The processing of an ERTE by major force to the house of the resprouts, is a possibility of the companies. At present, we are suffering a resurgence of infections, with greater or lesser incidence in certain areas of the country. This means that we are facing a “second wave of the pandemic in the country. This situation is causing many businesses to see a new setback in their business. Due to reduced sales, limited capacity in their premises, restricted opening hours of their activity, etc. And in other cases they see how their expectations of recovery of the activity, again are truncated. Despite all the effort made to relaunch it.
Sometimes, it is given by recommendations from the health authorities. By recommending not to leave the home except to carry out basic activities such as buying food, doctors, etc. Or to work, when teleworking is not possible.
Likewise, it is also being recommended to make purchases online or orders by phone to be picked up later in the store, thus avoiding crowds in the establishments. Some large companies have even chosen to close their stores. As a preventive measure against possible infections of both their employees and their customers.
In other cases, the limitation is imposed by a rule that limits the development of the beginning and end of the activity or the capacity. Or directly the suspension as it happens with most cultural activities, public shows, recreational, sports and nightlife.
Processing of an ERTE by major force due to resprouts
ERTE: Temporary Employment Regulation File (TERF).
If the company still has the initial force majeure ERTE active
It has not resigned and therefore may return to affect the workers already reinstated. Whose maximum duration of affectation may be extended until September 30th at the latest. Exemptions from the corresponding quotas will be applied. And all this without prejudice to the next agreements that may be reached between employers, unions and the government. That they can extend the duration of these beyond the end of September.
It is likely that, if the company chooses this route, the measure may be questioned by the Labor Inspectorate, the Workers’ Representative Office or the workers themselves. If it is considered that the impossibility of carrying out the activity does not derive from the same cause that gave rise to the initial ERTE file due to force majeure
In each case, and in each company, it will be necessary to analyze specifically the measures of affectation of the employees to the file in force and the new circumstances that may occur due to resurgence.
In many cases, the initial disaffection of the employees responds to the attempt by the employer to reactivate the normal activity, organization of calendars and shifts, enjoyment of vacations, etc. However, once all the equipment has been returned, the same elements that gave rise to the original file continue to occur. There is no possibility of giving effective occupation to all the staff. This is the reason why some employees have to be partially or totally affected again.
Initiating a new ERTE due to force majeure as a result of “REBROTE
In case of disclosure of new regional regulations that impose certain restrictions affecting the development of the activity. Either by partially limiting the same or by forcing them to close. Therefore, it is possible to re-process a new file based on the First Additional Provision, paragraph 2, of RDL 24/2020 of June 26, on social measures for the reactivation of employment and protection of self-employment and competitiveness of the industrial sector.
This new file can be processed both by:
The companies that closed the initial file of ERTE of Force Majeure by giving up the same
as well as for those companies which, although they are applying the initial file, consider it appropriate and necessary to process a new file when new circumstances limit their activity.
In the event of a new case being filed, based on the First Additional Provision, paragraph 2, of the aforementioned RDL 24/2020, it must be handled before the competent Labor Authorities, by the ordinary procedure regulated by Articles 47.3 Royal Legislative Decree 2/2015, dated October 23, approving the Revised Text of the Law on the Statute of Workers and 31 to 33 Title II of Royal Decree 1483/2012, dated October 29, approving the Regulations on the procedures for collective dismissal and the suspension of contracts and reduction of working hours.
Procedure
In this situations in which our expertise can help you.
The Labor Authority has 5 working days to resolve the file. Which will be notified to the company or employer within 10 days, operating, otherwise, the positive administrative silence. The Labor Authority must obtain a mandatory report from the Labor Inspectorate and any other actions or reports it considers. It may even grant a hearing to the company and the workers if it considers it appropriate within 1 day.
Once the cause of force majeure has been ascertained by the administration, the employer must formalize the communication of the final decision to suspend contracts or reduce the working day. Both to the Labor Authority and to the Workers’ Representatives. And also to each of the affected employees with express indication of the degree of affectation and date of effects.
The Social Security authorities and the State Employment Service must be notified at the same time. Both the files of the ERE procedure and the certificates from the companies and collective application for unemployment benefits of the employees affected must be sent. With the prior express consent of the latter.
If the Labor Authority does not establish the existence of force majeure, it will always be possible to challenge the resolution before the social jurisdiction or, failing that, to process an ERTE for objective reasons (ETOP).
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