Possibility of perceiving triennials in the case of employees who provide services as temporary staff, and who would have accrued since they have been occupying such jobs as temporary staff. Special mention to the Judgments of the Supreme Court of 21 January 2016 and of the High Court of Justice of Madrid of 11 December 2020 on this matter.

The consultation is about the possibility of perceiving triennials in the case of employees who provide services as temporary staff, and who would have accrued since they have been occupying such jobs as temporary staff.

First, it is necessary to point out that it does not indicate whether or not the contingent personnel referred to have the status of a career official, as well as, if so, in what administrative situation they are in.

First, it is appropriate to examine the legal regime of the contingent personnel, according to the definition made by article 12 of the consolidated text of the Law on the Basic Status of the Public Employee (TRLEBEP), approved by Royal Legislative Decree 5/2015, of 30 October, according to which, “it is contingent personnel who, by virtue of appointment and on a non-permanent basis, perform only functions expressly qualified as trust or special advice, being paid from the budgetary appropriations appropriated for this purpose”. Likewise, “The general regime for career officials shall apply to contingent personnel as far as is appropriate to the nature of their status.”

Article 23 of Act No. 31/2022 of 23 December on the General State Budget for the year 2023 provides:

“Four. The contingent personnel shall receive the salaries and extraordinary payments corresponding to the classification group or subgroup to which the Ministry of Finance and Public Service assimilates its functions and the additional salaries corresponding to the job, reserved for contingent personnel, that it performs, being applicable to this group the provisions of paragraph 1 (B) of this article.

Career officials who, in an active or special service situation, hold posts reserved for contingent personnel shall receive the basic salaries corresponding to their classification group or subgroup, including trienniums, as the case may be, and the supplementary salaries corresponding to the job they hold.”

In this way, a specific pay system has been established for temporary staff, which, although based on the model envisaged for civil servants, introduces a series of specifications to adapt it to the specific nature of these staff. Thus, from the reading of the aforementioned precept, it can be inferred that the legislator has expressly provided that temporary staff should receive the additional remuneration corresponding to the job, determining that for the functions performed in posts belonging to the category of temporary staff only the payment of trienniums to career officials corresponds.

Secondly, in view of the issue raised in the consultation, it is appropriate to analyse, first of all, the content of the Judgments referred to in the Consultation section.

On the one hand, the Judgment of the High Court of Justice of Madrid of December 11, 2020 in which it is indicated has recognized the right of the contingent personnel to perceive the trienniums.

In relation to the Judgments of the TSJ, we cannot conclude that they are not correct from the legal point of view, but an isolated pronouncement does not create doctrine that, according to article 1.6 of the Civil Code, will be the one that “repeatedly establish the Supreme Court when interpreting and applying the Law, custom and general principles of law.”

On the other hand, the content of the judgment of the Third Chamber of the Supreme Court of 21 January 2016, (Rec. 526/2012), in accordance with the provisions of the Court of Justice of the European Union (ECJ), in relation to its request for a preliminary ruling, dealt with as case C-177/14, by judgment of 9 July 2015, which resolves the following:

“(1) The concept of a fixed-term worker within the meaning of Clause 3(1) of the Framework Agreement on fixed-term work concluded on 18 March 1999 annexed to Council Directive 1999/70/EC (EDL 1999/66412) of 28 June 1999 concerning the Framework Agreement on fixed-term work between the ETUC, UNICE and CEEP is to be interpreted as applying to a worker such as the applicant in the main proceedings.

(2) Clause 4(1) of the Framework Agreement on fixed-term work is to be interpreted as precluding a national rule, such as that at issue in the main proceedings, which excludes, without any justification for objective reasons, temporary staff from the right to receive the three-year periods granted, in particular, to career officials, when, in relation to the receipt of such a salary supplement, both categories of workers are in comparable situations, which is for the referring court to verify.

Although this ruling constitutes a judicial declaration in the procedural framework of the preliminary ruling issued by the Supreme Court, the effects of which only bind the judge who brought the case and the parties to the specific dispute to the authority of res judicata; it must also take into account the importance of Community jurisprudence for the various Member States, including that generated by the resolution of preliminary ruling cases, which could lead, in practice, to the Member States re-examining their existing domestic legislation in order to verify whether or not it conforms to such a decision.

In this regard, it is appropriate to examine one of the essential aspects of the ECJ Judgment under analysis, which states the following:

“(…) since it follows from the case-law of the Court of Justice relating to trienniums, such as those at issue in the main proceedings, that these are working conditions, within the meaning of Clause 4(1) of the Framework Agreement, workers on fixed-term contracts cannot, without any objective justification, be treated less favourably than permanent workers in a comparable situation (…).

