Female
occupation and atypical works (recent
aspects of the juridical-social security discipline). Provisional proof
By Mariella Annino, Research Fellow of
Labour Law at the University of Palermo.
fax
0039-91-329254.
The
economic and social landmarks ,the traditional labour law has been built on
,now have radically changed.
The
modern way of working , son of the
capitalism ,has undergone a genetic change, characterised by a constant
feminising process and by a growing
dematerialization , and so the
labour law in a manly manner “conquered” and “built” as a branch of the
law of subordinate labour contracts in
the traditional enterprise , is in crisis.
Today
this law becomes in conflict with both
the exigencies of the New Economy and
those of the women who consider their work , apart from a source of profits , an indispensable aim for the full
realisation of their own personality.
Many researches, and among them one about the
professional choices of the women in
the province of Palermo I took part in , confirm that ,even if in a not
univocal way, women begin to bring in the labour market their conquered
freedom(1). Recently the attention of the legislator and of the social parts
has concentrated on some forms of autonomous labour, the so-called co-ordinate
and continuous collaborations with
firms, and new rights and duties for the people involved in this sort of
relation have been recognised.
The
current deregulating activity of the subordinate labour (part-time
contracts, job sharing , temporary employment) and the firms’ inclination to apply to forms of collaborations that
represent an alternative to the contracts of subordinate employment, require
an afterthought about labour
in order to let it become
for the women an instrument of social
justice , more than it has been in the past.
The
inclination to make the access
modalities to the labour market more
flexible, increases the growing of the female occupation (2).
The
juridical and institutional panorama that regulates the so-called atypical
works in Italy is continuously in
evolution and it’s the object of political quarrels between people who’d like
to have a regulation inspired by an advanced liberalism and people asking
more guarantees for the fundamental rights of the human person over
the area of the traditional subordinate labour.
In my
intervention I’ll try to consider the most recent most significant legal
measures .
-The new rules about part-time employment (
Dlgs 25th February 2000 , n.
61).
The new
rules about part-time employment (3), confirm the principle of equal conditions as regards a “comparable”
full time worker ;asserting this principle they take into consideration the
trend expressed by the European Court of Justice in many decisions about the
indirect discriminations between men and women in part-time workers’
conditions. The prohibition of discrimination , concerns those institutes that
leave out of consideration the reduced form of the working service :
obligatory or facultative abstention periods, because of maternity; access to
professional training periods ; health protective measures ; possibility of
enjoying of the social services provided by the firms; access to complementary social security service ( art.
4 .2 Dlgs 61/2000).
The new
legislation consents , through the collective bargaining of the most
representative trade unions , the
combination of two different forms of part-time work ( vertical and
horizontal).The relation between employer and worker can be transformed by a previous agreement of the two parties
;the request of the worker or the denial to an
employer’s one cannot be a valid reason of dismissal. For the old-age
pension , you have to calculate in full the seniority of the service matured
during the full time work relation , and proportionally the short-time one. To
the part-time workers is offered the possibility of ransoming , by request of
the party and for a maximum period of three years , the interruptions and the
suspensions come during the work relation. The possibility of the onerous
redemption once granted just to the seasonal
workers , today is available also for the part-time ones (4).
Collective
bargaining and trade unions should have a central role in the control of the
flexibility ; in fact there’s the obligation
to inform the RSA about the state of appointments, the part-time
typologies ,and the recourse to
extraordinary and over-time work .
Because
of the flexibility exigencies of the employer in the management of the working
hours , there’s the possibility of putting in the contract the so-called
“elastic clause” . This clause allows a
different temporal arrangement of the working services by a simple request
:it is just permitted to part-time
workers with contracts , that can
be time limited or not, for the
replacement of an absent employee.; it has to come out from a written act and
it has to be provided for it , in the collective bargaining ; it has to grant to the worker the so-called
right of “change of mind”. Moreover
just on determinate conditions, it’s also permitted the supplementary
work , and to the vertical part-time employees
is permitted the over-time work.
The
collective bargaining for the Civil Service has excluded any possibility of
recourse to part-time contracts for positions of particular responsibility.
This could , perhaps become an occasion of
indirect discriminations for those workers who want to enjoy of this sort
of contract ; and it could also encourage , the so-called “glass roof” case ,
among women employed in the Civil Service.
With
regard to the penalty system , it’s particularly interesting the prevision that
, in default of a temporal collocation of the service , this will be determined
by the judge , who has to consider first of all the collective bargaining and in absence of it , the family responsibilities and both the
needs of the worker and the exigencies of the employer.
