Public employment after the crisis
| Autor | Joan Mauri Majós |
| Cargo | Lecturer in administrative law at the Universitat de Barcelona, Faculty of Law |
| Páginas | 56-77 |
PUBLIC EMPLOYMENT AFTER THE CRISIS*
Joan Mauri Majós**
Abstract
This article looks at the measures adopted in relation to the civil service for tackling the economic crisis and offers a
preliminary assessment of their effects, focusing on the following aspects: the redenition of powers for establishing
the working conditions of public employees; staff ageing and instability; the process of differentiation, segmentation
and inequality affecting different types of staff and the results, or rather, lack of results in the processes to exibilize
and individualize modern systems of human resources.
Key words: crisis; public employment; law; negotiation; ageing; temporary employment; segmentation; equality;
individualization; exibility; human resources; public sector.
L’OCUPACIÓ PÚBLICA DESPRÉS DE LA CRISI
Resum
Aquest article analitza les mesures preses sobre la funció pública amb la nalitat de superar la crisi econòmica i ofereix
una primera valoració sobre els seus efectes, centrats en els aspectes següents: la redenició de poders per establir les
condicions de treball dels empleats públics; l’envelliment i la precarització del personal; el procés de diferenciació,
segmentació i desigualtat induït sobre els diferents tipus de personal i els resultats o, millor, la falta de resultats, en els
processos de exibilitat i individualització propis dels moderns sistemes de recursos humans.
Paraules clau: crisi; ocupació pública; llei; negociació; envelliment; temporalitat; segmentació; igualtat;
individualització; exibilitat; recursos humans; sector públic.
* This article is a translation of an original version in Catalan.
** Joan Mauri Majós, lecturer in administrative law at the Universitat de Barcelona, Faculty of Law, avinguda Diagonal, 684, 08034
Barcelona. jmaurim@ub.edu.
Article received: 02.01.2018. Blind review: 06.02.2018 and 07.02.2018. Final version accepted: 14.02.2018.
Recommended citation: Mauri Majós, Joan. ‘Public employment after the crisis’. Revista Catalana de Dret Públic, Issue 56 (June
2018), p. 56-77, DOI: 10.2436/rcdp.i56.2018.3080.
Joan Mauri Majós
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Revista Catalana de Dret Públic, Issue 56, 2018 57
Contents
1 Hypothesis
2 Aims and features of the measures
3 Measures impacting on staff costs
4 Measures impacting on working time
5 Measures on the determination of working conditions
6 The effects of the crisis on public employment
7 The redistribution of powers for establishing the working conditions of public employees
8 The ageing and instability of public workforces
9 Differentiation, segmentation and inequality
10 Individualization and exibility in public employment
References
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1 Hypothesis
Any analysis of the legal concept ‘public employment’ after the Great Recession must study the aims and
features of the measures adopted as well as their effects and consequences, taking into account that critical
situations highlight unknowns or relevant question marks over the ability of the model to address certain
future challenges brought about by the same state of emergency.
Hence, we will make mention of two aspects that we consider important. Taking as a basis the principles of
budgetary stability and nancial sustainability, the measures adopted in the context of the state of emergency
can be viewed as the result of a series of adjustment policies that will in all likelihood be reversed or one or
more of which will be evaluated as reference structural situations tending to become established and alter
the initial model. Obviously, the latter are far more interesting to identify and describe than the former. We
also need to consider that these adjustment measures have been superimposed over management rules and
practices that have not been formally altered. Thus, the maintenance of the legal framework and pre-existing
cognitive operating schemas has meant that the changes introduced contingently to tackle an extraordinary
situation may be considered by the diverse agents as a required break in a management practice that has
tended, rst, to mitigate its effects, and subsequently, to adapt and absorb the objectives sought by the
processes of adjustment and reform to be implemented (Cuenca Cervera, et al., 2013).
In our view, the most recent consequences of the measures adopted during the crisis should be considered
based on four axes, which will form the basic elements of this argument and focus on the following aspects:
the redistribution of powers and capabilities to establish the working conditions of public employees; the
ageing and instability of public workforces; the process of differentiation, segmentation and inequality
affecting the different types of staff during the crisis and the recent results of systems of individualization and
exibility in employment relationships that should have been incorporated into the management of human
resources policies to maximize activity and increase the real productivity of the available volume of public
employment.
2 Aims and features of the measures
Following a review of the explanatory statements of the two nancial exception regulations coordinating
public employment measures during the crisis, namely Royal Decree-Law 8/2010, of 20 May, adopting
extraordinary measures to reduce the public decit, and Royal Decree-Law 20/2012, of 13 July, on measures
to ensure budgetary stability and foster competitiveness, one quickly comes to the conclusion that the
underlying purpose of these reforms is to contain staff costs in order to reduce the public decit. This is the
main and virtually sole aim, which is compatible with a second, streamlining goal: to improve the efciency
and effectiveness of staff spending, which involves promoting increased working time directly targeting the
public service and reducing absenteeism. To put it simply, the idea is to cut staff costs and maximize the
available working time so that the activity can be carried out with the minimum possible volume of public
employment.
This policy is to be implemented with a series of restrictions, including maintenance of the essential services
to ensure public support to those hit hardest by the consequences of the crisis, minimizing the effects of wage
cuts on the lower salaries of public workers and understanding that some of these measures are temporary
or to be implemented only in exceptional circumstances, so their effectiveness is subject to the subsistence
of the difcult economic situation, which affects nancial sustainability, or to reasons in the public interest
making their implementation necessary in the future.
These measures affect staff costs, working time and the systems determining working conditions. With regard
to decisions affecting staff costs, a distinction must be made between those affecting the volume of public
employment and those seeking to impact on real pay. On this subject, there are data to show that almost 60%
of the adjustment in Spain between 2010 and 2014 was concentrated on the contraction of the real wages
of public employees, while the remaining 40% focused on reducing public employment (Hernández de Cos
et al., 2016). The latter decrease was obtained both by facilitating employee departures through policies
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seeking to advance the real retirement age and, on a smaller scale, through the practice of dismissal for
objective reasons and by limiting recruitment i.e. eliminating or reducing staff substitutions. The measures
affecting working time and formal productivity are directly related to increased working time, the reduction
in days’ off, leave and holidays, and the monitoring of temporary incapacity in the public sector, to avoid
absenteeism. The exibility in systems for determining working conditions has also allowed changes to be
made to those agreed previously with the aim of cutting costs or increasing productivity with the redrafting of
a specic collective agreement or through general regulations that cancel out application of the conventional
ones within a larger territorial scope, giving rise to the unilateral provision of the agreed rights.
3 Measures impacting on staff costs
As stated above, actions impacting on staff costs can be split into two large groups: staff volume and staff
pay.
The reduction in staff numbers, sought through two general policies—advancing of retirement age and
contraction of public competitions—and the creation of a specic instrument for workforce restructuring
targeting contract staff: dismissal of contract staff working in the public sector on economic, technical or
organizational grounds, to whom we will refer later.
The xing of the real retirement age of civil servants at 65 years old, extended without question to 70 years
at the request of the civil servant, is clearly brought about by Article 11 of Royal Decree-Law 20/2012, of
13 July, complemented in its sole derogating provision by the elimination of paragraph 1(d) of Article 67 of
Law 7/2007, of 12 April, on the Basic Statute of Public Employees (hereinafter BSPE 2007), in relation to
sections 2 and 4 of the same provision, which are also nullied, all of which referred to the voluntary and
partial retirement of civil servants.
