Employment regulation files
Termination, suspension of contracts or reduction of working hours guaranteeing your rights.
An Employment Regulation File (ERE) is an administrative procedure that the employer must follow in order to adopt a series of employment regulation measures, whether they are reduction of working hours, suspension or termination of employment contracts, when certain causes and guaranteeing the rights of workers.
When is this procedure followed?
In the processing of the following terminations, suspensions of contracts and reductions in working hours:
- Collective dismissal based on economic, technical, organizational or production causes.
- Suspension of the employment relationship based on economic, technical, organizational or production causes.
- Reduction of the working day based on economic, technical, organizational or production causes.
- Collective dismissal, suspension of contracts and reduction of working hours due to force majeure.
- By extinction of the legal personality of the contracting party.
Temporary employment regulation files (ERTE)
Temporary employment regulation files (ERTE) can be processed when the following exist causes:
a) Overwhelming force
b) Economic, technical or production causes.
If the same cause, A single ERTE application must be submitted for several work centers,
The procedure will start telematically through application of the company before the regional labor authority, the General Directorate of Labor of the Community of Madrid, whatever the cause and the number of workers affected by the measure. Simultaneously, the legal representatives of the workers will be notified.
It is up to the company to decide on the application of measures to suspend contracts or reduce working hours. The company must communicate said decision to the workers' representatives and to the labor authority.
APPLICABLE MEASURES UNDER THE ERTE
The ERTE can be for the suspension of the employment contract of the affected workers or for the reduction of their working day. As far as possible, the employer will prioritize the reduction of working hours over the suspension of contracts.
There is an ERTE due to a reduction in working hours when the temporary decrease of between 10 and 70% of the working day computed on the basis of the daily, weekly, monthly or annual working day.
In the event of a reduction in working hours, the specific periods in which the reduction will take place will be determined for each of the affected workers, as well as the working hours affected by it, throughout the period in which its validity extends.
ERTE DUE TO FORCE MAJEURE
Force majeure is understood as that cause which, generated by involuntary, unforeseeable facts or events, external to the circle of the company, temporarily makes work activity impossible.
The existence of force majeure must be verified by the labor authorityl, whatever the number of workers affected; in this case the General Directorate of Labor of the Community of Madrid.
Resolution of cases of force majeure does not require a consultation period with legal representatives of the workers, since it is a verification by the labor authority of the existence of said force majeure.
.Effect of the measures to be applied by the employer
In case of force majeure, the measures take effect from the date of the event causing the force majeure and until the date established in the resolution of the labor authority.
If after the end of the period of application of the measures established in the resolution, the cause of force majeure continues, the employer must request a new authorization from the labor authority and a new file will be processed.
Documents to be submitted
There is no closed documentation. In any case, it will include: the request in a standardized model (including the annex with the nominal list of affected workers), as well as a report and supporting documentation that serves to justify that it is a situation generated by involuntary, unforeseeable facts or events, external to the circle of the company constituting force majeure.
Labor and Social Security Inspection Report
The General Directorate of Labor will request a mandatory report from the Labor and Social Security Inspectorate on the occurrence of force majeure. This will be issued within a maximum period of 15 business days.
response time
The finding of the labor authority on force majeure must be made within five working days from the entry of the application in its registry.
This period will be suspended from the date of request for the mandatory report from the Labor and Social Security Inspectorate duly notified to the applicant and until the date of receipt of said report by the labor authority.
Effects of administrative silence
If the indicated term that the labor authority has to resolve elapses without having issued a resolution, the applicant may understand his request to be appreciated.
Workers affected by the ERTE during its validity
The company can disaffect and affect the workers based on the alterations produced in the circumstances that justified the application of the measures. To do this, you must previously inform the legal representatives of the workers, the SEPE and the General Treasury of the Social Security.
