Commission of services from the situation of child care leave.

The question is about the possibility of seconding a civil servant who is in the situation of child care leave or, viewed from another angle, whether that civil servant could apply for re-entry into active service to a position different from the one she has reserved.

For more information, it is meant that there are reasons to reconcile family and work life, as well as the need to cover certain positions that, due to their characteristics, are difficult to cover through transfer contests.

Previously, it is understood that it is necessary to distinguish the commission of services from the re-entry to active service.

The Service Commission is a system for the provision of temporary posts in which, for reasons of urgency, a post is provided on a temporary basis by a staff member who meets the requirements for his or her performance, who is, in turn, reserved for him or her the job he or she had been performing on a permanent basis.

Therefore, the service commission is not a form of re-entry into active service, but a form of temporary provision of a job among officials who are already in active service performing a certain position.

The re-entry to the active service, on the other hand, is carried out through the formulas established in the current regulations, without, as indicated, the commission of services being among them.

Re-entry into active service in the case of administrative situations in which the right to reserve the job is established - provided that the staff member had moved into that situation from a situation in which he or she had been performing a job or in which he or she was already entitled to reserve it - must take place in that reserved position.

Specifically, and in relation to the situation of child care leave, article 89.4 of the consolidated text of the Law on the Basic Status of Public Employees (TRLEBEP), approved by Royal Legislative Decree 5/2015, of October 30, establishes:

“(…) Career officials shall be entitled to a period of leave of absence not exceeding three years to care for each child, whether by nature or by permanent or pre-adoptive adoption or fostering, commencing from the date of birth or, where appropriate, 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.”

In other words, a guarantee is provided for the reservation of the job, whether it is the same position that was occupied, if the re-entry is made in the first two years, or a position in the same locality and of equal pay, if the re-entry is made in the third year.

Although this administrative situation, in the interest that is protected through it, is articulated in such a way that the official who receives it does not see his professional situation diminished, what is not possible is that based on this situation the systems of provision of legally foreseen jobs are altered.

In this regard, it may be concluded that the job reserve expressly established by TRLEBEP is inalienable, so that the re-entry into service must always be carried out in the position that, at any time, is established as a reserve post by virtue of the administrative situation of child care leave in which the civil servant is declared.

Having clarified the above, what would be possible is for the staff member, once she re-enters the active service in the position she has reserved, and provided that all the requirements required by the rule are met, to be able, if necessary, to move on temporarily, in committee of services, to another job; but taking into account, as indicated, that, in any case, the re-entry to the active service must take place in the job she has reserved.

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.