The new extension of the ERTEs approved. The Government agreed with the social agents to extend the ERTEs until February 28th, 2022. Thus maintaining the flexibility of the current ERTE model, giving rise to the new RDL 18/2021, although on this occasion with nuances since the extension is not automatic as on previous occasions.
The new extension of the approved ERTEs
The following are the main lines on which the agreement has been reached.
Automatic extension of the ERTEs in force during October 2021.
The cases in force as of September 30th, 2021 and those that are approved or communicated during the month of October. They will maintain the regime of exonerations and unemployment protection in force as of September 30.
The files that are approved or communicated during the month of October will be processed in accordance with the provisions of RDL 11/2021.
Extension of ERTES in force as of September 30, 2021, from November 2021 to February 2022.
Its validity is conditioned to the presentation of an extension request to be processed:
- Before the labor authority that authorized or processed the file.
- Between October 1st and 15th, 2021.
A list of the hours or days of work suspended or reduced in July, August and September 2021 must be attached. For each of the workers and in the ETOP ERTES also a report issued by the workers’ representatives.
If the request accompanied by such documentation is not submitted within the established term, the ERTE will be considered as terminated. It will not be applicable as from November 1st, 2021.
The labor authority will issue a resolution within 10 working days from the date of the presentation of the request. Once this period has elapsed, the request will be deemed to have been granted by positive administrative silence.
- The resolution will extend the ERTE until February 28th, 2022.
- The file will be sent to the Labor and Social Security Inspection for the appropriate purposes.
Once the ERTE has been expressly authorized, or once the resolution period has elapsed and it is understood to be estimated by administrative silence, it must be sent within 5 days:
- a list of the workers included in the ERTE as of September 30th, 2021.
- and those who are expected to be included in the same during the extension.
This list will be at the disposal of the competent labor authority, the TGSS, the SEPE and the Labor and Social Security Inspection, for the corresponding effects of their competences. The list will have to be updated when there are variations in the ERTE of the workers.
The companies must process a new collective application for unemployment benefits, with respect to the workers who are subject to ERTE with effect from November 1, 2021 (term of 5 days). As well as to submit the ERTE processes before the SEPE and periods of activity, for the purpose of liquidation of the corresponding unemployment benefit.
New ERTE of major force due to impediment or limitation of the development of the activity
For those companies that are prevented or limited in the development of their activity, due to new restrictions or health containment measures. Between November 1st, 2021 and February 28th, 2022, a new ERTE major force file may be processed. This will have to be processed before the competent labor authority in accordance with art. 47 of the TRET (requesting the establishment of cause).
Peculiarities of these proceedings:
- They will be processed by work center.
- The duration will be limited to the duration of the measures decreed for containment. Except in the case of activity limitation proceedings, whose duration will be extended until February 28th, 2022.
Once the cause has been established, any alteration in the number and identification of the affected workers must be sent to the competent labor authority.
Transit from an impediment to a limitation and vice versa.
The companies that have a proven cause of major force, either by limitation or impediment that affects their activity (express or tacit), may request the change of file modality. As a consequence of changes in the rules and measures of sanitary restrictions adopted by the competent authorities, which will not require the processing of a new ERTE.
It will be enough, to make a communication to the labor authority that had approved the file. As well as to the legal representation of the workers (or to the employees themselves, in the absence of representation of these). Indicating:
- the effective date
- work centers and persons affected
- presenting the corresponding responsible declaration before the General Treasury of the Social Security. The latter, in order to be able to access the exemptions in the quotas.
Likewise, it will be necessary to make the previous communication of the changes that take place to the SEPE with respect to the persons affected by the ERTE.
Transit from a major force ERTE to an ETOP one
During the term of a force majeure ERTE, when necessary, the company may transition to an ETOP ERTE, the effects of which will be retroactive to the date of termination of the force majeure ERTE.
Training actions linked to Social Security contribution exemptions
The exemptions in Social Security contributions for active workers disappear.
In order to obtain the Social Security contribution exemptions, companies will have to develop training actions for each of the persons affected by the ERTE between November 1, 2021 and February 28, 2022.