Prohibitions during the validity of the ERTE
During the validity of the ERTE, the workers they cannot work overtime and the company cannot agree on new activity outsourcing or hire new workers; Unless the workers affected by the ERTE are unable, due to education, training or other objective and justified reasons, to carry out the functions entrusted to the newly hired workers or for which the outsourcing is carried out. This information must be previously provided by the company to the legal representatives of the workers.
The hiring of new workers (except in the case already mentioned) during the validity of the ERTE will constitute a serious infraction, considering an infraction for each worker hired and may be sanctioned with a fine of between 1.000 and 10.000 euros.
Carrying out new activity outsourcing constitutes a very serious offense and can be sanctioned with a fine of between 7.501 and 225.018 euros.
The performance of overtime by workers during the validity of the ERTE will constitute a serious offense and may be sanctioned with a fine of between 751 and 7.500 euros.
Benefits in Social Security contributions
During the validity of the ERTE, the company can voluntarily apply a 90% exemption on your business contribution for common contingencies and for concepts of joint collection, with respect to the affected workers registered in the contribution account codes of the affected work centers.
These benefits are conditional on maintaining employment of the affected workers during the 6 months following the end of the validity of the ERTE. If the company fails to comply with this commitment, it must reimburse the amount of the exempted contributions in relation to the worker with respect to whom it has failed to comply, with the corresponding surcharge and default interest.
Communication to the SEPE for the collection of benefits by the affected workers
To manage the collection of the unemployment benefit, the State Public Employment Service has enabled a simple system consisting of a form that the worker must complete and fill in following the steps indicated. You can access this form at:
ERTE FOR CAUSE OF FORCE MAJEURE DUE TO IMPEDIMENTS OR LIMITATIONS
Force majeure is also considered to be that derived from impediments or limitations in the normalized activity of the company as a result of decisions adopted by the competent public authority, including those aimed at protecting public health.
In these cases, the labor authority will authorize the file, if it considers the aforementioned limitations or impediments to be justified.
Effect of the measures to be applied by the employer
In these cases of force majeure, the measures are also They take effect from the date of the event causing the force majeure and until the date established in the resolution of the labor authority.
If after the end of the period of application of the measures established in the resolution, the cause of force majeure continues, the employer must request a new authorization from the labor authority and a new file will be processed.
Documents to be submitted
There is no closed documentation. In any case, it will include: the application in a standardized form (including the annex with the nominal list of affected workers), as well as a report and supporting documentation to justify the existence of the specific limitations or the impediment to their activity as a result of the decision. of the competent authority.
Labor and Social Security Inspection Report
In these ERTEs, the request for this report by the labor authority is not mandatory.
response time
The finding of the labor authority on force majeure must be made within five working days from the entry of the application in its registry.
Effects of administrative silence
If the indicated term that the labor authority has to resolve elapses without having issued a resolution, the applicant may understand his request to be appreciated.
Workers affected by the ERTE during its validity
The company can disaffect and affect the workers based on the alterations produced in the circumstances that justified the application of the measures. To do this, you must previously inform the legal representatives of the workers, the SEPE and the General Treasury of the Social Security.
Prohibitions during the validity of the ERTE
During the validity of the ERTE, the workers they cannot work overtime and the company cannot agree on new activity outsourcing or hire new workers; Unless the workers affected by the ERTE are unable, due to education, training or other objective and justified reasons, to carry out the functions entrusted to the newly hired workers or for which the outsourcing is carried out. This information must be previously provided by the company to the legal representatives of the workers.
The hiring of new workers (except in the case already mentioned) during the validity of the ERTE will constitute a serious infraction, considering an infraction for each worker hired and may be sanctioned with a fine of between 1.000 and 10.000 euros.
Carrying out new activity outsourcing constitutes a very serious offense and can be sanctioned with a fine of between 7.501 and 225.018 euros.
The performance of overtime by workers during the validity of the ERTE will constitute a serious offense and may be sanctioned with a fine of between 751 and 7.500 euros.
