Will discontinuous fixed lines be able to replace ERTE?

We make a ERTE or we convert your contract to an indefinite one fixed-discontinuous? To be or not to be. That’s the question!What would Shakespeare say? The agreement on the footwear industry opened a new way of dealing with business crises. Yalaisa Lombán Fernández, labor lawyer in windyanswers the following questions:

1.- What happened to the shoe contract? It is a novel because for the first time in Collective contract An additional provision includes the possibility of agreeing with workers to transform their ordinary open-ended contract into a fixed-term contract as a mechanism to avoid job cuts when the company is in economic difficulties and as an alternative to avoid YOU AREthat is, to avoid collective extinction employment contracts for organizational, technical, production or economic reasons. It also includes the eventuality of this measure, since after eliminating the causes that led to the conversion to fixed-intermittent, that is, within a maximum of 2 years, the company and the workers’ representatives can assess the circumstances, either to keep the measure or to completely or partially adapt it to the previous state. In the latter case, it is necessary to open a negotiation period and reach an agreement with the legal representation of the workers, and in any case, the acceptance of the affected persons will be required.

2.- So, can discontinuous permanent contracts replace ERTE? The footwear sector opens up that possibility. However, discontinuous fixed and ERTE are different figures with different causes. A fixed-term contract has been articulated for them jobs which develop periodically, but stably, when the provision of the service is not required continuously throughout the year, but in certain periods in which there is activity; while ERTE is a mechanism consisting of contract suspension or temporary reduction of working hours that occurs when certain circumstances occur (technical, organizational, production or economic causes or force majeure).

3.- What is the difference for employers if they decide on contracts for an indefinite period or ERTE? A fixed-discontinuous contract is a contract for an indefinite period, and, on the other hand, the ERTE is a conjunctural measure. The difference is, on the one hand, in the procedure, and on the other in the economic costs. A fixed-non-continuous contract according to this collective agreement must be concluded by agreement between the company and the employee and formalized in writing, while the ERTE is a procedure that begins with a unilateral decision of the company (tax) that requires a period of negotiation, compliance with a series of administrative requirements and, in addition, the company must prove and justify the technical, organizational, production or economic causes that cause it. Non-continuous fixed telephones are registered with the company only while providing services; months in which they do not work, the company neither contributes nor pays wages, and the worker will receive unemployment benefits if he meets the requirements. In the case of an ERTE, workers receive unemployment benefits in the same way, but the company must pay for them, even if their contract is fully or partially terminated.

4.- And for the workers? In both cases, the worker will receive SEPE during periods of inactivity. In both cases, the unemployment benefit is spent

5.- Are more agreements expected to include this formula? It is the first time that a collective agreement regulates such an innovative and risky practice, the conversion by mutual agreement between the company and the workers to the transition from regular permanent to fixed-term as a preventive measure to avoid collective dismissal, for which we will have to wait and see how collective bargaining to develop on this issue and to see future court rulings on such an innovative mechanism.