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[unofficial translation]

Professional De Agostini - ITALIAN LAWS - PART A (enforced text)

Up-dated following the Off.Jour. of 26/02/2002

200. WORK

E) Women and children (Protection of their work)

Law of 9 December 1977, nr. 903 (1).

Parity of treatment between men and women in matter of work (1/circ).

(1) Published in the Off. Jour. on 17 December 1977, nr. 343. (1/circ) With reference to the present provision the following circulars have been issued:

I.N.P.S. (National Agency for Social Security): Circ. letter of 6 June 1996, nr. 117; Circ.Letter of 4 August 1997, nr. 182;

Ministry of Foreign Affairs: Circ. Letter of 16 July 1997, nr. 7;

Ministry of The Navy and Transport : Circ. letter of 24 November 1997, nr. 136228; Circ. Letter of 12 December 1997, nr. 18245;

Ministry of Labour and Social Security: Circ. Letter of 26 March 2001, nr. 31/2001;

The Treasury: Circ. Letter of 27 May 1997, nr. 763;

Ministry of Education: Circ. Letter of 21 August 1997, nr. 525; Circ. Letter of 28 October 1997, nr. 664;

Ministry of Justice: Circ. Letter of 27 November 1997, nr. 4/1-S-1581;

Ministry of Education: Circ. letter of 25 January 1996, nr. 15; Circ. Letter of 5 November 1996, nr. 137;

Prime Minister's Office: Circ. Letter of 27 March 1997, nr. 62;

Prime Minister's Office: Department for public affairs and regional affairs:

 Circ. Letter of 17 April 1996, nr. 1956.

(jurisprudence)

1.Is prohibited for whichever gender discrimination as far as access to work independently from the assumption modalities and any field or branch of activity, at all levels of the professional hierarchy.

The discrimination of which in the previous paragraph is prohibited even if put into effect:

1) With reference to marital status, family or pregnancy;

2) Indirectly, through mechanisms of pre-selection or by means of the press by any other advertising form that indicates as a professional requirement to belong to one or to the other gender.

The prohibition referred to in previous paragraphs is applied also to such initiatives as information, formation, improvement and professional up-dating, concerning as well the access as its contents.

Eventual exceptions to the dispositions are admitted only for particularly steep compensations for work established through counterfeit.

It is not considered as discrimination the requirement to be of a determined gender if it concerns the assumption in fashion activity, art and show business, when this is essential for the nature of work to be performed.

(jurisprudence)

2.The female worker has the right to the same compensation as the male worker when the required work performances are equal or have the same value.

The systems of professional classification for the determination of compensations must apply the same criteria for men and women.

(jurisprudence)

3.Any discrimination between men and women as far as the attribution of qualifications, duties and the promotion in career is prohibited.

[The absences at work, mentioned in articles 4 and 5 of the law of 30 Decembers 1971, nr. 1204, are considered, for the promotion in career, as a working activity, if the collective contracts do not demand particular requirements in that respect] (1/a) (2).

(1/a) Paragraph deleted from art. 86, Legal Decree of 26 March 2001, nr. 151.

(2) Provision referred to in the present paragraph are now included in articles 22 and 86 of the full text approved in Legal Decree of 26 March 2001, nr. 151.

(jurisprudence)

4.Female workers even if they satisfy requirements to obtain the right to a pension, can opt to continue their work to the same limits of age set for men by legislative rules, dispositions and contracts, on the condition of a prior notification to be sent to the employer at least three months before the date of obtaining the right to pension.

For the female workers who at the date of enforcement of the present law still have a working activity, even having satisfied requirement to obtain right to pension, the obligation of notification to the employer, referred to in the previous paragraph, does not apply.

The disposition referred to in the first paragraph is applied also to female workers who satisfy the requirement set within three months after enforcement of the present law. In such cases the notification to the employer will have to be done within a period not exceeding the date in which the said requirement has been satisfied.

In the hypotheses of which in the previous paragraphs to the female workers apply the dispositions of the law of 15 July 1966 nr. 604 and successive modifications and amendments, in exception to article 11 of the same law.

(jurisprudence)

5.[ 1. It is prohibited to assign women to work from 24pm to 6am, when her state of pregnancy has been ascertained and until the child has completed 1 year.] (2/a) (2/b).

2. Night work cannot be enforced:

a) [by a working mother of a child of less than 3 years old or alternatively by a father cohabiting with them] (the 2/c) (2/d);

b) [by a female worker or a male worker who is the only custodial parent of a cohabiting child of less than twelve years old ] (2/e) (2/f);

c) by a female worker or a male worker who is in charge of a disabled person under the provisions of the law of 5 February 1992, nr. 104, and successive amendments (2/g).

