Priority of keeping workers’ representatives in the company in the COVID-19 ERTE

Following the Spanish Government’s declaration of the State of Alarm due to the COVID-19 pandemic, a labour procedure of which many companies were unaware, the Temporary Employment Regulation Files (ERTEs) has taken off.

The ERTE is a procedure that many companies did not resort to, as it seems a complex and lengthy process that does not always provide the desired results.

Notwithstanding this, it has become the main player since the publication of the Royal Decree-Law 8/2020 of March 17th, of extraordinary urgent measures to confront the economic and social impact of COVID-19. The regulation simplifies the procedure and grants a series of accompanying measures, making it much more attractive.

Examples of these accompanying measures are the exemption from payment of Social Security contributions or the granting of unemployment benefits to workers who do not meet the access requirements.

Thus, the growth of this type of file has overwhelmed the Labour Authority during the State of Alarm.

It is foreseeable that this collapse will also affect the jurisdictional bodies in charge of interpreting the regulations published in recent months.

In this respect, several recent judgments of the Social Courts of Valencia and Burgos have come to resolve one of the issues that caused most problems in the ERTEs: the priority of workers’ representatives.

We refer specifically to the Judgment of the Social Court nº 7 of Valencia of June 8th, 2020. As well as to the Judgment of the Social Court nº 2 of Burgos of June 1st, 2020.

The judgments estimate that in the ERTEs, both due to force majeure and to objective causes related to COVID-19, the priority of the workers’ representatives still applies. They conclude, however, that said priority would solely apply when:

  • Another position remains and is occupied by a person who does not hold the post of a legal worker’s representative
  • There are no objective reasons that justify the suspension/reduction of working hours of the post of the workers’ representative.

Therefore and as a conclusion, it will be possible to include the workers’ representatives in the ERTEs as long as no other workers or representatives occupy said positions and that the cause of the ERTE justifies its affectation.

For additional information regarding the priority of workers’ representatives in the ERTEs in Spain, do not hesitate to contact us.

This article is not considered as legal advice

Alejandra Sanz

A licensed attorney with a Master's degree in Commercial Law, Alejandra Sanz is specialized in the areas of company labour law and employment law in Spain. Working languages: Spanish, English, and French. For any query Contact Alejandra Sanz