Balms Abogados prepares a guide to resolve doubts about how temporary employment regulation files affect workers, SMEs and the self-employed.
The coronavirus health crisis and the state of alarm have caused a flood of temporary employment regulation files (ERTE). A measure which means that hundreds of thousands of workers will join the unemployment lists while the COVID-19 pandemic lasts. But how does ERTE affect a worker? And a self-employed or a small business owner? The law firm Balms Abogados has prepared a guide to try to shed light on the doubts of many Spaniards regarding this employment regulation mechanism:
What does it mean that the contract is suspended?
-That the worker is exonerated from providing their services and the company from paying their wages.
What does it mean that the days are reduced?
-The workers continue to provide their services, but at the rate of a shorter day than the ordinary one. The reduction can be between 10% and 70% of the working day, depending on the needs of the company.
Who pays me during the ERTE?
-The workers can collect unemployment. In the current context derived from the coronavirus, the collection of the benefit will be possible, even though the 360 days weren't contributed in the previous six years generally required. That is, all workers comply or not with the conditions to be creditors of the unemployment benefit may collect it.
Who should request the payment of unemployment?
-The company is responsible for making a collective application before the entity managing unemployment benefits, acting on behalf of the workers.
This application will be completed in the form provided by the entity managing unemployment benefits and must be submitted by the company within a maximum period of 5 days from the request for the temporary employment regulation file in cases of force majeure or from the date in which the company notifies the competent labour authority of its decision in the case of ERTE for economic, technical or organisational reasons.
In the event that the request had occurred prior to the entry into force of Decree Law 9/2020, the period of 5 days will begin to run from the 28th of March.
What is the amount of unemployment?
-70% of the regulatory base during the first 180 days. The regulatory base is the average of the contribution base of the last 180 days. Of course, unemployment has minimum and maximum limits. For example, the maximum amount is € 1,098.09 if the worker has no children.
Do I still contribute if I collect unemployment?
Yes, under Royal Decree 8/2020, the Social Security contribution base for unemployment benefit will be the same as its regulatory base (the average contribution base for the last 180 days), regardless of the limits that apply to said benefit.
Do the contributed periods count for my retirement?
-Yes, because as long as the contributory benefit is received, it is contributed for retirement (the SEPE is in charge of entering the contributions for this contingency).
Do you earn vacations during the ERTE?
During a suspension ERTE, no vacation is earned. Therefore, annual vacations will be reduced depending on the days of suspension. However, in a reduced working day ERTE, holidays continue to be earned, although when they are enjoyed, they must be paid in proportion to the day worked during the year.
Are extra payments earned during ERTE?
-While the ERTE of suspension no extra payments are earned. Therefore, when these are charged, they will be reduced proportionally. In a reduced working day ERTE, the extra payments will also be reduced. These will be charged in proportion to the working day during the reference period.
Does ERTE affect my seniority?
-If the ERTE is of suspension, the seniority is not affected, since the contract has been suspended by decision of the company. If it is a reduction in working hours, seniority is also not affected because the worker continues to provide services.
Is my employment contract modified? Will I need to re-sign a contract when the ERTE ends?
-No condition of the employment contract is modified and no new document must be signed at the end of the ERTE.
My company has requested an ERTE but my contract is temporary for work or service, what happens?
-You could be included in the ERTE like the rest of the workers since the work or service for which you were hired has not been completed and the circumstances have changed. The company could base a termination before the ERTE declaration based on the State of Alarm declaration and its consequences.
I'm on maternity or paternity leave, can you include me in an ERTE?
-Yes, and any worker with a temporary disability could be included. In these cases, they would collect the unemployment benefit when their temporary incapacity situation ends.
I have been forced to close my business, do I have to pay the self-employed fee?
-For this scenario, there is a request to cease activity. It can be taken with retroactive effects and the benefit is equivalent to 70 per cent of the regulatory base.
I am a creditor of a company, can I apply for a necessary contest for that company currently?
-No. Requests for necessary contests submitted from the declaration of the state of alarm until two months after the conclusion of the same will not be accepted. If during this period a voluntary contest has been presented, it will be accepted for processing in preference to the necessary contest despite the latter being filed earlier. Likewise, insolvent debtors will not have the duty to present insolvency during the period of validity of the state of alarm.
I asked for a loan to establish my business but I cannot face the mortgage as a result of the declaration of the state of alarm, can I take a moratorium?
-Yes. It is necessary to speak with the bank, which will require documentation that guarantees the impossibility of facing mortgage payments.
From the business point of view, if any worker does not attend work due to the risk of contracting the coronavirus, without an order from the Health Authority, confirmation of it or without having been in contact with affected persons or in risk areas, what steps could be taken?
-The worker may suffer a disciplinary sanction, and even dismissal, for making a decision that may not be justified. The guidelines and resolutions of the competent health authorities must always be followed, before making decisions that can lead to disciplinary sanctions. Not having any declared health alert in a particular area, if the worker lacks the corresponding medical leave by Social Security, his absence at work would not be understood as justified and we find ourselves with a lack of assistance at work without cause, subject to being sanctioned by the company following current legislation and the collective agreement. Another question would be if the worker could prove the impossibility of going to the workplace.
What if the worker does not attend because they have to take care of their children or their dependents, because schools, day centres or residences are closed?
-In this case, workers would not have paid leave to justify their absence from work, unless otherwise established by company decision or by a collective agreement with workers' representatives. The only permission established so far is contained in Decree 10/2020 until the 9th of April.