Benefits in Social Security contributions
During the validity of the ERTE, the company can voluntarily apply a 90% exemption on your business contribution for common contingencies and for concepts of joint collection, with respect to the affected workers registered in the contribution account codes of the affected work centers.
These benefits are conditional on maintaining employment of the affected workers during the 6 months following the end of the validity of the ERTE. If the company fails to comply with this commitment, it must reimburse the amount of the exempted contributions in relation to the worker with respect to whom it has failed to comply, with the corresponding surcharge and default interest.
Communication to the SEPE for the collection of benefits by the affected workers
To manage the collection of the unemployment benefit, the State Public Employment Service has enabled a simple system consisting of a form that the worker must complete and fill in following the steps indicated. You can access this form at:
https://sede.sepe.gob.es/contacte/contacteFormulario.do
ERTE FOR ECONOMIC, TECHNICAL, ORGANIZATIONAL OR PRODUCTION REASONS
The employer can also apply measures to suspend work contracts or reduce the working day of their workers if there are economic, technical, organizational or production reasons.
This procedure requires period of consultations with the legal representatives of the workers and it begins with the communication to these of the opening of said period of consultations with the minimum content established in the applicable regulations and simultaneous communication of the same to the labor authority.
In these files, the labor authority does not resolve, but if it ensures the effectiveness of the consultation period and compliance with the requirements that the communication made by the employer must meet, for which make warnings that must be answered by the employer, but do not suspend or paralyze the procedure. The labor authority also sends the file to the State Public Employment Service and to the Labor and Social Security Inspectorate.
The consultation period may end with or without agreement. In any case, the employer must provide the labor authority with the minutes stating the agreement reached or their decision on the suspension of contracts or reduction of working hours within 15 days from the end of the consultation period.
Effect of the measures to be applied by the employer
In these ERTEs, the effects will be from the date on which the company communicates its decision on the application of the measures to the labor authority, unless the company establishes a later one.
Documents to be submitted
The employer must submit the communication for the opening of the consultation period in a standardized form, together with a report justifying the concurrence of the alleged economic, technical, organizational or production cause and other supporting documentation established for each case in the applicable regulations (articles 5.2 and 18 of RD 1483/2012, of October 29).
Labor and Social Security Inspection Report
The General Directorate of Labor will request a mandatory report from the Labor and Social Security Inspectorate on the business communication at the opening of the consultation period and its development. This report must be issued within 15 days from the notification to the labor authority of the end of the consultation period.
Workers affected by the ERTE during its validity
The company can disaffect and affect the workers based on the alterations produced in the circumstances that justified the application of the measures. To do this, you must previously inform the legal representatives of the workers, the SEPE and the General Treasury of the Social Security.
Extension of the ERTE for economic, technical, organizational or production reasons
Unlike the ERTE due to force majeure, this type of ERTE can be extended if, during its validity, an extension proposal is submitted to consultation with the representatives of the workers with whom it had been negotiated. The consultation period of maximum duration of 5 days may end with or without agreement, but in any case the business decision on the extension must be communicated to the labor authority and will take effect from the day following the end of the initial period of application of the measures to suspend contracts or reduce working hours.
You can communicate the extension by accessing the procedure through the following link: https://sede.comunidad.madrid/comunicaciones-declaraciones/comunicacion-...
Prohibitions during the validity of the ERTE
During the validity of the ERTE, the workers they cannot work overtime and the company cannot agree on new activity outsourcing or hire new workers; Unless the workers affected by the ERTE are unable, due to education, training or other objective and justified reasons, to carry out the functions entrusted to the newly hired workers or for which the outsourcing is carried out. This information must be previously provided by the company to the legal representatives of the workers.
The hiring of new workers (except in the case already mentioned) during the validity of the ERTE will constitute a serious infraction, considering an infraction for each worker hired and may be sanctioned with a fine of between 1.000 and 10.000 euros.
