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Fear of ERTE ending up in ERE: worker's rights and company obligations

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For now, the Temporary Employment Regulation Files (ERTE) have been extended until September 30, but many workers fear that when this date arrives the company will communicate their intention to carry out a collective redundancy. Although it is not usual, it may be the case. If this happens, the company will have to follow a series of procedures in order to make effective the Employment Regulation File (ERE).

Under the current standard, companies covered by a ERTE During the Covid-19 pandemic, they cannot fire in the following six months and, if they decide to do so, they will have the obligation to return exemptions of those who have benefited during this period, plus a surcharge of 20% and the corresponding default interest. In addition, if after ERTE the company presents a ERE Due to closure, economic, technical, organizational or production causes, the period established in the ERTE would first have to end and then proceed to carry out the ERE.

From the moment the company officially communicates the intention to make a collective dismissal, employees have a maximum of 15 days to form a negotiating commission through which to organize a period of consultations or even decide to judicially challenge the ERE if it is considered that it does not meet the legal requirements, as explained by several law firms specialized in labor issues.

In any case, workers have the right to receive severance pay. Of course, here there are two ways to consider. One is that negotiations with the company come to fruition and the amount to be paid is agreed, with a minimum of 20 days per year worked, with a maximum of 12 monthly payments. The other is that the company cannot cope with the payments, a situation in which it will be necessary to resort to the Salary Guarantee Fund (FOGASA)Therefore, the corresponding compensation would be less and, since it is a process that can be prolonged, it could take longer to receive it. They will also have the right to collect unemployment benefit if the conditions are met.

A survey of the General Council of Colleges of Administrative Managers indicates that, if new measures are not adopted, 52,000 companies covered by an ERTE will end up turning them into an ERE, which will mean the loss of some 300,000 jobs. They also believe that 46% of the companies in ERTE due to force majeure are going to run out of the term given by the Government to maintain it. Total, 20% of companies have applied an ERTE for economic reasons, technical or operational, 19% of force majeure due to the restrictions linked to the Covid-19 and another 19% reduction in working hours, according to an analysis carried out by KPMG.

At the moment, according to the latest figures given by the Ministry of Inclusion, Social Security and Migration, 1.17 million people stopped being under an ERTE during June, which left the total number of workers with the contract suspended totally or partially in 1.8 million. Since April 30, 1.56 million workers have emerged from the ERTE situation.

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