Right in the middle of the state of alarm extended by the government as a consequence of the crisis produced by COVID-19, the following Royal Decrees-Law were approved and entered into force on 28 and 29 of March, respectively:
- Royal Decree-Law 9/2020, of 27 March, which adopts complementary measures in the employment sphere to mitigate the effects of COVID-19.
- Royal Decree-Law 10/2020, of 29 March, which regulates a recoverable, remunerated permission (permiso retribuído recuperable) for persons working on behalf of third parties (cuenta ajena) that do not render “essential” services, in order to reduce mobility of the population in the context of the fight against COVID-19.
By virtue of the aforementioned regulations, the government, in order to;
(i) mediate the avalanche of temporary collective dismissal procedures (ERTEs) presented since the entry into force of Royal Decree-Law 8/2020 of 17 March;
(ii) guarantee the protection of employment and the reestablishment of business activity and
(iii) limit the movement of working persons and, as a result, limit the increase of new infections of Covid-19
has agreed to adopt the following measures:
- Prohibit dismissals for the causes foreseen in Articles 22 and 23 of the Royal Decree-Law 8/2020, of 17 March.
- Limit the duration of the force majeure ERTEs governed in Article 22 of Royal Decree-Law 8/2020, of 17 March, to the duration of the state of alarm.
- The possibility of reviewing the ERTEs presented and approved (also by so-called “administrative silence,” that is, lack of response from the administration) and in the event of observing falseness, incorrectness, fraud, etc., to impose the corresponding penalties, which would also include (in an accessory manner) the return/reimbursement of the compensation for unemployment unduly paid. Potential administrative and/or criminal liability would not be excluded.
- Fixed-term contracts affected by an ERTE for the reasons foreseen in Articles 22 and 23 of Royal Decree-Law 8/2020, of 17 March, will imply the interruption of the calculation of the duration of said contracts.
- The effective date of the ERTEs due to the causes foreseen in Article 23 of Royal Decree-Law 8/2020, of 17 March (economic, technical, organisational and/or production reasons) and, consequently, of the compensation (payment) for unemployment, must be, in any case, on the same date or subsequent to the date on which the company communicates its decision to the labour authorities.
- From 30 March 2020 to 9 April 2020 (both inclusive) a paid permission for special leave is established which is compensable until 31 December 2020.
This permission will affect workers who render services in those companies that provide services considered as “non-essential.”
Workers who currently render services remotely or have their contracts suspended (ERTE for suspension, temporary medical leave, maternity leave, etc.) will not be affected by this paid permission for special leave.
In terms of the compensation of the hours not worked during the paid permission for special leave period, said compensation shall be subject to negotiation which must take place in a consultation period of no more than seven days.
In the absence of workers’ representatives, the commission representing the workers may be constituted in accordance with the provisions of Article 41.4 of the Workers’ Statute.
The term for the constitution of the representative commission will be five days.
If it is not possible to reach an agreement, the company will notify the workers and the representative commission within seven days of the end of the consultation period of the decision regarding the compensation of the hours not worked during the application of this paid permission for special leave.
The worker shall be notified at least five days ahead of time of the date and time when he/she will make up/compensate the hours not worked.
In any case, compensation of the hours not worked shall be subject to the limits in terms of workdays established in labour regulations.
Abogada · Head of Labour Law