The consultation is about the application of the timesheets provided for in paragraph 8.8 of the Resolution of 28 February 2019, which dictates instructions on working hours and hours of the staff in the service of the General Administration of the State, and, in particular, about whether the hours available can be accumulated in full days and whether the timesheets are compatible with working hours on a special schedule and with the flexible hours of fixed working hours.

In addition, clarification is requested as to the cases that might be covered by the figure of the pocket of hours in front of the permit for inexcusable duty.

The measure for the reconciliation of family and working life relating to the exchange of hours is regulated in paragraph 8.8 of the Resolution of 28 February 2019, the first paragraph of which determines that:

“8.8 Public employees may have at their disposal a pocket of hours of up to 5% of the annual working day of each employee, for cases of care of children under age and minors subject to guardianship or care; and for the care of elderly persons and persons with disabilities up to the first degree of consanguinity or affinity.”

Three notes can be derived, in general, from the figure that is created:

(i) The measure has been configured from the point of view of maximum flexibility, and therefore its regulation is aimed at facilitating, enhancing and allowing the use of the measure in the most flexible and flexible way for the care of children under age and minors subject to guardianship or placement; and for the care of elderly persons and persons with disabilities up to the first degree of consanguinity or affinity.

(ii) The time bag has been configured as an additional hourly flexibility measure to those already existing, and in no case does it nullify or replace the permits or the licenses already regulated.

(iii) The specific measure is structured according to a mixed model, in which the enjoyment of part of the bag of hours is permitted on a punctual basis for the necessary time per hour; and part also consecutively and accumulated in full days.

The fifth and sixth paragraphs of paragraph 8.8 of the working hours instructions state the following:

“The hours may be accumulated in full days provided there is a justified reason for it, considering the peculiarities of the provision of public service.

Work schedules may establish the limits and conditions of accumulation of these hours without reaching full days provided it is compatible with the organization of work, as well as the adaptations that may be necessary for the peculiarities of certain areas or groups.”

In this way, the pocket of hours for conciliation consists essentially of a measure of hourly flexibility, which allows the provision of free hours, later recovered, to better adapt the working hours to the care of minors or care of elderly people with disabilities.

Reference must also be made to the Agreement of the Higher Personnel Commission concerning the criteria for the application of the hourly flexibility measure “time bag” provided for in paragraph 8.8 of the Resolution of February 28, 2019, of the Secretary of State for Public Service, by which instructions are issued on working hours and hours of staff in the service of the General Administration of the State and its public bodies.

The aforementioned Agreement indicates the characteristics of the pocket of hours and, in particular, in its point 1.2 determines that this figure “It consists of an additional hourly flexibility measure to the existing ones, and in no case does it nullify or replace the permits or licenses already regulated. In other words, it is a measure with its own identity and differentiated with respect to other permits and conciliation measures provided for in the current legislation; it should not be assimilated de facto and in practice to days of free disposal, but it is a measure of hourly flexibility for the best conciliation in the cases provided in the instructions on working hours and hours.”

In this sense, it must be taken into account that the time bag is articulated according to a mixed model, in which the enjoyment of part of the time bag is allowed in a punctual manner for the indispensable time; and part also consecutively and accumulated in full days.

Thus, the ordinary form of application of the pocket of hours will be the provision of free hours, subsequently recovered. Together with this ordinary form of provision, two forms of application are also envisaged, on an extraordinary and justified basis: the accumulation of several hours without involving a full day; and the accumulation of several hours in a full day; in both cases with their subsequent and subsequent compensation.

The application of the timesheets must be carried out by means of an appropriate weighting: between the worker’s interest in the use of this conciliation measure and his disposition in the way that best serves him for the care of the family referred to in paragraph 8.8 of the Instructions on working hours and hours; and the interest of the unit in which he carries out his duties, and the needs and peculiarities of the service to be covered.

Thus, as can be seen from the wording of the fifth paragraph of paragraph 8.8, accumulation in full days must be assessed on a case-by-case basis, depending on the specific justification for its suitability and suitability for the peculiarities of the provision of the public service. In any case, the provisions of section 1.2 of the Agreement of the Higher Personnel Commission referred to above must be taken into account.