Recently
it has become possible to obtain some incentives for part-time contracts (5);
it’s a question of six-hundred milliards during the period 2000/2001. The
incentive consists of triennial tax allowances that cannot be cumulated with other sorts of tax reductions ,
and more over the access conditions to them ,are very strict and partly determined by the European Union Directives
. The allowances don’t concern the firms that have signed contracts of
remunerative alignment ,in order to emerge
from the submerged ; they are bound to increase the labour force of the firms
and they must concern unemployed people. Moreover there are different percentages according to the size of the
firms. The admittance to allowances ,
helping the small and medium firms ,
has priority when the engaged young women
are up to 25 years old or they
have one or more children or handicapped people living with them.
The
appropriation , such as it has been conceived , will be scarcely able to be
useful for the medium and small firms of the southern Italy, exactly because
it’s not possible to be cumulated ; moreover the last market researches have
shown that this sort of atypical work is mostly used by a part of the female population which is older than the one the Act was directed to.
In the
South ,the long-period unemployment
has had a reduction among young people also thanks to the decrease of
births , and it concerns more and more an adult population which is scarcely
qualified and not encouraged to find work. For many people this is the fall into the so-called “poverty
trap”, consisting of a system of social shock-absorbers ;a system that basing
itself on the income of the family
doesn’t encourage the people , especially the women ,to accept temporary
employment in order to preserve the right to the subsidy.(6)
The inclination to equality in the ambit of the working time regulation
Two recent legislative measures about working
time may contribute to make the law
more “adaptable” to the exigencies of the working female universe. The Italian
legislation about working time , dating back to the RDL 15th March
1923 n.692 is the object of a legislative review that’s still in the early
stages and that has been imposed by the necessity to be conformed to the
European Directive n.93/104. Already in 1997 the normal working time was brought
from 48 to 40 hours a week, with the
possibility of reporting the maximum time
on multi-recurrent periods however included in 12 months and being
a disincentive for the over-time work.
The Act
27th November 1998 n 409 regulates the over time work in the
industrial firms, imposing a roof of 252 hours a year and of 80 hours a quarter
,if it wasn’t differently provided in the collective bargaining signed by the comparatively most
representative trade unions ,or save particular manifestations connected with
the productive activity of the firm (8).
The Dlgs. 26th November 1999 n.532
abrogates the prohibition of night-work that was provided for the women in the manufacturing field
and it makes equal men and women under
the regulation of the recourse to this working modality .The recourse to
night-work hours has to be preceded by trade union consultation and that’s previously for male and female
workers who have asked for it ,
compatibly with the organisational exigencies
of the firms ; however the collective bargaining can provide further priorities.
Particular
attention is given to the health protection
, through the imposition to the
employer of some duties of information
about the risks , and of preventive
and periodical check-up.
The
praxis has demonstrated that the sanitary ascertainments often hide indirect discriminatory behaviours of the
employers (9). In any case to the worker who is no more able to work during the
nights , is guaranteed the passage to daily services. The prohibition
of night-work is still valid for
pregnant women or in case of puerperium ( 10). Moreover for working women and
working fathers with children up to 3
years old , the obligation of night –work is not permitted. This
possibility is also extended to parents
entrusted of children younger than 12 years old living with them, and to
parents of handicapped subjects .
The
discipline summed up here has to be integrated with what’s already provided by
the Dlgs 25th November 1996 n.645
about the health protection system for
pregnant and puerperal women.
It has
to be remarked that this legislation about working hours and health
protection concerns subordinate labour including part-time
contracts , but it’s not valid for domestic labour , domicile labour and in a marginal way for the autonomous one just if it’s carried out inside the firm.
The harmonisation of working and living times.
The themes of the harmonisation of living
times with the working ones , and the new equilibrium between the sexes
for what concerns the weight of the so-called care labour , are the main axes of the Act 8th March 2000 n. 53 come into force on the 28th March
2000.
The Act
confirms again as a primary one, the
right of the mother to take care of her
children in the first three years of their life ; and it’s also valid for the
father if in alternative to the mother’s one and under determinate conditions .
During the first months of the child’s life
in fact, the father has a right of obligatory abstension with paid leave just in case of death , very serious infirmity of the
mother or abandonment .
The
discipline protects the health of both the
minor and of the woman ; it
doesn’t authorise the woman to delegate
in this period the care of the child to the father. A partial flexibility of
this possibility of enjoying of the obligatory abstension has been recently introduced in order to let
the mother work till the 8th month , still remaining five months of obligatory abstension. This freedom is not complete because it depends on the specialist’s
medical opinion.