Carrying out new activity outsourcing constitutes a very serious offense and can be sanctioned with a fine of between 7.501 and 225.018 euros.
The performance of overtime by workers during the validity of the ERTE will constitute a serious offense and may be sanctioned with a fine of between 751 and 7.500 euros.
Benefits in Social Security contributions
During the validity of the ERTE and during its extension, the company may voluntarily apply a 20% exemption on your business contribution for common contingencies and for concepts of joint collection, with respect to the affected workers registered in the contribution account codes of the affected work centers. This exemption It will only be applicable if the company carries out training actions for each of the affected workers, that must be carried out during the application of the measures to suspend contracts or reduce working hours, always respecting the legally established breaks and the right to reconcile work, personal and family life.
If the company fails to comply with this training obligation, it will have to enter the amount of the exempted contributions for each worker for whom it has failed to comply with the corresponding surcharge and late payment interest. However, you will not have to reintegrate if, having made the training actions available to the workers, they have not carried them out.
These benefits are conditional on maintaining employment of the affected workers during the 6 months following the end of the validity of the ERTE. If the company fails to comply with this commitment, it must reimburse the amount of the exempted contributions in relation to the worker with respect to whom it has failed to comply, with the corresponding surcharge and default interest.
Communication to the SEPE for the collection of benefits by the affected workers
Workers affected by an ERTE must submit an individual request to the SEPE within 15 business days following the start date of the suspension of the contract or reduction in working hours, for the collection of the contributory benefit.
To manage the collection of the unemployment benefit, the State Public Employment Service has enabled a simple system consisting of a form that the worker must complete and fill in following the steps indicated. You can access this form at:
ERTE OF THE EMPLOYMENT FLEXIBILITY AND STABILIZATION NETWORK MECHANISM
Companies may request the labor authority to reduce the working day or suspend the contracts of their workers in any of their work centers, once it is activated the RED Mechanism by agreement of the Council of Ministers.
Currently, only the sectorial RED Mechanism for the Travel Agencies sector is activated, by virtue of the Agreement of the Council of Ministers of March 29, 2022, published by Order PCM/250/2022, of March 31 (BOE of 1 of April). Only companies that as of March 31, 2022 were classified in the CNAE 7911, 7912 and 7990 may request to apply measures to suspend contracts or reduce working hours of this RED Mechanism.
This Mechanism may be:
- Cyclic: when the existence of a general macroeconomic situation is declared that advises the application of employment stabilization measures. It will have a maximum duration of 1 year.
- Sectorial: when permanent changes are appreciated for a certain sector or sectors of activity, which generate needs for retraining and transition of workers. It will have a maximum initial duration of 1 year and the possibility of two extensions of 6 months each.
In both cases, the company must present its application to the competent labor authority; in this case, the General Directorate of Labor of the Community of Madrid and, simultaneously will inform the legal representatives of the workers of the opening of a consultation period in the terms indicated for ERTEs for economic, technical, organizational or production reasons. This consultation period may end with or without agreement.
The labor authority will resolve:
- Authorizing the application of the RED Mechanism, so that the company applies the measures to suspend contracts or reduce working hours in the terms set forth in the agreement reached in the consultation period; or
- If an agreement was not reached, estimating the company's request, if it considers that the documentation provided by it concurs with the cyclical or sectoral situation that triggered the Mechanism. Otherwise, it will resolve rejecting the request.
Documents to be submitted
The employer must submit a request in a standardized model, providing the communication of the conclusion of the consultation period, together with a supporting report and supporting documentation of the concurrence of the cyclical or sectoral situation declared in the agreement of the Council of Ministers and other documentation established in the applicable regulations.
In the case of the sectoral modality, it must accompany a requalification plan for the affected workers.
Labor and Social Security Inspection Report
The General Directorate of Labor will request a mandatory report from the Labor and Social Security Inspectorate on the concurrence of the corresponding requirements. This will be issued within a maximum period of 7 business days.
response time
The resolution of the labor authority must be made within 7 calendar days from the communication to it of the conclusion of the consultation period.
