Remuneration to be received by civil servants in internships who receive salary as an interim official, if they lose their interim status

The issue raised relates to the situation in which trainee staff who are paid as an interim staff member remain, if they lose their interim status.

To this end, it is necessary to analyze, fundamentally, the provisions of the consolidated text of the Law of the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of October 30, (hereinafter, TRLEBEP) and Royal Decree 456/1986, of February 10, which establishes the remuneration of officials in practice (RDRFP, hereinafter).

To begin to analyze the provisions of the regulations to determine what are the remuneration to be received by the staff member in internship who receives salary as an interim official, if he/she loses his/her interim status, it is worth recalling the assumptions of termination of this relationship of interinity.

The termination of this relationship is regulated in art. 10.3 and 63 of TRLEBEP. Thus, there are causes of termination of the relationship of interinity:

• • Regulated coverage of the position by career staff through any of the legally established procedures.
  • Organisational reasons leading to the abolition or amortisation of the posts allocated.
  • The end of the authorized term expressly included in your appointment.
  • The completion of the cause that led to his appointment.
  • The renunciation of the status of official.
  • The loss of nationality.
  • The total retirement of the official.
  • The disciplinary sanction of separation from service that has a firm character.
  • The principal or accessory penalty of absolute or special disqualification for public office that has a firm character.

With regard to the system of remuneration of officials in practice, art. 2 RDRFP provides the following:

“1. For the purposes of remuneration regulated by this Royal Decree, trainees who are already providing remunerated services in the Administration as career or interim officials or as labour personnel must opt at the beginning of the traineeship period or the selective course to be received, at the expense of the Ministerial Department or public agency to which the jobs of origin are attached:

(a) The remuneration for the post they are performing up to the time of their appointment as trainee officers, in addition to the three-year periods recognized by them.

b Those provided for in the previous article (Article 1. “…remuneration equivalent to salary and extraordinary payments corresponding to the group in which the Body or Scale in which they aspire to enter is classified”) in addition to the recognized trienniums. However, if during this period a job is performed as a trainee, the payment of the remuneration will be the responsibility of the Ministerial Department or public agency to which the aforementioned job is attached.

2. In any event, trainees referred to in this article shall be reinstated, upon completion of the selective course or traineeship period, to their original position until they take up office as a career officer in the new body or scale (…)”

Therefore, the aforementioned precept provides for a right of option for the official who has already been serving in the Administration, but also imposes an obligation on him, while, once the selective course is completed, he will have the obligation to return to the position he has been performing until they take office as a career official. This option will be carried out at the beginning of the internship period and will be immovable until taking office as a career officer. The body required to pay the remuneration shall be the one corresponding to the ministerial department or public body to which the jobs of origin are assigned, except in the case provided in art.2.1.b) in finein which case it is the responsibility of the Ministerial Department or public body to which the job being performed is assigned.

Although it is not expressly foreseen what happens when the previous service relationship mentioned in this section is extinguished, resorting to a systematic interpretation of the regulations, provided in article 3 of the Civil Code, it must necessarily be concluded that this right of option between remunerations whose payer is the Department or agency of origin is necessarily linked to the survival of this previous service relationship. Since it would be contradictory to maintain, unless expressly provided for by law, both an obligation to pay salaries from a Department or agency with which there is no longer any link, and the right to pay salaries other than those generally provided for trainees.

And to this does not obviate the indicated mention that the option for the indicated remuneration must be carried out “at the beginning of the traineeship period or of the selective course“, inasmuch as the loss of that prior service relationship that underlies the right of option itself implies the disappearance of the factual assumption that is the budget necessary to apply this art.2.1 RDRFP:

Thus, in the event that a trainee is dismissed as an interim civil servant by the Administration for the reasons assessed in the TRLEBEP, if he/she has been receiving the remuneration as an interim civil servant, he/she shall be entitled to receive, after dismissal as an interim civil servant until his/her appointment as a career civil servant, the remuneration corresponding to the trainees provided for in Article 1 RDRFP.

In this case, the existence of two payers must be differentiated: on the one hand, as long as they are not dismissed from their position as interim, they will receive the remuneration from the ministerial department or public body to which the jobs of origin are attached, except as provided in the aforementioned art.2.1.b) in fine; on the other hand, if they are dismissed from the position, they will begin to receive the remuneration from the corresponding body on which the officials in practice depend.

Notwithstanding the foregoing, if during this internship period a job will be performed as an internship officer, the payment of the remuneration will be made by the Ministerial Department or public agency to which the aforementioned job is attached.

As for the possibility of receiving unemployment benefit, it is not considered possible as long as trainees are in active service, in accordance with article 86 of the TRLEBEP.

For all the foregoing reasons, this Sub-Directorate General considers that the remuneration to be paid by the staff member who receives salary as an interim official and loses his/her status as an interim official is those generally provided for the staff member in Article 1 RDRFP and must be paid by the corresponding body on which the staff member is dependent, except as provided for in the cases in which he/she holds a job as an interim official, in which case his/her salary is payable to the ministerial department or public agency to which the said job is attached.

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.