One of
the first annotator of the Act has wanted
to underline that the employer cannot oppose to the prosecution of the
working activity in the firm of the mother.. A so taken for granted
specification ,presumes the idea that
this physiologic phase of a woman’s
life is still considered , such it has been for a long time, a situation of low
working efficiency, because of the woman ‘s health precariousness .
The
extremely strict discipline keeps on , obliging the father who’d like to enjoy
of the period of obligatory abstention , because of the abandonment of the
mother , to sign a statement according
to law. The rules about the possibility for the father to obtain an optional
leave of seven or eleven months
, in accordance with the age of the child
( he can be at most eleven years old), should surely be considered
positive. The possibility of the parents to alternate in the use of the
optional leave is recognised even if the mother was not a dependent worker or
however she hadn’t this right. In this case it’s the assertion of the paternity
right that has importance for the legislator , besides the freedom, recognised
to the couple , to tilt care time and work one.
The
possibility of the economic support to
the optional leave is offered through
the right to demand advances on the TFR
or on equivalent treatments , and even, through the right to achieve advances
on the services debited to the complementary pension funds , when this
possibility was provided.
The
prevision of advances from the TFR ,
however looks like an apparent support because today this institute , even if
optionally, is assigned to the
complementary pension funds .
Moreover
the realisation of a complementary social insurance system in Italy has still
to be tested , and the actual trend of
the legislative policy tends to assign ,the all TFR , to the complementary
social security system.
We don’t
have to forget that the Comunitaria 2000 , a bill actually debated in
Parliament , establishes the
realisation of the Council Directive
97/96 about the retributive equalisation of men and women , including the
direct or indirect advantages resulting from the pension integrative services.
An
annual economic support of 40 milliards
is assigned to promote positive actions that make possible for the parents the
access to forms of reversible part-time works , tele-labour ,domicile labour and
professional training programmes after leave.
The
support is moreover assigned to actions that allow the replacement of the
firm’s holder or of autonomous workers. This prevision considers the
growing female presence in small firms
and in the ambit of the para-subordinate labour .The appropriated sum of money burden the occupation fund
and it has to be added to the sum provided for positive actions by
the Act n. 125 /1991. The national legislator so has placed himself in
the perspective of the “mainstreaming”, valuing initiatives in the labour market
that conciliate care labour and
work.
Besides
, the replacement of the parents on leave is facilitated by a contributory
allowance for the employees with time limited contracts. These special terms
are recognised just to the small firms and it’s possible to obtain them also
for the replacement of autonomous
female workers who are in maternity.
The
attention for the protection of the maternity apart from the subordinate labour, continues
recognising , to the autonomous female workers , a right of optional abstension from working for a period of three months throughout the first year of the
child’s life. The indemnity for the period of obligatory abstention has already
been recognised by the Act n. 546/87.
For the
independent professional women , nothing has changed ; for them there’s an
indemnity just for five months and there’s neither obligation nor support for the abstension from work. The law judge
has in fact valued as constitutionally lawful , respect the articles 37 and 32
of the Italian Constitution , the provisions of the Law 11th
December 1990 ,n.379, considering the female independent worker’s self determination ,sufficient to protect
adequately her right to health and the
child’s one (11)The sentence has been the object of quarrels concerning not
only the expressed juridical argumentation but also the ideological premises
that are behind the concept of self-determination freedom , in the independent professions.
Two
measures , that are actually debated in Parliament, could become an occasion to
consider again the question . The first one is a bill to confirm the Italian legislation to the European Directive
1999/42 , that institutes a mechanism for the recognition of the qualification
in the ambit of the activities
regulated by the European Directives about the liberalisation of the services
and the freedom of settlement. The European Directive also provides a net of
monitors for the whole system in order
to present to the Chamber of Deputies some ideas about measures improving the
regulation and the right of settlement .
The
other legislative appointment is the reform of the Professional Categories and
of the intellectual Professions. In the proposal of delegated law recently
presented by the Ministry of Justice
Fassino, the problem is not
mentioned ; on the contrary it’s
provided the obligation of third-party insurance for the civil responsibility
charging both the independent professional workers for themselves and the firms
for their employees ; it’s provided the right of pre-emption of the members in
case of assignment of sharing quotas of the professional societies .The silence
of the delegated law about the
principles of equality and not
discrimination, concerns not only the discipline of relations among partners
,but also the general principles of access to professional training and to the
exercise of the intellectual professions. For what concerns the access to
professional activities , there was the preoccupation of guaranteeing
explicitly the presence of at least
half of the members designated, ,by the Professional Orders ,inside the judging committees.
