The Supreme Court has issued a ruling in which it establishes that the municipalities must respect the fixed contracts of the workers of a contract when a service is remunicipalized. The judges have reached this conclusion after studying the case of the Pamplona City Council, which in 2017 assumed direct management of the home care service, with several workers taking their case to the Supreme Court to demand recognition as permanent workers of the consistory and not as indefinite non-fixed staff. The remunicipalization process of this service has been controversial and questioned after the change of government in Pamplona in 2019.
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The change came to the Pamplona administration in 2017, when the local government headed by Joseba Asiron (EH Bildu) agreed to the subrogation of 166 contracts to the municipal company Asistencia Municipal en Casa (ASIMEC) that were previously under the control of the contractor Servisar . At the time, the council's calculations estimated that annual spending would rise slightly to more than 5,000 million euros per year. The current corporation of Enrique Maya (Navarra Suma) commissioned an audit that, according to your dataaffirms that the operation has cost money to the public coffers and has reduced the service and a year ago announced changes in the management model.
In the labor field, the battle was raised in the courts for the fate of the more than one hundred workers of the contractor who were subrogated in ASIMEC. Many of them brought their case before the Superior Court of Justice of Navarra: women who, in some cases, worked for Servisar from the end of the 1990s until in 2017, after the remunicipalization, the consistory informed them that they were going to form part of the workforce but "as non-permanent indefinite labor personnel until the place is provided in a statutory manner or its amortization is carried out".
The social courts agreed with the workers, but the Superior Court of Navarra agreed with the Pamplona council and the case ended up in plenary session of the social chamber of the Supreme Court. In a statement, the room chaired by María Luisa Segoviano explains that in this type of case the workers of a service that returns to municipal hands "must maintain the condition" of permanent, and it is not enough to make them permanent non-permanent, with all the differences in terms of labor rights and job stability that this entails.
This, according to the Supreme Court, "has all its meaning as long as the development of the functions remains assigned or related to the productive unit that was transmitted, but it loses its foundation and purpose when it no longer happens that way. The fixity is not acquired unconditionally in all the scope of the employer, but functionally limited to the purpose of the transfer, and without prejudice to the fact that vicissitudes may occur that it is not for us now to venture".
The complete arguments of the Supreme will be known in the coming days. Until now, the Superior Court of Navarra had rejected this option and had agreed with the Pamplona Town Hall. "Constitutional principles prevail, more specifically the requirement of submitting to a prior selection process in order to access the status of permanent worker" in the City Council. This type of subrogation, becoming indefinite and not fixed, according to the Navarrese TSJ did not imply harm to the workers who appealed.
"In the same way that the irregularities committed by an administration in the hiring can never determine the recognition of the worker affected by the fixed condition, neither can said consequence derive from subrogation when it comes to a public administration, where the principles of equality, merit and capacity in access to it," said the TSJ.