Recognition of previous services – Type of link.

To determine whether recognition of prior services is appropriate under the terms of Law 70/1978, of December 26, on recognition of prior services in the Public Administration (hereinafter, Law 70/1978), the previous step is to determine whether there is a relationship, either administrative or employment, included in article 1.2 of Law 70/1978, which establishes:

“Effective services shall be deemed to be all those provided without distinction to the areas of public administration referred to in the preceding paragraph, whether in the capacity of an employment officer (temporary or interim) or in the capacity of an administrative or employment contract, whether or not such contracts have been formally concluded.”

By way of illustration, some assumptions are analyzed:

i. Hired on a part-time basis.

Law 70/1978, of 26 December, on the recognition of prior services in the Public Administration provides for the recognition of prior services without the relevant type of working day chosen (full-time or part-time), since neither the aforementioned Law nor the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, establishes any distinction in this regard.

Likewise, for the purposes of triennials, it must be taken into account that these constitute basic salaries that are not conditioned by any rule other than the effective provision of services for three years, the recognition of which does not depend on the type of working day chosen by the official, without prejudice to the fact that the specific payment of the triennials generated and already recognized may be affected by the type of working day in which the official provides his services at any time, in his condition of basic salaries.

II. PhD.

When reference is made to doctoral scholarships, there is ample casuistry about the type of relationship that links the doctoral student and the university where he or she is pursuing his or her studies.

Therefore, each specific case must be analyzed by the personnel unit to determine whether the recognition of the previous services is appropriate.

III. Social collaboration services in a local entity.

In order to be able to determine whether services provided as a Social Worker in a Local Entity may be subject to recognition of services prior to an official, first of all, the legal nature of the relationship maintained with the Public Entity prior to the acquisition of the status of official has to be examined.

In this case, Royal Decree 1809/86, of 28 June, amending Royal Decree 1445/1982, of 25 June, on various measures to promote employment, which regulates, among others, the work of social collaboration, must be invoked.

Thus, Article 38 of Royal Decree 1445/1982 states that:

“The Public Administrations may use workers who receive unemployment benefits without loss for them of the amounts they receive in this regard, in temporary collaborative work that meets the following requirements:

a) That they are of social utility and benefit the community.

b) They have a maximum duration of 5 months.

(c) It must be carried out at the level of the Employment Office where the worker is registered.

(d) Match the physical and professional skills of the unemployed worker.”

On the other hand, Article 213 paragraph 3 of Royal Legislative Decree 1/1994 of 20 June, approving the Consolidated Text of the General Social Security Law establishes that:

“The work of social collaboration that the management entity may require from the recipients of unemployment benefits shall not imply the existence of an employment relationship between the unemployed person and the entity in which the work is performed, maintaining the worker’s right to receive the unemployment benefit or allowance that corresponds to him.”

In addition, the Supreme Court has maintained in its judgment of 24 April 2000 (RJ 2000, 5147) with regard to the precept that we have just pointed out that: "clearly and emphatically excludes any possibility of an employment relationship between the public administration that is the target of social partnership work and the unemployed person who provides such work and the lack of such employment prevents the cessation from being qualified as dismissal" (confirming the doctrine established by the Judgment of the same High Court of 15 July 1988, RJ 1988/6867).

Therefore, this social collaboration would be a technique of protection of the unemployed, a social policy measure of an extracontractual nature. In this way, this work regime does not imply an employment relationship between the unemployed person and the entity in which such jobs are provided, the unemployed person continuing to collect their benefit through the State Public Employment Service.

In addition, the selected workers are obliged to carry out the work of social collaboration. The unmotivated waiver of the same determines the extinction or loss of part of the unemployment benefit or allowance that they received.

In conclusion, in the opinion of this Management Centre, the services provided by a staff member under the social partnership envisaged in the R.D. 1445/1982, of 25 June (amended by R.D. 1809/1986, of June 28) cannot be taken into account for their recognition as prior services under the provisions of Law 70/1978, of December 26, since they do not imply the existence of an employment relationship with the Public Entity where the aforementioned social collaboration was provided.

IV. Services provided as a high charge.

From the literal tenor of Law 70/1978 we can deduce that the prior services will be recognized to those public employees who have provided services in the entities referred to in the scope of application of said legal text under the condition of official or administrative or labor contracting. This establishes numerus clausus the types of links that will lead to the recognition of services, without any reference to the situation of high office.

On the other hand, both the Agreement of the Higher Personnel Commission of October 27, 1989, which establishes the criteria for the interpretation and application of Law 70/1978, of December 26, and the Judgment of January 26, 1995 of the Supreme Court, Third Chamber, which unifies the doctrine, until then contradictory, that are pronounced in the same sense, must be noted. This Judgment provides:

“It is clear that the art. 1º1 and 2, of Law 70/1978, wanted to recognize the career public officials of all the Public Administrations, the services provided in other different Administrations and whatever the legal regime in which such services had been provided, employment official, administrative or labor contract, but always the functional link or the legal-labor relationship was carried out at the service of an area of the Public Administration, that is, of personified entities of a public nature to which both officials could be linked under a statutory regime, as well as under an administrative or labor contract”.

