Clarifications on force majeure ERTEs
The Directorate General of Labor has issued a criterion addressed to the Autonomous Regions that expands on the previous criteria and clarifies certain issues regarding ERTEs, which are caused by the force majeure derived from COVID-19.
A. Concurrence of force majeure.
The DGTr considers that, for the purposes of COVID-19, they are considered force majeure:
Situations of contagion or preventive isolation decreed by the health authority, and suspensions of activity derived directly from decisions adopted by the Government (RD 463/2020 art.9 and 10) -classical concept of force majeure-.
Other assumptions that because of COVID-19 will result in the loss of activity. In this case, three requirements must be met:
a) Inevitable nature of the productive activity, in the sense of being external or disconnected from the company’s own area of activity.
b) Objective impossibility to continue providing services.
c) The instrumental means by virtue of which the above consequences are produced, which must necessarily be one of the following (RDL 8/2020 art.22.1):
– suspension or cancellation of activities;
-temporary closure of public places of public affluence;
-restrictions on public transport and, in general, on the mobility of people and/or goods;
-lack of supplies that seriously prevent the continuation of the ordinary development of the activity.
This means that, in all other cases, even though there may be objective difficulties to maintain the productive activity or to establish new organizational guidelines, customer or supply decreases, when in the latter case it does not involve a serious difficulty, we are dealing with suspensions or reductions due to productive (or economic) causes and are governed by art. 23 RDL 8/2020.
B. Possibility of extending the period of 5 days to expressly resolve procedures due to temporary force majeure.
The DGtr recalls that the regulations of the LPAC are fully applicable. It states:
-That the procedures initiated at the request of the interested party, without prejudice to the obligation of the administration to issue an express resolution, must be understood to have been approved by administrative silence (LPCA art. 24.1).
-That, nevertheless, it is possible to extend the term to resolve and notify or suspend it (LPAC art.22 and 23).
These rules, including the extension or interruption of the resolution period, also apply to these cases.
C. Duration of the measures of suspension or reduction of working hours adopted and possibility of extension once the state of alarm is no longer in force.
The DGTr responds that, whether a resolution is issued by the labor authority expressly indicating the duration of the measures, or the files are resolved by administrative silence, and regardless of the content, the maximum duration of the measures for suspension or reduction of working hours derived from temporary force majeure is the duration of the state of alarm as well as its possible extensions (or modifications).
D. Modification of RDL 9/2020 (complementary measures) in the procedures and communication obligations of the labor authorities.
The DGTr clarifies that after RDL 9/2020, the same obligations persist with respect to suspension and reduction of working hours (due to force majeure or economic causes). Therefore, the file number assigned by the labor authority must be stated for the purposes of filing the collective communication.