2/a) Paragraph deleted from art. 86, Legal Decree of 26 March 2001, nr. 151.

(2/b) Provisions referred to in the present paragraph are included in article 53 of the single text approved in Legal Decree of 26 March 2001, nr. 151.

(2/c) Letter deleted from art. 86, Legal Decree 26 March 2001, n. 151.

(2/d) Provisions referred to in the present letter are included in article 53 of the approved full text of Legal Decree of 26 March 2001, nr. 151.

(2/e) Letter deleted from art. 86, Legal Decree of 26 March 2001, nr. 151.

(2/f) Provisions referred to in the present letter are included in article 53 of the approved full text of Legal Decree of 26 March 2001, n. 151.

(2/g) Article replaced therefore by art. 17, Law of 5 February 1999, nr. 25, mentioned in the item European Communities, in order to adapt the national legislation to the sentence of the Court of Law of the European Communities on 4 December 1997.

(jurisprudence)

6.[Female workers who have adopted children, or who have them in pre-adoptive custody, according to article 314/20 of the civil code, can benefit, if the child in all cases has not exceeded at the moment of the adoption or the custody the age of six years, from the entitled leave of absence from work mentioned in article 4, letter c), of the law of 30 December 1971, nr. 1204, and of relative financial aid, during the first three months after the effective arrival of the child in the adoptive or custodial family (2/h).

The same female workers have also the right to a leave of absence from work referred to in article 7, first paragraph, of the above mentioned law, within a year as from the effective arrival of the child in the family and if the child is not older than three years old, as well as the right to be absent from work according to provisions mentioned in paragraph of article 7 (2/i) ] (2/l).

(2/h) The provisions referred to in this paragraph are included in articles 26 and 27 of the approved full text of Legal Decree of 26 March 2001, nr. 151.

(2/i) The provisions referred to in the present paragraph are included in articles 36 and 37 of the approved full text of Legal Decree of 26 March 2001, nr. 151.

2/l) Article deleted from art. 86, Legal Decree 26 March 2001, nr. 151.

6-bis.[ 1. The working father has the right to a leave of absence from work in the first three months of the birth of the child, in case of death or serious illness of the mother or in case of abandonment, as well as in the case when the father is the sole custodial person (2/m).

2. The working father who intends to take advantage of what is mentioned in paragraph 1, shall present to the employer the certificate relative to the mentioned conditions. In case of abandonment, the working father declares it according to article 4 of the law of4 January 1968, nr. 15 (2/n).

3. The dispositions are applied to the working father according to articles 6 and 15, paragraphs 1 and 5, of the law of 30 December 1971, nr. 1204, and successive modifications (2/or).

4. To the working father apply also dispositions set out in article 2 of the law of 30 December 1971, nr. 1204, and further amendments, for the period of leave of absence set out in paragraph 1 of the present article and until the child has reached the age of one year (2/p) ] (2/q).

(2/m) The dispositions set in the present paragraph are included in article 28 of the approved full text of Legal Decree of 26 March 2001, nr. 151.

(2/n) The provisions set in the present paragraph are included in article 28 of the approved full text of Legal Decree of 26 March 2001, nr. 151.

(2/o) The provisions set in the present paragraph are included in article 29 of the approved full text of Legal Decree of 26 March 2001, nr. 151.

(2/p) The provisions set in the present paragraph are included in article 54 of the approved full text of Legal Decree of 26 March 2001, nr. 151.

(2/q) Article added from art. 13, Law of 8 March 2000, nr. 53, and then deleted from art. 86, Legal Decree of 26 March 2001, nr. 151.

6-ter.[ 1. The periods of leave set out in article 10 of the law of 30 December 1971, nr. 1204, and later amendments, and the related financial benefits are granted to the working father:

a) in the case in which the children are entrusted in custody only to the father;

b) alternatively to the employed working mother who does not take advantage of it;

c) in the case in which the mother is not an employee (2/r) ] (2/s).

(2/r) The provisions of which in the present article are included in article 40 of the approved full text of Legal Decree of 26 March 2001, nr. 151.

(2/s) Article added from art. 13, L. 8 March 2000, nr. 53 and then deleted from art. 86, Legal Decree of 26 March 2001, nr. 151.

(jurisprudence)

7.[ Right to leave of absence from work and the financial benefits set respectively in art. 7 and in the second paragraph of art. 15, Law of 30 Decembers 1971, nr. 1204, are granted also to the working father even if he is an adoptive or custodial parent under art. 314/20 of the civil code alternatively to the working mother or when the children are entrusted only to the father.

