Disciplinary regime applicable to non-contractual work personnel.

The consultation deals with the disciplinary regime applicable to non-contractual workers, especially with regard to the classification of serious and minor offences.

In general, the legal regime applicable to workers in the service of public administrations is bifront, formed both by the consolidated text of the Law on the Basic Status of Public Employees, Royal Legislative Decree 5/2015, of 30 October (TRLEBEP) and by the consolidated text of the Law on the Status of Workers, Royal Legislative Decree 2/2015, of 23 October (TRET).

Article 7 of the TRLEBEP states that “Labour personnel in the service of public administrations are governed, in addition to labour legislation and other conventionally applicable rules, by the precepts of this Statute that so provide.”

Likewise, Article 3.1(b) and (c) of the TRET establishes that collective agreements and the will of the parties are sources of the employment relationship, immediately after the State regulation, but, with respect to the latter, care is taken to point out the aforementioned letter (c) that under no circumstances may less favourable conditions be agreed on an individual basis than those established in the State regulations and also in the conventional ones. Finally, it refers to local and professional customs and practices.

This set of regulations has sometimes led to difficult integration. Noteworthy in this regard is the ruling of the Supreme Court of 23 May 2013, which resolves cassation appeal No. 2178/2012, and which states that:

"... After the entry into force of the EBEP, by Law 7/2007, the workforce in the service of the Public Administrations is governed by what results in it, as well as by the labour legislation that is applicable according to the provisions of the EBEP. This is stipulated in the art. 7, referring to the "regulations applicable to labour personnel" (…) This is therefore a detailed exclusion technique, so that the rule of labour legislation is excluded when it is established in the EBEP itself to accommodate its specific rule; all of this, leaving the role of collective bargaining in matters where availability may exist (as we highlighted in the STS of 7 December -rcud. 4318/2009 and RCUD. 4415/2009- and 9 December 2010 -RCUD. 4178/2009-, in relation to permits for private matters in which specific regulation was concurrent in the applicable collective agreement)..."

The case in question concerns the staff of the National Orchestra of Spain. As indicated in the letter of consultation, the personnel employed in the service include persons included in the IV Single Collective Agreement for the Labor Personnel of the General Administration of the State, persons with senior management contract and persons contracted out of agreement.

Both senior management and non-contract staff are expressly excluded from the scope of the Fourth Single Collective Agreement in Article 2(c) and (f) respectively.

In the case of personnel hired under the senior management system, the provisions of Royal Decree 1382/1985, of 1 August, regulating the special employment relationship of senior management personnel, are applicable. Specifically, with regard to the applicable regime in relation to misdemeanours and disciplinary sanctions, its article 13 establishes that:

“The senior manager may be sanctioned for non-compliance with the obligations arising from this special relationship, in the terms agreed in the contract. The misdemeanours and corresponding penalties shall be subject to review before the social jurisdictional order. Such misdemeanours, whatever their nature, shall be prescribed twelve months after their commission, or after the entrepreneur had knowledge of them.”

It must be borne in mind that the limitation period for sanctions will be the one determined on a special basis in the aforementioned provision and not the generic term regulated in article 60.2 of the TRET, as the Supreme Court has had occasion to state (judgment of 22 October 2003, appeal number 470/2003).

Notwithstanding the foregoing, the legal regime relating to disciplinary dismissal for contractual breaches referred to in article 54 of the TRET shall also apply to senior management personnel.

Similarly, article 4.2 of Royal Decree 451/2012, of 5 March, regulating the remuneration regime for top managers and directors in the public business sector and other entities, when, for its specific scope of application, it determines the system of sources applicable to managers linked by senior management contract in the public business sector.

As for non-contractual personnel, their specific legal regime applicable in disciplinary matters will have to be determined, as for senior management personnel, to the employment contract signed by the worker. This is without prejudice to the fact that one of the clauses of the employment contract itself may provide for the supplementary applicability of a certain collective agreement for certain matters. Beyond what is stipulated in the employment contract, in the absence of an applicable collective agreement, the provisions of both the TRLEBEP and the TRET in disciplinary matters will be applicable.

The disciplinary authority provided for in the TRLEBEP is provided for in its Title VII. Article 93.1 states that “Civil servants and labour personnel are subject to the disciplinary regime established in this Title and in the rules that the Civil Service Laws dictate in the development of this Statute.”

Article 94 of the principles governing disciplinary authority states: “Principle of legality and criminality of offences and penalties, through regulatory predetermination or, in the case of labour personnel, collective agreements”.

This implies that, for the workforce, only by applicable law or conventional norm can misdemeanours and their respective sanctions be established in a general manner.

As recalled in the consultation letter, the TRLEBEP only expressly criminalizes very serious misdemeanours, while serious and minor misdemeanours will have to be established in a legal or conventional norm that is applicable. In this case, there is no law on the development of the TRLEBEP that criminalizes serious and minor offences in the absence of a collective agreement of application, unless expressly referred to in the employment contract, only the Workers’ Statute remains to be invoked.

The only reference made in the Workers’ Statute to the classification of disciplinary offences, outside the list of contractual breaches that may give rise to disciplinary dismissal, is made in article 58, which only refers to legal or conventional rules that make the classification.

Therefore, unless expressly provided for, both directly and by way of reference to the Fourth Single Collective Agreement, only the disciplinary provisions contained in the TRLEBEP and the TRET shall apply to senior management and non-contractual personnel.

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.