Possibility that the temporary staff may move to the administrative situation of voluntary leave for child care.

The consultation is about the possibility that the temporary staff may move to the administrative situation of voluntary leave for child care.

The administrative situations regulated in Title VI of the consolidated text of the Law of the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October (hereinafter, TRLEBEP), are foreseen, in accordance with article 85 thereof, for “career officials”.

However, the provisions of Article 12(5) TRLEBEP must be taken into account when it states that: “The general regime for career officials shall apply to contingent personnel as far as is appropriate to the nature of their status.”

In this regard, Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on the reconciliation of the family life and professional life of parents and carers, the aim of which is to achieve equality between men and women as regards opportunities on the labour market and treatment at work, by making it easier for workers who are parents or carers to reconcile family and professional life, establishes an individual right to parental leave for workers who are parents on the grounds of birth or adoption for the period defined by the Member States.

The scope of this Directive extends to: “all workers, men and women, who have a contract or an employment relationship as defined in the legislation, collective agreements or practices in force in each Member State, taking into account the case law of the Court of Justice”.

Therefore, this secondary legislation, which forms part of the acquis communautaire and is therefore binding on the Member States, does not distinguish between the different employment contracts existing in the labour legislation of each State.

It should therefore be concluded that the situation of child care leave applies to temporary staff in accordance with the provisions of Directive (EU) 2019/1158 of the European Parliament and of the Council.

However, the application of this regulation should not make us forget the nature of the employment relationship of temporary staff and the rights that it entails, so that the conditions inherent to the nature of these staff, including the causes of their termination, contained in article 12 of the TRLEBEP and that may occur during the situation of voluntary leave for child care, will be maintained.

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.