COLLECTIVE SUSPENSION OF THE EMPLOYMENT CONTRACT

The issue of the collective suspension of the labor contract acquires special importance in the current reality that our country is going through in a general way and particularly in companies and workers, as it is a tool that allows the stability of labor contracts in times of crisis. In this sense, it offers a valuable alternative for those companies that are immersed in economic, financial, technical or other problems, and that -among other measures- contemplate their restructuring through the reduction of personnel, in order to avoid the risk of closing operations due to high operating costs.

In practice, I have been observing how some companies, due to ignorance of other figures, limit themselves to applying the dismissal of workers, when this is not the only, nor the best alternative that the employer can adopt if they are going through a crisis. The worker's termination of employment entails the loss of valuable human talent and increases the indebtedness of the company in the short term, having to cover the accumulated labor liabilities or due to disagreements of the workers affected by the restructuring, the company could eventually be subject of labor lawsuits. It also decapitalizes, increases illiquidity and does not allow the businessman to invest the few resources in his line of business, all of which increases the risk of closure, leading to imminent extinction.

The Labor Code contemplates an almost unknown figure, which can be used by any company (micro, small, medium or large) while improving its economic situation, How is the collective suspension of the employment contract?, this figure maintains the relationship of the worker with the company and in turn prevents the employer from getting into debt by not having to assume the cost of labor liabilities, which does occur in cases of layoffs, in addition to allowing the employer to invest the few resources in his business, in order to get out of the crisis and have more chances of success, with less indebtedness, being therefore of great benefit to both the employer and the workers in the current context that our country is going through.

In labor matters, the Suspension of the employment contract It occurs when its main effects and obligations, provision of services by the worker and payment of the salary by the employer, are paralyzed (Cabanellas de Torres, G. (2006) Diccionario Jurídico Elemental. Buenos Aires, Argentina. Heliasta). In our legislation, it is established that the suspension is the temporary interruption of the execution of the work contract and can come from any of the parties and does not extinguish the established legal relationship, which can be partial or total in what refers to the obligations fundamentals of the contract, and can be individual or collective with regard to the number of workers involved.

Regarding the collective suspension, it should be noted that this is the one that affects part or all of the workers of a company or workplace for one of the following reasons not attributable to the employer: a) The lack of raw material; b) The closure of the company or work center ordered by the competent authority according to preventive or corrective hygiene and safety reasons; c) The temporary closure of the company or work center for technical or economic reasons; d) Force majeure or fortuitous event, when they bring as a necessary, immediate and direct consequence the suspension of work.

For any collective suspension, the mutual consent of the employer and workers will be sought through a bipartite commission. Except for unforeseeable circumstances or force majeure not attributable to the employer and duly verified, any collective suspension must be authorized in advance by the Ministry of Labor through the Departmental Labor Inspectorates, which will give audience to the workers and the employer, or their legal representatives, and must rule on the suspension within six days of the request, whether or not there is justified cause for it.

For the suspension of the employment contract to be legal, it must be processed based on the provisions of the MINISTERIAL AGREEMENT No. JCHG-019-12-08. Approved on December 10, 2008, Published in La Gaceta, Official Gazette No. 237 of December 12, 2008 relative to ORAL LABOR ADMINISTRATIVE PROCEDURE, the application meeting the following requirements: a) Designation of the authority that will know about the procedure; b) identification of the party filing the request and who represents him; c) identification of the person against whom the request is directed and the address of the residence where it must be notified; d) facts on which the request is based and its legal justification; e) the specific means of evidence that will be used in the case; place to hear notifications in the city where the competent administrative authority resides. In the case of requests for collective suspension of employment contracts, the following must be added to the previous requirements: g) identification of the workers whose contracts are requested to be suspended; h) position held in the workplace and salary; i) time for which the suspension is requested and j) The request must be accompanied by the minutes of the bipartite commission. Only once all the aforementioned requirements have been met and prior to a single hearing held before an Inspector of the Ministry of Labor, in which the employer's representative and a representation by the workers will be present, does the labor inspector proceed to authorize the suspension.

Once the collective suspension is authorized, the employer is under the legal obligation to pay the workers at least six days of salary (what can be improved, thanks to Fundamental Principle III TC), for the entire period that the suspension is authorized remaining suspended, the obligation to pay salary and correlatively the obligation to provide the service by the worker, and in the same way this period of suspension does not generate labor benefits (except in the case of the pregnant worker who is enjoying rest before or post natal) but if the previously accumulated by the worker are maintained. Similarly, as part of the negotiation with the workers and their relationship with the company, it is recommended that the employer assume the cost of the INSS payment, so that the workers continue to enjoy the benefits of the social security system.

In practice, the Ministry of Labor authorizes the suspension for three months in two, initially authorized for two months, extendable for one more month, provided it is shown that the crisis situation persists in the company. It is also important to mention, although it is somewhat controversial, that during the authorized period of suspension the Ministry of Labor maintains the criterion that the worker cannot resign from the company, precisely because what it is trying to avoid is putting the company at risk. company for assuming the cost of labor liabilities.

It is important to highlight that, as it is a suspension and not a termination of the employment contract, the main suspended obligations are the payment of salary (by the employer) and the provision of the service (by the worker), but other obligations subsist such as as the obligation of the employer to maintain due consideration and respect for the workers, refraining from ill-treatment by word, deed or omission and from any act that could affect their dignity or decorum and with respect to the worker to observe a respectful conduct with the employer and with their co-workers, keep due secrecy about technical, commercial and company manufacturing secrets, among others, since in case of non-compliance with these obligations that do subsist, the employer can request dismissal with just cause against the worker , based on lack of probity, serious offense against the life and physical integrity of the employer or his co-workers, injurious expression Iosa or slanderous against the employer that produces discredit or economic damages to the company or others.

Once the causes that motivated the collective suspension have ceased or the period authorized by the Departmental Labor Inspector has expired, the latter will notify the workers of the resumption of work. Employers must provide the inspector with the pertinent information requested.

With the collective suspension of labor contracts in some non-essential areas of the business line, the company benefits by reducing operating costs while achieving greater profitability or capitalization, in turn it is possible to keep the employee linked to the company and it is not assumed the cost of labor liabilities, nor is it exposed to eventual labor lawsuits, among other benefits, on which we can delve into in a personalized way if you consider putting this figure into practice in your company.

Edwin Yamil Fuertes Zeledón

Labor Consultant. Master in Labor Law and Social Security.

Cel. 8384-9545