As part of the modifications to the sanctioning procedure, the automated administrative actions of the Social Security are established. Royal Decree 688/2021 amended the General Regulations on procedures for the imposition of penalties for social security infringements and for the settlement of social security contributions.
Among the modifications incorporated by the aforementioned legal text was the new strategy of the Labor and Social Security Inspection (ITSS) consisting of “automated actions”. For many, this modification may have gone unnoticed, but its interest deserves that we dedicate “something more” than a few lines to it.
Automated administrative actions of the Social Security
In order to situate ourselves, we reproduce below the summary that we published on our website last September 2021, in relation to the matter that concerns us.
Sanctioning procedure promoted by automated administrative action within the scope of the General State Administration
Automated activity shall be understood as any action carried out entirely through electronic means by the Labor and Social Security Inspectorate in which the intervention of personnel with inspection functions takes place indirectly.
The proposed regulation for the development of a new procedure by virtue of the automated administrative action seeks to articulate an agile sanctioning procedure, based on facts constituting a generally uncontroversial infringement, and with legal certainty for the administered party.
The modification does not have retroactive effects and will enter into force on January 1st, 2022.
But, what does the Automated Administrative Action (AAA) by the ITSS consist of?
Automated action consists of detecting non-compliance based on massive data analysis.
Therefore, it is a form of action carried out entirely through electronic means by the ITSS with the information obtained by combining powerful databases and computer tools for processing them.
Once we are in this situation, we ask ourselves: What is an AAA? What type of report can we receive? How should we act in the face of the new automated sanctions?
Definition of AAA
We can define the AAA as the generation of an infraction report that gives rise to a sanctioning procedure. Without the intervention of the acting officer, i.e. inspector or sub-inspector, directly. The acting officer will only intervene, indirectly, in the event of allegations being made by the responsible party.
In the order for the generation of the report, a set of actions of the same nature is specified. And it will indicate the criteria to be followed in its preparation and execution, as well as the body in charge of its execution. Therefore, there will not be an indiscriminate use of automated sanctioning procedures, but only and exclusively in those previously predetermined by an order of the director of the State Agency of the Labor and Social Security Inspection.
Type of report we may receive
Automated infraction reports signed with the qualified electronic seal OEITSS (Organismo Estatal Inspección de Trabajo y Seguridad).
The infraction report will contain the following data:
- Data of the offending subject.
- Facts verified, through the data obtained by computer, and which are considered relevant for and typify the infringement.
- Means of verification of the data
- Infringement/s and qualification of the same/s
- Proposed sanction
- Competent body
- Date of the infraction
Action to be taken in the case of new automated sanctions
Upon receipt of an automated infraction report signed with the OEITSS qualified stamp, the responsible party will have fifteen working days. To pay the penalty with a 40% reduction or choose to present allegations. They may allege, among others, different facts or circumstances, insufficiency of the account stated in the report, defencelessness (if applicable), etc…
If after fifteen working days neither payment nor allegations are made, the record is transformed into an automated resolution proposal.
If allegations are presented, the file is assigned to a Sub-Inspector or Inspector to provide an additional report and issue a resolution.
To conclude, we list below the main areas of action envisaged in the ITSS strategic plan 2021-2023.
Decent, safe and healthy working conditions
- Guarantee the full and effective exercise of labor and union rights, fighting against all types of abuse and fraud in labor matters.
- Guarantee the safety and health of workers, ensuring compliance with occupational risk prevention regulations.
- To tackle undeclared work and improve the protection of people who are trafficked for labor exploitation purposes.
- Combating transnational fraud.
Equality and non-discrimination in employment and working conditions
- Ensure gender equality and non-discrimination
- Ensuring equality and non-discrimination on the basis of gender.
- Creation of the State Office for Combating Discrimination.
Sustainability of the Social Security system and the control of public aid in the field of employment.
- Fight against Social Security fraud and undue contribution of wages.
- Fight against fraud in the enjoyment of public Social Security benefits. Including fraud in the use of suspension and reduction of working hours.
- Also to fight against fraud in public aid in employment and training for employment.
- Exercising the competences in matters of inspection of the Social Security Collaborating Mutual Insurance Companies.
Public health actions in workplaces during the Covid-19 pandemic.
- To control, under legal authorization, the norms for the prevention of the COVID-19 contagion.
Arrabe Integra
Labour Consulting and HR Management.