Administrative situation of those holding elective positions in more representative trade union organizations (LOLS)

The question raised is about the administrative situation that should be recognized for those holding elective positions in more representative trade union organizations.

Thus, first of all, the legal framework of application, composed in this case by Organic Law 11/1985, of 2 August on Freedom of Association (LOLS from now on), the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP, from now on) and concordant regulations, as well as the criterion derived from Judgment number 18/2003, of 30 January, of the Constitutional Court, must be analyzed.

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

Article 9.1.b) of Organic Law 11/1985 of 2 August provides that:

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

b) To compulsory leave, or the equivalent situation in the civil service, with the right to reserve the job and to compute seniority for the duration of the exercise of his representative office, having to re-enter his job within the month following the date of cessation.”

However, neither the TRLEBEP nor the development regulations expressly establish in what administrative situation those officials who hold elective positions at the provincial, regional or state level would remain in the most representative trade union organizations. That is, it does not specify the scope of the reserve of jobs and calculation of seniority for those holding elective positions contained in the Organic Law of Trade Union Freedom

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

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

Second. It is a precept that constitutes a complete rule in itself, which is not required of an external complement to be able to enjoy direct and immediate ordering efficiency. In other words, it is not a rule subject in its effectiveness to its reception in the functionary 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 that involves the reservation of the job and the computation of seniority for the duration of the exercise of the representative office.

Fourth. The need for the rule to be applied, as long as it remains in the legal system, resulting, if not, in 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 computation of seniority.

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

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.