New measures of flexibilization of the 2021 Labour Reform are created. In this section, modifications have been made to the procedure for the processing of temporary employment regulation files in their different modalities.
In addition, an instrument of flexibility and stabilization of employment is introduced that allows the Government to activate it. The purpose of this instrument is to allow certain companies to voluntarily request measures to reduce working hours and suspend employment contracts. Called the RED Mechanism for employment flexibility and stability.
On the other hand, the priority of application of the company agreement is maintained, except in wage matters. And the indefinite ultra-activity of the collective bargaining agreements applicable in each company is recovered.
Measures of flexibilization of the 2021 Labour Reform
Let’s see one by one what are these measures of flexibilization of the 2021 Labour Reform.
ERTES
The processing and effects of the ERTE due to impediment or limitations to the normalized activity linked to the COVID-19, will continue to be governed and processed by the provisions of article 2 of RD-law 18/2021, of September 28, of urgent measures for the protection of employment, until February 28, 2022.
Temporary employment regulation files (suspension and/or reduction of working hours).
Its regulation is modified when there are economic, technical, organizational or production causes (ERTE ETOP). Or derived from temporary FORCE MAJEURE, as provided in the Workers’ Statute. Introducing modifications to the current regulation.
ERTE ETOP proceedings
The duration of the consultation period is reduced in the case of companies with less than 50 employees, which will not exceed 7 days (previously 15 days). The maximum term for the constitution of the representative committee is also reduced. It is now 5 days or 10 days, when any of the affected work centers does not have legal representatives of the workers.
Once the maximum duration of an ETOP file has expired, its extension is allowed, subject to a proposal from the company.
Force Majeure Proceedings
There are two types of force majeure.
ERTE due to temporary force majeure (ordinary).
Its regulation is modified. It is established that it will be initiated by means of a request from the company addressed to the competent labor authority. Accompanied by the means of proof it deems necessary, and simultaneous communication to the legal representation of the workers. The labor authority will request a mandatory report from the Labor and Social Security Inspection (ITSS) on the existence of the force majeure, before issuing a resolution.
ERTE due to temporary force majeure due to impediment or limitation of activity.
Provided that it affects the normal activity of the company and that they are a consequence of decisions adopted by the competent public authority. Including those aimed at protecting public health. The companies will process the file in which it will be necessary to justify, in the documentation sent together with the request, the existence of the concrete limitations or of the impediment to its activity. As a consequence of the decision of the competent authority. This type of file does not require a prior report from the ITSS.
During the period of application of any type of ERTE, the company is empowered to disaffect and affect the workers depending on the alterations of the cause. Previously informing the legal representation of the same. And prior communication to the entity managing the social benefits and the TGSS.
During the period of application of the ERTE ETOP or ERTE FORCE MAJEURE, no overtime may be worked. Nor may new outsourcing of activity be established. Nor may new labor contracts be arranged. In case of non-compliance, it will be considered a serious infringement for each worker hired and may be punished with a fine of 1,000 € to 10,000 €. This prohibition shall not apply in the event that they are unable, due to training, qualification or other objective and justified reasons, to perform the functions entrusted to them.
RED Flexibility and Stabilization of Employment Mechanism
To begin with, it is an employment flexibility and stabilization instrument that allows the Government, under certain circumstances, to activate it by means of approval by the Council of Ministers. It is intended to allow certain companies to voluntarily request measures for the reduction of working hours and suspension of employment contracts. Subject to a period of consultation with the workers’ representatives and authorization by the labor authority, there are two modalities.
Cyclical mode
When there is a general macroeconomic situation that advises the adoption of additional stabilization instruments. And with a maximum duration of one year.
Sectoral modality
In this case, when in a certain sector or sectors of activity there are permanent changes that generate re-skilling needs and professional transition processes for workers. It will have a maximum initial duration of one year and the possibility of two extensions of six months each.
