The consultation deals with the disciplinary regime applicable to non-contractual workers, especially with regard to the definition of serious and minor offences.

In general, the legal regime applicable to labour personnel in the service of public administrations is bifronted, formed both by the consolidated text of the Law on the Basic Status of Public Employees, Royal Legislative Decree 5/2015, of 30 October (TRLEBEP) and by the consolidated text of the Law on the Status of Workers, Royal Legislative Decree 2/2015, of 23 October (TRET).

Article 7 of the TRLEBEP states that “Labour personnel in the service of public administrations are governed, in addition to labour legislation and other conventionally applicable rules, by the provisions of this Statute that so provide.”

Likewise, Article 3.1(b) and (c) of the TRET establishes that the employment relationship is a source, immediately after the State regulations, collective agreements and the will of the parties, but, with regard to the latter, care is taken to point out the aforementioned letter (c) that under no circumstances may be agreed individually less favourable conditions than those established in the State regulations and also in the conventional ones. Finally, it refers to local and professional customs and practices.

This set of rules has sometimes led to difficult integration. Noteworthy in this regard is the judgment of the Supreme Court dated 23 May 2013, which resolves appeal No. 2178/2012, and which states that:

"... After the entry into force of the EBEP, by means of Law 7/2007, the labour staff in the service of the Public Administrations is governed by what results from it, as well as by the labour legislation that is applicable according to the provisions of the EBEP. This is stipulated in art. 7, referring to the "regulations applicable to labour personnel" (…) It is therefore a detailed exclusion technique, so that the rule of labour legislation is excluded when it is laid down in the EBEP itself to accommodate its specific rule; all this, leaving the role of collective bargaining in the matters in which availability depends (as we highlighted in the STS of 7 December -rcud. 4318/2009 and RCUD. 4415/2009- and 9 December 2010 -RCUD. 4178/2009-, in relation to the permits for private matters in which specific regulation existed in the applicable collective agreement)..."

The case that concerns us refers to the staff of the National Orchestra of Spain. As indicated in the letter of consultation, the personnel employed in the service includes persons included in the IV Single Collective Agreement for the Labour Personnel of the General Administration of the State, persons with a senior management contract and persons contracted out of agreement.

Both senior management and non-contract staff are expressly excluded from the scope of the Fourth Single Collective Agreement in Article 2(c) and (f) respectively.

In the case of personnel hired under the senior management system, the provisions of Royal Decree 1382/1985, of 1 August, regulating the special employment relationship of senior management personnel, apply. Specifically, with regard to the applicable regime in relation to misdemeanours and disciplinary sanctions, article 13 states that:

“The senior manager may be sanctioned by virtue of non-compliance with the obligations arising from this special relationship, in the terms agreed in the contract. The misdemeanours and corresponding penalties shall be subject to review before the social jurisdictional order. Such misdemeanours, whatever their nature, shall be prescribed twelve months after their commission, or after the entrepreneur had knowledge of them.”

It must be borne in mind that the period of limitation of sanctions will be the one determined on a special basis in the aforementioned provision and not the generic period regulated in article 60.2 of the TRET, as the Supreme Court has had occasion to state (judgment of 22 October 2003, appeal No. 470/2003).

Notwithstanding the above, the legal regime relating to disciplinary dismissal for contractual breaches referred to in Article 54 of the TRET shall also apply to senior management personnel.

Similarly, Article 4.2 of Royal Decree 451/2012, of 5 March, which regulates the remuneration of top managers in the public business sector and other entities, refers when, for its specific scope, it determines the system of sources applicable to managers bound by senior management contracts in the public business sector.

With regard to non-contractual personnel, their specific legal regime applicable in disciplinary matters will have to be determined, as for senior management personnel, to the contract of employment signed by the worker. This is without prejudice to the fact that the employment contract itself may provide in some of its clauses for the supplementary applicability of a certain collective agreement for certain matters. Beyond what is stipulated in the contract of employment, in the absence of an applicable collective agreement, the provisions of both the TRLEBEP and the TRET in disciplinary matters shall apply.

The disciplinary authority provided for in the TRLEBEP is provided for in its Title VII. Article 93.1 states that “Civil servants and labour personnel are subject to the disciplinary regime established in this Title and in the rules that the Civil Service Laws dictate in the development of this Statute.”

Article 94 of the principles governing disciplinary authority states that: “Principle of legality and typicity of misdemeanours and penalties, through regulatory predetermination or, in the case of labour personnel, collective agreements”.

This implies that, for labour personnel, it is only by applicable law or conventional regulation that misdemeanours and their respective sanctions can be established on a general basis.

As mentioned in the consultation letter, the TRLEBEP only explicitly defines very serious misdemeanours, while serious and minor misdemeanours will have to be established in a legal or conventional standard that is applicable. In the present case, there is no law for the development of the TRLEBEP that defines serious and minor faults in the absence of a collective agreement of application, unless expressly referred in the employment contract, it only remains to refer to the Workers’ Statute.

The only reference made in the Workers’ Statute to the characterization of disciplinary offences, other than the enumeration of contractual breaches that may give rise to disciplinary dismissal, is made in article 58, which only refers to legal or conventional rules that carry out the characterization.

Therefore, unless expressly provided for, both directly and by way of referral to the IV Single Collective Agreement, only the disciplinary provisions contained in the TRLEBEP and the TRET shall apply to senior management personnel and outside the agreement.

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.