In other words, following this provision, civil servants forcibly and generally retire at the age of 65, bar a
handful of exceptions considered on the basis of a prior formal application and following a decision grounded
in the needs of the organization and the proper delivery of services. This possibility is laid down in a very
limited sense in the Constitutional Court Interlocutory Order (in its acronym in Catalan, ITC) 85/2012, of 23
April, which states that the possibility of extending active service is considered an exceptional option and
that the Authority must assess or determine such authorization on the basis of service needs and in a context
of public spending streamlining and restraint. The partial retirement options also disappear for civil servants
and, following the National High Court Ruling (in its acronym in Catalan, SAN) of 8 April 2013, Appeal No.
279/2012, those of contract staff working in public authorities are challenged, since the potential recruitment
of substitute workers is subject to the limits and requirements of the budget laws with regard to access by
new staff; this raises questions about the institutional mechanisms that have enabled the organized transfer of
knowledge within our organizations from the strict point of view of the organized substitution of staff, which
is a particularly delicate option when we have known since 2007 that the ageing of public workforces will be
a problem on the agendas of all public authorities over the coming years (OECD, 2007).
With regard to vacancies in public employment, restrictions on new staff recruitment are implemented
according to the staff substitution rate. This rate is calculated by a xed maximum percentage applied to
the difference resulting from the number of permanent employees who ceased in service in the previous
budget year and the number of permanent employees who joined in the year in question. Logically, places
not lled due to the legal impossibility of incorporating them in the competition would need to be amortized.
In reality, there is no single workforce substitution rate, given that this can adopt sectors, areas, sections
and categories as a reference, although we can generally distinguish between a substitution rate of staff in
what are termed priority sectors and a general substitution rate for other sectors. Moreover, by adopting the
technique of priority sectors, the State can control and direct the policy of new staff recruitment to areas
considered deserving of special attention, clearly to the detriment of the organizational capacity of other
public authorities. Therefore, the offer of public employment puts quantitative and sectoral limits on the
places for new recruits that the various authorities can convene in a budget year. Constitutional Court Ruling
(in its acronym in Catalan, STC) 178/2006, of 6 June, recognizes that the setting of this limitation is part of
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the State powers of general economic management, in accordance with Article 149(1)(13) of the Spanish
Constitution (in its acronym in Catalan, CE), and of the principle of coordination of the nancial autonomy
of the Autonomous Communities with the national treasury, in accordance with Article 156(1) CE; it also
allows the limitation of the offer to sectors, functions and professional categories considered an absolute
priority in the State budget legislation to constitute a measure directly related to the goals of economic policy
without this entailing any special sacrice of the right to self-organization of the Autonomous Communities
and local entities, understanding that such measure does not presuppose a concrete and unique result for each
of its public organizations.
Since budget year 2008, the staff substitution rates have contracted and adopted the technique of reference
to sectoral areas considered priority that will not be abandoned until budget year 2016. It is considered that
the staff substitution rate for 2009 must be less than 30%, that of 2010 to be less than 15%, that of 2011 to be
less than 10%, and in budget years 2012, 2013 and 2014 no new staff will be recruited. That is to say, there
will be no staff substitution rate. The rate for 2015 is 50%, and in 2016 and 2017, it is 100% for substitution
in priority sectors and 50% in the remainder. In budget year 2017, the so-called additional stabilization rates
appear, which overlap with the priority and general rates.
In all events, it should be clear that the above staff substitution rates apply only to the recruitment of new
permanent staff. The hiring of non-permanent staff is subject to other rules and requirements. In theory,
temporary staff can only be hired or interim staff appointed in exceptional cases and to cover urgent needs that
cannot be postponed. From budget year 2012 and up to 2017, this requirement was rounded off cumulatively
by the condition that these needs arise in sectors, functions and professional categories considered priority
or those affecting the functioning of essential public services. The rst of these requirements is to interpret
the notion of need in the restrictive sense of being urgent and not able to be postponed. However, it is
an indeterminate legal concept that the competent authority will be required to specify in terms of its
minimum staff needs for the exercise of its functions in accordance with reasonable parameters of economy
and efciency. Likewise, the notion of essential public services refers to the vital or essential services for
community life, directly linked to the exercise of fundamental rights, public freedoms and constitutionally
protected property, which encompasses a broad horizon. Similarly, the notion of priority sectors, functions
or categories is entirely vague. Therefore, it is deduced that, within the margin of exceptionality and urgency
provided for by law, concepts such as those of essential public services or priority sectors can be interpreted
exibly by each authority in the exercise of the applicable margin of appreciation and on reasonable grounds
(Sánchez Morón, 2012a).
Nonetheless, the fact that the recruitment of non-permanent staff is not subject to a substitution percentage
rate has had a knock-on effect that cannot be ignored: the creation of new positions lled by non-permanent
staff. Objectively, the budget law does not preclude the creation of new staff positions, only their coverage
with new permanent staff, as laid down in the Supreme Court Ruling (in its acronym in Catalan, STS) of 11
May 2015, Appeal No. 3359/2013. It is also unquestionable that the workforce and offer of public work are
individualized and differentiated instruments of staff organization, albeit closely related in the opinion of the
STS of 16 November 2001, Appeal No. 7185/1997. Although there have been rulings in case law stating that
creating positions to ll them with interim staff is to seek a legal loophole, as in the elaborate argument of
the Judgement of Contentious Administrative Proceedings Court (in its acronym in Catalan, SJCA) No. 1,
of Oviedo, of 21 December 2016, Appeal No. 288/20126, the reality is that this possibility puts pressure on
staff management in public authorities with more difculties in coordinating their political projects through
the creation of new services or a change in their management model and indirectly promotes the recruitment
of temporary staff, which subsequently creates a demand for stabilization.
Staff adjustment has also been sought through the introduction of the objective dismissal of contract staff
working for public authorities. Law 3/2012, of 6 July, on urgent measures for labour market reform, has
added a twentieth additional provision to the Workers’ Statute now integrated in Royal Legislative Decree
2/2015, of 23 October, approving the revised text of the Workers’ Statute Law (hereinafter, WS), governing
the procedure for the dismissal on economic, technical and organizational grounds of contract staff of
public sector bodies, entities and agencies. For the implementation of collective dismissal procedures, the
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nineteenth nal provision of Law 3/2012, of 6 July, delegated to the Government the approval of a regulation
on the procedure for objective dismissal, contract suspension and working hours reduction. This resulted in
the publication of Royal Decree 1483/2012, of 29 October, approving the regulation of the procedure for
collective dismissal, contract suspension and working hours reduction (in its acronym in Catalan, RPAC),
whose Title III lays down the specic rules of collective dismissal procedures for contract staff working
for public sector bodies, entities and agencies. The problem with these rules has been the lack of practical
adaptation of these mechanisms of public sector staff reduction. The new sixteenth additional provision
of the WS establishes that staff dismissal procedures must be implemented as part of the preventive and
corrective maintenance mechanisms regulated in the regulations governing budgetary stability and the
nancial sustainability of general government, so it appears that the grounds for the dismissal must be linked
to the measures and mechanisms set out in this legislation. Consequently, grounds for collective dismissal in
the public sector must be linked to the specic budgetary and nancial situation of the institution or agency
implementing the collective measure and, in particular, with the specic measures that must be taken to
correct the decit or debt targets (Sánchez Morón; Jalvo, 2013).
In particular, the requirement of linking the dismissal to the budgetary stability and nancial sustainability
goals and measures makes complete sense when the grounds stated are economic, considered as an unforeseen
and persistent budget shortfall for nancing the relevant public services; in this case, the budget shortfall
is deemed persistent if it lasts for three consecutive quarters. It appears, therefore, that three conditions are
required for the implementation of objective dismissal in general government: the existence of preventive
or corrective measures to achieve the budgetary stability target, the accreditation of a budget shortfall and
that this has the necessary features to be classed as an unforeseen situation persisting over three consecutive
quarters.
