1. Scope of application
As set forth therein, RDL 10/2020 of 29th March shall apply to all employees who provide services in companies or entities in the public or private sector and whose activity has not been paralysed as a consequence of the declaration of the state of alert established by Royal Decree 463/2020, of 14th March.
Particularly, it specifies that the paid leave shall not be applicable to those activities qualified as essential by the RDL itself in its Annex, especially those which, in accordance with RD 463/2020 declaring the state of alarm, are considered “companies and suppliers, which although they are not considered critical, they are indeed essential in order to ensure the supply of the population and essential services”. Likewise, it shall not apply to those persons who can continue to work normally via remote working.
In said annex, it is indicated that it shall not apply to persons: “who work in activities which participate in the market supply chain and in the operation of the services of production centres of goods and services of basic necessity, including food, drinks, animal food, hygiene products, medicines, sanitary products or any other product required for the protection of health, allowing the distribution thereof from origin to the final destination”, among other circular references to essential services.
Consequently, the evaluation to be carried out must take into account the level of relationship, which exists with the provision of services or the distribution of essential products, in order to evaluate if this link is strong enough to not develop into a shortage problem regarding such products or essential services.
Likewise, in line with what is established in the aforementioned paragraph, we also believe that an assessment can also be made regarding the need or otherwise to produce stock, since if such companies have the necessary surplus stock to cover the market demand for the period in question, it may not be strictly necessary to have all the personnel at work, and the number of people who must attend can be reduced by means of the appropriate measures (reduction of working hours, shifts, etc.) in order to avoid crowding. Obviously, such assessment must be made on a case by case basis for each individual company, although it may be a factor to be taken into account.
Accordingly, the RDL sets forth that: “the companies who must apply the recoverable paid leave regulated in this article, may, where necessary establish minimum staff numbers or work shifts which are strictly necessary in order to keep up indispensable activity. This activity and this minimum staff or shifts may take as a reference staff levels for an ordinary weekend or a bank holiday.”
2. Recoverable paid leave
In the event that, upon the appropriate assessment of the activity of the company, said activity is considered to be non-essential as it is not linked to essential products or services as described above, in accordance with RDL 10/2020, the leave shall operate as follows:
a) employees shall benefit from recoverable paid leave, of an obligatory nature, between 30th March and 9th April 2020, inclusively.
b) this shall mean that employees shall conserve the right to the retribution they would have earned if providing their services under normal circumstances, including basic salary and salary supplements.
3. Recuperation of working hours
The recuperation of working hours may be effective as from the day following the lifting of the state of alert until 31st December 2020. Said recuperation must be negotiated during a period of open consultations between the company and the legal representation of employees, which shall last for a maximum of seven days. It is not specified as from when it shall start, but it is understood that it shall take place once the state of alert has finalised.
The representative commission must be incorporated within the non-renewable term of five days.
During the consultation period, the parties may negotiate in good faith, with a view to reaching an agreement. Said agreement shall require the approval of the majority of the persons constituting the legal representation of employees, or where appropriate, the majority of the members of the representative commission provided that, in both cases, they represent the majority of the persons affected by this extraordinary leave.
If an agreement is not reached during this period, the company shall notify employees and the representative commission, in the term of seven days as from the finalisation thereof, the decision regarding the recuperation of working hours not rendered during the application of this leave.
4. Limits on recuperation
In any case, the recuperation of these hours may not infringe upon the minimum daily and weekly rest periods set forth in the law and in the collective bargaining agreement, the establishment of a period of notice less than that provided for in article 34.2 of the Worker’s Statute, or the maximum working hours set forth in the applicable collective bargaining agreement. Likewise, the right to balance one’s personal, working and family life as recognised legally and conventionally must be respected.
Likewise, in those cases where it is impossible to immediately interrupt the activity, those persons included in the subjective scope of this royal decree-law were able to provide services on Monday 30th March 2020 with the sole purpose of carrying out the essential tasks to be able to make the recoverable paid leave effective without irremediably or disproportionately harming the resumption of the business activity.
Andreas Terán
Vilá Abogados
For more information, please contact:
3rd April de 2020
