The judicial response that tens of thousands of workers who have accumulated years of temporary contracts in the public sector, and whose demand is to become permanent, are still waiting to receive definitively. And this, despite the fact that the Court of Justice of the European Union (CJEU), the body on which the Spanish courts have raised various interpretative doubts (preliminary questions), has already ruled on several occasions in favor of this transformation. This Thursday, European justice has once again made it clear that the measures contemplated by Spanish legislation to combat the abuse of temporary employment in the public sector are not sufficient to stop this bad practice, and that, therefore, a conversion of the people affected permanently. However, its solution collides with some of the constitutional foundations that define access to public office, which require that this be through a public process, based on merit and capacity (such as competitive examinations). Below are four questions and answers to understand the discrepancies that have motivated the crossing of interpretations between judicial bodies.
What solution does European justice propose to reduce temporary employment in the public sector?
In the different responses to the preliminary questions that the Spanish courts have submitted to the Court based in Luxembourg to try to make an adequate interpretation of the community regulations, it has made it clear that the high temporary employment that exists in the public sector – close to 30% and 22 points above what Spain has committed to achieve before the end of the year—it does not seem that it will be able to be stopped through the sanctions included in Spanish regulations.
The main reason for this crossover of interpretations has to do with the different consideration given in the European scenario and in the Spanish scenario to the figure of the permanent employee. The doctrine that the Supreme Court has been applying until now in claims of this type was to recognize the conversion of a worker in a situation of abuse of temporary employment into “non-permanent permanent”. A labor figure that for European justice, however, continues to be comparable to that of a temporary worker, and which, therefore, in its opinion, does not contribute to reducing the high rate of temporary employment in the Administration. Therefore, when Europe has positioned itself in favor of making these people permanent, in practice what it is asking is that they have the protection available to career civil servants, who, to obtain this safeguard, They have had to go through a competitive examination and obtain a place, as stated article 23.2 of the Spanish Constitution. On May 30, the Supreme Court presented a preliminary question to ask the CJEU in this regard.
What are the differences between a non-fixed indefinite and a fixed?
This is probably the key to the entire legal controversy regarding the problem that engulfs tens of thousands of people. For the Supreme Court – which used this contractual figure for the first time as a barrier against temporary employment in a ruling from October 1996 -, a non-permanent permanent worker is a type of worker who, although he does not have a temporary contract, does not have stability either. labor characteristic of an indefinite contract of civil servants. That is, it is an intermediate figure between the two. For example, his employment relationship may end when the position he occupies is filled regularly through established procedures, such as contests or oppositions. However, when this occurs, the dismissal compensation that he will receive is equivalent to that provided for objective causes. That is, 20 days per year worked, with a maximum of 12 monthly payments, greater than that of a temporary worker.
Is the condition of permanent employee reinterpreted in the CJEU’s latest response?
In its response this Thursday to the preliminary questions presented by the Contentious-Administrative Courts No. 7 and 17 of Barcelona – among which it was asked whether the non-conversion into permanent ones violated European regulations or if it is necessary to define a new figure of permanent worker different from that of the career civil servant, but with similar protection—has reiterated that it is necessary to convert these workers into permanent workers (for the first time he has not talked about permanent workers).
In the same way, it has also supported the thesis of the Catalan court that considers it appropriate, as a sanctioning measure in accordance with the European Framework Agreement, to “convert the successive contracts or employment relationships of a fixed duration that are the subject of the litigation into a temporary employment relationship. indefinite by virtue of which workers were subject to the same causes of termination and dismissal as those that apply to career civil servants.” However, he has clarified that, despite the prerogative, these people will not acquire the status of career civil servants. It is to be expected that if changes occur in the Spanish law – with the creation (or not) of a new figure -, these will only occur as a consequence of the CJEU’s ruling on the questions raised by the Supreme Court.
Types of public employees not to miss
career civil servants: They are the largest group and represent approximately half of the more than three million public employees that exist. They have a place they own, acquired through the approval of a selective process (opposition) that respects the principles of merit and capacity, as required by the Constitution. Their employment is indefinite and they can only be dismissed from their position for very serious disciplinary issues. This group includes statutory personnel made up of officials who became dependent on the autonomous communities when powers were transferred, especially health and education.
Work staff: These are workers hired through any contractual modality provided for private sector employees, but the employer is an administration rather than a company. Thus, they can be temporary or permanent, but they are governed by private sector labor legislation. They are just over 20% of the total.
Other staff: This is how those responsible for the Public Service define the rest of the Administration personnel. Under this heading, the largest group is that of interim civil servants. This modality is formalized in different situations: when vacant positions cannot be filled by a career civil servant; to replace the holder (career official) of the position; or to carry out accumulation of tasks and carry out temporary programs. However, these programs cannot last more than three years. This group also includes advisors and freely appointed positions.
Indefinite non-fixed: are those workers who have acquired this condition through a court ruling, and who, despite not having a preconceived date to stop providing their services, can be dismissed if their position is filled through a competitive examination process.
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