Temporary stabilization against dissenters, another legal perspective

It is an undeniable fact that many long-term temporary workers are employed in the Public Administration; a situation resulting in large part from the difficult management of human resources in the civil service, necessitating the use of processes of consolidation or stabilization, which at times collide with the principles of equality, merit and capacity that must govern selection. 23.2 and 103.3 of the Constitution. Access to public service processes in articles.

We are in a new process of stabilizing temporary periods to mitigate cases of legal fraud in contracts condemned by temporary periods. Europe this is really He acknowledged that the Spanish Public Administrations were abusing the concept of temporality with the concept of temporality. The situation “indefinitely not permanent”, etc., which covers work of a structural nature and opens the possibility of compensation for dismissed temporary workers. etc.

Really, Law No. 20/2021 of 28 Decembertake urgent measures to reduce temporary employment in public employment (more Temporary Stability Law) on the one hand, amends the regulations on the appointment of temporary personnel, imposes a limit on their term of office and imposes a liability condition and, if any, temporary financial compensation in case of failure to comply with this limitation, on the other, establishes two stabilization procedures that allow all these temporary persons occupying positions of a structural nature to be converted into permanent ones.

With regard to the first question, nothing can be disputed as it reinforces the meaning of the figure “temporary” as a mechanism for temporary inclusion of positions in forming its meaning. Court of Justice of the European UnionIt is a proportional, effective and deterrent mechanism for the fulfillment of the duty not to abuse the temporaryness of the personnel in the Public Administration service.

However, the procedures provided for stabilization do not respect the principles of equality, merit and competence that should govern the process, and do not comply with Articles 23.2 and 103.3 of the Constitution. function. Let’s see:

TWO WAYS TO PERMANENTLY IN TEMPORARY SITUATIONS

The law determines two ways, depending on the time spent in temporary situations:

1.- In order to stabilize temporary employment, an additional rate is allowed to include positions of a budgeted structural nature and temporarily and continuously used in the three years before 31 December 2020. stabilization processes within the scope of 2017 and 2018 Budget LawsAdditional wages were applied for all positions used by the temporary personnel between January 1, 2016 and December 31, 2017 without interruption.

The selection system will be the “competition-opposition” system in which a maximum of 40% of the total score will be evaluated during the competition stage, and body, scale, category or equivalent experience will be taken into account. Although this is an advantage for the period, Constitutional Court guarantees that this value can be valued up to 45% which is the limit of what is reasonable.

But as if that weren’t enough, the law allows the practices of the opposition phase to be non-eliminating.

In my opinion, this is where unreasonable or arbitrary discrimination lies. because in addition to the “extra” points they receive in the competition due to their temporary status, if they do not have to pass the exercises of the opposition stage, they will be preferred again, which makes the other practically impossible. competitors obtain a (not temporary) place or achieve the highest qualification.

I think it is very doubtful that this is in line with the principles of “capacity” in the sense that “temporary” must show at least a minimum of information for access to the public service.

However, certain calls for stability that can be challenged before the Administrative Case judiciary, where questions of unconstitutionality can be brought before the Constitutional Court and preliminary questions before the Court of Justice, will need to be followed. European Union.

2.- Exceptionally, a merit competition For the stability of temporary employees who held positions without interruption before 1 January 2016.

This route raises serious doubts about its constitutionality and this is despite the fact that the preamble of the Act itself disputes its constitutionality; I think that the “exceptionalism” condition is not met by limiting the interim period to 5 years; Another issue is that the interim period is between 10 and 15 years, no vacancies were called during this period, the interim period was reached through an election process, etc. access to public employment.

However, this flat rate for stability (coffee for all) casts serious doubts on its justification, especially since this isn’t the first time.

They are faced by career civil servants themselves, and of course, by those who oppose, although they have not passed an opposition, who, in most cases, think that the rule violates the principle of equality to the extent that it actually equates temporary workers with civil servants. As we saw above, they will find that their chances of accessing the public function are severely reduced if not directly disabled, as the norm allows access to the public function in some cases and in other cases without having to overcome a phase of opposition. Add the points of the competition to overcome the opposition phase, which may not be qualifying.

The conflict is over and most of the stabilization processes will most certainly end in the courts of Justice, with an uncertain outcome for all those affected.