Nonetheless, there is no denition of budget shortfall in a public service in any regulation. Article 35(3) of the
RPAC sought to dene the concept by stating that there is a budget shortfall when the following cumulative
circumstances occur: 1) that in the previous year the public authority to which the department, agency, body,
institution or entity is attached led a budget decit, and 2) that the credits of the department or the transfers,
economic contributions to the agency, body, institution or entity or its credits have dropped by 5% in the
current nancial year or by 7% in previous years. Logically, this denition entailed a substantial increase
in the guidelines on legal certainty in the handling of the economic grounds for public sector objective
dismissal, but in the opinion of the STS of 19 May 2015, Appeal No. 836/2012, this conceptualization of
budget shortfall represents a clear deviation from the legal criterion, consisting of substantive or material
data, such as inability to nance the delegated public services, with purely formal data seeking to automate
the situation of termination. The problem, therefore, is what is meant by unforeseen and persistent budget
shortfall, a concept now subject to scholarly debate that will ensure judicial conict in the adoption of these
measures (Treviño Pascual, 2017). This and other reasons that we will mention later may explain why the
public sector collective dismissals procedure has rarely been used as a staff adjustment instrument in practice.
Indeed, the few gures available in this regard show that in the ‘Public administration and defence; social
security’ division in 2012 there were 1,767 dismissals compared to the 175,706 terminations recorded in the
various productive activities (Ruano Vila, 2015). In 2016, in that same activity, 105 ‘public’ dismissals were
recorded compared to the 24,348 terminations across the different private economic sectors (CCOO, 2017).
The upshot of these policies is that, according to the series of the Labour Force Survey, public employment
reached its highest levels in history in 2011, with 3,100,00 staff. Between 2012 and 2013, cuts of around
350,000 staff were made, which crept back up between 2014 and 2015. Over the past year, the number of
public employees stood at 2,840,000 workers, at a similar level to 2007 (Martínez Matute et al., 2017).
With regard to pay, interventions in the total payroll of public employees have been a classic policy of budget
consolidation processes. The quantitative importance of remuneration expenditure on public employees in
Spain, which accounts for almost a quarter of public spending, and its impact on the determination of private
sector remuneration explains why it is a hot topic (Hernández de Cos et al., 2015). Up to 2010, the actions
of the public authorities in remuneration terms had been carried out through wage restraint policies. With
Royal Decree-Law 8/2010, of 24 May, a reduction was agreed in the basic and complementary remuneration
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of public employees representing, in annual terms, a 5% reduction in the overall total. The remuneration of
public employees was reduced effectively and sharply for the rst time.
This reduction was based on a policy of inverse proportionality whereby the wages of categories with lower
qualications, i.e. less skilled occupational structures, were maintained at virtually the same level, while
higher groups representing the more skilled occupational structures, saw their remuneration cut by around
7%. Moreover, the wage adjustment excluded a series of business undertakings, companies and foundations
of the public sector already enjoying a positive pay differential compared to the administrative public sector
(Mauri Majós, 2011). It was sought to resolve this privileged position of qualied staff of the civil service in
a clearly contradictory way through the fth additional provision of Royal Decree-Law 20/2012, of 13 July,
which, for no greater reason, allows civil servants of the State Administration to request adjustment of the
specic complement for compatibility with the performance of tasks in the private sector.
In all events, this cut was followed by a virtual freezing of public employee wages that was maintained
until 2016 and supplemented by the elimination of an extraordinary wage payment through Royal Decree-
Law 20/2012, of 14 July, which was discussed in the Supreme Court Decision of 2 April 2014, Appeal No.
63/2013 and has been recovered by parts from 2014 and 2015 (Law 36/2014, of 26 December, on the General
State Budget for 2015; Royal Decree-Law 10/2015, of 11 September, granting extraordinary credits and
credit supplements in the State Budget and adopting other measures in matters of public employment and
economic stimulus, and Law 48/2015, of 29 October, on the General State Budget for 2016).
The uniqueness of these wage restraint measures lies in determining and expressly and specically identifying
wage items to be affected by the cut and to regulate in detail the procedure for implementing these total payroll
cuts, which leaves the authorities with public employment powers without real room for manoeuvre in their
compliance with the targets laid down in the basic State regulation in this regard. This was expressly set out
in Opinion 11/2012 dated 22 August, of the Council for Statutory Guarantees of the Government of Catalonia
in relation to Royal Decree-Law 20/2012, of 13 July, on measures to achieve budgetary stability and the
promotion of competitiveness. However, it has not sparked major reactions among the judicial authorities,
which subsume quantitative reductions, direct impacts of specic pay structures and intervention procedures
under the same concept of the containment of staff costs in the framework of State powers on the bases and
coordination of the general planning of economic activity of Article 149(1)(13) CE and on the legitimacy of
the rules of complement and enforcement necessary to ensure the effectiveness of the established regulation,
in accordance with the abovementioned provisions, as stated in STC 81/2015, of 30 April, and STC 18/2016,
of 4 February.
Note that the Autonomous Communities have implemented their own wage cut policies. For example, the
Government of Catalonia reduced the annual pay of its staff by the equivalent of one extraordinary wage payment
during 2013 and 2014. From a general point of view, however, the more specic and unique interventions
in the wages of public employees of the various Autonomous Communities have been structured around the
following policies: 1) the impact on variable wage items related to productivity, performance, achievement
of targets, extraordinary and career services, which are reduced or virtually eliminated in Andalusia, Castile-
la Mancha, Catalonia, the Balearic Islands and Madrid; 2) the reduction of the working day and the wages of
non-permanent staff in variable periods, which takes place in over 33% in the Community of Valencia, one
third in Murcia, 20% in the Canary Islands, 15% in Catalonia and 10% in Andalusia and Madrid, and 3) the
reduction or elimination of social assistance funds and measures for public employees in Murcia, Catalonia,
the Balearic Islands and Madrid.
As a result of all this, the weight of employee wages as a percentage of total Government spending increased
from 23.9% in 2008 to 22.9% in 2013, very close to the 1995 gure of 22.7%, which demonstrates the
clear contribution of public employee wages to the scal consolidation resulting from the economic crisis
(Hernández de Cos et al., 2015).
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4 Measures impacting on working time
Royal Decree-Law 20/2011, of 30 December, established the working day of the State public sector at thirty-
seven and a half hours per week of effective work averaged over the year. This measure was extended under
the seventy-rst additional provision of Law 2/2012, of 29 June, of the General State Budget for 2012 to all
staff of the State, autonomous and local public sector, which also stated that the general working day could
not be less than thirty-seven and a half hours per week of effective work averaged over the year. This was
the rst time that a basic State regulation had set a minimum effective annual working day for all public
employees. This option was validated by the STC 99/2016, of 25 May, which considered that the imposition
of a general minimum working day for all public sector staff is a legitimate exercise of State powers in
accordance with Article 149(1)(18) CE—it allows basic regulation of the rights and duties of public sector
staff with civil servant status—and an application of the exclusive powers in labour legislation attributed
to the State under Article 149(1)(17) CE. All of this was carried out without overlooking the connection
between this determination and the criterion of savings in the coverage of public sector needs, specifying that
the minimum nature of the working day leaves the Autonomous Communities sufcient room for manoeuvre
to extend its duration and distribute working hours.
Along these same lines, Royal Decree-Law 20/2012, of 13 July, homogenized the system of civil servant
leave and holidays, limiting days’ leave for personal affairs to three and eliminating additional days off and
holidays granted on the basis of staff seniority. Nonetheless, Law 15/2014, of 16 September, on rationalization
of the public sector and other administrative reform measures, increased the number of days for personal
affairs to ve; then Royal Decree-Law 10/2015, of 11 September, cited earlier, set the number of days for
personal affairs to six, which were maintained following approval of Royal Legislative Decree 5/2015, of 30
October, approving the revised text of the Law of the Basic Statute of Public Employees (hereinafter, BSPE
2015).
