Possibility for staff subject to a special senior management labour contract to be part of the fixed labour staff selection body.

The question arises whether the personnel subject to a special senior management contract can be part of a qualifying court of selective tests for the entry of fixed working personnel into a Public Agency of the General Administration of the State.

Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees regulates, in article 60, the composition of the selection bodies, establishing the following:

“(…) 2. Personnel of political choice or appointment, interim officials and contingent personnel may not form part of the selection bodies.”

The legal nature of the special senior management contract has to be studied. It is configured as a special employment relationship in accordance with the provisions of article 2.1.a) Royal Legislative Decree 2/2015, of 23 October, approving the revised text of the Workers’ Statute Law. The speciality lies in the relationship of mutual trust on which the relationship between the senior manager and the contracting company is to be based.

In addition, in accordance with Royal Decree 1382/1985, of 1 August, which regulates the special employment relationship of senior management personnel, this employment contract may be terminated by withdrawal of the entrepreneur.

Secondly, the exclusion of interim staff members from their participation in selection bodies relates to the guarantee of impartiality granted by the status of career officer, by virtue of irremovability.

Temporality is the fundamental note that justifies the exclusion of interim officials from the selection bodies as well as from temporary staff, which is also a predictable characteristic of temporary staff, since what is intended is that they participate in the selection bodies with some stability and fixity in the post, characteristics that are not preachable of the senior management contract that can be resolved at any time.

Therefore, for the sake not only of impartiality, but also of the independence and technical discretion that must be guaranteed in the selective processes of official and labour personnel, it is understood that, in general, temporary service or labour relations do not empower participation as a member of the selection body.

However, in the case of special employment relationships, such as the senior management contract, it is necessary to analyze both the nature of the job in question and the other elements that characterize that employment relationship (form of selection, duration of the contract, job guarantees, etc.).

In this sense, without prejudice to the contractual legal framework governing the aforementioned contract, it is necessary to address the study of various elements, among others, the form of selection, the duration of the contract, the reasons for termination, the specificity of the functions to be performed, which in certain cases allows us to state that, although it may have a limited duration, it is a relationship with a desire to remain, specialized and technical, which has a certain but also stable duration, and which can only be extinguished for the reasons expressly assessed.

In these cases, taking into account the specific organizational and competencies of the Agency in question, the characteristics that can be configured by the special high-management employment contract, as well as the specificity of the places of employment that are convened, it can be concluded that, in the cases in which these elements concur, the management personnel who were linked to the Agency by a special high-management employment relationship could participate in the fixed employment selection body.

With regard to the participation of career officials in selection bodies, when they are in an administrative situation other than that of active service, it should be noted that nothing is said in this regard in the regulations. However, in any case, they must meet the qualifications and other requirements required of the other members of the Tribunal, as well as not incur any of the causes that may prevent their participation, including the causes of incompatibility.

In relation to the modification of the bases of selective processes of fixed working personnel of a Public Agency of the General Administration of the State, it is unknown whether the selective process refers to fixed working personnel included in the scope of application of the IV Single Collective Agreement for Working Personnel of the General Administration of the State, but this is presupposed.

In accordance with Article 28 of the Fourth Single Collective Agreement, the appointment and resolution of places for free access as permanent work personnel is the responsibility of the competent body, and the management may be entrusted to the different Ministerial Departments or dependent bodies.

Therefore, it will be the body competent to approve the call that is also competent to approve the new resolution amending the annex of the Bases that has been annulled by a Judgment of the contentious-administrative jurisdiction.

However, if the selection procedure does not refer to permanent staff included in the scope of application of the Fourth Single Collective Agreement and the Directorate-General of the Civil Service is not competent to summon and resolve it, but only to authorize it, it shall be solely responsible for authorizing the required changes.

In conclusion, on the assumption that the selection process refers to permanent staff included in the IV Single Collective Agreement, the competent body for the approval of the call for applications will also approve the new resolution amending the annex of the Bases of the call in question in which the new composition of the qualifying court must appear in the terms established in the Judicial Resolution.

All of the above is without prejudice to remember that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.