The Social Chamber of the Supreme Court, in judgment of 20-12-2024 (Judgment 1357/2024) has confirmed the doctrine established in the previous 11-4-2024 (Supreme Court Judgment 543/2024), by which It is established that, if three months have elapsed from the request to register an equal plan without the administration having resolved, it will be understood that administrative silence will imply that the equal plan It is considered duly registered.
In this regard, the rapporteur, the magistrate Hon. Mr. Antonio V. Sempere Navarro, cites the sentences of the Supreme Court 83/2021, 577/2022 and 68/2024, which address cases of force majeure in temporary employment regulation files (ERTE) during the alarm state by The COVID-19.
In these cases, the Supreme Court establishes that the positive administrative silence prevents the administration from dictating a subsequent denial resolution if an alleged estimate act had already occurred.
The sentences of the Supreme Court 585/2022, 481/2023 and 573/2023 are also cited, which they understand about the provision of the Salary Guarantee Fund (Fogasa).
The Supreme Court establishes in them that positive administrative silence guarantees that the rights of individuals do not empty content when the administration does not attend their functions effectively.
In addition, once the positive silence operates, the administration cannot take an exam on the intrinsic legality of the presumed act and, therefore, to review an alleged act, must follow the corresponding review procedures.
The High Court provides that the positive administrative silence has operated in favor of the company because the administration did not respond within three months after the application for registration of the equality plan and, therefore, the dismissed administrative resolution issued outside term lacks legal efficacy.
The state lawyer argued that the application for registration of the equality plan was framed within the exercise of the right of petition, where administrative silence is not positive.
He argued that the calculation of the deadline for administrative silence should not begin with the application for registration, but from the response of the labor authority to the company’s requirement.
That is, it argued that the term should not be counted from the date of the application of the registration, but from the moment the ministry made the requirements of correction to the company, considering that the application of positive administrative silence in this case would lead to A result contrary to the legal system, suggesting that the approval of the Plan for Equality for Administrative Silence was not valid due to possible irregularities in its elaboration.
He also claimed that the judgment appealed violated article 5.3 of Royal Decree 901/2020, which requires that the collective will of the representation of the workers will record legitimately and effectively in the elaboration of the Equality Plan.
He argued that the opinion of the legitimate trade union representation of the company’s workers could not be dispensed with.
The rapporteur, cites the sentences of the Supreme Court 1247/2023 and 1274/2023 of the Contentious-Administrative Chamber, which address article 24.1 of the Common Administrative Procedure Law (LPAC) and its application to the positive administrative silence.
These sentences explain that the exception to positive silence cannot be interpreted in a broad or extensive manner and refer to the interpretation of “public service.”
In relation to the relevance of union inactivity, the Supreme Court points out that, although it is not the main reason for the decision, it hosts the reasoning of the Superior Court of Justice of Madrid on the union inactivity that prevented the formation of the negotiating table. The Supreme Court ruling 545/2024 also refers, respect for the negotiating blocking situation in the elaboration of the equality plan.
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