The Supreme Court has decided to rectify its doctrine: the maximum duration of an interim contract for vacancy in the public sector may not exceed three years. In addition, when this period of time is exceeded, the worker will acquire the condition of indefinite non-fixed. This has been transferred by the High Court this Monday after the Court of Justice of the European Union (CJEU) declared the Spanish jurisprudence contrary to community law, which allowed the extension of this period of time if the selective processes had not been resolved before. In light of this consideration, the Supreme Court indicates that the three-year period may not be exceeded in any way, not even if the budgetary regulations paralyze the announcement and resolution of public job offers.
In the absence of modifying the limits of these contracts, the Supreme Court determines that a duration of more than three years of the interim contract should be considered “unjustifiably long”, and therefore the worker will be held indefinite and not fixed. In fact, it indicates that the duration of the interim period must be adjusted to the duration of the selection processes initiated to fill the vacancy, “in accordance with the provisions of its specific legal or conventional regulations.” Therefore, if they end in a period prior to three years, they will adjust to it. But never if the process is not solved in that period of time.
According to the Supreme Court, the calculation of the interim period “cannot be interrupted by budgetary regulations on the paralysis of public job offers”, since the coverage of vacancies filled by temporary workers “does not imply a budget increase.”
Change of address
The change of direction of the High Court in this matter is considerable, since on several previous occasions it had been against carrying out this change in the labor consideration. “It cannot be accepted that a selection process carried out with a view to signing certain work and service contracts is sufficient for the workers thus selected to acquire the status of permanent workers,” he had come to determine. In a 2018 ruling that connected with the case of a woman who had accumulated temporary contracts for eleven years in the Alicante City Council, it ruled that in abusive situations related to temporary employment, “the applicable legal solution is not the conversion of the staff that was appointed as an interim civil servant in indefinite non-permanent staff ”.
The CJEU received a query from the Superior Court of Justice of Madrid (TSJM) about the case of a temporary worker from the Madrid Institute for Agricultural and Food Research and Development (Imidra). The woman had chained temporary contracts between 2003 and 2016, until in that last year her position was consolidated and awarded to a permanent worker after an extraordinary process.
In view of this situation, the worker challenged her dismissal in 2017 before the Social Court of Madrid, which ruled in her favor, condemning Imidra to compensate her. However, the Madrid institute appealed to the TSJM, which submitted a query to the European court based in Luxembourg, who in its ruling on June 3 positioned itself against the Spanish regulations that allow the continuous renewal of temporary contracts in the sector public awaiting selection processes.
The Ministry of Public Function works in a process of stabilization of the temporary workers of the Public Administration, and in the reform of the Consolidated Text of the Basic Statute of the Public Employee (TREBEP). The Supreme Court’s ruling is in tune with the terms that the department runs by Minister Miquel Iceta, who also proposes to determine that the maximum term of interim permanence is three years. Along with this, it proposes to regularize the situation of 310,000 interns, according to the Public Function -800,000 for unions-, through a competition-opposition that allows lowering the temporary levels in the Administration (close to 32%) to the European ones (8 %). This is a compromise reached with Brussels and on which pivots the receipt of a large part of the European funds for the recovery.