Text elaborated on the basis of the Special NEWSLETTER of the INCAS, “The protection of maternityà and paternità. The rights of parents in 2000”
Pagine: 1 – 2 – 3 Parte generale
the law of The 30th December 1971, n° 1204 and its implementing regulation DPR 25/11/76 constitute the legal basis of protection of working mothers.
Are protected those who carry out an activity; in the employ of a private employer or the public, the più in detail, the employees of the various administrations of the State, the Region, of the Province or of the Municipalities, the employees of private employers, (companies, artisans, traders, industries); the employees of the companies; co-operatives, apprentices, workers on the farm.
(with regard To women workers at home, domestic workers (maids) mezzadre and the settlers, the protection suffers of the limitations which we will discuss more on that later).
The next law 53/2000 called “Provisions for the support of maternityà and paternità, for the right to care and training and coordination times of the cityà” – change legislation (law 1204/71) on the protection of maternityà, amplifying, and extending the rules to the father as the worker.
The provisions of the law 1204/71 apply to all working mothers, and with the peculiarityà to apprentices, domestic workers and workers at home. Self-employed women, who have special rules have been included in the law 53/2000 only for the optional leave of 3 months.
For working in the public sector, all of the contracts contain specific articles dedicated to maternityà which lay down more favourable conditions than those contained in the law and 1204/71 that in the new law, especially with regard to the measurement of the compensationà economic and to have a rest and permits.
below are the provisions of the coordinates of the two laws, mentioning those più important.
For an in-depth reading in the field, We refer to the Special NEWSLETTER of the INCAS, “The protection of maternityà and paternità. The rights of parents in 2000” .
Prohibition of dismissal
The prohibition of dismissal from work from the beginning of the gestation period until the child is 1 year of age of the child. Are excluded from this rule: the maid. This prohibition does not work in the following cases: dismissal for just cause; termination of business activity; the company; the completion of the services to which it was employed: the worker and the work relationship is terminated following the expiry of the term.
The prohibition of dismissal does not &is anchored to the presentation of a medical certificate, however we recommend that you present it equally as much as before. With the new legislation, the prohibition of dismissal also applies to the father, who qualifies for the maternity, the birth of the child up to the completion of a year of età of the same.
the Prohibition to assign women to heavy work and unhealthy
The workers during the period of gestation and up to 7 months after giving birth are exempted from the transport and lifting of weights, and can be moved to other duties , preserving the salary and the qualification of the original, if you are moved to the tasks below.
The DPR 1026/76 is the regulation that indicates the work is dangerous, tiring and unhealthy to which the worker must not be used. The list of tasks that are forbidden for pregnant women
And not allowed to work the pregnant women: during the 2 months prior to the presumed date of childbirth, we must refer to the date indicated on the medical certificate, even if you può be forecast error. During the 3 months after the birth.
The layout is valid also for the women workers at home and home helpers. The maternity post-partum period has been extended also to the working father in the case in which the assistance of the mother-to-child has become impossible for death or serious infermità of the own mother (the Judgment of the Court Cost. no.1/1987).
The new standard in addition to transposing the aforementioned judgment establishes the right to compulsory leave for the father also in the case of sole custody. This provision is also applicable to the father, a self-employed basis, which assumes the replacement in the company with the worker in certain time.
The new law no.53/2000, transposing a judgment of the Constitutional Court (no.270/99), provides that, if the birth occurs earlier than the expected date, you can add up to 3 months post-partum days compulsory leave not taken before delivery, up to a maximum of 5 months, provided that there has been, however, the actual absence from work. The worker is required to submit within 30 days from the date of delivery of the certificate attesting to the date of the event.
Flexibilityà of the obligatory abstention
without prejudice to the duration of the compulsory leave of 5 months, the new law (art.12) introduces – from 28 march 2000 – the possibilityà to continue to work for up to 8° month of pregnancy using così just a month before the birth and 4 months after birth.