To that effect, the working father presents to his employer a declaration which shows the renouncement of the other parent to benefit from the above mentioned rights, as well as in the case set out in the second paragraph of article 7 of the law of 30 December 1971, nr. 1204, the medical certificate attesting the disability of the child.

In the case set out in the first paragraph of article 7 of the law of 30 December 1971, nr. 1204, the working father, within ten days from the declaration referred to in the previous paragraph, must also present to his employer a declaration of the employer of the other parent which shows the renouncement.

The provisions set out in the previous paragraphs apply to working fathers, including the apprentices, that perform their work as employees of private employers, as well as State employees, also to independent ordering, of the regions, provinces, of the communes, other public agencies also of economic character, and of consultancy offices even if associated with the latter. The workers performing their work at home and domestic service are excluded. (3)]

(3) The Constitutional Court by sentence of 14-19 January 1987, nr. 1 (Off. Jour. of 28 January 1987, nr. 5 – Special series), has declared the illegitimacy of art. 7, Law of 9 December 1977, nr. 903, in the section in which it does not mention that the right to the leave of absence from work and the right to days of rest, granted only to the working mother, respectively in art. 6, Law of 9 December 1977, nr. 903, 4, let. c), and 10, Law of 31 December 1971, nr. 1204, are granted also to the working father when assistance of the mother to the minor has become impossible because of death or serious illness. With another sentence of 11-15 July 1991, nr. 341 (Off. Jour of 24 July 1991, nr. 29 - Special series), the Court has declared the illegitimacy of the first paragraph of art. 7, in the section in which it does not grant to the worker, custodial of the minor according to art. 10, Law of 4 May 1983, nr. 184, the leave of absence from work during the first three months that follow the effective arrival of the child in the custodial family, as the alternative to the working wife. The same Court, with sentence of 2-21 April 1993, nr. 179 (Off. Jour. of 28 April 1993, nr. 18 - Special series), has declared the non-validity of art. 7, in the section in which it does not extend to the working father, in general and hypothetically, in alternative to the consenting working mother, the right to days of rest set out in art. 10 of the law of 30 December 1971, nr. 1204, to assist the child in its first year of life.

(3/a) Article deleted from art. 17, Law of 8 March 2000, nr. 53.

(jurisprudence)

8.[Compensation for the rest set out in article 10 of the law of 30 January 1971, nr. 1204, with effect from 1 January 1978, is due from the medical insurance company, at which the female worker is insured, equal to the entire sum relative to the periods of rest.

The compensation is paid to the employee in advance by the employer who afterwards subtracts it from the contribution payments due to the insurance company.

The contributions given to the medical insurance companies as effect of the disposition referred to in the first paragraph, are met with corresponding contributions from the State. For this purpose the medical insurance companies shall keep an appropriate account] (3/b) (3/c).

(3/b) Article deleted from art. 86, Legal Decree of 26 March 2001, nr. 151.

(3/c) Provisions set out in the present article are included in article 43 of the approved full text of Legal Decree 26 March 2001, nr. 151.

(jurisprudence)

9. Family allowances, top ups to family allowances and the increase of pensions for relatives in charge can be paid, alternatively, to the female working or pensioned at the same conditions and with the same limits set out for the pensioner or the worker. In the case of a demand from both parents family allowances, top ups to the family allowances and the increase of pensions for relatives in charge must be paid to the parent with whom cohabits the child.

All legal dispositions that are in opposition with the regulation of which is set out in the previous paragraph are deleted.

10.In letter b) of art. 205 of the full text on the dispositions for insurance regarding accidents at work and professional illnesses, approved by D.P.R. on 30 June 1965, nr. 1124 (3/d), the wording "their wives and children" are replaced by the wording "their spouse and children".

(3/d) Referred to in "Accidents at work and professional illnesses".

(jurisprudence)

11.The survivors’ subsidies, paid from the compulsory general assurance, for invalidity, old age and the beneficiaries, managed by the Pension fund for employees workers, are extended, under the same conditions set out for the wife of the insured person or the pensioner or the survivor, to the husband of the insured person or the pensioner deceased subsequently to the date of enforcement of the present law (4).

The disposition set out in the previous paragraph apply also to the employees of the State and other public agencies regarding pension payments substituting and integrating the compulsory general assurance for invalidity, old age and survivors and payments in charge of funds, administrations and agencies set up for employees workers of employers excluded or exempted from the obligation to pay this assurance, for independent workers and freelancers.