With regard to whether the conciliation measure relating to the pocket of hours is compatible with the working day on a special schedule, it should be noted that the pocket of hours is not restricted in terms of the specific schedule of staff; thus, the first paragraph of paragraph 8.8 refers to the purpose of the measure, which may be “up to 5% of the annual working day of each employee”, referring, therefore, to 5% of the specific working day of each employee. It is therefore compatible with the system of special dedication and is calculated with respect to the annual working day of each staff member, a total on which the calculation of 5 per cent will have to be applied on a case-by-case basis.

As to whether the time slot is compatible with fixed time flexibility, it should be noted that no provision is made in this regard for the impossibility of its application coinciding with other flexibility measures. It must be taken into account, in any case, that the figure of the stock exchange has a nature and identity of its own and differentiated with respect to other permits and conciliation measures provided for in the current legislation that could also be applied in the case under consultation (days for private matters, leave without pay, hourly flexibilities, etc. ); so that its purpose should be able to be differentiated from that of other flexibility measures and only applied to meet those situations for which the remaining measures or permits are not applicable.

With regard to the last of the questions, that is, the delimitation of the pocket of hours with respect to the permit for inexcusable duty, the following should be reported:

The regulation of this permit is found in article 48.j) of the consolidated text of the Law of the Basic Status of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP), which regulates it in the following terms: “Public officials will have the following permits: […] j) For a time indispensable for the fulfillment of an inexcusable duty of a public or personal nature and for duties related to the conciliation of family and working life.”

The “inexcusable duty”, configured as an indeterminate legal concept, has been defined, as contemplated in the Manual of Human Resources Management Procedures, published by Resolution of December 14, 1992 of the Secretary of State for Public Administration, as that obligation incumbent on a person whose breach generates a civil, criminal or administrative responsibility; definition that has been accepted by the Courts of Justice (among others, Judgment 272/2016, of April 27, of the Contentious Chamber of the Superior Court of Justice of Galicia).

Therefore, and insofar as its nature as an undetermined legal concept prevents it, it is not possible to carry out, in advance and with general scope, a specific and valued enumeration of the cases in which it could be applied automatically. In this regard, reference has again been made to the aforementioned Agreement of the Higher Personnel Commission, which regulates in its point 2 the coexistence of the pocket of hours with the permission for inexcusable duty in the following terms:

“Without prejudice to the fact that the factual assumptions that cover both the pocket of hours and the permission for inexcusable duty can share some of the notes presented above, it can be said that some of them are given with greater intensity depending on the measure or permission to which we refer, as follows:

With regard to the permit for inexcusable duty for reasons of conciliation regulated in article 48 (j) of the TRLEBEP and article 75 (f) of the IV CUAGE:

2.1. In principle and in general, it can be said that it has as a defining element that the cases in fact have an obvious seriousness, so that they are obligations whose non-compliance generates a direct and personal responsibility to the interested party of a civil, criminal or administrative nature.

2.2. This is a residual permit, of subsidiary application, in the sense that it applies only when there are no other permits or measures to cover the situation that is intended to be protected through it.

2.3. It must therefore confine itself to specific and unforeseeable situations, which do not extend over time, and exceptional ones, which are not repeated; otherwise, it would seem appropriate to apply other measures of conciliation or flexibilization of the working day, permits and surpluses enjoyed by officials, whose concession, conditioned on the needs of the service, will be authorized or denied on the grounds of the hierarchical superior.

Regarding the hourly flexibility through the Time Bag:

2.4. According to paragraph 8.8 of the day and time instructions, it can only be applied for cases of care of children under age and minors subject to guardianship or care; and for the care of elderly people and people with disabilities up to the first degree of consanguinity or affinity.

2.5. It does not share the note of the residual nature of the permit being preached for inexcusable duty, and by comparison with it it has as a defining element that the assumptions are in fact of lesser gravity.

2.6. Like the permit for inexcusable duty, the pocket of hours may deal with unforeseeable situations, usually accompanied by situations with obvious overcoming urgency, which demand the presence of the interested party; but, unlike the permit for inexcusable duty, it can be applied to more predictable or even repeated situations over time, provided that it is compatible with the organization of work, and provided that its application is not assimilated de facto and in practice to that of days of free disposal.”

The above-mentioned points should serve as a guide for the units responsible for human resources to resolve the matter, taking into account the circumstances prevailing in each specific case.

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.