Saturday, May 21

The Supreme Court rectifies and determines that the interim who have been in a vacancy for more than three years will be indefinite not fixed


The Supreme Court corrects its doctrine on the abuse of interns. The Judicial Power has reported a first sentence in this regard, which will be followed by more, they explain from the judiciary. The Plenary of the Fourth Chamber of the Supreme Court has rectified this Monday its criterion on the maximum duration of the interim contract for vacancy in the public sector after the Court of Justice of the European Union (TUE) issued a critical ruling on the past 3 of June. The high court now establishes that, in general, a duration of an interim vacancy “greater than three years should be considered unjustifiably long”, which will mean that the interim worker passes to hold the condition of indefinite non-permanent.

The Government delays a week the reform against the abuse of interns to try an agreement with communities and unions

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To date, the Supreme Court had ruled out that the three-year term, set forth in article 70.1 of the EBEP (Basic Statute of Public Employees) as the limit to convene the selection process of a vacant position, “would be applied automatically to convert to an interim in indefinite non-permanent “, reminds to this medium the professor of Labor Law Ignasi Beltrán.

In the absence of knowing the detail of the sentence – which the Supreme Court will release “shortly” – that first substantial change in its criteria can already be seen. “In the absence of any regulatory provision, the Chamber understands, in general, that a duration of more than three years should be considered unjustifiably long, which will mean that the temporary worker will become indefinite non-permanent”, states the statement from the Judicial Power which advances the ruling.

The ‘indefinite non-permanent’ is a labor figure created by the courts as a result of lawsuits from temporary employees of the public sector. With this figure, the worker in question can remain in the vacant position until the Administration awards the position through a selective process as required by law or amortizes the position (eliminates it) if it is not necessary.

The Supreme Court’s mention of “the lack of regulatory foresight” is also relevant, since the legislative vacuum in this matter is expected to last very little. The Government is finalizing a reform against abusive temporary employment in the public sector in which it is intended to agree that interns are automatically dismissed after three years in their posts. In addition, the Executive proposes that in case of abuse of the time limit, the consequence is the demand of responsibilities to the administration on duty and an indemnification for the affected person for the appointments as of its entry into force. The reform is still being negotiated, but the talks are going through their final moments, as the Executive intends to approve the rule next week.

Budget excuses are not worth it

In addition, Professor Beltrán highlights to this medium another significant novelty in the Supreme Court’s doctrine: to avoid this conversion from temporary to permanent non-permanent, the budgetary excuses, which had convinced the magistrates on occasions in past complaints, will not be valid.

This was one of the criticisms of the European magistrates to the Supreme Court in its recent ruling at the beginning of June, in which it again concluded that in Spain there are no measures to prevent or punish temporary abuse in public administrations. In this verdict, the CJEU rejected several elements of the Supreme Court’s doctrine on interim abuses, such as the fact that the court does not consider that there is abuse in the event of a very long interim term, due to the fact that several different contracts have not been chained. , but only a very long one has been produced.

“The calculation of such term”, the court now refers to about the three-year limit mentioned, “cannot be interrupted by budgetary regulations on the paralysis of public job offers, since the coverage of vacancies covered by temporary workers does not imply budgetary increase “, explains the note of the Judicial Power.

More pronouncements are expected

This change of criteria may add more modifications. This is only “the first of the deliberate sentences and voted in the plenary session,” they point out in the Judiciary, but there are more appeals pending on interim.

European justice left several messages to Spain and the doctrine of the Supreme on this issue. The magistrates pointed out that although the EBEP sets a maximum three-year term to summon a vacant position, “said term, according to the jurisprudence of the Supreme Court, does not constitute a fixed term and, therefore, it does not seem, in practice, be respected, “he said. This new ruling by the Supreme Court corrects this aspect.

The European judges also added in their ruling of June 3 that, in the absence of measures to prevent and punish abuse in the public administration, the conversion of temporary workers into “permanent non-permanent workers” could be a suitable measure to sanction the use abuse of fixed-term employment contracts and eliminate the consequences of the infringement of the provisions of the Framework Agreement “. In the past, however, the CJEU had pointed out that this conversion was not a sufficient measure alone, as indicated in its ruling of March 19, also a reference on this issue.

There are many glances on the possibility that the Supreme Court will rule on the possibility of granting compensation as a sanction for abuse of temporality, or even addressing the claim of fixity claimed by some interim movements. It remains to be seen whether, among the resources pending analysis by the Supreme Court these days, the high court finally addresses any of these issues.



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