Two types of this instrument are created, with different exemptions and casuistries.
The Temporary Employment Regulation Files (ERTE) are no longer linked to the state of alarm and its extensions, and may be extended until, for now, June 30. It is one of the main modifications included in the royal decree approved this Tuesday in the Council of Ministers, after the agreement reached by the Government and the employers' associations and unions last week. The norm also creates two types of cases. On the one hand, ERTE due to force majeure for workers who continue to have their employment suspended due to the pandemic. On the other hand, partial ERTE due to force majeure, in which the company may gradually incorporate its employees.
The royal decree law also establishes different contribution exemptions depending on the type of ERTE. The totals extend the exemptions from 100% to companies with fewer than 50 workers and 75% to those with more. If, on the contrary, the company returns part of its workforce to activity, the exemption from contributions for workers who return to work will be 85% in May and 70% in June, if the company has less than 50 workers; and 60% in May and 45% in June, in the event that it is a company with more employees. And for the contributions of the workers of these partial ERTE who do not reinstate, the exemption will be 60% in May and 45% in June for companies with less than 50 employees and 45% in June. "There is a benefit so that companies can incorporate workers without burdensome elements for employers," Montero stressed.
ERTE due to force majeure, in addition, must maintain employment – that is, they will not be able to fire workers – during the six months following the end of the adjustment. If this requirement is not met, the company must return the exempted social contributions, with a surcharge, as was already the case currently. Although some new features have been introduced. Among them, that the rule only affects ERTE due to force majeure; that the six months will begin to count from the moment the company begins to reincorporate workers into activity.
There are also some exceptions to this commitment to maintain employment, which are already applied in practice but are included in this rule, such as not counting appropriate disciplinary dismissals, retirements, deaths, disabilities or the end of contracts as workforce reductions. temporary cases whose case ends within those six months. Likewise, companies at risk of bankruptcy will not have to maintain employment. And, when evaluating whether or not the company has fulfilled the maintenance of employment for six months, it will be taken into account whether the company usually has a very seasonal activity, which softens this commitment.
The Government has incorporated other new features. Thus, for example, companies that have made an ERTE due to force majeure will not be able to distribute dividends in the fiscal year of the adjustment, "except if they return the part corresponding to the exemption of Social Security contributions." This limitation will not affect companies with fewer than 50 workers as of February 29. Companies based in tax havens will not be able to benefit from this measure either.
The pact between the Government and the social agents will also lift on June 30 the temporary ban on dismissals due to force majeure or objective causes of an economic, technical, organizational or production nature, which are justified by the impact of the coronavirus, which the Government approved on March 27. This date is also set to suspend the temporary contracts of workers affected by ERTE.
The Government, Montero recalled, wants social agents to participate in the possible decision to extend the ERTE beyond June 30. For this reason, the Executive has in turn created a tripartite commission in which the Government, employers and unions will be represented, and which will assess the operation and consequences of this royal decree, as well as the evolution of the labor market.