Legal uncertainties threaten reform of public sector temporary workers

The announcement of the brand new Minister of Public Function, María Jesús Montero, that public sector workers who have been on temporary contracts for over ten years ten years would be given a permanent post without having to take an exam has created doubts on its constitutionality. The measure, which was negotiated with ERC, has surprised Pepe Álvarez, secretary general of Union UGT, who has questioned whether the proposal is in line with the Constitution.

"There were already warnings from the lawyers of the state on its unconstitutionality, we will have to see how it progresses and the final specifics," said Álvarez in an interview with SER. The leader of the UGT has added that these changes were left out of the negotiation because "the [Spanish] government claimed that they were unconstitutional". Ministry sources refuse to comment on this aspect.

Three basic principles at stake

The new agreement announced by Montero in parliament might clash with the three basic principles that regulate the access to work in the public administration: equality, merit and ability. "These principles exist so that illegal situations are not generated and so that the people who get the posts are the most qualified to provide public services," explains Jordi Garcia, a lawyer specialising in labour law. He adds that there is no "automatic mechanism" regulated by law and points out that in any case you can define some values or criteria depending on what the administration wants to take into account, such as giving more weight to seniority. "I think it is not possible. No matter how long you've been in the administration for fifty years, you have to do some kind of test," Garcia insists.

Sources in the Ministry of Finance acknowledge to ARA that the new compromise, as announced, needs work and they emphasize that the result will be "constitutional". In turn, ERC sources familiar with the negotiation assume that "[the agreement] can be overturned", but that it is "a good place to start". The Minister of Labour, Yolanda Diaz, has defended that the decree "complies" with the European Court of Justice and Diaz has celebrated yesterday's "step forward", in reference to the agreement with ERC, but has clarified that the government "will continue to work being aware of Articles 103 and 106 of the Constitution", which regulate access to public administration posts.

Both the Constitution and the Statute of the Public Worker include the right of all citizens to access a public sector job in accordance with the constitutional principles of merit, ability and equality. "The main problem will be whether the decree attacks these basic principles," says Eduardo Gómez, a labour lawyer from the cooperative Red Jurídica, who adds that if someone files an appeal, it will be the Constitutional Court that will end up ruling on the matter. The general requirement when selecting public employees must be based on their academic or professional merits, as well as their skills for public service, and "people cannot be treated differently by the law if there is no reasonable justification". Gómez anticipates that although we will have to wait to read the small print of the reform, he is convinced that "many lawsuits and court proceedings will arise because it is a reform that affects many people, for better or worse".