In both cases
The procedure will be initiated by means of a voluntary request by the company addressed to the competent labor authority. Accompanied by the corresponding plan for the re-qualification of the affected persons in the sectorial modality. And simultaneous communication to the workers’ representatives, after the development of a consultation period. This type of proceedings is subject to the labor authority obtaining the mandatory report from the ITSS on the concurrence of the corresponding requirements.
However, once the requested period of involvement has concluded, an extension of the mechanism may be requested, subject to a proposal and request made by the company.
However, as in the case of ERTES, the company is empowered to disaffect and affect the workers depending on the changes in the cause. Previously informing the legal representation of the workers and prior communication to the entity managing the social benefits and to the TGSS. Likewise, no overtime may be worked, nor may new outsourcing activities be established. Likewise, no new labor contracts may be entered into.
Workers covered by a RED Mechanism will be able to benefit from the unemployment benefit of 70% of the regulatory base during the whole period of application of the measure. Without having to prove a previous waiting period. And without these benefits generating consumption of future benefits. This measure will come into force on March 31, 2022.
Measures of flexibilization of the labour reform common to both mechanisms of internal flexibility in the companies.
We find the following.
Training actions
Companies will be able to carry out training actions for each of the persons affected by ERTE ETOP, ERTE due to temporary force majeure and by the new RED flexibility mechanism. In general, these training actions will be aimed at improving the professional skills and employability of workers. And they will be entitled to an increase of credit for the financing of actions in the field of programmed training. Always depending on the number of workers in the company:
First, companies from 1 to 9 workers: 425€ per person.
From 10 to 49 workers: 400 € per person.
Finally, companies with 50 or more employees: €320 per person.
Exemptions on Social Security contributions
During the application of the ERTE and the RED Mechanism, companies may voluntarily avail themselves of exemptions in Social Security contributions. These are regulated in the new DA Thirty-ninth of the TRLGSS. Which entered into force at the time of publication of this regulation. Provided that the conditions and requirements are met.
The exemptions in the contribution will be conditioned to the maintenance in the employment of the affected workers during the 6 months following the end of the period of validity of the ERTE. Therefore, they will be applied with respect to those affected by the suspension of contracts or reduction of working hours, registered in the contribution account codes of the affected work centers.
|
TYPE OF ERTE |
EXEMPTION In the employer’s contribution for CC and concepts of joint collection art.153.bis TRLGSS. |
| ERTE ETOP art.47.1 |
20% (requirement for training actions DA 25 TRLET) |
| ERTE ETOP art.47.4 (extended) |
20% (requirement for training actions DA 25 TRLET) |
| ERTE temporary major force
(ordinary. 47.5) |
90% |
| ERTE temporary force majeure (impediment or limitation. 47.6) |
90% |
| ERTE RED Mechanism: | |
|
Cyclical mode. 47 bis .1 a) |
|
| Sectorial modality. 47 bis. 1 b) |
40% (exclusively in the case of training actions DA 25 TRLET) |
In the event of non-compliance with the commitment to maintain employment, the dismissed worker’s exonerations will have to be returned exclusively.
Modification in collective bargaining
Priority of application of the Company Agreement
The priority of application of the company’s collective bargaining agreement is maintained, except in wage matters. In this case, it is established on a transitory basis that the modification will be applicable to those collective bargaining agreements signed and submitted for registration or published prior to December 31, 2021. Once these agreements cease to be expressly in force, and at the latest one year from that date.
Once the term described in the preceding paragraph has been reached, the agreements must be adapted within six months, as regards wage matters, to the sector agreement.
Ultra-activity
This means that, in the absence of an agreement, when the negotiation process has elapsed without reaching an agreement, the collective bargaining agreement in force at the companies will remain in force.
All those collective bargaining agreements denounced as of December 31, 2021, and until a new agreement is reached, will remain in force with indefinite ultraactivity.
If you have any doubts about the measures of flexibilization of the 2021 labour reform, our experts in Human Resources Management will be able to help you.
