EMPLOYMENT LAW UPDATES- 15TH JUNE 2020

The Royal Decree-Law 21/2020, of 9 June, for urgent prevention, containment and coordination measures to deal with the health crisis caused by COVID-19, establishes the measures and obligations that must be adopted in the working environment, such as the organisation of workplaces, progressive reincorporation, cleaning, ventilation or the organisation of shifts to avoid crowding.

 In the absence of the publication of a new Royal Decree, it seems that the government intends to extend the temporary lay-off policy (ERTE) in all sectors until 30th September, this applies to all businesses and not just for those which have been most affected. This is despite the fact that the CEOE urges the government to provide a scheme that would guarantee longer-term security and protection for businesses, this is why they have refused to support another three-month extension. Although the trade unions have made clear that they don’t want the government to put an end-date on the ERTE scheme, due to the fact that it should be in place as long as the pandemic continues to affect business, they would be willing to accept it provided that the conditions for the workers remain the same, i.e., that the time that the ERTE lasts does not count towards future benefits and that workers who have not contributed for long enough can also access unemployment benefit, as well as introducing that the benefit is not reduced when the six months of the ERTE are over.

 

Amongst the proposals, we see that companies that are operating under a ERTE, whether this be due to force majeure or for economical, technical, organisational or production reasons, cannot work overtime or hire new employees whilst there are still existing members of staff using the ERTE. Furthermore, new limitations will be established for exemptions in the payment of social security contributions for the months of July, August and September, always prioritising the involvement of workers in the workforce during this period.

In terms of the prohibition of dismissals and without losing sight of the prohibition of dismissals in the six months following the end of the ERTE, with the exception of cases where there is a risk of insolvency proceedings, which would not be able to meet this commitment, and certain activities of a seasonal nature such as tourism. The CEOE has requested that the employment safeguard clause not be applied when the suspensions are due to objective causes unrelated to Covid-19, i.e. economic, technical, organizational or production causes provided for in the regulations and which Trabajo suspended in the early stages of the pandemic, or in cases where such suspensions are related to subrogation of staff or completion of a probationary period.

 Teleworking is now legally under government regulation. In this, the Ministry of Employment has published a public report which explains the legalities of these regulations which have been put in place in Spain to help provide more job security to workers in the face of the coronavirus pandemic. The Labour Ministry has prioritised the compensation of expenses incurred by employees working from home.
In their view, it is very important to balance the implementation of new ways of working for an employer and the the advantages that this brings to the business. The element of costs incurred is certainly an open debate.

In the same respect, the trade unions believe that the company should pay a fixed monthly or pro rata fee to cover the costs of using the space, internet connection, energy, heating, cleaning, and maintenance, as well as paying for furniture, computers and office supplies.
The UGT goes further on this and claims that costs should be regulated by an agreement. They said: “We cannot let business owners take advantage of teleworking in such a way that they use it as a way of reducing business costs. This undermines their working conditions and their right to switching off from work”.

Without solely recognising the advantages of this idea, the Ministry also underlines some of the possible disadvantages of teleworking, such as the need for rigorous data protection, the risk of security breaches, tech-related stress, the continuous working hours, tech fatigue, being permanently ‘online’, isolation, the loss of corporate identity or the shortcomings in the exchange of information between face-to-face and remote workers.

The deadline for submission of contributions is 22 June 2020.

Following public consultation, the Ministry also wants equal treatment between employees who choose to telework and those who do not with a framework that sets out promotion and vocational training for all. For the organisation of the working day, he also sees the need to impose maximum working times and minimum rest periods, as well as the flexible distribution of working time. With regard to occupational risks, it calls for consideration of the preventive aspects related to physical and mental fatigue, the use of data display screens and isolation.

Privacy is another important aspect to consider. In this law, the Ministry wants to reiterate an employee’s right to privacy, despite working remotely on devices. This however doesn’t stop companies from exercising some sort of control over the employee to make sure that they are still fulfilling the duties stated in their contract.

 On 4th June, the Ministry of Labour and Social Economy and the Ministry of Equality participated in the Equality Table with social agents to address the development process of two regulations: (i) the one that will implement the equality plans in the companies and (ii) the one that will guarantee the equality of retribution in the workplaces, through the retribution registry.

In addition, at the Equality Table, the details of another regulation were presented, that of equal pay, which will establish tools for the correct assessment of jobs in companies, which will overcome the gender bias, as well as the mechanisms and contents of the pay registers.

Today, the Equality Commission set the terms of the debate to be developed in relation to both regulations, which will appear in the form of royal decrees.

On the other hand, the Ministry of Inclusion, Social Security and Migration will encourage the return of employees on the ERTE through exemptions in social contributions by exercising their rights stated in the Royal Decree-Law 18/2020, of 12th May, on social measures in defense of employment.

The agreement establishes a new clause of the ERTE for companies that can resume their normal activity, called “partial force majeure”, which will last until 30th June. During this period, companies can combine active and suspended workers and all of them will be exempted from the payment of the company’s social security contribution and from joint collection.

In order to allow as many workers on ERTE to return to work as possible, employees who do return will benefit from more exemptions than those that do not return to work.
Specifically, companies with fewer than 50 employees will have an 85% exemption on contributions accrued in the month of May and 70% on contributions accrued in June for workers who resume their activity. For those who remain suspended, there will also be an exemption, but it will be less: 60% for contributions earned in May and 45% for those earned in June.

For companies with 50 or more employees, the exemption for employees returning to work will be 60% and 45% for contributions accrued in May and June, respectively. For workers who do not return to work, the reduction will be 45% in May and 30% in June.
Exemptions from contribution will not have any effect on workers who will maintain their contribution for all purposes for the period in which they apply. Furthermore, this period will not be taken into account for the calculation of future benefits.

For those companies that cannot resume activity and are in a situation of total force majeure ERTE, the exemptions provided for until 30th June are maintained. The exemption of fees accrued in the months of May and June, as well as the fees for joint collection, will be 100% for those companies with less than 50 employees and 75% for those with a staff of 50 or more.

The measures will be in force until 30th June, but as we have pointed out, there will almost certainly be an extension of the employment regulation files, subject to the agreement of the Council of Ministers.

Exemptions from the contribution will be applied by the General Treasury of Social Security, at the request of the company, after communication of the situation of total or partial force majeure, as well as the identification of the workers affected and the period of suspension or reduction of the working day.

The agreement includes the creation of a tripartite Monitoring Commission in which the Ministry of Inclusion, Social Security and Migration, the Ministry of Labour and Social Economy and the social partners will participate. Its main function will be to monitor measures taken in the field of employment.

 

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