The regime governing contributions to the Public Treasury in collective layoffs: legal certainty?
The regime governing financial contributions to the Public Treasury in collective layoffs that affect workers aged 50 or older has been amended several times since additional provision sixteen of Law 27/2011, of August 1, 2011 established, barely a year and a half ago, the first legislative reference to this contentious obligation.
What’s more, Royal Decree 1484/2012, of October 29, 2012, which sought to establish the procedure for the calculation and payment of this financial contribution, had been on the books a mere five months before being substantially amended by the provisions contained in Royal Decree-Law 5/2013, of March 15, 2013 (Official State Gazette of March 16, 2013).
The new legislation clearly seems to limit the application of the payment obligation, given that, from January 1, 2013, this obligation will only arise if the number of workers affected in the collective layoff who are age 50 or older, plus the workers of the same ages whose contracts have been terminated in the 3 years before and 1 year after the collective layoff for reasons not inherent in their contracts, as a percentage of the total number of layoffs in the collective layoff, is higher than the percentage of workers of the same ages existing at the company when the collective layoff procedure starts.
However, on the other hand, it should be borne in mind that the payment obligation will be triggered if the companies or the corporate group of which they form part obtain profits for at least two consecutive fiscal years within the period running from the fiscal year before the start date of the collective layoff procedure and the four fiscal years after that date (previously, the requirement was limited to the obtainment of profits for the two fiscal years before the start of the collective layoff procedure).
Although the new legislation sheds new light on certain issues raised by the previous legislation, it gives rise to many doubts with no easy answer (why is the application of the legislation only retroactive to January 1, 2013?; what is understood by “corporate group”?) which begs the question as to whether this is the last batch of amendments or if, on the contrary, we will be seeing yet more reforms in a few months’ time.
