Possibility for personnel subject to a special high-management employment contract to be part of the fixed workforce selection body.

The question arises as to whether the personnel subject to a special contract of senior management can be part of a qualifying court of selective evidence for the admission of permanent working personnel to a Public Agency of the General Administration of the State.

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

“(…) 2. Election or political appointees, interim officials and contingent personnel shall not be eligible to serve on 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 October 23, which approves the consolidated text of the Law on the Status of Workers. The speciality lies in the relationship of mutual trust on which the relationship between the senior manager and the contracting company must be based.

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

Secondly, the exclusion of interim officials from participation in selection bodies relates to the guarantee of impartiality conferred by the status of career officer, by virtue of irremovability.

Temporality is the fundamental note that justifies the exclusion of the interim officials of the selection bodies as well as of the contingent personnel, which is also a predicable characteristic of temporary staff, since what is intended is that they participate in the personal selection bodies with some stability and fixity in the position, 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 civil 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 position in question and the other elements that characterize this employment relationship (form of selection, duration of the contract, guarantees of the position, etc.).

In this sense, without prejudice to the contractual legal framework that regulates 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 causes of 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 vocation of permanence, specialized and of a technical nature, which has a certain but also stable duration, and which can be extinguished only for the reasons expressly assessed.

In these cases, taking into account the specific organisational and competences of the Agency in question, the characteristics that may shape the special high-management employment contract, as well as the specific nature of the positions of employment staff that are convened, it can be concluded that, in the cases in which these elements are present, management personnel who are 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 in this regard is stated in the regulations. However, in any case, they must meet the qualifications and other requirements required of the other members of the Court, 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 labor personnel of a Public Agency of the General Administration of the State, it is unknown whether the selective process refers to fixed labor personnel included in the scope of application of the IV Collective Agreement Single for Labor 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 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 selective process does not refer to permanent work personnel included in the scope of application of the Fourth Single Collective Agreement and the General Directorate of the Public Service is not competent to summon and resolve that, but only to authorize, it will only be responsible for authorizing the required changes.

In conclusion, assuming that the selection process refers to permanent staff included in the IV Single Collective Agreement, the competent body for the approval of the call 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 foregoing is without prejudice to recalling 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, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.