The argument used for wage reductions was repeated here. The new legislation determines the cases in
which leave may be granted and the requirements, effects and duration of this; the duration of holiday, and
the number of days for personal affairs in almost exhaustive detail to ensure direct fullment of the measures
adopted. Nonetheless, STC 156/2015, of 9 July, considers that the regulation of all situations allowing for
non-attendance of work by civil servants must fall within the legal framework of rights and duties of civil
servants included in the State legislation provided for in Article 149(1)(18) CE. Thus, a uniform, common
system of the diverse concepts of justied temporary leave is established and while it is acknowledged
that the regulation developed in basic State rules leaves little leeway for the legislative competences of the
Autonomous Communities, their constitutional legitimacy is admitted on the understanding that there is still
room for manoeuvre in these Communities in establishing the form and manner of use of this temporary
leave.
The same legal provision introduced a reduction in credits and trade union leave at the minimums guaranteed
by law, which thus became maximums for trade union action in our public authorities, although the door
was left open to restructuring at the negotiation tables. This recovery will soon begin in the General State
Administration through the Ruling of the Minister of Finance and Public Administration dated 12 November
2012, approving and publishing the Agreement of the General Negotiating Bureau of the General State
Administration, dated 29 October 2012, on the allocation of resources and rationalizing of collective
bargaining structures.
Royal Decree-Law 20/2012, of 13 July, also reformed the temporary incapacity allowances paid to public
employees. Prior to the latter decree, these employees received an allowance guaranteeing 100% of their
pay for the rst three months of incapacity. Since the adoption of this decree, if the incapacity is caused by
common contingencies, the allowance is structured as follows: 1) over the rst three days, an allowance
may be granted up to 50% of the wage; 2) from the fourth day to the twentieth day inclusive, the allowance
payable may not exceed 75% of the wage, and 3) from the twenty-rst day inclusive, an allowance equivalent
to 100% of the wage may be granted. If the incapacity arises from professional contingencies, requires
hospitalization or surgery, or in exceptional circumstances, or cases of maternity, paternity and pregnancy
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risk or breastfeeding, the allowance can rise to 100% of the wage. This is designed to target the early days of
incapacity, especially in those of short duration, which is the segment that concentrates absenteeism related
to personal strategies, while longer leaves are highly likely to be related to worker health status (Martínez et
al., 2014).
Beyond the calculations advanced by the State, which calculated the savings from the extended working
day measures at EUR 1.3 million and the savings from other measures on working time as having a similar
impact, the few contrasted studies available on this subject tell us that the increase in the number of hours
worked was real, so the percentage of non-permanent workers whose working time totalled 37.5 hours
increased from under 30% to almost 60% and that this decision had an important qualitative impact in
mitigating the correction in the number of employees of public authorities carried out in budget years 2012
and 2013, ensuring stabilization and operation with acceptable minimum standards (Montesinos et al., 2014).
5 Measures on the determination of working conditions
Previously, the initial wording of Article 38(10) BSPE 2007 included a clause for opting out of the fullment
of collective agreements reached to determine the working conditions of civil servants through collective
bargaining procedures. Consequently, the fullment of agreements is guaranteed unless, in exceptional cases
and on serious grounds in the public interest arising from a substantial change in economic circumstances,
the governing bodies of the public authorities suspend or modify fullment of agreements already signed to
the extent strictly necessary to safeguard the public interest.
What the anti-crisis legislation now brings—and more specically Article 7 of Royal Decree-Law 20/2012,
of 17 July—is a homogenization of this opt-out formula for contract staff working in the public sector and an
interpretation of its general possibilities through the second additional provision of the same text.
Under this regulation, a new wording is given to Article 32 of the BSPE 2007 relative to the collective
bargaining of public employees with an employment contract and a new paragraph is added stating: ‘The
fullment of collective agreements in relation to contract staff is guaranteed unless, in exceptional cases and
on serious grounds in the public interest arising from a substantial change in economic circumstances, the
governing bodies of the public authorities suspend or modify the fullment of collective agreements already
signed to the extent strictly necessary to safeguard the public interest.’
The second additional provision of this decree-law claries that: ‘For the purposes of Articles 32(2) and
38(10) of the Basic Statute of Public Employees, it will be considered that there are serious grounds in the
public interest arising from the substantial change in economic circumstances when the public authorities
must adopt measures or plans for adjustment, for the rebalancing of public accounts, or of an economic or
nancial nature to ensure budgetary stability or to correct the public decit.’ In its initial wording, this could
restrict the scope of operations of inapplicability of collective agreements to those arising from measures to
correct the public decit, but this was strongly challenged through a questionable use of the error correction
technique, so the following wording is substituted: ‘it will be considered that there are serious grounds in the
public interest’ is replaced by the paragraph ‘it will be considered that there are serious grounds in the public
interest, among others,’ which replaces a restrictive rule with a clearly illustrative one.
Logically, this regulatory intervention openly questions the effectiveness of the collective rules laying down
the working conditions of public employees, which is unquestionable from the strict point of view of the
collective bargaining right of civil servants, a statutory right in whose conguration the law can establish the
legal effects of the adopted agreements. However, the possibility of the unilateral opting-out of a collective
agreement regulating the working conditions of contract staff working for public authorities can overtly
contradict the binding force of the collective agreement recognized under Article 37(1) CE (Rodríguez
Fernández, 2016).
But there is more to it than this. The laws and decree-laws on budgetary stability during the crisis govern the
working conditions of civil servants and ordinarily contain precepts that suspend and nullify any agreements
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for civil servants and contract staff signed by the public authorities, their agencies and related entities or
those reporting to them where these do not conform to the regulatory content of the former. This is what
is termed legal opt-out and is considered to derive from the principle of legality and regulatory hierarchy.
As claried by ITC 33/2005, ITC 34/2005 and ITC 35/2005, of 31 January, collective regulations cannot
contravene or prevent the production of effects of a law; the agreement must respect and be subject to the law
and to higher ranking regulations, not the other way around.
This doctrine was reinforced during the crisis by ITC 85/2011, of 7 June, ITCs 179/2011 and 180/2011, of
13 December, ITC 184/2011, of 20 December, ITC 8/2011, of 13 January, ITC 35/2012, of 14 February, and
ITC 128/2012, of 19 June, which claried the following issues: 1) the viability of the decree-law in affecting
the content of a collective agreement where it does not alter the general legal regime or the essential elements
of the right to freedom of association, which includes collective bargaining with binding effects; 2) the need
to distinguish between the intangibility or inalterability of the collective agreement and the binding force of
the collective agreement with respect to employment contracts, and 3) the impossibility of maintaining the
intangibility or inalterability of the collective regulation in the presence of a higher-ranking legal standard,
even if it is a subsequent regulation.
It is another matter as to whether resorting to the constant amendment of conventional standards by
imperative of budgetary legislation could affect the role of the collective regulation as the ordinary system
for determining the working conditions of public employees, giving rise to signicant erosion of the right
to collective bargaining as a system of participation in the determination of working conditions, supported
and recognized under ILO Convention No. 154, of 19 June 1981, concerning the Promotion of Collective
Bargaining, and ILO Convention No. 151, of 27 June 1978, concerning Protection of the Right to Organise
and Procedures for Determining Conditions of Employment in the Public Service.
In any event, it is necessary to differentiate between legal opt-out and administrative opt-out. Likewise,
separate consideration is required, depending on the system of distribution of powers, of the inapplicability
of a conventional standard resulting from State legislation and the same effect of legislation passed in an
Autonomous Community.
