Interim lawyers, expectant before the processing of the bill, ask workers in fraud to sue

Luis Javier Sanchez | 20/09/2021 12:52 | Updated: 09/20/2021 1:44 PM

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The Royal Decree-Law 14/2021, July 6, was validated in the Congress of Deputies at the end of July in a second ballot -by one vote- and with the commitment to process it as a bill.

In a few days will begin its journey in the Lower House and the general feeling is that there is no clear solution to face temporary employment in public employment.

This has been stated Javier Arauz, Richarte Fruits and Fabian Valero, three lawyers who are experts in interim claims, during their participation in a seminar at the Tarragona Bar Association in which they have reviewed the most outstanding judgments of the Court of Justice of the European Union (CJEU) and they encouraged the temporary fraud workers to sue, if they haven’t already done so.

Both in person and via webinar, many jurists and interns in an irregular situation followed this seminar, under the name ‘Questions of interest about the regularization of interns of public administrations’ and promoted by the Labor Law section of the College.

In person, Fruitful Richarte, a founding partner of Originlex, said that he knows firsthand the situation of abuse since suffered as a substitute magistrate at the Provincial Court of Barcelona.

Also in person, Javier Arauz, managing partner of Araúz y Belda and state attorney on leave of absence, promoter of the first claims against the abuse of interns, recalled the need for our politicians to rise to the occasion and solve a problem that has lasted for many years in our country.

For its part, Fabian Valero, in streaming from Vigo, managing partner of Zeres Abogados and university professor, who has chained several successful processes against the Galician administration, highlighted the need to comply with the CJEU rulings.

The day had a marked tone vindicating the rights of workers and civil servants in a temporary position, who have “unusually” or “unjustifiably” long relationships with the administration (of more than three years).

After the historical review of the antecedents that have led us to the current situation, the presentations focused on the approach to legal formulas to request the stability of public employees “in abuse”.

The three jurists emphasized the Advances in the jurisprudence of the Supreme Court and its Social Chamber with the recognition of the figure of the indefinite non-fixed, which makes them return to their jurisprudence of 2014 and they hope that the contentious judges will also adapt their regulations to the CJEU, a question that they have not done so far.

In this exchange of opinions between these jurists, different questions of interest were mentioned that define the dimension of a problem that recent governments have not been able to solve.

First of all, the lack of clear statistical data, in Spain there are between 800,000 and more than 1 million public workers susceptible to being in a situation of fraud and / or abuse.

One of the problems that arises now with the Royal Decree-Law in force is what will happen to the temporary workers already terminated or those with selective processes underway. In fact, the only solution that could be considered is include a transitional provision in the bill to take that group into account, but it will not be easy.

At the moment, the administrations of the Autonomous Communities are those that add up to more interim in these circumstances, followed by local corporations.

On the other hand, the judgments that arrive from the CJEU repeatedly determine that the volume of internment of the Spanish public administrations is abusive and they urge it to be resolved.

However, for the moment our administrations ignore these recommendations. So far, there are two infringement proceedings that the European Union has opened against Spain in 2013 and 2014 and thousands of lawsuits from interns and some from recent lawyers on Royal Decree-Law 14/2021 promoted by former minister Miquel Iceta and the majority unions.

On the other hand, another question on which these experts agreed is on the aforementioned figure of the “Undefined not fixed”. These jurists pointed out in their interventions, and in the subsequent debate, that it is not an adequate response to the excess of temporary contracts since it is also a type of temporary contract (which extends to the coverage of the square), so neither it responds to the employee in fraud nor is it dissuasive.

At the same time, they highlighted that in the absence of a sanction for abuse determined in Spanish regulations, the “fixity” (stabilization of the interim in abuse in his place) is the only viable solution.

There the report made by Maria Emilia Casas, president emeritus of the Constitutional Court and professor of Labor Law at the Complutense University of Madrid, who pointed out that the figure of permanent workers to be extinguished is allowed and would have a constitutional requirement that the majority unions and other interlocutors deny.

They also indicated that requirements of equality, merit and ability, which emanate from the Spanish Constitution, would not be an obstacle to “fixity” to the extent that they can oppose European treaties that would take precedence over the constitutional text.

Another issue that they pointed out is that it would not be a problem if there were a single appointment or contractThe concept of “selective process” being sufficiently lax so that the opposition, the merit contest, and even the personal interview could be included.

For these expert jurists in defense of the interests of the interim the “Decree Iceta” does not propose real solutions for current public employees in abuse, so the three experts agree that defending rights judicially is the best solution for now.

After the conference, the speakers valued the meeting very positively, and have shown their interest in staying in contact in subsequent conferences at CICAC and the General Council of Spanish Lawyers, as well as promoting a future Interim Observatory, as a place of analysis for the problems of this group.

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