERTES for economic, technical, organizational and production reasons that are communicated between the dates of 13 May 2020 and 30 June 2020 must be dealt with by means of the procedure established in RDL 8/2020, article 23.

 In addition, it is possible:

  • that their processing be initiated while the ERTE is in force due to force majeure;
  • that its processing be initiated after the ERTE due to force majeure ends, in which case the date of effects of the ERTE will be retroactive to the date of its end.

On the other hand, the ERTEs due to these causes, that are in force on 13 May 2020 will continue to be applied in the terms foreseen in the final communication of the company and until their termination.

5. The need for an extension of the duration of the unemployment protection measures is foreseen as follows:

  • Unemployment of discontinuous permanent workers (RDL 8/2020 art.25.6): until 31 December 2020.
  • Unemployment as a consequence of the ERTES due to force majeure and ETOP causes (RDL 8/2020 art. 25.1 to 5): until 30 June 2020. However, this period can be extended by agreement of the Council of Ministers.

6. Companies whose fiscal address is in countries or territories classified as tax havens are not eligible for ERTES due to Act of God (Force Majeure).

7. Commercial companies or other legal entities that benefit from these ERTEs due to force majeure may not distribute the dividends corresponding to the 2020 tax year. However, they may distribute it if they pay the amount of the exemption applied to social security contributions in advance.  This restriction on distributing dividends does not apply to entities which, on 29 February 2020, had fewer than 50 employees registered with the Social Security authorities.

8. The regulation of the employment maintenance clause and the consequences of non-compliance with it are made more flexible (RDL 8/2020 disp.add.6). The following are established:

a) The employment maintenance clause is only applicable to ERTEs due to force majeure;

b) It is specified that the six-month period will begin to be calculated from the effective employment of persons affected by the ERTE (even if it is partial or only affects part of the workforce);

c) The commitment to maintain employment is not considered unfulfilled when the employment contract is terminated by

  • Disciplinary dismissal declared as appropriate;
  • resignation;
  • death;
  • retirement or total or permanent or absolute disability of the working person;
  • the termination of persons with a permanent-discontinuous contract, when this does not imply a dismissal but an interruption of the contract.
  • expiry of the agreed time or the performance of the work or service which constitutes its object or when the activity which is the object of the contract cannot be carried out immediately, in the case of temporary contracts.

d) An assessment of the commitment to maintain employment is provided for, considering the specific characteristics of certain sectors and the applicable labour regulations, and taking into account in particular the specificities of those companies with a high variability or seasonality of employment.

e) The obligation to maintain employment in companies at risk of insolvency proceedings (LCon/2003 art. 5.2) is not applicable. 

f) In the event of non-compliance, companies must reimburse the full amount of the contributions from which they were exempted, with the corresponding surcharge and interest for late payment, after action by the ITSS proving the non-compliance and establishing the amounts to be reimbursed.

9. The following measures, previously limited in their duration to the state of alarm, are maintained until 30 June 2020:

a) The prohibition of dismissal or the termination of the contract when based on force majeure and economic, technical, organizational and production causes, which are covered by the measures of suspension of contracts and reduction of working hours.

b) The suspension of temporary contracts, including training, relief and interim contracts, by a COVID-19 TEB, which implies the interruption of the calculation of the duration of these contracts, as well as the reference periods equivalent to the suspended period.

10. To monitor the agreement, a tripartite Labour Monitoring Committee has been set up for the deconfinement process, which will be made up of the persons appointed for this purpose by the Ministry of Labour and Social Economy, the Ministry of Inclusion, Social Security and Migration, CEOE, CPYME, CCOO and UGT. The main function of this Commission will be to monitor the measures that are being adopted in the Labour field during the phase of mitigated exceptionality, the exchange of data and information collected by the member organizations and the Ministry of Labour and Social Economy in this respect, as well as the proposal and debate of those measures that are proposed by the latter or by any of the member organizations.

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