The end of the “indefinite-non permanente employee and the search for a new formula that avoids the abuse of fixed-term work as well as the unfair capture of public employment

Abstract

The abuse of fixed-term work in public offices, both for contracted and administrative workers, has reached a point of great concern in Spain. The 5th clause of the Framework Agreement on Fixed-Term Work forces the state to adopt any measures necessary to prevent and sanction such abuse. Yet this clause is greatly imprecise. On the other hand, it is not easy to formulate the necessary measures with public employment in mind, since there are two conflicting interests to consider: job stability and the constitutional model for public employment. In the field of labour law, judicial rulings have established the doctrine of the “indefinite non-permanent employee”, trying to offer a solution that balances these two interests. But this doctrine has failed because oftentimes the Administration does not go on to offer the right position in a reasonable period of time. Thus, instead of fixing the problem, the figure of the “indefinite non-permanent employee” perpetrates it. This paper studies the origin, evolution and crisis of this doctrine of “indefinite non-permanence”, within the framework of the latest rulings from the Court of Justice of the European Union. From this analysis, we will put forth some proposals for the current debate.