In other words, both Law 7/1978, of 26 December, and the repeated jurisprudence, in order to be able to recognize the previous services, require that there be a relationship of services within the sphere of the Public Administration, either as an official or as labor personnel, without the previous services being recognized more than in these assessed assumptions.

In this sense, the services provided as High Office are not subject to recognition in accordance with Law 70/1978, of December 26, since there is no relationship of services either as official personnel or as labor personnel.

It would be different if the interested party had the status of a career officer previously and was in the administrative situation of special services, in which case it would be possible to recognize such services in accordance with article 87.2 of the TREBEP.

v. Services provided as Mayor.

In this case, it is necessary to analyze whether the position of Mayor can be considered included in the services that can be recognized in the light of the provisions of Law 70/1978, of December 26.

As indicated, in order for the recognition of services to take place, Law 70/1978, of December 26, requires that they have been provided under the condition of official, interim, contingent personnel or under administrative or employment contract.

The Mayor is an elected public office that, as stipulated in article 21 of Law 7/1985, of April 2, on Local Government Bases, is responsible for “directing the municipal government and administration”. A charge that, although it may involve the discharge of the interested party in the corresponding Social Security System, does not imply in any case that the nature of said charge is modified and, therefore, in no case entails the establishment of a relationship as personnel of the Local Entity that manages; therefore, the performance of the position of Mayor would not comply with the inescapable requirement so that the recognition of services can take place under Law 70/1978, which is to have provided services as personnel of the corresponding Administration.

vi. Services provided under administrative contracting.

It is consulted on the possible recognition of certain periods of previous services, for the purposes of Law 70/1978, of 26 December, on the recognition of previous services in the Public Administration, provided under administrative contracting, in accordance with the legislation of public sector contracts.

Based on the provisions of Law 70/1978, of 26 December, it should be recalled that, in accordance with the fourth additional provision of Law 30/1984, of 2 August, on measures for the reform of the Public Service, the following is established:

“1. From the date of entry into force of this Law, temporary cooperation contracts under administrative law may not be concluded by the Public Administrations.

2. Contracts to be concluded exceptionally by the Public Administrations with personnel for the performance of specific and specific work not usual shall be subject to the law of contracts of the State, without prejudice, where appropriate, to the application of civil or commercial regulations.”

Thus, it should be noted that the contracts for the performance of specific and unusual works, which were regulated in Royal Decree 1465/1985, of 17 July, were eliminated after the reform of Law 13/1995, of 18 May, on contracts of the Public Administrations, modified by Law 53/1999, of 28 December, in which the possibility of concluding "contracts for the performance of specific and unusual concrete works" was eliminated, and this deletion was maintained in the Consolidated Text of the Law on Contracts of the Public Administrations, approved by Royal Legislative Decree 2/2000, of 16 June.

Currently, Law 9/2017, of November 8, on Public Sector Contracts regulates service contracts, consolidating the previous figures of consultancy, technical assistance and services, in line with its main characteristic that their object is concrete in the result of an activity and are of a temporary nature, so that the services subject to contracting cannot be coincident with the normal and permanent needs of the contracting administrations, which are satisfied through the activity developed by the officials or by those contracted in the labor regime.

However, it is worth recalling the exception that, for the purposes of calculating services provided under administrative contracts, establishes section two of article 1 of Royal Decree 1461/1982, of 25 June, which establishes rules for the application of Law 70/1978, according to which:

“(…) Neither shall the services provided under an administrative or employment contract be computable when, when the legal link with the Administration was broken and the corresponding compensation was received, the interested party waived any other right that may arise from such services.”

For its part, article 2 of Law 70/1978, with reference to the accrual of the triennials resulting from the recognized services, establishes that “shall be performed by applying to them the value corresponding to those of the Corps, Scale, staff or place with functions similar to those performed during the time of services provided that are recognized in accordance with the provisions of the preceding article.”

By virtue of the foregoing, it has been understood that only services provided under a temporary administrative collaboration contract would be recognized for the purposes provided for in the aforementioned Law 70/1978, since such contracts are the only ones whose purpose is to perform functions similar to those of Corps, Scales, staff or position of career officials, provided that they were prior to the entry into force of Law 30/1984, of 2 August, on measures for the reform of the Public Service, from which, this contractual figure is expressly prohibited in the environment of the Public Administration, as provided for in its fourth additional provision in point 1.

From the above, it follows that contracts concluded for the performance of specific and specific work not usual cannot be assimilated to those of temporary collaboration and, therefore, it is considered that they would not be eligible for recognition for the purposes of the aforementioned Law 70/1978.

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.