2023-07-14 11:06:35
The Second Vice President and Minister of Labor and Social Economy, Yolanda DíazPhoto: A. PÉREZ MECA (EUROPA PRESS)
Last Tuesday, a regulation was published in the BOE that allowed businessmen affected by unexpected crises, such as the pandemic or the Ukrainian War, to paralyze their activity and take advantage of a special aid regime (the new ERTE). But the regulation of this legal tool did not come alone. Hidden in its final provisions, Royal Decree 608/2023 includes a major change in the rules of collective dismissal and with enormous repercussions for employers: from now on, companies will have to notify the labor authority and the unions six months in advance if they plan to permanently close one or several work centers and this implies the dismissal of 50 workers or more.
Specifically, the novelty is included in a provision that modifies Royal Decree 1483/2012, the regulation in force that regulates collective dismissals and the suspension of contracts. Thus, the precept in question states that, when a company foresees the closure of one or more premises, and this affects 50 or more workersthe employer will have to notify the General Directorate of Labor, under the Ministry of Labor and Social Economy, six months prior to the start date of the dialogue with the social actors.
In addition, the company will have to send a copy of said notification to the unions. The rule includes an exception: if the closure is hasty and unforeseen, the company may fail to meet the deadline and report the collective dismissal as soon as possible, however in that case it will have to provide a compelling reason that justifies why it did not notify before.
This novelty was originally included in the Industry Law project. As the processing of the law declined with the dissolution of the Cortes, the Government has taken advantage of the regulation of the new ERTE to make it a reality by way of Royal Decree. In the explanatory memorandum, where the legislator usually comments on the most relevant aspects of the legislation in question, this significant change is not mentioned.
New deadlines
The question is not trivial, since it modifies a core matter of the regulation of collective dismissals, such as layoff notice periods, and conditions an always sensitive matter, the news to the staff that their jobs are in danger. Before the modification, the process started with a synchronous notification to the workers and the unions of the company’s intention to dismiss. So, after seven days after the first notice (if there are worker representatives) or 15 days (if there are none), the company notified the authority of the start of a consultation period, which could last up to 30 days.
With the new legal framework, the entire process is lengthened. A new phase is introduced, prior to the consultation period, which will be a breath of fresh air for the unions (they will have more time to organize their defense). Although the norm does not detail what steps must be taken in such a long period of time (half a year), nor the real purpose of said phase.
how do you rate Eloy Castañer, partner in the Garrigues Labor Department, This new period has “extraordinary relevance”, since it “completely changes the procedure and strategy for communication and negotiation of collective dismissals, insofar as it requires notifying the labor authorities and unions of the eventual closure before do it to the affected workers themselves”.
But the text does not clarify what its purpose is. “The rule is limited to requiring such prior notification but does not contemplate the purpose of this or arbitrate any procedure or action to be carried out during such a period, leaving the actions to be carried out during such a long period of time in the hands of the Administration and the union organizations” , assesses the lawyer. And he warns: this period can be detrimental for companies that are experiencing economic difficulties and are interested in closing a center as soon as possible.
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