Prior service recognition – Type of linkage

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

" Effective services shall be deemed to be all those indistinctly rendered to the areas of public administration referred to in the preceding paragraph, whether as an employment officer (temporary or interim) or under an administrative or labour 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 previous services in the Public Administration, provides for the recognition of previous services without the modality of chosen working hours (full-time or part-time) being relevant, 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, makes any distinction in this regard.

In addition, for the purposes of triennials, it must be taken into account that these constitute basic remuneration that are not conditioned by any rule other than the actual provision of services for three years, the recognition of which does not depend on the type of working day chosen by the staff member, 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 staff member provides his services at any time, in his or her capacity as basic remuneration.

II. Doctorate.

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 is studying.

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

III. Social collaboration services in a local entity.

In order to be able to determine whether the services provided as a Social Worker in a Local Entity can be the object of 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 must be examined.

In this case, we must refer to Royal Decree 1809/86, of 28 June, which modifies Royal Decree 1445/1982, of 25 June, on various measures to promote employment which regulates, among them, the work of social collaboration.

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

“The Public Administrations may use workers receiving unemployment benefits without loss to them of the amounts received in such a way, in temporary collaborative work that meets the following requirements:

(a) That they are of social benefit 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) To 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 states that:

“The work of social collaboration that the management entity may demand from the recipients of unemployment benefits shall not imply the existence of an employment relationship between the unemployed person and the entity in which such work is provided, 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 provision we have just stated that: "clearly and emphatically excludes any possibility of an employment relationship between the Public Administration receiving the work of social collaboration and the unemployed person providing such work and the lack of such employment prevents the termination from being described 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 protecting 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 and the entity in which such jobs are provided, the unemployed continuing to collect their benefit through the State Public Employment Service.

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

IV. Services provided as a high charge.

From the literal tenor of Law 70/1978 we can deduce that 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 employment contract. This establishes numerus clausus the types of links that will give rise 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 27 October 1989, which establishes the criteria for the interpretation and application of Law 70/1978, of 26 December, and the Judgment of 26 January 1995 of the Supreme Court, Chamber 3, which unifies the doctrine, hitherto contradictory, which are pronounced in the same sense, should 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 officer, administrative or employment contract, but always the functional link or the legal-employment relationship was carried out in the service of an area of the Public Administration, that is, of personified entities of a public nature to which both officials under the statutory regime, as well as under the regime of administrative or employment contract could be linked.”

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

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

It would be different if the person concerned had previously held the status of a career official and was in the administrative position of special services, in which case it would be possible to recognize such services in accordance with article 87.2 of TREBEP.

V. 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 likely to be recognized in the light of the provisions of Law 70/1978, of December 26.

As indicated above, in order for the recognition of services to take place, Law 70/1978, of 26 December, requires that they have been provided under the status of official, interim, temporary staff or under administrative or employment contracts.

The Mayor is an elected public office which, as stipulated in article 21 of Law 7/1985, of 2 April, on Local Government Bases, is responsible for “directing the municipal government and administration”. Charge that, although it may involve the discharge of the interested party in the corresponding Social Security Regime, this 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 a personal of the Local Entity that directs; therefore, the performance of the position of Mayor would not meet 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 December 26, on the recognition of previous services in the Public Administration, provided under administrative contracting, in accordance with the legislation of contracts of the public sector.

On the basis of 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 Civil Service, the following is established:

“1. From the date of entry into force of this Law, contracts for temporary cooperation 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 legislation of State contracts, 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 specific works" was deleted, 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.

At present, Law 9/2017, of 8 November, on Public Sector Contracts regulates service contracts, recasting the above 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 to be contracted cannot be coincident with the normal and permanent needs of the contracting administrations, which are satisfied through the activity carried out by the officials or by those contracted in work.

However, it is worth mentioning the exception that, for the purposes of calculating services provided under administrative contracts, establishes paragraph two of the first article 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 the system of administrative or employment contracts be computable when, by breaking the legal link with the Administration and receiving the corresponding compensation, the interested party renounced 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, states that “shall be carried out by applying to them the value corresponding to those of the Body, Scale, staff or position with functions similar to those performed during the time of services rendered that are recognized in accordance with the provisions of the previous article.”

By virtue of the foregoing, it has been understood that only services provided under a temporary administrative collaboration contract would be recognizable for the purposes provided for in the aforementioned Law 70/1978, since these 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 Civil Service, from which this contractual figure is expressly prohibited in the context of the Civil Service, as provided for in its fourth additional provision in the first point.

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

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.