DENIAL OF ERTE. WHAT TO DO? LEGAL ACTION

Have you submitted an ERE or ERTE due to force majeure? Have you been denied? What to do?

In the current crisis situation, it is possible that the company you represent has been forced to present an ERTE due to force majeure, which was expressly regulated by the Government in RDL 8/2020. It is possible that the Administration, despite the ambiguity of the Law, has considered that your activity was not included in those causes of force majeure and has been denied. 

This will mean that you will not be able to obtain any exemptions from paying wages or Social Security contributions and the company will be obliged to pay the corresponding amounts. 

Can I file another ERTE?

Yes, the answer is yes, but the procedure will be different. We recommend that you have a lawyer. Instead of going to a procedure due to force majeure, in which the procedure was "abbreviated", you will have to go to an Employment Regulation Procedure for suspension or reduction of working hours (ERTE), which will imply greater legal obligations.  You will have to initiate a procedure before the Directorate General of Labour of the respective Autonomous Community, if your workplace is only in that Autonomous Community, or in case it affects several Autonomous Communities before the Ministry of Labour. 

You will have to follow a procedure that would include a communication to the workers and their legal representatives, accompanied by a report, a list of employees affected, selection criteria, proposed measures, technical reports and so on. At the same time and simultaneously, you must communicate this to the Labour Authority. 

Then a period of negotiation will begin, which will not exceed 7 days with the workers' representatives, in which an agreement will finally be reached or the company will communicate the measure. At the same time it will be communicated to the labour authority. The workers may challenge the measure in court.

What can I do if the Erte is refused on the grounds of force majeure?

In case of refusal, you can file a lawsuit before the Social Court trying to assert the reasons that led you to apply for force majeure. From our point of view, the restrictive application of the listed activities, we believe that it is not sufficient to have good grounds to consider that the claim will be successful.

What does the legal text say?

Royal Decree 1483/2012, of 29 October, which approves the Regulations on collective dismissal procedures and the suspension of contracts and reduction of working hours expressly states in Article 33:

1. The competent labour authority shall request a mandatory report from the Labour and Social Security Inspectorate and shall carry out or request any other actions or reports it deems necessary, issuing a decision within a maximum period of five days from the date on which the application enters the register of the body responsible for processing it.

2. In the event that other facts, allegations and evidence other than those provided by the company in its application are included in the procedure and may be taken into account in the decision, the company and the legal representatives of the workers shall be given the appropriate hearing, which shall be held within one day.

3. The decision of the labour authority shall be limited, where appropriate, to establishing the existence of the force majeure alleged by the company, and it shall be up to the company to decide on the termination of the contracts or the application of measures for the suspension of contracts or reduction of working hours, which shall take effect from the date of the event causing the force majeure. The company shall inform the workers' representatives and the labour authority of this decision.

4. In the event that, following the procedure, the existence of the alleged force majeure has not been established, the appropriate procedure for collective dismissal or suspension of contracts or reduction of working hours may be initiated, in accordance with the provisions of Title I.

5. Without prejudice to the provisions of the previous paragraph, the decision of the labour authority that has not established the existence of force majeure by the company may be challenged by the employer before the labour courts.

6. Workers may challenge the employer's decision on the termination of contracts or measures for the suspension of contracts or reduction of working hours under the terms established in Articles 15 and 24.

Where to go?

Our Law Firm in Madrid, G.ELIAS Y MUÑOZ ABOGADOS is specialised in Labour Law and issues related to ERTES, ERES, Employment Regulation Files, and other judicial matters.

Call us now, we will be delighted to help you.

Phone 915711787