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"We advise on all employment matters and collective dismissals. It is our speciality."
Written by Josep Conesa
Employment and insolvency lawyer
CONTRIBUTIONS TO THE PUBLIC TREASURY:
Companies or groups of companies that are profitable and carry out collective dismissals affecting workers aged 50 or over are required to make financial contributions to the Public Treasury, provided that the conditions set out in the various regulatory provisions of the 16th Additional Provision of Law 27/2012 are met.
In 2013, the Public Employment Service (SEPE) established the procedure for claiming contributions to the Public Treasury as required by Law 27/2011, of 1 August, on the updating, adaptation and modernisation of the Social Security system, under its sixteenth additional provision and Royal Decree 1483/2012, of 29 October, approving the Regulations governing collective dismissal procedures and the suspension of contracts and reduction of working hours, which implements it.
requirements and procedure for the economic contribution:
1. Companies carrying out collective dismissals in accordance with Article 51 of the Consolidated Text of the Workers' Statute, approved by Royal Legislative Decree 1/1995, of 24 March, must make an economic contribution to the Public Treasury, provided that all of the following circumstances apply:
a) The collective dismissals are carried out by companies employing more than 100 workers, or by companies that form part of corporate groups employing that number of workers.
b) The proportion of dismissed workers aged fifty or over relative to the total number of dismissed workers exceeds the proportion of workers aged fifty or over relative to the total workforce of the company.
For the purpose of calculating the proportion of dismissed workers aged fifty or over relative to the total number of dismissed workers, account shall be taken of workers affected by the collective dismissal and those whose contracts were terminated at the initiative of the company by virtue of grounds other than those inherent to the employee, excluding the grounds set out in Article 49.1.c) of the Workers' Statute, provided that such contract terminations occurred within the three years prior to the procedure, subject to the cut-off date of 27 April 2011, or within the year following the commencement of the collective dismissal procedure.
For the purpose of calculating the proportion of workers aged fifty or over relative to the total workforce of the company, the company's headcount at the date of commencement of the collective dismissal procedure shall be taken into account.
c) That, even where the economic, technical, organisational or production grounds justifying the collective dismissal are present, at least one of the following two conditions is met:
1. That the companies, or the group of companies of which they form part, recorded profits in the two financial years preceding the year in which the employer initiates the collective dismissal procedure.
2. That the companies, or the group of companies of which they form part, record profits in at least two consecutive financial years within the period running from the financial year prior to the date on which the collective dismissal procedure commences through to the four financial years following that date.
For these purposes, a company is considered to have recorded profits when the result for the financial year, as defined in the profit and loss account templates (both standard and abbreviated formats) set out in Royal Decree 1514/2007 of 16 November, approving the Spanish General Chart of Accounts, or under any other applicable accounting rules, is positive.
For the purposes of this provision, the concept of a group of companies shall be that established in Article 42.1 of the Spanish Commercial Code; however, when determining the result for the financial year, only the results obtained in Spain by the companies forming part of that group shall be taken into account.
2. When calculating the financial contribution referred to in the preceding paragraph, account shall be taken of the gross amount, from the date of dismissal, of the unemployment benefits and subsidies paid to workers aged fifty or over who are affected by the collective dismissal, including the Social Security contributions made by the Public Employment Service in accordance with the provisions set out in the following paragraphs. The calculation of the financial contribution shall also include amounts paid by the Public Employment Service in respect of those same items for workers aged fifty or over whose contracts have been terminated at the initiative of the company by virtue of grounds other than those personal to the employee and other than those provided for in Article 49.1(c) of the Workers' Statute, provided that such terminations occurred in the three years prior to, or in the year following, the commencement of the collective dismissal procedure.
However, at the request of the affected company, the amounts of unemployment benefit and subsidies paid to workers aged fifty or over who have been successfully reemployed, whether within the same company, another company within the same group, or any other company, within six months of the termination of their employment contracts shall be excluded from the calculation of the financial contribution. In such cases, the company must provide evidence of these facts during the procedure.
3. The amount of the contribution shall be determined on an annual basis by applying the rate set out in paragraph 4 to each of the following items:
a) The total amount actually paid by the Public Employment Service (SEPE) in contributory unemployment benefit to workers aged fifty or over affected by the dismissal, generated wholly or partly by virtue of contributions accrued with the company that initiated their dismissal.
b) The total amount actually paid by the Public Employment Service (SEPE) in Social Security contributions on behalf of the managing body of the unemployment benefit for the affected workers during the period in which they received those benefits.
c) A fixed levy for each employee who has exhausted their contributory unemployment benefit entitlement and begins to receive any of the subsidies provided for in Article 215.1.1)(a) and (b), and Article 215.1.3) of the consolidated text of the General Social Security Act, approved by Royal Legislative Decree 1/1994 of 20 June. This levy shall be calculated by aggregating, over a six-year period, the sum of the annual cost of the unemployment benefit subsidy plus the cost of the retirement contribution payable by the managing body in the year in which the entitlement is exhausted.
