The avalanche of temporary redundancy procedures (ERTEs) due to force majeure that have been submitted since the beginning of the COVID-19 crisis has led several autonomous communities (to date, Castilla y León, Galicia, Islas Baleares, Comunidad Valenciana, Aragón, Asturias and Murcia) to generally extend the term in which the labor authorities are required to resolve a company’s application (from 5 to 10 days) before administrative silence applies.
The labor authorities have, in fact, a term of five days to resolve an application for an ERTE due to force majeure and, upon expiry of such term without a specific resolution, administrative silence will apply and the procedure will be automatically approved, pursuant to article 24 of Law 39/2015, of October 1, 2015, on the Public Authorities and Common Administrative Procedure (Law 39/2015).
These autonomous communities have claimed a lack of human and material resources to justify the extension of the term to 10 days, resorting to article 23 of Law 39/2015, section 1 of which states that: “In exceptional cases, when all available human and material resources have been used (…), the competent body to resolve the application, at the proposal of the instructing body or higher authority, may resolve to extend the maximum term for resolution and notification, provided it is justified, which may not exceed the term established to carry out the proceedings”.
As a result, the Directorate General of Labor has consulted the State Council’s Office as to the possibility of such an extension, whose reply can be summarized as follows:
- It is considered that the exceptional situation required by article 23 of Law 39/2015 to extend the term exists, in the understanding that both the measures contained in Royal Decree 463/2020, of March 14, 2020, as well as the subsequent regulations have exceeded all possible provision in relation to the resources to process applications for ERTEs due to force majeure.
- Notwithstanding the above, in order for the extension to apply, the State Council’s Office considers that a series of formal requirements and justification must be met
- The extension resolution must be individual for each procedure, in other words, resolved and notified to the parties concerned in each application, notwithstanding the fact that the justification is similar or identical in all cases with respect to the causes of the extension.
- The authority to apply the extension is the competent body to resolve the application.
- A large number of applications or interested parties in the procedure must exist, the processing of which exceeds the normal capacity of the administrative body.
- There must be proof that all human and material resources available to the competent body have been used, which does not consist in simply declaring a lack of means, but rather requires the written identification of all the means used in the wording of the extension resolution, stating that other additional resources are not available.
- A description must be provided of the causes for the extension that are directly related to the unforeseen increase in applications or large number of persons affected.
To avoid a lack of legislative consistency on the issue and, in light of the doubts that have arisen in relation to the legal validity of extended terms established by certain autonomous communities pursuant to the requirements considered necessary by the State Council’s Office, it points out that if, at any time, if a review takes place of the procedure regulating to ERTEs due to force majeure as a result of the global health crisis caused by COVID-19 (contained in article 22 of Royal Decree Law 8/2020, of March 17, 2020), the relevant reference should be made to a possible general extension of the term to resolve.
As in all issues related to the crisis caused by COVID-19, in this regard, it is essential to stay informed of any -probable- change in the regulations and/or interpretation criteria.
Garrigues Employment & Labor Law Department