Royal Decree Law 9/2020 of 27 March adopting supplementary employment measures to mitigate the effects of COVID-19 (“RDL 9/2020”), clarifies certain effects and consequences of Royal Decree Law 8/2020 of 17 March on urgent and extraordinary measures to address the economic and social impact of COVID-19 (“RDL 8/2020”) and establishes new provisions aimed at facilitating a more effective application of the provisions of RDL 8/2020.
RDL 9/2020 also specifies measures for certain sectors of industry and sets up a more agile system for public procurement during the health crisis. The third final provision of RDL 9/2020 states that it “will enter into force on the same day as its publication in the ‘Official State Gazette’” and will remain in force “during the state of emergency declared by Royal Decree 463/2020 and its possible extensions”.
In labour matters, the following aspects should be highlighted:
I. EXTRAORDINARY MEASURES FOR THE PROTECTION OF EMPLOYMENT
Force majeure and the economic, technical, organisational and production grounds on which measures to suspend contracts and reduce working hours in light of COVID-19 are based cannot be understood as justifying the termination of employment contracts or dismissals (art. 2).
II. EXTRAORDINARY MEASURES TO SPEED UP THE PROCESSING AND PAYMENT OF UNEMPLOYMENT BENEFITS
Unemployment benefits must be applied for directly by the employer who has undertaken a plan to temporarily suspend employees’ contracts or reduce their working hours (an “ERTE”, according to the Spanish acronym), in accordance with the following:
- Collective application: The company will submit a collective application to the unemployment-benefits management body. This application will be completed in the form provided by the managing body.
- Communication: The communication will include the following information for each of the workplaces concerned:
- Name or business name of the company, address, tax identification number and social security contribution account code assigned to the workers for whom suspensions or working-time reductions are requested;
- Name and surname, tax identification number, telephone number and e-mail address of the company’s legal representative;
- File number assigned by the labour authority;
- Specification of the measures to be adopted, as well as the starting date when each of the workers will be affected by them;
- In case of reduction of the working day, the percentage of the temporary reduction, calculated on a daily, weekly, monthly or annual basis;
- For the purpose of proving the representation of the workers, a statement of responsibility must be made stating that the workers’ authorization has been obtained; and
- Any additional information determined by resolution of the General Directorate of the State Employment Service.
- Information variations: The company must communicate any changes to the information initially contained in the communication, and in all cases when they relate to the end of the measure’s application.
- Communication deadline: The communication referred to in the previous point must be sent by the company:
- Within five days of the ERTE request in cases of force majeure referred to in article 22 of RDL 8/2020; or
- From the date on which the company notifies the relevant labour authority of its decision in the case of procedures regulated under article 23.
- The communication will be sent by electronic means and in the form determined by the State Employment Service.
- Penalty regime: Failure to make the communication regulated in the previous sections will constitute a serious infraction under article 22.13 of the revised text of the Law on Labour Infractions and Sanctions, approved by Royal Legislative Decree 5/2000 of 4 August(“LISOS”).
III. INTERRUPTION OF THE CALCULATION OF THE MAXIMUM DURATION OF TEMPORARY CONTRACTS
Temporary contracts are suspended, “including training, relief and interim contracts”, “which will interrupt the calculation of both the duration of these contracts and the reference periods equivalent to the suspended period, in each of these types of contract” (art. 5).
IV. MAXIMUM DURATION OF ERTES DUE TO FORCE MAJEURE
The duration of ERTEs authorised based on reasons of force majeure cannot continue beyond the period of the COVID-19 crisis, from which it is to be understood, therefore, that their maximum duration will be that of the state of emergency declared by Royal Decree 463/2020 and its possible extensions.
This limitation will apply both to those ERTEs for which an express resolution has been made and to those which are approved as a result of administrative silence, regardless of the contents of the company’s specific application.
IV. REINFORCEMENT OF THE SYSTEMS TO MONITOR “ERTES”
The second additional provision of RDL 9/2020 establishes sanctioning provisions in relation to:
- Applications submitted by the company that contain false or incorrect data: These cases will give rise to the corresponding LISOS sanctions. Sanctions will also be imposed for “conduct by the company consisting of requesting measures in relation to employment that are not necessary or have insufficient connection with the grounds on which they are based, provided that they result in the generation or receipt of undue benefits”.
- Review and reimbursement of undue benefits: Undue provision of benefits to a worker for reasons not attributable to him/her, as a result of any of the breaches provided for in the previous section, will give rise to a review of the decision to provide said benefits.
- In such cases, and without prejudice to the administrative or criminal liability that may correspond by law, the company must pay to the management entity the amounts received by the worker, deducting them from the salaries that would have been due, up to the limit of the sum of such salaries. This obligation to return the benefits provided, as an accessory penalty, will be enforceable until the end of the limitation period of the offences referred to in LISOS.
The fourth additional provision establishes specific rules for the collaboration between the entity managing unemployment benefits and the Labour and Social Security Inspectorate:
- In cases where the managing body finds evidence of fraud in order to obtain unemployment benefits, it must inform the Labour and Social Security Inspectorate.
- The Labour and Social Security Inspectorate, in collaboration with the State Tax Agency and the State Security Forces, will include among its action plans the verification of the existence of the reasons listed in applications for and communications of ERTEs based on the grounds contained in articles 22 and 23 of RDL 8/2020.
IV. DATE OF EFFECT OF THE UNEMPLOYMENT BENEFITS DERIVING FROM ERTES
In accordance with the provisions of the third additional provision of RDL 9/2020:
- The date of effect of the legal status of unemployment in cases of force majeure will be the date on which the force majeure event occurred.
- When the suspension of the contract or reduction of the working day is due to economic, technical, organisational or production reasons related to COVID-19, the date of effect of the legal status of unemployment must be on or after the date on which the company informs the labour authority of the decision taken.
- The grounds and date of effect of the legal status of unemployment must appear on the company certificate, which will be considered a valid document for the purposes of accreditation.
V. APPLICATION OF EXTRAORDINARY MEASURES RELATING TO UNEMPLOYMENT PROTECTION AND CONTRIBUTIONS TO ERTES NOTIFIED, AUTHORISED OR INITIATED BEFORE THE ENTRY INTO FORCE OF RDL 9/2020
Finally, the first final provision of RDL 9/2020 states that “The extraordinary measures in the area of unemployment protection and contributions provided for in articles 24 and 25 of RDL 8/2020 will apply to those affected by procedures to suspend contracts and reduce working hours that were notified, authorised or initiated prior to the entry into force of this Royal Decree Law, provided that they are directly linked to COVID-19”.