Possibility of benefiting from the conciliation measures for civil servants with a special day of work.

The question raised relates to the possibility that officials on a special duty basis may avail themselves of conciliation measures in general and, in particular, the modification of fixed hours by a maximum of two hours for reasons directly related to the reconciliation of personal, family and working life.

Firstly, the legal framework for implementation needs to be analysed. In this context, it should be recalled that the Public Administrations are competent to establish the organization of the working time of the staff in their service, in accordance with the provisions of articles 47 and 51 of the TREBEP.

Thus, in the field of the General Administration of the State, the Resolution of February 28, 2019, of the Secretary of State for the Civil Service, which provides instructions on the working hours and hours of staff in the service of the General Administration of the State and its public agencies, is applicable.

The consultation makes specific reference to the measures for reconciling family and working life, in particular, to the modification of the fixed working time by a maximum of two hours contained in section 8.4 of the Working Time Instructions in the following terms:

“Exceptionally, the competent bodies in the field of human resources may authorize, on a personal and temporary basis, the modification of the fixed time by a maximum of two hours for reasons directly related to the reconciliation of personal, family and working life, and in the cases of single-parent families.”

In the consultation carried out, questions are asked in the abstract about the measure of modification of the schedule provided in section 8.4 of the Working Time Instructions, without providing more information about the specific case of conciliation that motivates the request for this measure.

It follows from the literal tenor of this precept that, in the first place, the existence of a given factual assumption must be justified in relation to “Reasons directly related to the reconciliation of personal, family and working life, and in the cases of single-parent families”. Thus, the competent personnel unit must assess the concurrence of this assumption for each specific case.

It is also noted that the raison d'être of paragraph 8.4 is the introduction of a closure clause which exceptionally empowers personnel units to change the fixed hours of public employees on a personal basis in the interests of dealing with an interim situation not resolved by paragraph 8. In particular, the precept itself states that it is an exceptional measure, and therefore that it must be granted in a restrictive and time-limited manner.

In this case, it is not possible to deduce from the consultation what precise situation of the flexibilization of the schedule. Therefore, in any case, the applicant must provide the Administration with all the information that allows the personnel unit to assess, where appropriate, the appropriateness of granting, exceptionally, the modification of the working hours.

In view of the above, the question raised focuses on the possibility of recognizing the modification of fixed hours in a maximum of two hours to staff with special dedication.

Paragraph 8.4 of the Resolution specifically provides for the possibility of modifying the fixed schedule for conciliation purposes. However, nothing specifies as to who is eligible for such a modification.

Given the lack of concreteness in the regulation, and according to a systematic and teleological interpretative exercise of the rule, it is difficult to deduce from the literal tenor of the precept the will to establish a restriction to staff with special dedication.

On the other hand, this paragraph does not specifically prevent the conciliation measures provided for in that paragraph from being applied to civil servants on a special time basis, unlike what is expressly established for the reduction of working hours for reasons of particular interest in paragraph 5.2 of the Resolution of 28 February 2019.

With regard to how these measures should be applied, in the interests of the correct application of hourly flexibility, it is necessary to take stock of the two interests at stake: on the one hand, the general interest, which is satisfied and guaranteed by the provision of public service by the official; and on the other, the reconciliation of the family and professional life of the public employee.

Through the hourly flexibility measures, it is intended to reduce the burden of professional life linked to staff, that is, to facilitate public activity with private life, but this attempt to combine both situations cannot under any circumstances lead to the interruption, reduction or worsening of the public services entrusted. General interests must always take precedence over private individuals and, therefore, continuity and guarantee in the effective provision of the public service must take precedence over time flexibility or any other alteration to the timetable and working hours that may be detrimental to or detrimental to the general interests and the rights of citizens.

Likewise, the provisions for the distribution of the day must be taken into account in the Resolution of February 28, 2019.

Thus, paragraph 4, regarding the day in special dedication, provides that:

“The duration of the working day of the staff who perform jobs considered to be of special dedication will be 40 hours per week, without prejudice to the increase in the hours that is exceptionally necessary for the needs of the service. (…)”

Although paragraph 4 does not provide that the day of special dedication must be morning and afternoon, from the data provided to the consultation it is understood that the day of special dedication in that Center is distributed in morning and afternoon.

In relation to this distribution of the day, Section 3.2.b) of the Resolution provides that:

“3.2 The distribution of the weekly day will be made:

b) Morning and afternoon sessions. The fixed time of presence at the workplace will be from 9:00 to 17:00 hours, from Monday to Thursday, with an interruption for the meal that will not be counted as effective work and that will be at least half an hour, and from 9:00 to 14:30 on Fridays, without prejudice to the time applicable to staff assigned to offices with uninterrupted opening to the public that has special regulations. The rest of the day, until the end of the thirty-seven and a half hours or the forty hours weekly, according to the dedication regime, will be held in flexible hours between 7:00 and 9:00 hours, from Monday to Friday, and between 17:00 and 18:00 hours, from Monday to Thursday, as well as between 14:30 and 15:30 hours on Fridays.”

That is, the fixed time of presence at the workplace will be from 9.00 to 17.00 hours, so if the interested party requests to leave at 15.30, as consulted in his letter, in the opinion of this Directive Center a priori it would be possible, since paragraph 8.4 of the Resolution foresees the possibility of flexibilizing the fixed time up to a maximum of 2 hours.

On the basis of the above, it could be concluded that it would be possible for civil servants with special hours to request the conciliation measures provided for in paragraph 8.4 of the Resolution of 28 February 2019, however, it must be taken into account that it is an exceptional and temporary measure, so the period for which such measure is requested must be fixed, in addition, it will be subject to the needs of the service and may not involve an interruption, reduction or worsening of the public services entrusted.

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.