Goodbye to the ERTOs of the pandemic. Hello to the ERTO of the Labor Reform

Following the expiration of the ERTO Temporary Employment Regulation Proceedings, launched to combat the pandemic, on 28 February, the Council of Ministers extended these aids until 31 March, with the aim of giving companies enough time. to adapt to the new files provided for in the Labor Reform.

During this transition time, the conditions for ERTOs per covid remain the same for workers, but change slightly for companies in terms of exemptions:

1. If they include training plans, the exemptions will be 60 percent, before they were 80 percent.
2. Where there are no training plans, the exemptions go from 50 to 20 percent if the company has more than 10 employees. And 40 to 30 percent, if you have 10 or fewer workers.
3. Those companies that before the month of extension had authorized an ERTO for covid, will see the exemption reduced from 100 to 90 percent.

However, this mechanism, which was used by thousands of companies hit by the crisis and which affected more than three million workers in the worst moments of the pandemic, will change substantially in April.

From that moment on, the covid will no longer be considered a cause of force majeure to take advantage of an ERTO. Companies that at that time have not yet recovered their activity levels due to the pandemic will have to formalize their application to take advantage of the new files approved in the Labor Reform.

How are the new ERTOs for Labor Reform?

The new Labor Reform, approved on December 31 and validated in Congress on February 3, approved a final design of these tools that modifies the two modalities of ERTO for economic, technical, organizational and production reasons (ETOP) and force majeure. And it creates a third type of temporary employment adjustment: the RED mechanism, when there is a generalized and conjunctural economic crisis, cyclical ERTOs, or when there is a sector affected by some kind of transition or reconversion, sectoral ERTOs.

In both cases (regulated in Article 47 bis of the Workers' Statute) the Government must authorize its application in a Council of Ministers. Precisely, the Executive plans to make a first activation of a sectoral ERTO for travel agencies from the month of April.

These are the main features of the new ERTO models that will take effect on April 1:

ERTO ETOP

They remain as general adjustments and are expected to remain the most common. Companies will adapt them when they have economic, technical, organizational or production problems, although the procedures and deadlines for administrative processing are shortened and simplified.

In these ERTOs, the approval of the labor authority, eliminated in the 2012 Reform, is no longer necessary for the extinctive or temporary employment adjustments, except for those of force majeure, but they must continue to negotiate with the representation. legal status of workers.

However, the consultation period for negotiating these ERTOs is reduced from 15 to seven days in companies with less than 50 employees; in addition, the deadline for setting up the negotiating committee is seven to five days.

In the event that there is no legal representation of the workers in the company, the deadline for setting up the representative commission is 15 to 10 days.

ERTO for temporary force majeure

It is obligatory for the company to request the authorization of this ERTO from the corresponding labor authority, regional or national, accrediting in this request the evidence that the situation of force majeure occurs.

At the same time, the company must inform the workers' representation. As a novelty, a measure adopted during the pandemic is incorporated: the labor authority will have to resolve the request within five days, recognizing or not the existence of force majeure. And, if this period elapses without a response, the positive administrative silence will operate and the ERTO will be automatically authorized.

Other news common to ERTOs (ETOP and force majeure)

In the ERTO mode of reduction of working hours (they can also be temporary suspension of employment) this can be cut between 10 and 70 percent. And, as a novelty, the rule establishes a priority for ERTOs to reduce working hours over those for the suspension of contracts.

In this line, and as has been done with the ERTOs in pandemic, the law also includes the possibility that companies may remove or include workers from the adjustment as needed. However, in order to affect or disaffect employees, the company must also inform the workers' representatives and the SEPE in advance.

In both types of ERTO, the ban on workers working overtime, outsourcing activities or hiring new ones will be maintained, unless there is no one in the company to do the outsourced or newly created tasks.

In the case of ERTO ETOPs, business exemptions will be 20 percent, conditional on carrying out training actions, and in the case of force majeure, 90 percent. In both cases, the aid will be linked to the maintenance of employment for the six months following the adjustment.

New Red Mechanism

The Labor Reform included the creation of a third modality of ERTO, the so-called Red Mechanism. These are adjustments that will be governed by the ERTO ETOP and force majeure, but with some peculiarities. The first and most important is that their activation will depend on the Government, which will have to authorize them in a Council of Ministers. This new modality will include two subtypes of temporary employment adjustments: cyclical, which will be activated depending on the economic situation and may last for a maximum of one year.

And the second subtype will be the sectorial ones, which will be activated by the Executive when a sector of activity needs it in the face of a crisis caused by internal or external causes and needs to go through processes of reconversion or requalification of workers. In this case they also last for one year, but can be extended to two extensions of six months each.

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