The term for the effective provision of the training actions will end on June 30, 2022.
Once the maximum term for the execution of the training has elapsed, the SEPE will verify that the training actions have been carried out and if they have not been carried out, the ITSS will initiate disciplinary proceedings and liquidation of quotas for the undue exemptions with respect to each of the persons who have not carried out the training.
Duration of training
The minimum number of hours of training to be carried out by each employee for whom exemptions have been applied is established as follows, depending on the size of the company, from 10 or more employees:
- From 10 to 49 workers: 30 hours.
- Up to 50 or more workers: 40 hours.
These training actions must be developed during the application of the reduction of working hours or suspension of the contract, in the scope of a temporary employment regulation file. Or during working time. In any case, the legally established breaks and the right to conciliate work, personal and family life must be respected.
The companies that train people affected by temporary lay-offs will be entitled to an increase of credit for the financing of actions in the field of programmed training of the amount indicated below, depending on the size of the company:
- From 1 to 9 workers: 425€ per person.
- From 10 to 49 workers: 400€ per person.
- Up to 50 or more employees: 320€ per person.
Amount of exemptions
For the period November 2021 to February 2022.
In the ERTES of limitation
In the ERTES exempted in accordance with DA 1ª of RDL 11/2021 and in those transiting from force majeure in companies of the CNAE of RDL 11/2021 and its value chain to ERTES ETOP, between October 1, 2021 and February 28, 2022, the exoneration percentages in November and December 2021 and in January and February 2022 will be:
- When the company cannot accredit the provision of training actions for people in ERTE:
- In companies with 10 or more workers (as of February 29, 2020): 40% exemption.
- In companies with 10 or less workers (as of February 29, 2020): 50% exemption.
- When the company can accredit the provision of training actions for people under ERTE: 80% exemption.
In the ERTES of impediment.
Exemption of 100% of the company contribution accrued from November 2021, during the closing period, and until February 28, 2022.
Limitations and prohibitions for companies under ERTE.
Until February 28, 2022 it will continue to be applicable:
- The prohibition to distribute dividends, corresponding to the fiscal year in which these ERTES are applied, to companies benefiting from exonerations (companies with + 50 employees).
- Companies with tax domicile in countries or territories classified as tax havens are still prohibited from taking advantage of extended or new force majeure ERTES due to impediments or limitations in the development of their activity and ETOP.
- Commitment to maintain employment for a further 6 months. As established in the sixth additional provision of RDL 8/2020 and article 5 of RDL 30/2020. For companies that avail themselves of the new measures of exemptions in Social Security contributions. If the company is affected by a previously acquired commitment to maintain the employment, the beginning of the new period will take place when such commitment has ended.
- The prohibition to dismiss due to force majeure or objective causes in which the ERTES linked to Covid-19 are protected, is maintained until February 28, 2022.
- The contracts of temporary workers affected by suspension ERTES (in any of its modalities), will see the duration of their contract extended. In that period for which the contract was affected by total suspension.
- The prohibition to work overtime and to make new hires is maintained. As well as to carry out new outsourcing of services in companies affected by ERTES, in any of its modalities.
The extraordinary measures regarding unemployment protection regulated in Article 8 of Royal Decree-Law 30/2020, of September 29th , will be applicable until February 28th , 2022.
- The consumption of unemployment benefits will be maintained for those persons who are receiving the benefit as a consequence of their assignment to the ERTE (from October 1, 2020). However, they will be replaced in those cases in which a worker loses his/her job prior to January 1, 2023, as a consequence of:
- the termination of the employment contract
- individual or collective dismissal
- economic, technical, organizational or production reasons
- or dismissal declared unfair.
- The following will be maintained:
- The extraordinary benefit for discontinuous permanent workers or workers who perform fixed and periodic jobs that are repeated on certain dates.
- Compatibility of the (full) unemployment benefit derived from an ERTE with a part-time job.
Article 6 of Royal Decree-Law 8/2020, of March 17, which regulates the MeCuida Plan, is extended until February 28, 2022.
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