(…) In order to assess whether certain workers perform identical or similar work within the meaning of the Framework Agreement…, a number of factors, such as the nature of the work, training conditions and working conditions, must be taken into account.

(…) In the present case, the Spanish Government observes that temporary staff is a professional category different from the other categories of public employees established in Spanish law, with respect both to their service relations, their tasks or the functions they perform, as well as to the selection criteria or their pay regime (…)”.

In the light of the above, the fragments reproduced must be confronted with the essential nature of trust that corresponds to the contingent personnel in the Spanish Administration, a nature radically different from that of the other public employees, be they civil servants or labor personnel.

Thus, as determined by the aforementioned Article 12 of the TRLEBEP, “Contingent personnel are those who, by virtue of appointment and on a non-permanent basis, perform only functions expressly qualified as trust or special advice (…). The appointment and cessation will be free. The cessation will take place, in any case, when the authority to which the trust or advisory function is given takes place. The status of temporary staff may not constitute merit for access to the Public Service or for internal promotion (…)”.

This staff therefore performs advisory functions of a “political nature”, as it has traditionally been called, and their selection responds to criteria of very wide discretion; not governing for it the principles of merit and capacity, unlike what happens with the rest of public employees. Therefore, the temporary staff, related to the special trust that the high office that appoints them places in him, acquires precise and specific socio-professional characteristics in our national legal system and that would justify for the legislator a treatment that is also clearly differentiated.

In this regard, the Supreme Court’s own jurisprudence maintains that the posts reserved for temporary staff are exceptional and are limited to “functions of trust or special advice that legally delimit this specific class of public personnel”. Accordingly, it considers that such personnel should be excluded from the professional tasks of collaboration that are envisaged in the normal functions of the Administration, either in the external functions of service provision or in the internal functions of pure administrative organization. For all of these reasons, the Judgment of the Administrative Litigation Division of the Supreme Court of 25 April 2008 (Rec. Cassation No 3010/2005), which deals in detail with the figure of contingents, in which its exceptionality is made clear and its total exclusion from the professional actions of officials is recalled, “that by the direct connection they have with the constitutional principles of objectivity and administrative effectiveness, they must be assigned to public personnel selected under the principles of equality, merit and capacity.”

A different issue concerns the situation in which an abuse of law or fraud of law might occur in the use of this category, in cases where the analysis of the functions and tasks of the contingent personnel revealed that there is no difference with respect to the posts of career officials or staff.

In this regard, the ECJ’s own judgment states that:

“In any event, it is incumbent upon the referring court to determine whether, in respect of the perception of the trienniums at issue in the main proceedings, the career and contingent personnel, in respect of whom a difference of treatment in respect of working conditions is alleged, are in a comparable situation (…).

If the court finds that the plaintiff’s professional duties in the main proceedings as temporary staff in the Council of State are not identical or analogous to those of a career official in that body or in other bodies where she served in the past in that capacity, it follows that the plaintiff in the main proceedings is not in a situation comparable to that of a career official.”

For its part, the judgment of the Supreme Court of 21 January 2016, in coincidence with the declaration of the ECJ, maintains that the temporary staff covered by our legal system fall within the concept of fixed-term worker contained in the European regulations on the Framework Agreement of the ETUC, UNICE and CEEP on fixed-term work, and therefore the principle of non-discrimination proclaimed in Clause 4 of that Framework Agreement annexed to Directive 1999/1970, in particular in the case of the unique services performed by the applicant as temporary staff, is equally applicable.

However, in the light of this consultation, it should be noted that the effects of the judgment under consideration are limited to a specific case, in which certain particularities are revealed that differentiate the position of the personnel concerned.

In this regard, attention should be drawn to the provisions of the ninth legal basis of the Supreme Court ruling, which states that: “(…) The decision adopted in this judgment refers to the specific positions held by the appellant as temporary staff and therefore does not mean that any position held by temporary staff is necessarily in a situation comparable to that of career staff. We will have to focus on the peculiarities of each case and, in particular, the specific professional role of the position in question.”

Thus, according to the tenth legal basis of the same, the recognition of the right to triennium occurs in the legal sphere of the worker, with the specific scope established in the judgment, taking into account the specific circumstances of the case analyzed and in the terms resulting from the reasoning of the judgment itself.

In view of the foregoing, it may be concluded that, in the opinion of this unit and in accordance with the regulations in force, it is considered that the recognition and consequent payment of triennials to contingent personnel who do not also have the status of a career officer would not be appropriate.

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.