This period will be suspended from the date of request for the mandatory report from the Labor and Social Security Inspectorate duly notified to the applicant and until the date of receipt of said report by the labor authority.
Effects of administrative silence
If the indicated term that the labor authority has to resolve elapses without having issued a resolution, the applicant may understand his request to be appreciated.
Extension of the ERTE of the RED Mechanism
This type of ERTE can be extended once, if during its validity a proposal for an extension is submitted to consultation with the representatives of the workers with whom it had been negotiated. The consultation period of maximum duration of 5 days may end with or without agreement, but in any case the business decision on the extension must be communicated to the labor authority and will take effect from the day following the end of the initial period of application of the measures to suspend contracts or reduce working hours.
Workers affected by the ERTE during its validity
The company can disaffect and affect the workers based on the alterations produced in the circumstances that justified the application of the measures. To do this, you must previously inform the legal representatives of the workers, the SEPE and the General Treasury of the Social Security.
Prohibitions during the validity of the ERTE
During the validity of the ERTE, the workers they cannot work overtime and the company cannot agree on new activity outsourcing or hire new workers; Unless the workers affected by the ERTE are unable, due to education, training or other objective and justified reasons, to carry out the functions entrusted to the newly hired workers or for which the outsourcing is carried out. This information must be previously provided by the company to the legal representatives of the workers.
The hiring of new workers (except in the case already mentioned) during the validity of the ERTE will constitute a serious infraction, considering an infraction for each worker hired and may be sanctioned with a fine of between 1.000 and 10.000 euros.
Carrying out new activity outsourcing constitutes a very serious offense and can be sanctioned with a fine of between 7.501 and 225.018 euros.
The performance of overtime by workers during the validity of the ERTE will constitute a serious offense and may be sanctioned with a fine of between 751 and 7.500 euros.
Benefits in Social Security contributions
During the validity of the ERTE, the company can voluntarily apply the following exemptions in your business contribution for common contingencies and for concepts of joint collection, with respect to the affected workers registered in the contribution account codes of the affected work centers:
- In cyclic mode:
- 60% from the date of activation by agreement of the Council of Ministers until the last day of the fourth month after the date of activation
- 30% during the four months immediately following
- 20% during the four months immediately following.
- In the sectoral modality, 40%.
These exemptions They will only be applicable if the company carries out training actions for each of the affected workers, that must be carried out during the application of the measures to suspend contracts or reduce working hours, always respecting the legally established breaks and the right to reconcile work, personal and family life.
If the company fails to comply with this training obligation, it will have to enter the amount of the exempted contributions for each worker for whom it has failed to comply with the corresponding surcharge and late payment interest. However, you will not have to reintegrate if, having made the training actions available to the workers, they have not carried them out.
These benefits are conditional on maintaining employment of the affected workers during the 6 months following the end of the validity of the ERTE. If the company fails to comply with this commitment, it must reimburse the amount of the exempted contributions in relation to the worker with respect to whom it has failed to comply, with the corresponding surcharge and default interest.
Communication to the SEPE for the collection of benefits by the affected workers
Effective as of March 31, 2022.
Workers affected by an ERTE of the RED Mechanism may access the contributory benefit without the need to prove a minimum contribution period prior to Social Security, provided that the worker has been hired by the company before the date of the agreement of the Council of Ministers mechanism activation. Access to the benefit will not consume previous contributions and the time it is received will not be considered as consumed in future accesses to the unemployment benefit.
It will be the company that the labor authority authorizes, which must formulate a collective application for unemployment benefits of the workers affected by the ERTE before the SEPE, in the model provided by this body, which will be found on its website.
The request must be submitted within a period of 1 month from the date of notification of the resolution of the labor authority or from the certificate of administrative silence.
In any case, workers must be registered with the competent public employment service.