The fixed levy shall also apply to each employee who, having no entitlement to contributory unemployment benefit, directly accesses the unemployment benefit subsidy provided for in Article 215.1.2) of the aforementioned consolidated text of the General Social Security Act, as a result of being made legally unemployed through dismissal.
4. The applicable rate shall be that set by the following scale, based on the total number of workers employed by the company, the number of workers aged fifty or over affected by the dismissal, and the percentage of the company's profits relative to its revenue:
Rate applicable for calculating the financial contribution
|
Percentage of affected workers aged 50 or over relative to the total number of workers made redundant |
Percentage of profits over revenue |
Number of workers in the company |
||
|---|---|---|---|---|
|
More than 2,000 |
Between 1,000 and 2,000 |
Between 101 and 999 |
||
|
More than 35%. |
More than 10%. |
100% |
95% |
90% |
|
Less than 10%. |
95% |
90% |
85% |
|
|
Between 15% and 35%. |
More than 10%. |
95% |
90% |
85% |
|
Less than 10%. |
90% |
85% |
80% |
|
|
Less than 15%. |
More than 10%. |
75% |
70% |
65% |
|
Less than 10%. |
70% |
65% |
60% |
|
5. For the purposes of the preceding section, the following rules shall apply:
a) The percentage of dismissed workers aged fifty or over relative to the total number of dismissed workers shall be calculated on a year-by-year basis, within the period set for carrying out the dismissals as stated in the employer's notification of its decision to the labour authority following the close of the consultation period, taking into account the total number of individuals in both groups who have been subject to dismissal up to the year in which the calculation is made.
b) In the case referred to in section 1(c)(1), the profits of the company or group of companies shall be quantified based on the average percentage of those profits relative to the revenue generated in the two financial years immediately preceding the year in which the collective dismissal procedure is initiated.
c) In the case referred to in paragraph 1(c)(2), the profits of the company or group of companies shall be calculated on the basis of the average percentage of profits relative to income obtained during the first two consecutive financial years in which the company recorded a profit within the period indicated in that paragraph.
d) The number of employees of the company or group of companies shall be calculated by reference to those registered as active within the company or group of companies at the time the collective dismissal procedure commences, regardless of whether they work full-time or part-time.
6. In the case referred to in paragraph 1(c)(2), the calculation of the first contribution shall include all the items set out in paragraph 3 corresponding to the period running from the date of the dismissals up to and including the second consecutive financial year in which the company recorded a profit. This same period shall be used to determine the percentage of employees for the purposes of applying the rule set out in paragraph 5(a).
7. The companies referred to in this provision shall submit to the competent labour authority in the collective dismissal procedure a certificate signed by a person with sufficient authority, containing the information to be determined by regulation, within the following time limits:
a) Where the circumstances set out in paragraph 1, points (a), (b) and (c)(1) apply: within three months from the end of the year following the commencement of the collective dismissal procedure.
b) Where the circumstances set out in paragraph 1, points (a), (b) and (c)(2) apply: before the end of the financial year immediately following that in which the last of the three conditions referred to is met.
In both cases, the labour authority shall forward the said certificate to the Public Employment Service (SEPE).
8. The procedure for the assessment and payment of the financial contribution shall be determined by regulation.
9. Where the collective dismissal involves the complete cessation of the company's activities in Spanish territory, appropriate interim measures may be adopted, in accordance with applicable law, to secure recovery of the debt corresponding to the financial contribution, even where that debt has not yet been assessed and settled in advance.
10. In the event of a change of ownership of the company, the new employer shall be subrogated to the obligations set out in this provision.
11. The contribution referred to in this provision shall be required where the company applies temporary employment regulation measures affecting workers aged fifty or over, prior to the termination of those workers' employment contracts, by virtue of collective dismissal or other grounds not inherent to the employee other than those provided for in Article 49.1.c) of the Workers' Statute, provided that no more than one year has elapsed between the end of the legal unemployment situation arising from the application of the temporary employment regulation measures and the termination of each employee's contract.
In any event, for the purpose of calculating the financial contribution, account shall be taken of the amounts paid by the Public Employment Service referred to in paragraph 2, during the periods in which temporary employment regulation measures were applied prior to the termination of the contracts, including, where applicable, any amounts that may correspond by way of reinstatement of the duration of contributory unemployment benefit, without prejudice to the provisions of paragraph 3.c).
12. At least 50% of the amounts collected in the immediately preceding financial year shall be allocated in the initial budget of the Public Employment Service for the purpose of funding specific re-employment actions and measures for workers aged fifty or over who are in a situation of legal unemployment. To this end, the Public Employment Service's budget must include appropriations earmarked to fund such actions and measures.
13. For the purposes of this provision, the concept of company shall be deemed to include bodies, agencies and entities forming part of the public sector that are not classified as Public Administrations within the meaning of Article 3.2 of the consolidated text of the Public Sector Contracts Act, approved by Royal Legislative Decree 3/2011, of 14 November.
14. The provisions of this provision shall apply to collective dismissal proceedings initiated from 1 January 2013 onwards.
