Employment Flash No. 3/2021 – News on the state support granted for temporary reduction of working time (“Kurzarbeit”)

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06.04.2021 – The Law no. 58/02.04.2021 for approving the GEO no. 211/2020 and amendment of GEO 132/2020 was published in the Official Gazette no. 345 dated April 5th, 2021

These new legal provisions introduce a series of amendments of articles wording, certain values/limits and conditions to be met regarding the possibility to temporarily reduce the working time in the current context and access the specific state support. Out of these newly-introduced/amended aspects we mention the essentials, as follows:

1.       A new wording of the general framework for Kurzarbeit is introduced involving:

  • the reduction of working time determined by the establishment of the state of emergency / alert / siege, in accordance with the law, during such state, as well as for a period of up to 3 months from the end of the last period on which such state was established;
  • the fact that the employers have the possibility to reduce the working time of the employees by at most 80% of the daily, weekly or monthly duration, provided in the individual employment agreement (previously, the GEO no. 132/2020 provided a maximum reduction of 50%).

2.     The introduction of a new condition: where there are trade unions entitled by law to negotiate the collective bargaining agreement or employees’ representatives, the measure to reduce working shall be taken with the consent of the trade union or, as case may be, employee representatives.

3.     The express mention that the employer may modify the working time as many times as necessary, having though the obligation to justify such an amendment, as well as obtain the agreement specified at point 2 above.

4.     As an exception from the rule imposing communication towards the employees of the decision to reduce the working time, the working schedule and its distributions on days, as well as corresponding rights at least 5 days before the actual application of the measure – the communication to the employee shall be made at least 24 hours before the effective application of the measure:

  • in the event of a change in the work schedule due to an increase in the activity of the employer requiring additional staff;
  • in the event of a replacement of an employee who is unable to work according to his/her work schedule.

5.      As regards the amount of the specific allowance for Kurzarbeit:

  • the amended wording provides that during the reduction of working time, the affected employees benefit from an allowance of 75% of the monthly gross base salary corresponding to the reduction hours;
  • it is expressly provided that the employer may supplement the Kurzarbeit allowance with sums representing the difference up to the base salary corresponding to the position held (such supplementary difference not being subject to state support).

6.    The prohibition to employ staff to provide the same or similar activities as those provided by the employees having their working time reduced, as well as to subcontract activities provided by employees having their working time reduced, applicable at the level of subsidiary, branch or other secondary offices is maintained, but with the following particularities:

  • it is clarified that the prohibition applies for the subsidiaries, branches or other secondary offices where the reduction of working time is actually applicable;
  • as an exception, it is permitted to hire for the replacement of employees whose working time was reduced, if the termination of the individual employment contract takes place by effect law, by dismissal for reasons related to the person of the employee or by resignation.

7.     One of the conditions for the application of the Kurzarbeit measure and for obtaining the corresponding the state support is reworded as follows:

  • the reduction in activity to be justified by a decrease in turnover in the month preceding the application of such measure or, at most, in the month before the month preceding its application, by at least 10% compared to the same month or the monthly average turnover of the year preceding the establishment of the state of emergency / alert / siege, respectively 2019;
  • some particular provisions apply for companies newly-established between January 1st and March 15th, 2020 that have at least one employee.

8.      As regards the documents that are necessary in order to access the state support sums, apart from a request, the employer must also submit, among others, the following documents (where the law at hand operated amendments):

  • a copy of the decision on working time reduction and proof of its notification to employees, by any means commonly used by the employer to communicate with employees;
  • affidavit of the employer, from which it results that it is compliant with the condition regarding the reduction of activity, as compared to the previous period, as per Art. 1, para. (16), let. b);
  • copy of the agreement concluded with the trade union / employees’ representatives or, as the case may be, the proof of informing the employees where there are no trade unions / employees’ representatives.

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