October 26, 2020

The Supreme Court rules that the temporary frauds of public companies are considered “indefinite not fixed” and not “fixed” permanent


New doctrine on the abuses of temporary contracts in the Public Administration. In this case, in public companies. The Plenum of the Social Chamber of the Supreme Court has issued two sentences for the unification of doctrine in which it determines that temporary workers hired in fraud of law by state mercantile companies should be considered “permanent non-permanent” and non-permanent workers of permanently in these companies, as the Supreme had established in other previous resolutions.

A judge recognizes for the first time the permanent position to an interim who had been a temporary 13 years

A judge recognizes for the first time the permanent position to an interim who had been a temporary 13 years

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The high court estimates two recourses of unification of doctrine presented by AENA, which was sued and sentenced to consider as permanent workers two employees of the Barcelona-El Prat airport, in the first case, and a worker at the Lanzarote Airport in the second . All of them fraudulently chained temporary contracts for several years.

AENA lost in the courts in the first instance and also before the Superior Courts of Justice of Catalonia and the Canary Islands, so it presented these appeals for unification of doctrine before the Supreme Court, which has partially estimated the appeal of the public company that manages airports in Spain. Thus, it establishes that these workers cannot be considered as permanent staff, as is the case in the private sector in general in temporary abuses, to “safeguard the right of citizens to be able to access public employment on equal terms” in these public enterprises.

The magistrates opt for the figure of the “indefinite not fixed”, of jurisprudential creation for the abuses in the temporality in the Public Administration, which supposes that the temporary employees in fraud of law can remain in their positions, but only until they proceed to the regular coverage of the place, either because it is awarded through a selective process or because it is amortized.

Objective of equal access to public employment

The Supreme Court maintains that this figure of the “indefinite non-fixed” is intended to “safeguard the principles to be observed in access to public employment”, it must be complied with in public administrations but also in public entities and companies “whose regulations provide for access while respecting the criteria of equality, merit and ability “.

The two Supreme Court rulings have received a discordant particular vote from the magistrate Antonio V. Sempere, who defends that the AENA appeal should have been dismissed, so that the workers affected by the successive chain of temporary contracts in public companies, which are not “public entities”, he specifies. “A public business entity has ontology of Public Law (art. 103.1 LRSJP) and a commercial company, although it is integrated into the public sector, has the nature of Private Law,” argues in the particular ruling.

The result of the sentence “ends up preferring a hermeneutic option that borders the application of common labor standards without a constitutional requirement or a clear legislative mandate,” says Antonio V. Sempere, who considers that “the extension of the subjective scope of the figure of the “Undefined not fixed” is done to the detriment of those who work “and in an unjustified manner.

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