In this regard, the Judgement of High Court of Justice (in its acronym in Catalan, STSJ) of Castile and León
(Valladolid), of 15 May 2013, Appeal No. 693/2013, is correct in distinguishing between legal inapplicability,
which is a direct and immediate consequence of a regulation of this rank requiring due compliance, and the
inapplicability arising at the initiative and request of the public authorities themselves through the channel
opened under Articles 32(2) and 38(10) BSPE 2015. Further, it would appear that legal inapplicability grants
the respective authority executive capacity for its ultimate instrumentalization that derives and nds its
proximate cause in the same regulation and which should be limited to specic measures for the application
of legal corrections. Such capacity, according to employment doctrine, is situated between the powers of
organisation, control and management of human resources corresponding to the public authorities (García
Torres, 2015).
Likewise, the existence of autonomous laws that nullify the legal efcacy and validity of the conditions
agreed in the collective agreements of their staff do not appear to affect the exclusive powers of the State in
the regulation of labour legislation. Thus, the STSJ Madrid, of 17 April 2012, Appeal No. 332/2012, warns
that not everything with an impact on the system of contract staff of public authorities ts in with the State
powers on the production of labour legislation set out in Article 149(1)(17) CE, and points out that there may
be provisions in autonomous legislation that address aspects determining the labour relations of contract
staff working for public authorities without affecting the basic and general structure of social regulations or
their nuclear categories but which are limited, in practice, to governing their particular working conditions,
as stated in STSJ Castile-la Mancha, of 13 June 2012, Appeal No. 3/2012.
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6 The effects of the crisis on public employment
This article will now look at how the crisis and the measures described in the previous sections have affected
the public employment system. To do so, we present a series of trends arising from the policies adopted to
deal with the situation, on the understanding that the crisis has often not been the cause of some of the effects
that we will explain but rather it has simply contributed to triggering or revealing structural trends within
the model that have been highlighted by a situation of institutional emergency. We do know, however, that
in other cases, adjustment decisions seeking to contain public nances have had certain effects that will
probably require new provisions to tackle problems that the crisis has indirectly brought about because of
the decision to opt for a system of measures aimed directly at curbing public spending in a linear way using
a system of adjustment without reform (Jiménez Asensio, 2012; Sánchez Morón, 2012b).
In any event, as we stated at the beginning of this work, our argument is structured around the following
issues: the redistribution of powers and capabilities for establishing the working conditions of public
employees; the ageing and instability of public workforces; the process of differentiation, segmentation and
inequality affecting the different types of staff and, lastly, the treatment of the systems of individualization
and exibility in labour relations in the public sector.
7 The redistribution of powers for establishing the working conditions of public employees
The role of the State Government and emergency rule projected on to the system of regional autonomy and the
system of collective autonomy has broken with the architecture of institutional balances that characterized the
model of public employment emanating from the Basic Statute of Public Employees.
Adjustment measures in the form of basic State regulations have severely conditioned the powers of the
Autonomous Communities in the civil service and its organizational capacity. This relativization of autonomous
powers has adopted three institutional mechanisms: 1) the State has used its basic and cross-cutting standards,
specically Article 149(1)(13) CE, relating to the bases and general coordination of economic planning, and
Article 149(1)(14) CE, on State general nance and debt, to support the determinations adopted with a view
to cutting staff costs; 2) the State has begun to draft as a statute the working conditions of public employees
now considered rights of public civil servants and labour legislation of workers of public authorities, which
has allowed it to subsume the rules of the statutory regime of civil servants under Article 149(1)(18) CE and
labour legislation and measures to increase working time under Article 149(1)(7) CE, and 3) the constitutional
doctrine has accepted these connections and subsumptions as necessary measures for the implementation and
effectiveness of the decisions of the State.
This has highlighted the vulnerability of autonomous powers in public employment (Corretja Torrens, 2013;
Urrutia Libarona, 2014). The State measures have reduced the scope and material relevance of autonomous
powers to purely instrumental matters. This stance has gone hand in hand with a constitutional doctrine that
appears to identify autonomous powers with a minimum residual number of articles on the treatment of
ancillary issues, often contingent and verging on irrelevant (Fuentetaja Pastor, 2017).
At this point, we should mention the centrality of the State basic regulations as a mechanism for determining
the working conditions of public employees. The decrees-law and laws have unilaterally xed the basic
working conditions of these staff: pay and working hours. The law has been dressed up as an employers’
decision to impose working conditions and modify agreed conditions while at the same time resizing the true
scope of negotiation and converting the conventional procedure into an accessory procedure of the formation
of legislative will, also promoting the homogenization and universalization of the adjustment measures in
the administrative public sector and the business public sector, irrespective of the legal nature of each type
of organization and its market function.
The collective negotiation of the working conditions of public employees has been replaced by due obedience
to the law and to the legal power of the State. Hence, these regulatory changes have altered the system
of pre-existing relations between the legal norms and conventional norms, such that the supplementary
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and suppletory relations between the Basic Statute of Public Employees and collective agreements have
been abolished and toned down to the benet of the necessary legal rules that reduce the role of collective
bargaining to a mere complement or application of a rule of objective law.
Nonetheless, the State Government has often not been in a position to guarantee the effectiveness of the
application of the law in all public organizations across the territory. Moreover, the intervention of the law has
not modied the collective bargaining system for determining the working conditions of public employees.
There are no structural reforms here like the ones taking place in the private sector on the structure and scope
of negotiation that impose preferential application of the collective agreement, the legal effectiveness of the
collective regulation or the effectiveness of the collective agreement (Valdés Dal-Ré, 2013; Del Rey Guanter,
2013). Beyond the inuence of the basic State law, the system maintains the same structural basis, which is
simply put on hold or not applied, in hopes of economic recovery. Simply put, the law has sought to contain
the results of collective bargaining, considering it as an ‘unstoppable engine of public spending,’ but has not
attempted its conversion to a useful mechanism for meeting the objectives of rationality and efciency in the
management of human resources in public authorities (Alaimo, 2010).
This overlooks the fact that laws cannot impose changes on the conceptual structures with which we
understand and manage a given system of employment relations so, after the crisis, following a phase of
legislative prescriptions imposing adjustment and good governance, we will return to the same reality and a
system of employment relations characterized by conict, the pursuit of group interests and little respect for
rules enacted to the benet of the public interest will remain in force (Zoppoli, 2013).
In the private system, collective bargaining must now serve to adapt working conditions to specic business
circumstances; in the public system, collective bargaining—in the post-crisis recovery phase—may recover
its incrementalist position in relation to the treatment of the working conditions of public employees. As
a result, the differences between the two systems for determining working conditions may reappear and
become consolidated (Malaret, 2016).
8 The ageing and instability of public workforces
The substitution of staff of Spanish public authorities has remained at virtually the same levels in 2010, 2011,
2012, 2013 and 2014. In other words, almost ve generations of public employees have been skipped. This
policy has led to the rapid ageing of some workforces, which have naturally started to curve. The data on this
topic are very illustrative. The employment plan for public authorities of the Basque Country, approved by
the Basque Government on 1 December 2015, warns that the occupants of Prefecture and technical positions
are approaching the age of 55 en masse and that their average retirement year will be 2027. It further states
that, between 2020 and 2030, 68.13% of the occupants of these Prefecture positions will disappear and this
gure rises to 78.09% for the same calculation between 2015 and 2030. Studies in Catalonia show that the
public authorities have more staff aged 60 and above than staff under the age of 30, and indicate that the
number of staff aged 60 and over during the crisis has increased progressively by 30%, while the number of
staff under the age of 30 has fallen by 64.6%. This means that the public authorities of Catalonia suffer from
a regressive age pyramid, a loss of young talent and a gap of three to four generations (Longo; Albareda;
YSA; Férez; Salvador, 2017).