It’s
known how in some Professional Orders women are not sufficiently present, even
if there are many registrations.
I don’t
think that the question of genus had been enough debated in the discussion
about the reform of the independent professions , although the effort of the
Government , confirmed by the Prodi Directive
(12) to value the genus impact of every new act.
The social shock-absorbers and the maternity
protection.
The two
last Financial Acts have turned particular attention to the maternity’s
support ( articles 65 and 66 of the Act
23rd December 1998 n.448,
modified by the Acts 17th May 1999 n.144 and 23rd December 1999 ,n.488).
It has
been provided a maternity allowance of at most 3 millions of Italian Liras and the recognition of the allowances for the family, if at least
three months of contribution for the obligatory forms of maternity protection,
have been already paid .The measure
concerns the atypical female workers , appointed for short periods with time
limited contracts or vertical part-time ones ( DM 27th May
1998).Then to the women with low incomes and without any other economic helps,
is recognised an allowance of one million and half Italian Liras. The Financial
Act 2000 has extended this last treatment to not European women who have a
regular residence permit. Moreover the maternity costs and any sort of
allowance given to families for at most three millions Italian Liras, now are
charged to the general fiscal system.
The
social value of the care work that both
men and women carry out ,has been recognised by two legislative interventions ,
that according to me , are more important from the symbolic point of view than from the practical one, in that they
are still not operating. I mean the DLGS n.564/96 that set up a fund of public insurance for people carrying out a
not paid care work for the members of the family.
The
admission would be allowed also to some atypical workers , such as the vertical
part-time ones. Till now this regulation hasn’t had any realisation , in that
no calculation standards for the old age and inability pensions, have been provided.
The Dlgs
n. 47/2000 has also created a form of private insurance ; on the ground of the
agreement between insurance companies and big distributive chains , there should be some deposits in a fund of the category in occasion of
the purchase of certain consumer goods.
Last
July the Parliament passed the decrees
for the realisation of the Act 3rd December 1999 n.443 instituting an obligatory insurance against
domestic accidents. The Act should come into force by six months from the
publication of the decrees. It’s a minimum
protection ; in fact the threshold
to obtain the recognition of the invalidity is very high ( 33% in
opposition to 11%, the percentage fixed for the subordinate workers), and it’s
even not provided the enforcement of the so-called services automaticity ‘s principle.
The
concept of a widened family, adopted by the legislator in this ambit , is
innovative ; but the headlines of the newspapers advertising the initiative as
a sort of insurance for the housewives , were deceptive.
Actually
the legislator , through the introduction of
an insurance obligation, would like to give at least a minimum
protection for those who carry out a not paid domestic labour, in fact the
family can be also composed of just one person or of a homosexual couple.(13)
The Constitutional Court and the right of
maternity and paternity.
This
year , maybe also because of the presence of women inside the Supreme Court , even if they represent a
minimum part of it, a set of significant sentences have been passed, and in fact their reporter is a
woman.
I’ll
just summarise them : it’s recognised
also to any not-European father living with a woman who is pregnant or
has just had a child, the right to stay in the country such as it’s provided for the mothers
themselves by the Immigration Act n.40/1998 ;it has been recognised to domicile
female workers , the right of interdiction in advance from work and to the
connected indemnity , changing in this way what was provided from the Act
1904/1971 and although the relative
autonomy of the female worker and the
possibility to be helped by the other members of the family.
This
last sentence seems to me particularly
important because it considers the evolution of domicile labour towards forms
of tele-
subordinate domicile labour.
Another
sentence has shown the inequality of consideration between autonomous female
workers and the agricultural female contractors with principal title ,
extending to the second ones a daily indemnity during the pregnancy and the
puerperium periods (14).
The
corrections of the Court to a
legislation which is recent but has an obsolete attitude, continue with the declaration of illegitimacy of the second article of the
Dlgs 31st January 2000 , n. 24
about the admission to the Armed Forces and the career of women , that
limited the parents’ possibility of
participating to the competitive exam
for the access to the Academies and to the relative training school. (15).
The reform of the employment services and the
modifications to the Act 125/1991.
The
legislation about the labour market , also because of the positive valuations
of our NPA (National Occupation Plan)
expressed by the European Commission, is evolving. In a political
panorama which is sometimes uncertain ,
two Acts are now debated in Parliament:
the reform of the intellectual professions , we’ve already talked of , and the
discipline of the so –called para-subordinate
labour.
