Consolidation as a differential form in the access to public employment. The case of the local administration
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There is a long-standing debate in public organizations about how face the permanency of those employees who have been providing precarious and temporary public services for a long time.
Nowadays, legislation on public employment uses the term “stabilization”. This is an euphemism to allow the “simple” competition-opposition system, which is only one system of access to public employment. The use of a competition-opposition does not mean “stabilize” unless you take into account the services provided in the past in a given position. And this last point is made consciously, position and not place.
The Spanish Constitutional Court (SCC) has developed a doctrine on the system of “consolidation”. The SCC highlights an important issue: those who have been providing services in public administrations have already demonstrated their capacity. They must demonstrate their merit in the opposition-system.
The SCC has conceptualized a “real” consolidation process as an exceptional process. This is the case because this process is a “controlled” deviation of articles 14 and 23.2 of the Spanish Constitution, but not a violation which opens the door to the constitutional individual complaint (recurso de amparo) in the case that were no an infringement of the minimum standard regarding the quantification of the services provided.
In 2003, the SCC established a clear doctrine regarding the consolidation of temporary staff. If you want to consolidate, neither free opposition nor sometimes simple competition-opposition are appropriate. From this doctrine comes the eutaxia of the Fourth Transitory Provision of the Consolidated Text of the Basic Statute of the Public Employee.
Therefore, it is necessary to separate two different legal institutions: (i) the access to public employment that can be carried out through the channels of the opposition-competition, when it is legally and functionally authorized, and (ii) the consolidation, a legal-organizational process whose object is to stabilize the legal-labor link of the public employee with the contracting public entity through a selective tests in which the time loaned in the position performed must be adequately and proportionally taken into account.