Issues related to re-entry from family care leave.

The issue raised concerns various issues relating to re-entry from family care leave. In particular, it is considered whether the two years of reserve of position due to child care leave, are counted from the beginning of the leave or from the date of birth of the child, as foreseen by art. 89 of TRLEBEP. Secondly, and for the purpose of re-entry, which occurs if it is incorporated before or after two years of leave, and if the article is applied. 29.4 of Law 30/1984. And, finally, in case of being on leave and obtaining a place by contest, what is the deadline for the takeover of the new position.

The legal framework for implementation can be analysed beforehand. Article 89.4 of the consolidated text of the Law on the Basic Status of Public Employees (TREBEP), approved by Royal Legislative Decree 5/2015, of 30 October, provides that:

“Career officials shall be entitled to a period of leave not exceeding three years to care for each child, whether by nature or by adoption, or for each minor subject to care for the purpose of adoption or permanent fostering, commencing from the date of birth or, where applicable, from the judicial or administrative decision. (…)

The job performed shall be reserved for at least two years. After this period, the reservation will be made to a position in the same locality and with equal pay (…)”

This administrative situation grants a series of rights to civil servants, such as: “the length of time spent in this situation will be computable for the purposes of trienniums, careers and rights in the applicable Social Security system. The job performed shall be reserved for at least two years. After this period, the reservation will be made to a position in the same locality and with equal pay.”

In relation to the first question raised, this is related to the calculation of the two-year post reserve.

In accordance with the aforementioned art. 89.4 of the TREBEP, the period of leave for childcare shall not exceed three years for each subject and the calculation of that period begins from the date of birth or, where appropriate, from the judicial or administrative decision, and may remain in this administrative situation for a maximum of three years. That is, the time period in which such leave can be chosen is the one that comprises the first three years of the minor.

A different issue will be the job reserve calculation provided by the rule for this type of leave, which provides for a reserve of the same job if the re-entry is made in the first two years of the leave, or a position in the same locality and of equal pay, if the re-entry is made in the third year of the leave. In this sense, the computation of such reservation is understood to begin at the moment when the leave of absence begins, and not at the moment of birth.

The second question is whether article 29.4 of Act No. 30/1984 of 2 August 1984 on measures for the reform of the civil service, relating to child care leave, applies in the event of re-entry into active service.

Se ha de recordar que la Disposición derogatoria única del TREBEP establece que:

“The following provisions shall be repealed within the scope set out in paragraph 2 of the fourth final provision:

(…)

(b) Act No. 30/1984 of 2 August 1984 on measures to reform the civil service, articles 3.2 (e) and (f); 6; 7; 8; 11; 12; 13.2, 3 and 4; 14.4 and 5; 16; 17; 18.1 to 5; 19.1 and 3; 20.1 (a), (b), first paragraph, (c), (e) and (g) in its first to fourth paragraphs, and (i), 2 and 3; 21; 22.1 with the exception of the last two paragraphs; 23; 24; 25; 26; 29, with the exception of the last paragraph of paragraphs 5, 6 and 8;

For its part, paragraph 2 of the fourth final provision of the same consolidated text provides that:

“Until the Civil Service laws are enacted and the development regulations are in force in each Public Administration, the current regulations on the management, planning and management of human resources shall remain in force as long as they do not conflict with the provisions of this Statute.”

That is, article 29.4 of Law 30/1984, of 2 August, which is mentioned in the consultation, is expressly repealed by the TREBEP, without prejudice to the fact that it may remain in force as long as it does not oppose the provisions of the TREBEP.

Without prejudice to the above, the applicable regulations on re-entry will be Article 89.4 and 91 of the TRLEBEP, as well as Law 30/1984, of 2 August, on measures for the reform of the Public Service, the Regulations on Administrative Situations of Civil Servants of the General Administration of the State, approved by Royal Decree 365/1995, of 10 March, and the Resolution of 15 February 1996, of the Secretary of State for the Public Administration and the Secretary of State for Finance, by which rules applicable to certain procedures in matters of re-assignment are not subject to the active service

With regard to the third issue, it relates to the time limit for taking up a new post obtained by competitive examination from the situation of child care leave.

In advance, it should be noted that, from this situation of leave, the career officer may participate in the contests for the provision of jobs that are convened (provided that he meets the general conditions required and the requirements determined in the call), so that, in case of obtaining another position in another locality, this new position will be awarded in which the reservation will be established for the time that is missing. Once the contest is resolved and obtained by this means a place, the official will have two options.

• On the one hand, it could continue in the family care leave situation, without the need to re-enter active service.

The reservation will then fall on the new position obtained by competitive examination for the time remaining up to two years or a position of the same locality and remuneration to the position obtained by competitive examination during the third year.

If the official opts for this formula, that is, not to re-enter and remain in the situation of leave for family care, then it is understood that in the matter of re-entry, it will be necessary to comply with the provisions of the aforementioned Resolution of 15 February 1996, and not with the postponement periods established by the General Regulations on Admission and Provision for competitions, since the official would not then be re-entering active service by virtue of having obtained a place by competitive examination, but would be re-entering by returning to the place that she has reserved.

In this sense, re-entry during the first two years of leave will take place, in accordance with the 1996 Resolution requesting the same before the Ministry in which it provided services and re-entry to the job will take place within three days from the next notification of the re-entry resolution.

Re-entry during the third year of leave will also be requested before the Ministry of last destination or before the Ministry to which its Corps or Scale is attached if they have assigned positions exclusively or not included in the relations of jobs. The incorporation will also take place within three days from the next to the notification of the re-entry decision.

The job assignment will be carried out in accordance with the provisions of the aforementioned Resolution.

• On the other hand, he could terminate his leave of absence and join the position.

Article 48 of Royal Decree 364/1995 establishes that the postponement period will be three working days from the day following the publication of the resolution of the contest in the BOE. In application of this regulation, if the official ended the situation of leave for family care and re-entered the active service in the position of origin that she had reserved and in which she would now cease for having obtained the new job; in this specific case, the postponement period of article 48 would come into play.

In any event, it should be noted that, on the other hand, it is understood that it is necessary to take office in the post awarded by competitive examination, even if the staff member chooses to continue on leave of absence for family care, since the administrative situation of leave of absence for family care recognizes the staff member who is in it a series of effects, effects that are deployed essentially in response to the reserved job (promotions, professional career, Social Security system, etc. ). In addition, the takeover is presented as the procedure whereby the competent authority ascertains that there are no legal obstacles to the occupation of the post awarded by competitive examination.

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.