A new extension of the ERTE has been agreed between the Government and the social agents. It consists in extending the ERTE (Temporary Labor Force Adjustment Program) until September 30th. Thus maintaining the flexibility of the current ERTE model, giving rise to the new RDL 11/2021.
Below, the experts of our Labour Consulting Department explain the main lines on which the agreement has been reached.
New extension of the ERTE
There are several different types of ERTE.
Automatic extension of ERTE
We have two cases.
- Automatic extension of all major force ERTE. Included in art. 22 RDL 8/2020.
- Automatic extension of all the ERTE of impediment and Limitation. Authorized by express resolution or administrative silence based on section 2 of the first Additional Provision of RDL 24/2020. And Article 2 of Royal Decree-Law 30/2020, of September 29, or Article 2 of Royal Decree-Law 2/2021.
The companies affected by these proceedings will have access to the following exemptions:
June |
July | August |
September |
||
ERTE impediment (total shutdown) | Company < 50 employees | 100% | 100% | 100% | 100% |
Company > 50 employees | 90% | 90% | 90% | 90% | |
ERTE limitation (partial closure) | Empresa < 50 empleados | 85% | 85% | 75% | 75% |
Empresas > 50 empleados | 75% | 75% | 65% | 65% |
ERTE derived from ETOP causes motivated by covid.
Included in article 23 RDL 8/2020.
Economic, technical, organizational or production causes based on Covid-19.
Once the expiration date of its duration reached between the parties has been reached, the possibility of agreeing an extension of the same under the same conditions at its end during the consultation period of the new file is maintained, whose maximum duration will be until September 30, 2021.
ERTE CNAE
Those companies affected by causes derived from the Covid-19, by an ERTE of Force Majeure or an ERTE ETOP. And whose activity is included in the list of CNAES. Referred to activities with a percentage of employees affected by these cases higher than 15% and a high recovery rate. Until this is equal to or higher than 70%.
Likewise, it affects those companies whose business has been qualified as a dependent or integral part of the value chain of the companies whose activity is contained in the aforementioned list. They will be entitled to the following exemptions in the Social Security contributions, with respect to the periods and percentages of working day affected/changed by the suspension. In the percentages and conditions indicated below:
With respect to active working days |
June to August |
September |
|
ERTE CNAE | Company < 50 employees |
95% |
95% |
Company > 50 employees |
85% |
85% |
|
With respect to working days affected by ERTE |
June to August |
September |
|
ERTE CNAE | Company < 50 employees |
85% |
70% |
Company > 50 employees |
75% |
60% |
A new list is established, in which 3 new headings are incorporated and 5 disappear.
Incorporation of CNAE:
1419 -Confection of other clothing and accessories.
4637 -Wholesale trade of coffee, tea, cocoa and spices, and
7420 -Photography activities
Disappearance of CNAE:
1811 -Graphic arts and related services.
2670 -Manufacture of optical instruments and photographic equipment
4741 -Retail trade of computers, peripheral equipment and software
5122 -Space transportation, and
7734 -Rental of navigation equipment
You have the list of CNAE included in the following ANEXO CNAE
New ERTE of major force due to impediment or limitation of the development of the activity.
Those companies that are prevented or limited in the development of their activity, will be able to process a new ERTE force majeure file, once the new RDL comes into force. This will have to be processed before the labor authority in accordance with art. 47 of the TRET, requesting that the cause be established.
Peculiarities of these proceedings
They will be processed by work center.
The duration will be limited to the duration of the decreed containment measures, except in the case of activity limitation proceedings, the duration of which will be extended until September 30, 2021.
Exonerations from Social Security contributions
June |
July | August |
September |
||
ERTE impediment. (total shutdown) | Company < 50 employees |
100% |
100% | 100% |
100% |
Company > 50 employees |
90% |
90% | 90% |
90% |
|
ERTE limitation. (partial closure) | Company < 50 employees |
85% |
85% | 75% |
75% |
Company > 50 employees |
75% |
75% | 65% |
65% |
Transit of a file from impediment to limitation and vice-versa.
The companies that have established the cause of force majeure may request the change of file modality. Either by limitation or impediment that affects its activity, express or tacit. As a consequence of changes in the norms 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 their representation. Indicating the date of effect, work centers and affected persons, 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.
Limitations and prohibitions for companies under ERTE
The following 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 more than 50 employees.
- It is still prohibited to take advantage of extended or new force majeure ERTE due to impediment or limitation in the development of its activity and ETOP, to companies with fiscal domicile in countries or territories qualified as tax havens.
- 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 the companies that avail themselves of the new measures of exemptions in the 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 of dismissal due to force majeure or objective causes, which are covered by the ERTEs linked to Covid-19, is maintained until September 30, 2021.
- The contracts of temporary workers, who are affected by ERTE of suspension, in any of its modalities, will see the duration of their contract extended. In that period for which the contract was affected by the total suspension.
- The prohibition to work overtime, to make new hires, as well as to carry out new outsourcing of services in companies affected by ERTE, in any of its modalities, will be maintained. In any of its modalities.
Unemployment benefits
- The extraordinary measures regarding unemployment protection regulated in Article 8 of Royal Decree-Law 30/2020, of September 29, 2020, will be applicable until September 30, 2021.
- The consumption of unemployment benefits by those persons who are receiving the benefit as a result of their involvement in the ERTE will be maintained as from October 1, 2020. Although their reinstatement will proceed in those cases in which a worker loses his/her job prior to January 1, 2022. As a consequence of:
- termination of the employment contract
- individual or collective dismissal
- economic, technical, organizational or production causes, or unfair dismissal.
- 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.
MeCuida Plan
Article 6 of Royal Decree-Law 8/2020, of March 17, which regulates the MeCuida Plan, is extended until September 30, 2021.
Arrabe Integra
Labour Consulting and HR Management.