Possibility that the workforce linked to the Administration by a senior management contract may receive the trienniums accrued in their capacity as civil servants.

The question raised concerns the possibility that the workforce linked to the Administration by a senior management contract may receive the trienniums accrued in their capacity as civil servants.

To this end, it is necessary to analyze the provisions of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, (hereinafter, TRLEBEP), Royal Decree 1382/1985, of 1 August, which regulates the special employment relationship of senior management personnel (RD 1382/1985, hereinafter).

The TRLEBEP has come to comply with the constitutional mandate contained in article 103.3 of the Spanish Constitution, by virtue of which the statute of public officials will be regulated by law.

Therefore, the TRLEBEP, in addition to fulfilling the constitutional mandate entrusted to the state legislator, including everything that is common to all the officials of all the Public Administrations, incorporates the specific legal rules applicable to the workforce in its service; which does not mean, in any case, that there is a confusion or assimilation of legal regimes applicable to each type of personnel in the service of the Public Administrations.

In this regard, TRLEBEP continues to maintain the duality of existing legal regimes, regulating the legal regime applicable to civil servants and indicating which of the precepts contained in TRLEBEP also apply to labour personnel, such as the application of the constitutional principles of merit and ability to enter public administrations or the regime of incompatibilities, which does not imply the existence of the same legal regime.

Thus, as stated by the Constitutional Court in its judgment 99/1987 of 11 June, the Constitution has opted for the establishment of a statutory regime for public servants; this approach has continued to be expressed by TRLEBEP through its articles.

As has been indicated, TRLEBEP has not introduced any kind of legal regime that homogenizes or assimilates the classes of personnel in the service of the Public Administrations, differentiating in its article 8 the professional staff and the professional staff.

In this regard, career civil servants are linked to the Administration by a relationship of a statutory nature regulated by Administrative Law for the performance of paid professional services of a permanent nature, and TRLEBEP is fully applicable.

On the other hand, labour personnel, who are linked to the Administration by a contractual relationship, are governed, in addition to labour legislation and other conventionally applicable rules, by the precepts of the TRLEBEP that expressly provide for this.

Consequently, civil servants and labour personnel are two distinct types of personnel, with a legal relationship with the Administration of different nature, and have their own legal regime.

This difference in treatment is endorsed by the Constitutional Court which, in the examination of Article 14 of the Constitution, determines “that equality or inequality between structures, such as administrative situations, which are - regardless of their actual sociological substratum - the creation of the law, is the result of the definition that the law makes of them; that is, of their legal configuration that can be delimited by the presence of very diverse factors. Therefore, under the principle of equality it is not lawful to try to assimilate situations that in origin have not been equated by the legal rules that create them. The discrimination, if it exists, will only result from the application by the Administration of non-objective and general criteria of differentiation” (SSTC 7/1984, 99/1984, 112/2004).

In the light of the difference between civil servants and staff, it is appropriate to examine whether it is appropriate for staff linked to the Administration by a senior management contract to continue to receive the three-year salary previously accrued as a career civil servant.

Given the special employment relationship of the senior management contract, it is appropriate to examine the specific regulation that the legal system contains for this figure.

In this regard, Article 3 of RD 1382/1985 provides that:

“One. The rights and obligations concerning the employment relationship of senior management personnel shall be regulated by the will of the parties, subject to the rules of this Royal Decree and other applicable regulations.

Two. The other rules of the common labor legislation, including the workers’ statute, will only be applicable in the cases where there is an express remission in this Royal Decree, or this is especially stated in the contract.

Three. In what is not regulated by this Royal Decree or by agreement between the parties, the provisions of civil or commercial legislation and its general principles will be subject to.”

Likewise, article 4 of the aforementioned Royal Decree, establishes in its section Two, that the contract must contain at least:

“c) The agreed remuneration, with specification of its various items, in cash or in kind.”

According to the precepts transcribed, in order for the personnel linked by a high-management employment contract to be entitled to the perception of trienniums or assimilated amount, the employment contract must provide for the recognition and perception of complement due to seniority, establishing, in addition, expressly, within the aforementioned complement, the “previous services” that can be recognized for this purpose.

Pursuant to the foregoing, staff bound by a high-management employment contract will only be entitled to the payment for seniority that may correspond to them when expressly provided for in the contract, in the cases and with the conditions that have been agreed.

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.