The facultyà può be exercised, provided that both a gynecologist in the national health system is a physician responsible for the health in work places, proving that this choice does not adversely affect the health of both mother and baby. Within 6 months from the entry into force of the new law, a decree individuerà with list, the work for which the sarà forbidden to obligatory abstention flexible. The certification of flexibilityà leave maternityà
the Obligations of the-worker.
Before the beginning of the compulsory leave, the employee must submit to the employer and to the INPS (or to the Institution which is insured) the following documents: the demand of payment of the compensationà maternityà, with the specification of the start date of the compulsory leave, as provided for in article 15 of law no.1204/71, as amended.
The doctor’s certificate of pregnancy written on a special form supplied to the ASL, indicating, among other things, the month of gestation (at the date of the visit) and the presumed date of confinement.
compulsory leave in advance
The worker può ask the labour inspectorate, now the provincial Directorate of the work, early leave from work since the beginning of the gestation period in the following cases: severe complications of pregnancy or pre-existing forms of disease that are assumed can aggravate the state of pregnancy; if the working conditions or the environment are deemed to be prejudicial to the health of the woman and of the child; when the worker can notò be moved to jobs that are less uncomfortable.
To that end, the working mother will haveà consult your doctor who will haveà to release a proposal for early leave to be present at specialist of the Asl, which, in turn, formulerà the authorisation to be submitted to the provincial Directorate of work in the annex to the demand of the worker.
Such abstention may; be prolonged up to 7° month after giving birth, if the worker is involved in processing noxious and non può be moved to other tasks, with the right to receive the same compensation will be payable for the normal compulsory leave.
cost of the obligatory abstention
The workers have the right to a compensationà daily equal to 80% of the average salary overall to be felt in the pay period quadrisettimanale or month previous to the one in which he had the beginning of the compulsory leave. The average daily wage on which to compute the 80% is to be added to the rate per day of the christmas bonus, of the 14^ mensilità and any awards.
The period of obligatory abstention for maternityà è considered to be useful both to the right and in the measurement of all pension benefits.
According to the previous law, the worker had the right to abstain from work, after the compulsory leave, for a period of 6 months, not consecutive, within the first year of the child. In alternative to the mother, and only if this was in the right, and there renounced, the optional leave could be seen even from the father.
The compensationà the economic was and is the 30% of the average earnings the overall day-to-day of the month preceding the compulsory leave, (excluding accrued expenses of mensilità additional and of any prizes. With the application of the current rules, the salary of reference for the optional leave, it willà be related to the previous one in abstention compulsory, but will goà redetermined on that is contractually in effect at the time of the abstention optional.
The contracts may provide for additional shares to be paid by the employer. The new law 53/2000, while it does not change the più much of the rules on compulsory leave, brings substantial innovations with respect to the optional extension. The changes, all positive, becauseé extensive rights, unfortunately, confirm the non-application of the optional leave to the maids, to the workers at home, to the workers who carry out activities; to coordinate and continuative collaboration.
This exclusion, it seems to us incomprehensible and even unconstitutional. From the 28th of march 2000, the optional leave is the responsibility of both parents, individually or jointly, up to the age of the 8 years of the child, for a total period of 10 months, continuous or fractionated, as every parent is, it willà to exceed 6 months of use (for example, if the mother receives 6 months, the father willà take advantage of 4).
The father is entitled to optional leave even if the mother is not entitled to (becauseé è unemployed, housewife, worker, at home), and if the father shall have the benefit of that right for a continuous period of not less than 3 months, his limit of 6 months became 7 months and the maximum overall limit of use between the two parents becomes 11 months (7 months x the father, and 4 months of x’s mother).
In the case of a single parent, the period of optional leave competes for 10 months, before completion of 8° year of the child.
the Obligations of the worker or the worker or both
The worker or the worker or both (if they want to take advantage of the optional in the same period), must notify in writing to the employer 15 days before the beginning of the abstention. Different terms may be envisaged by the national collective agreement.
Measurement of the compensationà
Since march 28, 2000, the compensationà for optional leave compete for a total period of 6 months between the parents, to the extent of 30% of the salary (global average, daily in the month preceding the compulsory leave, (excluding accrued expenses of mensilità additional and of any prizes), up to the age of 3° year.
