Extension of ERTE increase of the minimum inter-professional wage and presumption of ridders
1. EXTENSION OF TEMPORARY LAY-OFF ("ERTE")
Yesterday, 29 September 2021, Royal Decree-Law 18/2021, of 28 September, on urgent measures for the protection of employment, economic recovery and improvement of the labour market, came into force. The main measures adopted include:
EXTENSION OF THE ERTE IN FORCE UNTIL 28 FEBRUARY 2022
The RDL establishes the extension of the ERTEs in force as of 30 September 2021 based on articles 1 and 2 of Royal Decree-Law 11/2021 of 27 May and based on article 23 of Royal Decree-Law 8/2020 of 17 March until 28 February 2022.
In order to benefit from the extension, it is compulsory to apply for the extension before the labour authority between 1 and 15 October; if this is not done, the ERTE will be deemed to have ended.
The application must be accompanied by a list of the hours or days of work suspended or reduced from July to September 2021. In particular, in respect of ERTE economic, technical, organisational or production reasons (ERTE ETOP), a report from the workers' legal representatives must also be provided.
The labour authority must issue a decision within ten working days of the request, and in the absence of an express decision, the request for extension shall be deemed to have been granted.
NEW ERTE DUE TO RESTRICTION OR LIMITATION OF ACTIVITY
Companies affected by new restrictions adopted between 1 November 2021 and 28 February 2022 may apply for an ERTE due to a restriction or limitation of activity following the same procedure as before.
The simplified procedures to go from an ERTE, due to a restriction of activity, to an ERTE, due to limitation of activity, and vice versa is maintained. It will be sufficient to notify the labour authority and the workers' representatives, but a statement of responsibility must also be filed with the Social Security General Treasury ("SSGT").
GREATER EXEMPTIONS FROM SOCIAL SECURITY CONTRIBUTIONS LINKED TO TRAINING
Unlike previous regulations, the new RDL grants greater exemptions to employers who carry out training actions for those employees affected by ERTE.
The minimum number of training hours to be completed by each person in ERTE (for which the companies have applied exemptions) will be from 10 or more employees:
- From 10 to 49 employees: 30 hours per employee.
- From 50 or more: 40 hours per worker.
By 30 June 2022 (maximum deadline for the implementation of training actions), the SSGT will communicate to the National Employment Public Service ("NEPS") the list of workers in respect of whom exemptions have been applied and the NEPS will verify the implementation of training actions. In the event of deviations, the SSGT will inform the Labour Inspectorate so that it can start sanctioning actions and the settlement of the corresponding quotas.
TRAINING INCENTIVES
Between 1 November 2021 and 28 February 2022, companies in ERTE that train workers affected by ERTE will be entitled to an increase in the credit for financing training activities, depending on their size:
- From 1 to 9 workers: 425 euros per person
- From 10 to 49 workers: 400 euros per person
- 50 or more workers: 320 euros per person
SOCIAL SECURITY EXEMPTIONS
The amount of the exemptions [would depend] on the size of the company's workforce on 29 February 2020 and whether or not training actions have been provided:
| Companies with less than 10 employees | Companies with 10 or more than employees | |
| Without training actions | 50% | 40% |
| With training actions | 80% | 80% |
The 80% exemption must be requested by the employer to the SSGT, providing a statement of responsibility regarding the commitment to carry out the training actions, the identification of the beneficiaries and the periods of suspension/reduction of working hours.
In addition, companies undergoing an ERTE due to restriction of activity will be exempted from 100% of the company contributions accrued from November 2021 until 28 February 2022.
PROTECTION OF WORKERS
ERTE workers will continue to benefit from the exemption from the qualifying period to access unemployment benefits. They will also benefit from the so-called "zero counter", which will be extraordinarily extended until 1 January 2023.
The amount of unemployment benefit for those affected will be calculated by applying 70% to the regulatory base.
Benefits are maintained for people affected by ERTE with part-time contracts and the extraordinary benefit for seasonal workers.
The collective application for unemployment benefits must be submitted: (i) within 15 working days from 1 November 2021 for companies with extended ERTE; and (ii) within 15 working days from the date of notification of the express resolution or administrative silence in cases of new ERTE.
ACCOMPANYING MEASURES
- Limitations on the distribution of dividends will be maintained until 28 February 2022 for all ERTE to which the exemptions provided for in the RDL apply.
- Access to aid is limited for companies domiciled in tax havens.
- Companies covered by extended ERTE or new ERTE will have to respect restrictions on overtime and outsourcing of activity.
- The prohibition dismissals is extended during the period of validity of the regulation.
- Calculation of the maximum duration of fixed-term contracts for persons covered by ERTE is interrupted.
- Commitment to maintain employment will have a new additional period of 6 months.
- MECUIDA plan is extended until 28 February 2022.
- The extraordinary benefit for arts professionals is extended until 28 February 2022.
2. INCREASE IN THE MINIMUM INTER-PROFESSIONAL WAGE
On 28 September, Royal Decree 817/2021 was published, setting the minimum inter-professional wage for 2021, increasing the minimum wage to 32.17 euros/day or 965 euros/month.
The effects of this increase will be backdated to 1 September 2021.
3. PRESUMPTION OF RIDDERS' EMPLOYMENT STATUS
Law 12/2021, of 28 September, to guarantee the employment rights of persons engaged in delivery services on digital platforms, amends the Workers' Statute and establishes the presumption of employment for persons who provide paid services consisting of the delivery or distribution of any consumer product or merchandise, by employers who exercise powers of control, organisation and management of the activity through digital platforms, either indirectly or implicitly.
It also imposes the obligation to inform workers' representatives of the parameters, rules and instructions on which the algorithms or artificial intelligence systems used in the company are based for the adoption of employment-related decisions.