Nonetheless, in an ageing organization, age has not been a political concern. Age policies do not gure on the
public agenda when we know that keeping older people in work is a social need and we know the potential
structural consequences of having staff and technicians of an advanced age in our public authorities and their
impact on informal competencies in these organizations, which are those that allow them to update and apply
a corpus of knowledge tending to maximize efciency (Dalkir, 2010).
Such policies should presuppose the existence of specic actions to support the useful life of older workers
through training and the implementation of professional transition units, be used to organize the transfer of
knowledge and skills and contribute to an express assessment of the contribution of senior workers, focusing
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on health maintenance and improved working conditions, and promote the extension of their active lives and
gradual retirement from jobs (Brindeau, 2012).
The best that can be said of our public authorities is that they have not laid the foundations—or, with the
exception of the Basque Government, even begun to think about—age policy. In addition, the adjustment
measures that have contributed to the rapid departure of staff and done away with the possibility of extending
the retirement age and partial retirement age have been exposed as hasty, contraindicated policies in need of
urgent review.
Temporary employment is a structural factor of our public employment system, mainly of contract staff
working for the public authorities. The crisis has served to extend this temporality to civil servants and
deepen it in certain sectoral areas, such as health and social services. Specically, the highest peak in the rate
of temporary employment in the public sector occurred in 2006, with 26.2% of all employees, and totalled
23% for all public authorities in 2016. In comparison with 2006, the percentage of open-ended contracts
has increased by more than three percentage points, the same amount as the reduction in the temporary
employment rate. This change in the composition of permanent and temporary employees reects the fact that
the net expansion of public employment between 2007 and 2011 was concentrated in open-ended contracts,
compared to a more moderate increase in temporary staff. In the later adjustment phase, between 2011 and
2013, the number of temporary workers fell by 28%, while permanent staff fell by around 6%. Overall,
between 2007 and 2016, permanent staff working for the public authorities increased by 6.3% (130,000
people), while temporary staff fell by 13.2% (99,000 people). However, this phenomenon is witnessing a
reversal during the recovery phase. Between 2013 and 2016, open-ended employment has declined while
temporary employment is on the rise: since 2013, there have been 100,000 more temporary jobs and 36,000
less open-ended contracts. The recovery of public staff is actually concentrated on temporary workers (+17%)
compared to a slight reduction in permanent workers (–1%). In other words, temporary employment in the
public sector is experiencing a resurgence with the same form and intensity as before the crisis (Martínez
Matute et al., 2017).
Therefore, the crisis has not increased temporality in public employment. Non-permanent workers are the
ones who have paid the price of the crisis in the public sector. The adjustment of workforces in many
public authorities has been done in the easiest possible way: By reducing the volume of non-permanent
employment relationships. The emergence of a new set of realities from the crisis is another matter. For
example, temporary employment has spread from contract public employment to public employment under
administrative law. According to specic data on the Catalan public authorities, the rate of staff temporality
is calculated among contract staff at around 25.7% and among civil servants at around 20.3%, when the latter
traditionally stood at 9.5% (Mauri Majós, 2017a). Moreover, the rate of temporary employment in the sector
of public authorities, which was historically less than traditionally observed in enterprise, has skyrocketed in
health and social services: while it stood at 25% in 2016 in the private part of the system, it was 33% in the
public part (Martínez Matute et al., 2017).
However, we must be careful not to confuse temporality with instability. Temporality may be perfectly justied
by objective reasons. This can occur in specic circumstances related to the substitution of permanent civil
servants, or to the particular exibility needs required for sufcient coverage of services in the public interest
based on the demand of the population and their territorial distribution. What we term instability is another
matter and must be closely connected to the successive use of employment relationships of xed duration
to cover structural positions, a use that puts workers in a situation where they agree to new contracts with
different working modalities and conditions likely to worsen job quality and the same working conditions in
a process of exibility that has been referred to as ‘coming and going’ (Álvarez Gimeno, 2017).
This could be the main problem with the composition of Spanish public employment. The use of xed-term
employment relationships to ll stable and permanent positions that cannot be covered due to the limitations
set out in budget laws for the allocation of positions for new recruits, which culminates in a lack of systematic
calls to cover workforce vacancies and in the recruitment of temporary staff or the appointment of interim
civil servants as a formula to meet pressing needs in positions that should essentially be seen as structural.
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The reaction here is from the European authorities. The letter of formal notice of the European Commission
dated 26 March 2015 regarding Spain’s application of Directive 1999/70/EC concerning the xed-term work
of civil servants in the public sector and CJEU judgements of 14 September 2016, cases C-596/14, C-184/15,
C-197/15 and C-16/15, on xed-term employment relationships in Spanish public authorities, have rocked
the legal world. These European rulings point clearly to a discrimination of interim staff in the public sector
in working conditions, a lack of mechanisms in the legal system of public employment to address the
abusive use of xed-term employment relationships and the absence of institutions requiring the competent
authorities to create structural positions culminating in the recruitment or appointment of temporary staff to
ll these stable and permanent positions.
The reaction to this situation from the judicial bodies responsible for the correct interpretation and application
of the legal system has been tardy and timid; that of the State Government has been purely positional, shying
away from coming up with a global solution to the problem of the reform of the legal regulation of temporary
employment in the public sector. The judicial bodies responsible for legal application have offered different
interpretations of the ultimate consequences of the rulings handed down by the jurisdictional authorities in
Europe and sparked a heated debate on severance pay following termination in public employment and the
possible conversion of long-term interim civil servants to permanent staff subject to the rules of administrative
law. This debate has given rise to a situation whose main traits are chaos and lack of predictability in such
matters (Molina Navarrete, 2017).
For the present, the ITS of 25 October 2017, Appeal No. 3970/2016, appears to advocate a response of
the CJEU that would close the issue of severance pay following the termination of interim staff based on
comparison with staff whose project or service contract is terminated, or of temporary staff, i.e. twelve days’
salary per year of employment, in contrast to the twenty days of salary per year of employment that is paid to
permanent workers (Rojo, 2017). Likewise, the possible recognition of a concept of permanent civil servant
similar to interim staff whose purpose would be to ll the relevant position, advocated in some judicial
review rulings as a sanction for the abusive use of successive xed-term relationships in public authorities
(Beltrán de Heredia, 2017), must be contrasted with the STS of 13 March 2017, Appeal No. 896/2014, and
its natural consequence, the SAN of 6 April 2017, Appeal No. 7/2017, which expressly notes that it is not
within judicial powers to innovate in legislative matters nor is the latter a consequence arising directly from
the application of Community directives. They also note that certain creations of social judges arising from
the ultimate interpretation of the employment contract cannot be applied literally to the statutory situation
of the civil service and they reject the intent of the parties to implement through the judicial authority a
given regulation of a permanent public employee that transcends the review function of the administrative
jurisdiction.
The State Government has sought to react to the interpellation made by the European decisions through
its agreement signed on 29 March 2017 between the Minister for Finance and Public Administration and
the representatives of the CCOO, UGT and CSIF trade unions called ‘for the improvement of the public
employment,’ which had clear repercussions on Law 3/2017, of 27 June, on the General State Budgets for
2017. The latter is a purely defensive measure whose main goal is to silence the conict in the trade unions
in relation to the sizing of staff and the treatment of temporary employment in the public sector. Its goal,
therefore, is not to organize non-permanent employment relationships in public authorities, but to reduce
temporary employment within the previously established limits and rules of spending. Thus, the objectives
of the agreement are consistent: 1) make decisions on substitution rates and reinforce staff numbers across
public authorities overall, and 2) over the next three years, reduce temporarily lled positions and current
numbers of temporary staff, up to a maximum of 90%. To this end, the agreement provides for the possible
implementation of additional substitution rates to stabilize and consolidate temporary staff through recruitment
procedures ensuring the principle of equality and merit, which may be negotiated in the respective areas, and
which will assess seniority in the competitive stage. It also allows for the announcement of positions held by
staff classed as non-permanent and open-ended, which, to all intents and purposes will not be considered in
the general staff substitution rate.
