The question raised relates to the possibility that officials working on a special duty basis may avail themselves of conciliation measures in general and, in particular, of changing the fixed hours by a maximum of two hours for reasons directly related to the conciliation of personal, family and working life.

Firstly, the legal framework for implementation needs to be analysed. In this context, it should be remembered that the Public Administrations are competent to establish the organization of the working time of the staff at their service, in accordance with the provisions of Articles 47 and 51 of the TREBEP.

Thus, in the field of the General Administration of the State, the Resolution of February 28, 2019, of the Secretary of State for Public Service, which dictates instructions on working hours and hours of the staff in the service of the General Administration of the State and its public bodies, is applicable.

The consultation makes specific reference to the measures for reconciling family and working life, in particular the modification of the fixed schedule by a maximum of two hours contained in section 8.4 of the Working Hours and Working Hours Instructions in the following terms:

“Exceptionally, the competent human resources bodies may authorize, on a personal and temporary basis, the modification of fixed hours by a maximum of two hours for reasons directly related to the reconciliation of personal, family and working life, and in the case of single-parent families.”

In the consultation carried out, it is asked in the abstract for the measure of modification of the schedule provided in section 8.4 of the Working Hours and Hours Instructions, without providing more information on the specific assumption of conciliation that motivates the request for this measure.

It follows from the literal tenor of this precept that, in the first place, the existence of a given factual assumption must be justified in relation to “reasons directly related to the reconciliation of personal, family and working life, and in the case of single-parent families”. Thus, the competent personnel unit must assess the concurrence of this assumption for each specific case.

In addition, it is noted that the raison d’être of paragraph 8.4 is the introduction of a closing clause that exceptionally empowers personnel units to change the fixed hours of public employees on a personal basis in order to deal with an interim situation not resolved by paragraph 8. In particular, the provision itself states that it is an exceptional measure, and therefore that it must be granted in a restrictive and time-limited manner.

In this case, it is not possible to deduce from the consultation what the precise situation of the flexibilization of the schedule is. Therefore, in any case, the applicant must provide the Administration with all the information that allows the personnel unit to assess, where appropriate, the appropriateness of granting, exceptionally, the modification of the working hours.

Taking into account the above, the question raised focuses on the possibility of recognizing the modification of fixed hours in a maximum of two hours to staff with special hours of work.

Paragraph 8.4 of the Resolution specifically provides for the possibility of modifying the fixed timetable for conciliation purposes. However, there is nothing specific as to who is eligible for such a change.

Given the lack of specificity in the regulation, and in accordance with both a systematic and a teleological interpretative exercise of the rule, it is difficult to deduce from the literal tenor of the precept the desire to establish a restriction on staff with special hours of work.

On the other hand, this paragraph does not specifically prevent the conciliation measures provided for in that paragraph from being applied to civil servants on a working day on a special basis, contrary to what is expressly established for the reduction of working hours in particular interest in paragraph 5.2 of the Resolution of 28 February 2019.

In relation to how these measures are to be implemented, in the interests of the correct application of hourly flexibility, it is necessary to take stock of the two interests at stake: on the one hand, the general interest, which is satisfied and guaranteed by the provision of public service by the official; and on the other, the conciliation of the family and professional life of the public employee.

Through the hourly flexibility measures, the intention is to reduce the burden of working life linked to staff, that is to say, to facilitate public activity with private life, but this attempt to combine both situations cannot under any circumstances lead to the interruption, reduction or worsening of the public services entrusted. General interests must always take precedence over private interests, and, therefore, continuity and guarantee in the effective provision of the public service must take precedence over time flexibility or any other alteration of the working hours and timetables that may be detrimental or detrimental to general interests and citizens’ rights.

In addition, the provisions for the distribution of the day must be taken into account in the Resolution of 28 February 2019.

Thus, paragraph 4, concerning the working day under special dedication, provides that:

“The duration of the day of the staff who perform jobs considered to be of special dedication will be 40 hours per week, without prejudice to the increase in the hours that is exceptionally necessary for the needs of the service. (…)”

Although paragraph 4 does not provide that the day of special dedication must be morning and afternoon, from the data provided to the consultation it is understood that the day of special dedication in that Centre is distributed in morning and afternoon.

In relation to this distribution of the day, Section 3.2.b) of the Resolution provides that:

“3.2 The distribution of the weekly working day will be carried out:

(b) Morning and afternoon sessions. The fixed time of presence at the workplace will be from 9:00 a.m. to 5:00 p.m., from Monday to Thursday, with an interruption for food that will not be counted as actual work and that will be at least half an hour, and from 9:00 a.m. to 2:30 p.m. on Fridays, without prejudice to the time applicable to staff assigned to offices with uninterrupted opening to the public that has special regulations. The rest of the day, until the end of the thirty-seven and a half hours or the forty hours weekly, according to the dedication regime, will be held in flexible hours between 7:00 and 9:00 hours, from Monday to Friday, and between 17:00 and 18:00 hours, from Monday to Thursday, as well as between 14:30 and 15:30 hours on Fridays.”

That is to say, the fixed time of presence at the workplace will be from 9.00 to 17.00 hours, so if the interested party requests to leave at 15.30, as consulted in his letter, in the opinion of this Steering Centre a priori it would be possible, since paragraph 8.4 of the Resolution provides for the possibility of making the fixed time flexible up to a maximum of 2 hours.

By virtue of the above, it could be concluded that it would be possible for civil servants with special hours to request the conciliation measures provided for in paragraph 8.4 of the Resolution of 28 February 2019, however, it must be taken into account that it is an exceptional and temporary measure, so the period for which such measure is requested must be fixed, in addition, it will be subject to the needs of the service and may not involve an interruption, reduction or worsening of the public services entrusted.

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.