Procedure
Requirements
Both are done simultaneously. Although the logical thing is to make the consultations first and when there is a minimum of agreement, request administrative authorization. The consultation period would begin informally in advance.
a) Open a consultation period") with workers' representatives
In this sense, the representatives of the workers are: the company committees[4] and personnel delegates[5] of the centers possibly affected by the workforce reduction, the inter-center committee if it has assumed jurisdiction in this matter, and the union delegates[6] that exist in the company.
If there are no worker representatives in the affected center or centers, the workers may intervene directly if their number is less than 10, or through 5 ad hoc representatives (maximum) if they exceed this number.
However, it must be taken into account that the employer has to request a report from the workers' representatives in cases of restructuring and layoffs.[7] The report must be sent to the labor authority at the end of the consultation period.
b) Request from the competent labor authority an administrative authorization to dismiss
The competent labor authority may be the Central Administration or that of the autonomous communities that have received the transfer of powers regarding employment regulation.
Consultation period
a) Documentation.
The opening of the consultation process with the workers' representatives will be carried out by sending them[8] of:.
Likewise, when the extinction affects more than 50% of the company's staff, the businessman will be responsible for the sale of the company's assets, that is, the means of production.
Furthermore, the workers' representatives will have access to the documentation held by the labor authority before which the employment regulation file is processed.
b) Duration of consultations.
We talk about formal duration. The duration of the consultations will be as follows:[9].
c) Content of the queries. Shape.
The employer's consultations with the workers' representatives will address the following topics:[9].
The employer and the workers' representatives must negotiate in good faith, which means that they must do everything possible to reach an agreement. There must be REAL INTEREST in negotiating. There is also usually an unwritten agreement "by which workers do not want to be consulted because they do not want to take responsibility for the company's decisions.
The content of the consultations must be reflected in minutes and, in any case, in a final record, which records the negotiations held and the documentation and reports examined between the employer and the workers' representatives.
d) Result of the consultation period.
The achievement of a valid agreement during the consultation period requires that it be reached in agreement between the employer and the majority of the members of the works committee or committees, the personnel delegates or, where applicable, the union representatives, if any.
In this sense, for a valid agreement to be reached during the consultation period, you must vote in favor:.
- If negotiating with unitary representation:.
- If negotiating with union representation, the majority of the union delegates who, as a whole, represent the majority of the unitary representatives of those affected centers.
The agreement during the consultation period can be replaced by an arbitrator, by award issued. The aforementioned award, if requested by the employer and the workers' representatives with sufficient legitimacy to negotiate, will have the value of an agreement on collective dismissal.[10][11].
The result of the consultation period must be communicated to the labor authority by the employer.[9] Likewise, the employer must send to the labor authority the minutes and the final minutes in which the content of the consultations is recorded.
An agreement may or may not be reached.
Administrative authorization request
The request for administrative authorization, which must be processed simultaneously by the employer from the beginning of the consultation period, which must be sent to the competent labor authority:[12].
The request to initiate the employment regulation procedure will be formalized with the following minimum content:
Once this documentation is received by the labor authority, you will have a maximum of 10 days in the case of defects or omissions. The copy of the writing must be sent to the workers' representatives.
Actions of the labor authority
Once the request for administrative authorization is received, the labor authority will carry out the following actions:
Resolution of the labor authority
a) Agreement with workers' representatives.
If the consultation period concludes with an agreement, the labor authority, once the employer notifies it, must issue its resolution, authorizing the termination of the labor relations.
The competent Administration will have 7 calendar days to make a ruling, counting from the communication mentioned in the previous paragraph. If there is no express statement within this period, it will be understood as positive administrative silence.
The labor authority may adapt to those referred to above in the following cases,[13] in principle:.
b) Without agreement with the workers' representatives.
If the consultation period concludes without an agreement, the labor authority, using its discretionary power, will issue a resolution in which it will approve or reject, in whole or in part, what is requested by the employer.
The administrative authorization will only proceed when the documentation in the file shows that the measures proposed by the employer are reasonably necessary to achieve either overcoming a negative situation of the company or guaranteeing its future viability and that of employment.
To issue a resolution in the case of lack of agreement, the labor authority has 15 calendar days, counting from the date of notification of the end of the consultation period.
If there is no express statement within the indicated period, it will be understood as positive administrative silence.
Collective dismissal
Once administrative authorization is obtained, the employer may begin to lay off workers.
Although the Law does not set a deadline for doing so, it is necessary to take into account the aforementioned time limits for collective dismissal (it is usually done within 90 days), the possible expiration of the administrative license, the provisions regarding termination that were made in the authorization request or, even, what may be established in this regard in the resolution itself issued in response to the aforementioned request.
The Law does not establish the manner of dismissal. However, the termination must be communicated in a reliable manner, stating in the communication the existence of the administrative authorization.
The selection of workers to be dismissed will be made by the employer, adhering to what was projected in the application and respecting their constitutional rights, labor rights to the extent possible and the requirements of the principle of good faith.
In addition, it must be taken into account that the Law establishes the priority of permanence in the company of the workers' representatives in the event of collective dismissal.
Each worker has the right to receive compensation of 20 days per year of service, with periods less than 1 year being prorated by month (compensation equal to that of the objective dismissal). This compensation must be made available to them simultaneously with the adoption of the termination decision.
The compensation will be paid by the "FOGASA" Salary Guarantee Fund (with the maximum limit of one annuity, without the daily salary exceeding twice the minimum interprofessional salary), in case of insolvency, suspension of payments, bankruptcy or bankruptcy of the employer.[14].
In any case, in companies with less than 25 workers, FOGASA will pay 40% of the corresponding legal compensation, always within the limits of the previous paragraph.