The European justice rules that compensating or making long-term temporary workers permanent is not enough

Brussels / MadridEuropean justice once again rules against Spain for the abuse of long-term temporary staff in public administrations throughout the State. The Court of Justice of the European Union (CJEU) ruled this Tuesday that the measures provided for by Spanish legislation to sanction and compensate the "abusive use" of these workers in the public sector are insufficient. Specifically, the Luxembourg court concludes that measures such as the transformation of these temporary contracts into an indefinite but not permanent employment relationship, the payment of compensation to the worker at the time of contract termination, or the call for selection processes that take into account the worker's previous experience do not remedy the fact that Spanish regulations violate EU law.

In this way, the highest court of European justice has ruled that these measures "do not seem to adequately sanction the abusive use" of long-term temporary staff by the various administrations throughout the State and concludes that "they also do not eliminate the consequences of violating European Union law" by Spain in labor matters. "The measure entails maintaining an employment relationship of a temporary nature and, therefore, the precarious situation of the affected worker," argues the CJEU, which also recalls that "job stability is conceived as a primary component of worker protection."

The Luxembourg court warns that its role is not to rule on all cases of long-term temporary staff that reach the Spanish justice system and, in any case, clarifies that its intention is to "provide clarifications" to the Supreme Court, which has the final say. In this regard, the CJEU points out that the compensation provided does not "eliminate" the consequences of violating EU law in all situations of long-term temporary staff, and indicates that they should be accompanied by other measures that are truly "deterrent, effective, and proportionate."

Finally, the European Union's highest court assures that the announcement of selection processes "does not constitute an adequate measure to prevent and punish abuses" against long-term temporary workers either. The Luxembourg court notes that, despite valuing "the affected worker's previous experience and length of service," the "assessment is not limited to candidates who have been victims of these abuses" and recalls that the competitive examinations are open to anyone who wishes to participate. Thus, the CJEU concludes that it is "possible that the worker does not participate in the selection process or does not pass it" and, therefore, does not see the labor abuse they have been a victim of compensated.

Both Spanish and European courts have already ruled on various cases of long-term temporary workers in the administrations throughout the Community of Madrid. This time, for example, there is the case of a childcare worker in a public educational center in the Community of Madrid who had chained together six fixed-term contracts with the administration, as they were always to cover vacancies or temporary substitutions. The worker took this case to court, and the Supreme Court ruled that she should be hired indefinitely and, when her contract ended, she should be duly compensated.

The worker, however, requested that her employment relationship be declared permanent by the Supreme Court, which asked the CJEU. And, finally, the highest court of European justice has ruled that it is not a sufficient compensatory measure and, therefore, establishes jurisprudence in this regard.

What is the next step?

Now it is the turn of the Spanish government, which will have to decide whether to reform the regulations again. And also of the Supreme Court, which has various judicial cases open regarding the abusive situation suffered by a large part of long-term interim workers in public administrations, who represent almost a third of public workers in the entire State (999,738 temporary employees). A significant portion of the bulk of interim workers, however, are part of regional (39%) and local (36%) administrations. By sectors, education and healthcare are where this figure is most abused.

For now, sources from the Ministry for Digital Transformation and Public Function indicate that the ECJ's ruling "clarifies" the conflict, but "does not affect [Spanish] regulations nor impose a sanction." In fact, the Spanish government interprets that the European court reprimands the State for not adopting sufficient measures to prevent the abuse of this figure, but "does not oblige" it to apply one solution or another. That is, the government rules out automatically converting interim workers into permanent staff with positions.

On the other hand, the law firm Arauz de Robles does not read it the same way and interprets that public administrations are obliged to make these workers permanent and stabilize them "because nothing that has been done so far has worked." "We are facing a prolonged, arbitrary abuse and, according to the ruling, totally contrary [to European law]," indicated lawyer Javier Arauz de Robles in a statement to the media.