(4) the Constitutional Court, in sentence of 25-30 January 1980, nr. 6 (Off. Jour. of 6 February 1980, nr. 36), has declared: a) the illegitimacy of art. 13, R.D.L. of 14 April 1939, nr. 636, converted in the Law of 6 July 1939, nr. 1272, replaced by art. 2, Law of 4 April 1952, nr.218, and by art. 22, Law of 21 July 1965, n. 903, in the section in which (fifth paragraph) it states that "if the survivor is the husband, the pension applies only in the case that he is recognised as unable to work according to the first paragraph of art. 10"; b) ex officio, according to of art. 27, Law of 11 March 1953, nr. 87, the illegitimacy of art. 11, first paragraph, Law of 9 December 1977, nr. 903, limited to the wording "deceased after the date of enforcement of the present law".

12.The subsidies for survivors set out by the full text of the dispositions for the compulsory assurance against accidents at work and professional illnesses, approved by D.P.R. of 30 June 1965, nr.1124, and by the 5 law of May 1976, nr. 248, are extended at the same conditions established for the wife of the worker to the husband of the deceased female worker subsequent to the date of enforcement of present law (4/to).

(4/a) The constitutional Court, with sentence of 24 April 1986, nr. 117 (Off. Jour. of 7 May 1986, n. 20 - Special series), has declared the illegitimacy of the present art. 12 limitedly to the words "deceased subsequent to the date of enforcement of the present law".

13. (5).

(5) Substitutes the last paragraph of art. 15, Law of 20 May 1970, nr. 300, set out in letter W/I.

14.To the independent female workers who performs continuing work in the family enterprise is granted the right to represent the enterprise in the statutory organs of the cooperatives, of the consortia and any other association.

(jurisprudence)

15.Should actions occur that violate the dispositions according to in articles 1 and 5 of the present law, on appeal of the worker or on his delegation, the labour organizations, judge of the lower court of the place where the reported action has happened, according to judge of the work, during the two next days, having heard from the parties and gathered summary information, if he reckons the appealed violation is substantiated, orders the author of the reported action by means of a motivated and immediately executable decree, the ending of the illegal action and the removal of its effects.

The executive effectiveness of the decree cannot be appealed until the sentence with which the judge of the lower court defines the judgment established in the next paragraph.

Against the decree an appeal within fifteen days from the communication to the parties is admitted which shall be submitted to the lower court judge who decides immediately and by executive sentence. The provisions of articles 413 and of the civil code shall be fulfilled.

The non compliance with the decree of which in the first paragraph or with  the sentence pronounced in the judgment of opposition is punished according to article 650 of the penal code.

Where occur violations set out in the first paragraph regarding public employees, the regulations mentioned in matter of suspension of the action of art. 21, last paragraph, of the law of 6 Decembers 1971, nr. 1034 are applied.

(jurisprudence)

16.The non fulfilment of dispositions contained in articles 1, first, second and third paragraph, 2, 3 and 4 of the present law, is liable to an imprisonment or a summary fine from 200,000 Liras to 1.000.000 Liras.

The non fulfilment of the dispositions contained in article 5 is liable to arrest for a term from two to four months or to summary fine from one million Liras to five million Liras (6).

For the non fulfilment of the dispositions set out in articles 6 and 7 31 of the law of 30 December 1971 apply the penalties mentioned in article, n. 1204 (7).

(6) Paragraph replaced therefore by art. 26, Legal Decree of 19 December 1994, nr. 758, transferred to point A/CVII.

(7) Transferred to point E/XIII.

17.The compensations deriving from the application of articles 9 and 11 of the present law, estimated per year, respectively 10 and 18 billions of Liras, are provided for the financial year 1977 as a share of the greatest incomes of which in the decree-law of 8 October 1976, nr. 691, converted in Law of 30 November 1976, nr. 786, concerning modifications to the fiscal regimen of some oil products and methane gas for auto traction.

The Treasurer is authorized to make, by means of his own decrees, the necessary budgetary variations.

18.[ the Government is held to submit every year to the Parliament a report on the state of application of present law ] (8).

(8) Article deleted from art. 10, Legal Decree of 23 May 2000, nr. 196.

19.The legislative dispositions in opposition to the regulations of the present law are all deleted. Consequently, the internal regulations and the actions of administrative character of the State and of the other public agencies in opposition to the dispositions of the present cease to be effective.

The dispositions of collective or individual contracts, of the internal regulations of the enterprises and of the professional statutes that are in opposition to the regulations contained in the present law are also void.

The present law is enforced the day after its publication in the Official Journal.