The First Section of the Social Chamber of the Superior Court of Justice of the Canary Islands (TSJC) has ruled that there has been "illegal transfer" of workers in the Timanfaya National Park between the public company Tragsa and the Ministry of Territorial Policy of the Canary Islands Government, through two rulings in which it has sided with two park guides. In them, the Regional Executive is declared obligated to recognize both as workers of the administration and with the status of indefinite employees.
As stated in the rulings, the Ministry of Territorial Policy, Sustainability and Security of the Government of the Canary Islands has entrusted Tragsa with the service of support for surveillance and public use in the Timanfaya National Park and, by virtue of said commission, the public company hired both workers with the category of interpreter guide, one of them in February 2007 and the other in April 2017, signing in both cases a temporary contract for work and service that has been extended.
However, both workers appealed to the Justice and sued the public company Tragsa, as well as the Ministry of Territorial Policy and Security of the Government of the Canary Islands, demanding to be incorporated into the staff of the Regional Executive as permanent or indefinite workers, considering that the co-defendants were incurring in illegal transfer of workers.
These claims were dismissed in the first instance by the Social Court number 3 of Arrecife by judgments of May 2018, but the workers appealed the respective judgments to the Superior Court of Justice of the Canary Islands, which has now sided with them.
Evidence of "a single productive organization"
In the first of the judgments, which was issued in the month of November, the Social Chamber of the TSJC affirms that "it is deduced that, to carry out his work, the plaintiff here makes use of relevant material means that the defendant Ministry makes available to him".
"The instructions on the development of the service emanate from the Park's Management (although they are communicated to the plaintiff through the Tragsa coordinator)" and that the daily activities of the actor are the same as those of the staff of the Autonomous Community", adds the ruling, which even points out that the plaintiff "covers the service in the absence of the Ministry's staff". And, according to what is stated, the plaintiff finishes his working day one or two hours later than the workers belonging to the staff of the Government of the Canary Islands and also works on weekends, when the Ministry's staff does not, which in the opinion of the chamber "evidences a single productive organization".
The Ministry, "the real employer"
In the second judgment, issued on December 17, the same court affirms that "although Tragsa exercises nominal control over the activity of the plaintiff" through a coordinator, "as for the effective performance of her working day, management of permits and vacations and preventive training, having a uniform and company telephone, really her functions as an interpreter guide in the Timanfaya National Park are confused with those of the specialist technicians assigned to the defendant Ministry".
Likewise, in this case it is pointed out that it is the director of the National Park who "is in charge of dictating the instructions" to the Tragsa coordinator, "so that in short the latter has not put its organization into play with its own means, but rather the worker has been inherent in the administrative organization of the Visitors Center of the defendant Ministry, using the material means made available to it by said administration for the fulfillment of the Center's purposes".
Thus, it is added that the commission of services would have resulted in "a mere formal cover in order to cover the insufficiency of personal and material means" and that it can be concluded that "the defendant Ministry is the real employer of the worker".
In this way, the First Section of the Social Chamber of the TSJC concludes that there has been illegal transfer of both workers by Tragsa to the Government of the Canary Islands and declares that both be recognized by the Ministry of Territorial Policy, Sustainability and Security as workers of the administration with the status of indefinite employees, in one of the cases as permanent staff and in the other as non-permanent, respecting their seniority as workers of the Timanfaya National Park "and other inherent rights".
Hiring in fraud of law
In the case of the worker who has been providing service in the Timanfaya National Park since 2007 through successive extensions, he also maintained that his contract, of the work or service modality, would have been agreed upon in fraud of law. And, according to him, "it was not a work with its own substance, but would correspond to the ordinary work in the Park. In addition, having an seniority of eleven years, it would exceed "by far the term of three years provided" in the Workers' Statute, so that his employment relationship would have already become indefinite.
However, the TSJC does not pronounce on the matter, pointing out that "the approach of the appellant makes no sense since, although the claim alludes to fraud in the temporary hiring, in reality the action exercised is that of illegal transfer".