A set of
modifications ,proposed by the Government, to the DDL Smuraglia , a bill now
discussed inside the Labour Committee of the Chamber of Deputies , intends to
give a legislation more certain and similar to the dependent labour ‘s one ,from
both the fiscal and the social security points of view; but that would be provided just for the collaborators of the
firms who have low incomes, and so the professionals with income higher than a
certain threshold won’t be able to
enjoy of it. The corrections to the Bill proposed by the Senate , seem to be in
harmony with the position of the European Commission , that has opened a
confrontation with the social parts in order to arrive to a common legislation
in the UE for what concerns the relations of “autonomous economically dependent
labour”.
From a IRES CGIL research ,reporting statistics of 1999, it emerges
that apart from the growing female presence in both southern and northern
Italy in the so-called atypical works
and in the co-ordinate and
continuous collaborations , the
employment in the South of Italy
presents some specific aspects. The concerned women are from 30 to 49
years old ,they’re scarcely qualified
and this sort of work becomes for them a structural way to stay in a market
which is always in suspense with the submerged labour one. On the contrary in the North the atypical works evolve towards more stable work relations.
Then there’s no doubt that the employment
conditions are influenced by the territoriality also in the ambit of the
collaborations to the firm , and that a single , common discipline of this sort
of labour will privilege , in some
territories ,even more than today, those among the para-subordinate workers
that have always tried to add the advantages of the autonomous labour to those
guaranteed by the legislation for the dependent one ; and all this without
bringing significant advantages for the others workers (16).
A central role may be played by the services
for the employment recently reformed in Italy
through the Dlgs n. 469/1997 that has assigned to the Regions
functions and duties in the ambit of the labour market; an efficient system
of controls of the labour force ‘s flux , may allow the elaboration of
territorial occupational plans ,where the legislation about the subordinates
would be modulated according to
the exigencies of the local labour
markets. But the start of the reform’s realisation hasn’t been homogenous and
in some Regions is almost not realised at all, as in Sicily which is a Special
Statute Region.
Moreover the Dlgs 23rd May 2000
n.191 (17) has tried to harmonise this discipline to the one provided in the
ambit of the labour equal opportunities for men and women that is included in
the Act 125/1991. The Dlgs mentions and defines , in the ambit of the services
for the employment , equal duties and functions for the female and male
councillors . The measure just
recently come into force (2nd August ) ,is complex and maybe it would be worth
investigating it, but that’s not possible in this context ; just some remarks
pertinent to the object of my intervention will be sufficient. One of the changes introduced is the explicit prevision that the office of
guardian of the equality and fair opportunities principles can be assigned to
both men or women. The appointment of a female/male councillor , even if surrounded by determinate cautions, is prevalently political and during the so-called devolution times, it’s extremely centralised ( Labour
Minister in concert with Equal Opportunities Minister).
This centralised choice may come from
that in the past , because of a different legislation, a determining role was played by the equality national female councillor .The
appointment mechanism , according to
me, is a little worrying because of the lacking capacity of representation,
that women have in Italy .
The role of equity councillor results
strengthened by both the available funds
and the operating instruments
as the action suits and the
possibility of a mediating role in case
of ascertained discriminations . And the possibility of having a male
councillor may represent a technique to
involve men in the equal opportunities
policy ;but the legislator’s choice leaves me doubtful also because it
isn’t in harmony with the aims’ declaration
about the women empowerment
especially at the top of the Civil
Service.
Today women have the greatest disadvantages in
the labour market , and so I suppose it would have been better to have a form
of legitimated preference for them , but it has not been provided.
Moreover the Court of Justice has recently confirmed her own trend ,
asserting that granting a preference to female candidates ,qualifications
being equal , is not a breach of the fair treatment principle , when this is necessary
to guarantee the observance of the plan for the women promotion , and when
there are no other more considerable political
obstacles and if an unbiased valuation , considering the particular
personal situations of all the candidates ,is guaranteed (18).
The law gives a central role to the
councillors, it doesn’t care if a man or a woman, in the ambit of the decentralised services for the
employment ; they take part in the discussion
about the local collaboration and they
are members of analogous organisms with equal functions at the territorial level. And exactly for this reason ,it
strikes that in the Act 52/2000 the same councillors are not mentioned ; the
Act in fact concerns the parental
leaves and the formulation of time plans for the cities in order to
harmonise the living hours and working
ones , such as they have been predisposed on the ground of the suggestions come
out from the planning discussions the delegates of the Civil Service and of the social parts have participated in. And the councillors as
privileged observers of the labour
market , better than others, should have indications about the exigencies of the citizens for what concerns living and
working hours .
To conclude ,the new works need to become a
more actual right , but the modernisation in progress seems to be just a frontal one ; even if we are on the
straight path, the women still need the engagement of the women.