For periods of use beyond 6 months, and subsequent to the completion of the 3° year of the child up to the age of 8°year of età, the above compensationà to compete only if the personal income of the applicant is less than 2.5 times the amount of the minimum treatment (for the year 2000 £.23.429.250). For the determination of the income, the rules of integration at the T. M.: all income eligible income TAX, except the dwelling house, the severance pay, and the income to the separate taxation. The collective labour agreement may provide for additions additional.
The period of optional leave is covered by notional contributions both to the right and to the measure of all pension benefits, for the period of use total of 6 months between the parents, and if received before completion of the 3° year of the child.
For the periods that you enjoyed more than 6° in the same month, and from 3 years to 8° year of the child, the notional coverage is determined on the basis of a salary equal to twice the social allowance (for the year 2000 £. 16.733.600) and competes even if you do not have the right to the compensationà 30%, for the overcoming of the limits of income. This last contribution is integrable on the part of the concerned with the question of ransom or permission to voluntary transfers.
daily Rest periods
The employer must grant to the working mothers, during the 1° year of the child 2 permits the resting of 1 hour, which may be accumulated during the day. The rest is a now only if the daily hours of work is less than 6 hours. The hours must be granted even if there is breast-feeding, and are to be paid , for the account of the INPS by the employer.
While the law 1204/1, there was notional coverage for these hours, currently – with the law 53/2000 – is expected to cover double the amount of the social allowance, and the said cover può be integrated by the worker. The said benefit is available even from the father the worker in the following cases: if the children are entrusted to the father alone; alternatively, the working mother employee, who is not exploited it; if the mother is not; the working employee. In the case of multiple births, the leave hours are doubled, and the parent può make use of the additional ones.
Permission for the child’s illness
With the new law, the right to refrain alternately from work during the illness of the child is attached to both parents until the age of 8° year of età. Up to the age of 3° year of age; the child does not provide time limits for use, from 3 years to 8 is provided for a maximum of 5 days per year for each parent. The illness must be certified by a specialist doctor in the NHS or with it in agreement.
Until the age of 3° year of età of the child the periods of absence from work for illness of the child are covered by notional contributions totally, by the 3° to 8° of the year, coverage is tailored to the imputed remuneration equal to twice the amount of the social allowance. The hospitalization of the son interrupts the course of the holidays of which may be in use in the parent.
Children for adoption or entrustment
employees who adopt children up to 6 years for domestic adoption and more than 6 years for the international ones, can take advantage of the compulsory leave and the compensationà thus resulting in the 3 months following the entry of the child into the family. With regard to the rules on abstention optional, così as amended by the new law 53/2000, parents can abstain from work if at the time of the adoption or foster care, the child has an età between 6 and 12 years, in the first 3 years from the entry of the child in the household. You then apply the general rules with some peculiarityà, which will be clarified with the issuer.
Children with disabilities in situations of gravityà
The parents, whether father, mother, adoptive or foster caregivers of disabled children in a situation of seriousnessà, recognized, in addition to the statutory leave, have the right: to extend the uninterrupted of the optional leave 30% of salary up to the age of 3° year of età of the child, provided the child is not hospitalized full-time in a specialized institution; in the alternative, a daily permit of 2 hours, up to the age of 3° year of età normally self-employed; 3° year of the child, to leave 3 days monthly, also accessible on an ongoing basis, and normally self-employed.
The coverage of contributory figurative works in all cases, including – march 28, 2000 – 3 days allowed monthly so far employed, but have been discovered of the contribution.
New ability to advance payment of severance pay
To give a concrete application of the above standards, the law provides that in the case of optional leave after childbirth, the worker, può request the advance payment of severance pay, in addition to the cases governed by article 2120 of the Italian civil code (healthcare costs are documented, the purchase of a first home), also to meet the expenses incurred in the periods of optional leave and the child’s disease. For public employees, in view of the peculiarityà of their compensationà of goodwill, the modeà application of the standard will be defined by a ministerial decree.