From public employees with an employment contract to public employees with a permanent public tenure. A possible solution for local governments
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The public administrations have hired to evade the law employees through indefinite employment contracts without a permanent public tenure and this policy has been upheld by courts. This situation has generate several organizational anomalies in relation to the integration of this personnel with employment contracts into permanent public tenures which are budgetary provided. Labor judges did not apply basic administrative law and, therefore, they did not declare void this policy which has been carried out in complete breach of the proceedings provided by law. To the contrary, labor judges created the new employment category of “public employees with an employment contracts without a permanent public tenure” and ordered the public administration to redirect this personnel to some of the existent categories of public employees. This article provides a solution for this issue at the local level. In the case of a prevision of a budgetary permanent public tenure, the solution consists on proceedings with the consent of the employee which would change the nature of the relationship between the public administration and the employee: from an indefinite employment contract to a temporary public tenure (Judgment of the Superior Court of Asturias, of 31 January 2014). All of this, taking into account that the materialtemporal-legal relationship between the two parts remains the same. However, it is not possible to transform automatically a temporary public tenure into a permanent one because the constitutional principles of merit and capacity must be observed. Therefore, the definitive adjudication of the permanent public tenure should be done through a recruitment process –an open competition- which allows the assessment of the merits of an employee at the service of the public administration for a long time, first as a public employee with an employment contract and second holding a temporary public tenure.