The amount of the benefit will be determined by applying to the regulatory base (average of the contribution bases corresponding to the 180 days immediately prior to the date of application of the measure to the worker) the percentage of 70% during the entire validity of the ERTE, with a maximum limit to receive equivalent to 225% of the current IPREM increased by one sixth.
Frequently Asked Questions
About ERTES
1. What is an ERTE?
It is an administrative procedure by which the employer may suspend the employment contracts of their workers or temporarily reduce their working hours.
2. When can an ERTE be carried out?
Temporary employment regulation files (ERTE) can be processed when there is any of the following causes: force majeure; economic, technical, organizational or production causes.
3. Is it necessary to present an ERTE for each work center of the same company?
A single ERTE request must be submitted for several work centers, if the same cause exists.
4. Where is the opening of the ERTE procedure requested?
The procedure will be initiated electronically at the request of the company before the competent labor authority. The General Directorate of Labor of the Community of Madrid will be competent, whatever the cause, if the work centers affected are in the Community of Madrid or if they are in several Autonomous Communities, 85% of the company's workforce It is located in the Community of Madrid and there are affected workers in it. Simultaneously, the legal representatives of the workers will be notified of the beginning of this procedure.
5. How do you have to submit the documentation to start an ERTE?
The documentation will be submitted electronically at the following address:
https://sede.comunidad.madrid/comunicaciones-declaraciones/expedientes-regulacion-empleo
6. Who decides to start an ERTE?
It is up to the company to decide on the application of measures to suspend contracts or reduce working hours. The company must communicate said decision to the workers' representatives and to the labor authority.
7. What measures can the employer adopt through an ERTE?
ERTES can be due to suspension of contracts or reduction of working hours.
There is an ERTE for a reduction in working hours when there is a temporary reduction of between 10 and 70% of the working day computed on the basis of the daily, weekly, monthly or annual working day.
In the event of a reduction in working hours, the specific periods in which the reduction will take place will be determined for each of the affected workers, as well as the working hours affected by it, throughout the period in which its validity extends.
8. I am a professional firm and my client does not have a digital certificate. Can I submit an ERTE with the digital signature of the collegiate (lawyer/graduate/administrative manager)?
The ERTE documentation can be presented with the digital signature of the collegiate, having to provide some power of attorney or authorization that the company is satisfied with.
About ERTES, wages and unemployment benefits
1. My company has informed me that it is carrying out an ERTE of suspension, will I continue to collect my payroll?
If a contract is suspended, it means that the worker's obligation to provide services and the employer's payment of wages is suspended. From that moment, the payroll will not be collected, but the contributory benefit for unemployment will be accessed.
2. My company has informed me that it is carrying out an ERTE to reduce working hours. Am I going to continue collecting my payroll?
From that moment the payroll will be charged proportionally to the hours worked and the contributory unemployment benefit will be received for the hours not worked.
3. If I have to apply for unemployment benefit, how do I do it?
To proceed with your registration as a job seeker, you must contact the employment office by phone or email. The request will be registered and confirmation of the procedure carried out will be sent. It will also be possible to request an appointment shortly at the employment office that corresponds to each worker to register.
To manage the collection of the unemployment benefit, the State Public Employment Service has enabled a simple system consisting of a form that you must complete and fill in following the steps indicated. You can access this form at:
https://sede.sepe.gob.es/contacte/contacteFormulario.do
If you are affected by a Covid ERTE, it is your company that must submit the collective application for unemployment benefits in the form collected for this purpose on the same website of the State Public Employment Service. This request must be submitted within 15 business days following November 1, 2021 or the date of notification of the express resolution approving the extension, or of the certificate accrediting the administrative silence, if it is after November 1 .
Contact
To solve any query you can write to regulationempleo@madrid.org or call 915809249
Statistical data
Access information on the ERTE processed since March 2020 includes the number of companies and workers affected. The data is disaggregated by municipalities, type of activity, size of the companies and result of the resolutions.
