The question raised concerns the administrative situation that it is appropriate to recognize those who hold elective positions in more representative trade union organizations.

Thus, firstly, the legal framework of application, composed in this case by Organic Law 11/1985, of 2 August on Freedom of Association (LOLS), the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP, hereinafter) and concordant regulations, as well as the criterion derived from Judgment No 18/2003, of 30 January, of the Constitutional Court, should be analyzed.

The question raised focuses on determining which administrative situation it is appropriate to recognize those officials who hold elective trade union positions in accordance with the provisions of the LOLS, taking into account the guarantees provided therein.

In this regard, Article 9.1.b) of Organic Law 11/1985 of 2 August states that:

“1. Those who hold elective positions at provincial, regional or state level in the most representative trade union organizations shall have the right: (…)

(b) Compulsory leave, or the equivalent situation in the civil service, with the right to reserve a job and to compute his seniority for the duration of his representative office, and he must return to his job within one month of the date of his retirement.”

However, neither the TRLEBEP nor the development regulations expressly establish in what administrative situation those officials who hold elective positions at the provincial, autonomous or state level, in the most representative trade union organizations, would remain. In other words, it does not specify the scope of the job reservation and age count for those holding elective positions contained in the Organic Law on Freedom of Association.

However, the Constitutional Court, in its Judgment No. 18/2003 of 30 January, issued as a result of the application for amparo filed by a career official who had been denied such equivalent status in the field of public service, has defined the scope of the above-mentioned provision, establishing, by way of summary, the following:

First of all. Incorporation of the right defined in Article 9.1(b) of the LOLS into the fundamental right of freedom of association, as an additional content thereof.

Second. Second. It is a precept that constitutes a complete rule in itself, which does not need an external complement to be able to enjoy direct and immediate computer effectiveness. In other words, it is not a rule subject in its effectiveness to its reception in the Civil Service Statute.

Third. The fact that there is no regulation in Law 30/1984, on Measures for the Reform of the Public Service, currently TRLEBEP and concordant regulations, of what is the equivalent situation of forced leave in the field of the public service, cannot constitute an obstacle to the current effectiveness of a rule that unequivocally grants to the officials who are in the legal situation defined in said article, the right to a situation involving the reservation of the job and the counting of seniority for the duration of the exercise of the representative office.

Fourth. Fourth. The need for the rule to be applied, as long as it remains in the legal system, and if not, there is a violation of a fundamental right such as the right to freedom of association.

A la vista de dicha Sentencia, cabría entender que la expresión “Equivalent situation in the field of public service” provided for in article 9.1 b) of the aforementioned Organic Law, it would be the Special Services Act, since it is the one that most accommodates the consequences derived from forced leave in the workplace: reservation of jobs and calculation of seniority.

Notwithstanding the above, it must be taken into account that, in accordance with the provisions of article 87.2 TRLEBEP (as also stated in article twenty-nine 2 of Law 30/1984), officials in special service situations will receive the remuneration of the actual position or position they perform and not those corresponding to them as career officials, without prejudice to the right to receive the triennium they have recognized at all times.

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.