June 2016
Law 9/2016, of June 13, modifying the ninth additional provision of Law 3/2007, of March 27, on the public service of the autonomous community of the Balearic Islands
On June 16, it was published in the Official Gazette of the Balearic Islands (hereinafter, “BOIB“) Law 9/2016, of June 13, modifying the ninth additional provision of Law 3/2007, of March 27, on the public service of the autonomous community of the Balearic Islands (hereinafter, “Law 9/2016“).
By Law 9/2016, on the one hand, the ninth additional provision of Law 3/2007, of March 27, on the public function of the autonomous community of the Balearic Islands (hereinafter, “Law 3/2007“) and, on the other hand, article 9 of Decree Law 5/2012, of June 1, on urgent measures in personnel and administrative matters to reduce the public deficit of the public sector of the autonomous community of the Balearic Islands, and other autonomous institutions (hereinafter, “Decree Law 5/2012“).
1.- Modification of Law 3/2007: suppression of “level 33”.
Firstly, through Law 9/2016, the right to receive the remuneration supplement regulated in the ninth additional provision of Law 3/2007 is eliminated, and, before that, in article 30 of Law 20/2001, of December 21, on tax, administrative and public service measures; in article 18 of Law 12/1999, of December 23, on tax, administrative and public function measures; in article 12.5 of Law 6/1992, of December 22, on the general budgets of the autonomous community of the Balearic Islands for 1993; and in article 8.4 of Law 11/1991, of December 13, on the general budgets of the autonomous community of the Balearic Islands for 1992.
Specifically, it involves the elimination of the lifetime salary supplement commonly known as “level 33” that, to this day, officials were receiving when they returned to active service after having held certain political positions for two continuous years, or three with interruption.
In accordance with this, and in accordance with the provisions of article 87.3 of the Law of the Basic Statute of Public Employees, approved by Royal Legislative Decree 5/2015, of October 30, the public employees of the Administration of the autonomous community of the Balearic Islands and the staff of the entities that make up the autonomous public sector, including that of the island councils, that of local entities, that of the University of the Balearic Islands subject to the legislation of the autonomous public service, and that of the statutory bodies, which have recognized said remuneration supplement in accordance with the aforementioned legislation, do not have the right to receive it.
Note that the elimination of the remuneration supplement would affect those officials who had this remuneration right recognized before the entry into force of Law 9/2016, since said rule neither excludes them from its application nor establishes a specific transitional regime for them. This raises doubts about the compatibility of Law 9/2016 with the limits on the retroactivity of the regulations and with the principle of legal certainty, and its constitutionality may therefore be questioned.
In view of the conflict generated around the adoption of these measures by the regional legislator, it is foreseeable that, ultimately, it will be the Courts who will have to decide on the constitutionality of the norm and, therefore, on whether or not the right to receive the aforementioned remuneration supplement should be maintained for those officials who had it recognized before the entry into force of Law 9/2016.
2.- Modification of Decree Law 5/2012: extension of the permanence in active service.
On the other hand, Law 9/2016 gives a new wording to article 9 of Decree Law 5/2012, relating to the suspension of the extension of permanence in active service.
Specifically, a new case of authorization of the extension of the permanence in active service is introduced: when, as a consequence of the forced retirement of the person concerned, the provision of certain essential services may be affected by the lack or insufficiency of professionals (new letter d) of article 9.1 of Decree Law 5/2012). In this case, the authorization will be granted for the corresponding essential period, at the request of the interested person, presented at least two months before the retirement date. The request for extension of the service will have to be accompanied by a report from the General Secretariat or equivalent body in personnel matters where the requesting person provides their services, in which the justifying circumstance of the need for the extension of the service is reliably accredited; and a favorable report from the Personnel Commission of the autonomous community of the Balearic Islands.
Likewise, a new section 3 is added to article 9 of Decree Law 5/2012, which indicates that in certain cases (those regulated in letter c) and in the new letter d) of the aforementioned article 9) the authorizations to extend the stay in the active sector will be conditional on the certification, by the prevention services where the interested person provides services, of the functional capacity necessary to fulfill the tasks and functions of the job held.
Finally, section 4 of article 9 of Decree Law 5/2012 is deleted, according to which, in order to reduce the credits linked to the personnel expenditure of each budget section, the Government Council will agree on the amortization of the places that are considered appropriate.
3.- Entry into force.
In accordance with the final provision of Law 9/2016, this rule comes into force the day following its publication in the BOIB (that is, June 17, 2016).
The content of this Alert is for informational purposes only. Any decision or action based on its content must be subject to appropriate professional advice.