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Some of these prescriptions were incorporated into this year’s budget law, which envisages two additional
rates: one for the stabilization of temporary employment in certain priority sectors, which may incorporate
positions deemed structural with budget allocations and which have been lled temporarily and consecutively
over the three years prior to 31 December 2016, and a second for the consolidation of the coverage of
positions held temporarily or temporarily prior to 1 January 2005, under the terms of the fourth transitional
provision of the BSPE 2015. This same law incorporates the commitment to exclude from the calculation
of the general substitution rate the positions of staff classed as non-permanent and open-ended by a court
ruling. The coordination of the stabilization recruitment procedures arising from these additional rates must
uphold the principle of equality and merit and may be subject to negotiation in each of the territorial areas
of the General State Administration, Autonomous Communities and local entities, which will no doubt be
subject to the ultimate conditions laid down in the State agreement with regard to the method of selection
and system of merit evaluation.
The measure, which seeks to correct the use of staff cuts with undue planning and a systemic order covering
the process of staff reduction, has clear shortcomings (Palomar Olmeda, 2017). In principle, it is a partial
measure that may have repercussions on certain sectors considered as priority by the State, but its impact
on certain territorial authorities, such as the local ones, is only relative. Viewed on its own terms, it is
also a limited stabilization measure projected on temporary staff who have held their jobs temporarily and
continuously over the three years prior to 31 December 2016. These years marked the start of economic
recovery, meaning that this measure is not designed for the recovery of staff lost during the darkest periods
of the crisis, i.e. 2011, 2012 and 2013. Furthermore, the condition of continued relationship means that the
most unstable staff—those subject to high rotation—will be unable to consolidate their positions due to the
excessive use of this type of exibility in certain areas of public authorities, such as education, health and
social services.
The consolidation of these staff will really depend on whether their position is considered structural and
permanent, which will drive any policy for reconsideration of the objective needs of Government in terms
of the stabilization of the current occupants; therefore, it will be in addition to the powers needed to tackle
the new professional sectors that the public authorities will need to carry out promotion in areas such as
information technologies and eGovernment, so there is a clear risk of stabilizing interim or temporary staff
for the performance of certain duties that could be obsolete within a few years and become superuous
(Jiménez Asensio, 2017).
Aside from this issue, the crisis situation has triggered the mobilization of certain endemisms typical of
institutionally learned departures in the public employment system (Cuenca Cervera, 2017). Crises are
contained by unplanned adjustments that seek immediate quantitative results regardless of the feasibility
of the services, yielding a difcult continuity and converting permanent staff into unstable forms of work,
to be stabilized once the urgency has passed. This gives rise to extraordinary vacancies for public work and
competitions for stabilizing or consolidating structural positions of the civil service.
The rst sacrice of these policies is the fundamental right of citizens to access public employment under
conditions of equality and merit, a right that is disregarded in the unacceptable extension of exceptional
interim situations that morph into situations of long-term temporality, or the law being ignored by the use of
recruitment tests that, while formally open to all applicants, in practice favour access by the current occupants
by reducing tests on knowledge to an absolute minimum and overvaluing the merits of experience in the
position advertised, which is held by temporary staff who must be stabilized. The result is that unplanned
adjustment leads to instability and requires subsequent stabilization, the upshot of which is damaging to the
principle of equality and merit.
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9 Differentiation, segmentation and inequality
The crisis accentuates the multiplication of differentiations and exceptions in the legal regimes of the
traditional dualism of our public employment system based on the distinction between civil service and
contract staff. It also segments the types and concepts specic to public employment legislation, giving rise to
the birth of a series of case-law creations seeking to solve compatibility problems between the different legal
regimes brought about by transformation and change in the business concepts that spring up as managers
of public services. The crisis has also given rise to a series of discriminatory processes in the treatment of
working conditions that coincide in time with a European doctrine that prioritises the equal rights of non-
permanent and permanent staff in situations where provisional or temporary relationships become long-term
relationships.
First of all, the crisis has fostered the notion that contract staff working in public authorities are separate to
common staff based on a special law of public character that tends towards unilateralism and inequality. The
legal regime of the public worker is gradually distinguished from the legal regime of the common worker
in a clear line of reduced rights (Marín Alonso, 2013). The crisis postpones the role of conventional norms
in the public sector, questions the legal effectiveness of collective agreements and allows the unilateral
modication of agreed working conditions. Further, the mechanisms of contract suspension and reduction in
the working day laid down in Article 47 WS, which constitute a non-traumatic mechanism of exibility in the
adjustment of employment needs, exclude the contract staff of authorities and public-law bodies not engaged
in the market. In the event of restructuring, this puts them in a situation of forced contract termination by
means of a negotiation procedure in which judicial doctrine has allowed the use of budget restrictions, in the
application of measures to reduce or mitigate the consequences of dismissals, as justication for refusing
enhanced legal indemnity or the introduction of compensatory measures, improvements and compensation
that would be contrary to the policies to curb public spending, in the opinion of the STS dated 18 February
2014, Appeal No. 59/2013. Along these same lines, the doctrine appears to authorize the late contribution
of relocation plans typical of restructuring processes which, in addition, are drafted internally and difcult
to control, and which should logically serve to mitigate the social consequences of mass redundancies, as
evidenced in the STSJ Navarre of 24 March 2014, Appeal No. 220/2013.
In other topics, the dualization of staff of the public authorities between an employment relationship and
an administrative one has waned during the crisis. The Basic Statute of Public Employees appeared to have
nally pinpointed the scope of the relationships of employment and civil service within the structure of
positions in administrative organizations based on the reservation for civil servants of the exercise of the
functions involving direct or indirect participation in the exercise of public powers or the safeguarding of the
general interests of the State and the public authorities. This reservation could be understood in the opposite
sense: if these were the reserved functions, the remainder could be carried out by contract staff, disregarding
the doctrine of STC 99/1987, of 11 June, on the existence in the Spanish Constitution of a generic option
favouring a statutory regime for public servants.
Logically, if the organizational criterion for classication of civil servant positions were the exercise of
public powers, the other positions prioritizing the choice of a legal system to increase efciency in the
delivery of public service could be carried out by contract staff, so contract staff positions should not be an
organizational or regulatory exception (Gorriti Bontigui, 2016).
Inexplicably, however, the legislation enacted in 2013 on rationalization and sustainability of local government
reinstates the general nature of the performance of jobs for civil servants. Moreover, as stated in the report
of the Commission for the Reform of the Public Authorities (CORA report, 2012), one of the keys to the
strategy for innovation and efciency in the public authorities turns out to be the best conguration of public
employment through determination of the legal status of the staff who must participate in the delivery of the
public services, an attempt at which appears to have been made by recovering the general rule of preference
for the civil servant relationship.
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In all events, we are now seeing the coexistence of a variety of organizational models and a diversity of legal
systems that distort the identication of an integrating and homogeneous model of public employment to
facilitate the joint management of staff in a scenario of minimally ordered dualization.
This dual model is accompanied by the progressive erosion and disaggregation of different types of staff. The
employment models of public authorities have a particular inherent trait in times of tension. The principle
of stability and the principle of merit in access to public employment should uphold a particular balance,
which is tested at the point at which they coincide. Administrative irregularity in the treatment of temporary
employment relationships, which should lead to conversion of the non-permanent employment contract to
a permanent one, nuanced by the principle of equality and merit, is converted into a non-permanent, open-
ended relationship (Arrufe Varela, 2015; Rodríguez Alcázar, 2015). The staff of the private operators that
indirectly manage public services become subrogated staff who are not public employees when the authority
recovers their direct delivery (Mauri Majós, 2017b; Castillo Blanco, 2017). Interim staff, who retain their
jobs over a series of budget years in which there are no public competitions for lling the vacancies, are
dened as long-term interim staff, as stated in the STS of 30 June 2014, Appeal No. 1846/2013. In other
words, a transitory and provisional relationship implemented for reasons of urgency and need is nally given
the consideration of a long-term relationship.
