The situation of the interims seems, at times, like a pin-pon game between Spanish and European justice. After Luxembourg pointed out in February that the concatenation of temporary contracts is a form of “precariousness” that violates European regulations and pointed out the conversion of non-permanent staff into permanent ones as a possible measure to reverse this situation, the Supreme Court has rejected this position, considering that “it is incompatible with the Spanish system of self-organization of its own public administration.”
The Court of Justice of the European Union noted in February that national law does not have “adequate measures” to “prevent and, where appropriate, punish abuses arising from the successive use of temporary contracts, including non-fixed indefinite contracts successively extended.” ”. Therefore, it establishes that “the conversion of these temporary contracts into permanent contracts may constitute such a measure.”
The Spanish courts have not agreed on how to apply this measure and judges from all over the country have been issuing contradictory resolutions. To solve this problem, the Supreme Court has submitted a preliminary ruling to the Court of Justice of the European Union, with the aim of clearing up “some doubts raised”, mainly regarding the principles of “equality, merit and capacity”, that are required for access to public employment.
But now, the High Court does not seem to have many doubts. In a cassation appeal on another matter, the Social Chamber says that, from that ruling, “in no case does it arise the need for the automatic judicial conversion of non-permanent permanent workers into permanent workers, who, as already stated has seen is something incompatible with the Spanish system of self-organization of its own public administration – which is based on the principles of equality, capacity and merit in access to public service – and which applies to both public officials and contracted ones. professionally.” The Chamber also considers that from the ruling “no radical equality is derived” between both legal regimes.
The interim ones, without transfer competitions
The Supreme Court has ruled in these terms following a cassation appeal for the unification of the doctrine, dated April 29, in which it has indicated that interim employees do not have the right to participate in transfer competitions, as they are limited to those public workers by opposition. For the Chamber, it is “evident” that one of the criteria for awarding these positions “will be seniority as a permanent employee in the company.”
The ruling is based on a cassation appeal by the Junta de Castilla y León, following a ruling by its Superior Court of Justice following a lawsuit from a nursing assistant worker at a residence in Ponferrada, in an employment relationship with the administration. since September 2009, which had requested to participate in a transfer competition. The autonomous community then asked the Supreme Court to unify the doctrine, in the face of a ruling to the contrary by the counterpart court of Extremadura.
The interim staff works in the public administration, with a different rank than the temporary one but without a civil servant position, as they have not passed an opposition. This figure has been very useful both in the health and educational fields and, at the request of Europe, the Government already approved in 2021 a bill for job stability in the public sector. The objective of the measure is to reduce temporary employment from 30% to 8% by 2024.
While the Spanish courts still cannot agree on how to apply the European ruling, the Supreme Court now limits the ability of these workers to apply for transfer competitions under the same conditions as career civil servants. It establishes, however, that the decision does not question “the possibility that non-permanent permanent staff, maintaining their status, can access the occupation of vacant positions resulting from the holding of the competition provided for in the agreement.”
Source: www.eldiario.es
