The employment regulation mechanisms known as ERE (Expediente de Regulación de Empleo) and ERTE (Expediente de Regulación Temporal de Empleo) are used for the business restructuring of the workforce in order to maintain the viability of the company.
The fundamental difference between ERE and ERTE is that the former implies that the measures adopted regarding workers' contracts are permanent, while the latter is a temporary tool.
Employment regulation file (ERE)
The ERE ( Employment Regulation File) is collective in nature and is determined by the number of people affected by the file.
Thus, we will be faced with an ERE when a series of dismissals or modifications are carried out (in a period of 90 days):
- Of at least 10 workers in companies with less than 100 employees.
- The equivalent of 10% of the workforce in companies that have 100 to 300 workers.
- At least 30 workers in companies with a workforce of more than 300 workers.
The causes that determine the adoption of an ERE can be economic, technical, organizational or productive. Several causes may also occur simultaneously, in which case all the causes alleged for the adoption of the Regulation File must be accredited and justified.
Briefly and broadly speaking, we indicate the phases of the procedure below:
- Previous phase or determination of the scope of the measures. As a preliminary phase, it is necessary to study the scope of the measures, since each case must be analyzed individually to adopt the best measure based on the circumstances of each company.
- Communication of the intention to begin the procedures. Once the measures have been determined, the intention to carry out the File must be communicated to the workers.
- Request for the formation of a workers' representative committee. It is communicated simultaneously to workers and unions. There can be several options, which are made up of the most representative Unions, the Workers' Representatives and even the workers themselves if they do not have representatives and the unions do not appear to negotiate.
- Start of the consultation or negotiation period. In this phase, the start must be communicated to both the workers, Unions or, where applicable, Workers' Representatives and the Labor Authority.
- Communication of the measures after the consultation period. The consultation period can end with or without agreement. If an agreement ends, a copy of it must be delivered along with the employer's decision (which may be to apply or not apply the agreed measures) to both the workers and the Labor Authority. On the other hand, if it ends without an agreement, the employer must submit his decision, although there may be a claim by the workers before the social jurisdiction.
Finally, in this figure it is necessary to explain that the workers included in this type of files would be entitled to compensation of 20 days per year worked (unlike an unjustified/unfair dismissal, which would be 33 days per year worked).
Temporary employment regulation file (ERTE)
The ERTE is a temporary mechanism, intended to address a situation of business restructuring or a negative situation but which is ultimately salvageable for the company with less burdensome measures than those of an ERE.
Regarding the justification of this figure, added to the economic, technical, organizational or productive causes (ETOP), there is the "force majeure", which occurs when an administrative authority authorizes the use of this type of ERTE whenever it occurs. that “force majeure” situation. The main difference between "ETOP" and force majeure is that the former can be adopted with or without an agreement, but the latter requires administrative authorization to be applied. If the existence of force majeure is denied, the ERTE cannot be applied. .
In essence, the procedure for adopting the ERTE is the same as for an ERE, varying in some cases the deadlines for certain phases due to the possible urgency of one procedure over another.
The ERTE is not subject to requirements for the number of workers affected in a period of 90 days, but is subject to temporality, that is, the measures must last as long as necessary to meet the objective for which they are adopted. For example, if an ERTE is carried out for economic reasons, once the set objective has been met, the contracts of the workers who have been affected must be restored to their condition prior to the ERTE.
The RED mechanism
This is a type of regulation file introduced as a result of the Covid-19 pandemic. In essence, two types of mechanisms are created, the "sectoral" and the "cyclical." The first has a maximum duration of 1 year and would only be applied when an economic sector undergoes permanent changes that make a professional requalification/transition necessary. The second is designed for situations of temporary economic crises that make it necessary to adopt flexibility measures.