In all these cases, the afrmations are accompanied by negations, so determining the legal regime of each
legal concept becomes a process of legal engineering. The legal types of staff are segmented and diversied
over the periods in which the public workforces explore the boundaries of dualization and the instability of
public sector staff in their quest for a virtually impossible balance.
In this operation of differentiation and instability, the principle of equality acts as a compensatory element.
The problem of segmentation and instability, which is not the effect of an era but rather the sum of several
periods, coincides in time and in the constitutional and European framework with a doctrine of equating
the rights of non-permanent and permanent workers in cases with a degree of consolidation of the public
employment relationship (Palomar Olmeda, 2017). The principle of non-discrimination in the working
conditions of workers with a xed-term relationship and comparable permanent workers, formulated in
Article 4 of Council Directive 1999/70/EC of 28 June, which seeks to apply the framework agreement on
xed-term work concluded by ETUC, UNICE and CEEP, is wholly applicable to contract staff and civil
servants of public authorities (Aldomà Buixadé, 2015). This principle of Community social policy, which
could be an application of the principle of equality laid down in Article 20 of the Charter of Fundamental
Rights of the European Union, has had a particular projection on the working conditions of temporary
workers and interim civil servants of public authorities in the recognition of seniority and three-year periods
of interim civil servants and of the same temporary staff of public authorities in the CJEU judgement of 13
September 2007, C-307/05, and in the CJEU judgement of 9 July, C-177/14, in the assertion of the right
to a horizontal career and to the relevant career incentives and complements of interim civil servants in
the CJEU order of 9 February 2012, C-556/11 and in the CJEU order of 21 September 2016, C-631/15,
and in the recognition of previous services provided as interim staff for the calculation of time for exercise
of the right to internal promotion stated in the CJEU judgement of 8 September 2011, C-177/10 (Cantero
Martínez, 2017). Likewise, STC 232/2015, of 5 November, asserts the right of interim civil servants to
receive the specic allowances associated with seniority and the so-called ‘six-year period’ training in the
public education system, a decision afforded continuity by STC 71/2016, of 14 April, which overrides the
legal precepts of one autonomous community that had introduced reduced working hours and pay as a means
of tackling the crisis solely for interim civil servants and for the temporary and permanent contract staff of
its public authorities. In the specic chapter that could be devoted to non-permanent staff with open-ended
contracts, mention must be made of the STS of 28 March 2017, Appeal No. 1644/2015, which has normalized
this concept as a type midway between a temporary and permanent employment relationship in which certain
rights of permanent workers can be recognized, such as severance pay for objective dismissal—regular
coverage of the position—or the right to internal mobility as stated in the STS of 21 July 2016, Appeal No.
134/2015.
Joan Mauri Majós
Public employment after the crisis
Revista Catalana de Dret Públic, Issue 56, 2018 73
Therefore, processes of segmentation and instability not only lead to the disaggregation of the legal types
of staff, they also differentiate between their regimes and attract variable elements of permanent and non-
permanent relationships in the conguration of a strange hybridization whose only basis is that of equating
working conditions that crisis periods attempt to distinguish through the instrumentalization of legal staff
structures. This division occurs between civil servants and contract staff, but also between the different types
of civil servant and their possible spaces of career and mobility, and among the different types of employment
relationships deemed xed-term, open-ended or temporary. The diversication of public servants based on
their legal relationship, permanence and origin is the order of the day in an ebb-and-ow type movement
brought about by the judicial doctrine, impossible to grasp by an inattentive legislator.
10 Individualization and exibility in public employment
The two main goals of the reform of the regulatory framework of private sector employment relationships
have been: one, the adjustment of labour costs, and the other, which was repeatedly expressed, to make
employment relationships more exible and adaptable for employers to avoid the destruction of employment
where possible (Duran López, 2015). The instruments of internal exibility used for this purpose have been
the classication of staff into broad occupational groups, the expansion of the possibilities of geographical and
functional mobility, the irregular distribution of the working day and, ultimately, substantial modications to
working conditions, including the inapplicability of signed collective agreements (Álvarez Gimeno, 2017). In
addition, one of the essential arguments of exibility policies has been precisely that of the individualization
of employment relationships. In most cases, this policy is rooted in the introduction of methods of individual
assessment, almost always associated with wage and professional promotion policies (Banyus Llopis; Recio
Andreu, 2015).
By contrast, the adjustment project in the public sector has focused solely and exclusively on the reduction
of staff costs. Above and beyond the possible inapplicability of collective agreements, the crisis has not
come up with a specic exibility proposal for the public employment system. Intentions to promote the
efcient allocation of human resources, coordinate mechanisms of internal and interadministrative mobility
to improve the rational use of staff available to the public authorities and generally to implement mechanisms
to assess development have not been materialized in specic regulations or in their practical application
beyond their mention by the State Administration in Article 15 of Royal Decree-Law 20/2012, of 13 July.
Measures such as organizational exibility, the streamlining and compacting of professional structures,
functional equivalence, internal mobility and the adjustment of working hours are now real needs in public
and private organizations. This begs the question as to whether the current Basic Statute of Public Employees
contains these measures or allows their implementation and, consequently, if it is a valid instrument for the
introduction of the internal exibility measures acknowledged as essential in modern systems of human
resources (Palomar Olmeda, 2012).
Similarly, wage reduction and restraint measures have thwarted any possibility of implementing a process
of professionalization and individualization of service relationships specic to public employment. A review
of the crisis legislation of the Autonomous Communities shows how the laws on nancial sustainability of
the various Autonomous Communities have impacted on this possibility. For example, Article 12 of Decree-
Law 1/2012 on scal, administrative and employment measures and on public nance for the economic
rebalancing of the Junta of Andalusia, reduces the amounts allocated to the distribution of variable wage items
for reaching targets, performance incentives, productivity bonuses, on-call work allowances and professional
career allowances. Articles 34 and 36 of Law 10/2013, of 20 December, of the Junta of Communities of
Castile-la Mancha on the 2014 general budget, nullify the budget allocation for target incentives and the
recognition of new career levels and payments. Similarly, Article 24 of Decree-Law 10/2012, of 31 August,
amending Decree-Law 5/2012, of 1 June 2012, on urgent administrative and staff measures to reduce
the public decit of the public sector of the Autonomous Community of the Balearic Islands and other
autonomous institutions temporarily reduces the amount of wage items relating to administrative career.
Joan Mauri Majós
Public employment after the crisis
Revista Catalana de Dret Públic, Issue 56, 2018 74
Clearly, the rst victim of the crisis is individual differentiation based on initiative and effort, performance,
achieving of results and delivery of a quality service. The traditional xism and egalitarianism typical of the
statutory system emerge fully unscathed from the crisis period, while policies based on professional conduct
and personal development nd themselves in a difcult position, ultimately sending a clear signal of the lack
of appreciation and recognition of talent and readiness to assume responsibility in public organisations.
Simply put, the most innovative policies introduced in the new Basic Statute of Public Employees in 2007
have been the biggest losers in the crisis. Staff career, the assessment of development and professional public
management are forgotten or relegated to the back-burner based on budget adjustment needs, to the point that
the reformist spirit of the Statute is openly challenged and none of the proposals that could have improved
the system of human resources in public authorities is implemented, a system that must now wait for a new
opportunity for reform (Ramió, 2017).
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