Gender Equality is one of the main objectives of the EU policy strategies in the social field, as well as the subject of manifold initiatives put forward to combat gender discriminations, most importantly when they occur at work. Among these initiatives, the EU Directive 2019/1158, aimed at fostering work-life balance for parents and carers as a measure to promote equal opportunity and to redistribute caring responsibilities, plays a crucial a role and marks a shift in the regulatory approach of EU policy-makers, from a traditional method based on top-down measures like the prohibition of discrimination, to a more complex set of initiatives which combine imperative and promotional measures.

More precisely, the Directive on work-life balance aims at increasing both the participation of women in the labour market; as well as the take-up of family-related leave and flexible working arrangements. With these aims, the Directive sets out minimum requirements with regard to:
(i) Paternity leave (art. 4): which entitles fathers or, more precisely, second parents to take at least ten working days of paid paternity leave.
(ii) Parental leave (art. 5): which entitles workers to take four months paid parental leave until the child reaches a specified age (up to the age of eight). Hereby, the Directive in the attempt to encourage fathers to share caring responsibilities with mothers, underlines that two months of parental leave cannot be transferred between parents.
(iii) Carers’ leave (art. 6): the right to take care leave of up to five working days a year, with no recognition of pay.
(iv) Flexible working schemes for parents and carers (art. 9): i.e. the possibility for workers to adjust their working patterns, including through the use of remote working arrangements, flexible working schedules, or reduced working hours.

Transposition of the Directive in Italy
Given the ambition of this Directive, its transposition should be considered even more important for those Member States characterised by a high gender employment gap, such as Italy. Indeed, in Italy the proportion of men in working age in employment exceeds that of women of 19.7 percentage point.

Thus, it is no surprise that the Italian Government transposed the Directive only last August, a couple of days after the deadline for the transposition.
In order to transpose the Directive 2019/1158, the Italian Parliament has modified the Consolidated Text on protection and support for maternity and paternity with the D. Lgs. 105/2022.

It should be noted that the amendment does not pursue the objective of gender equality and fair balance of family duties through novelties affecting the “nature” of parental leave, indeed, the latter remains unvaried, showing that the national previous legislation, at least theoretically, was already compliant with European standards, but still that it lacked effectiveness.

Consequently, it is proposed to overcome these gaps through changes in the financial treatment and in the use of the allowance. In fact, the D. Lgs. 105/2022 not only extended the period within which it is possible to enjoy the allowance, namely for leave used until the child is twelve years old (and no longer six years old, as required by the former legislation), which is also more favourable than the age limit required by the European legislation, but also increased overall the period of “potentially” payable leave from six to nine months. This „potential” increase becomes real only if the father takes at least three months leave.

Indeed, the d. lgs. 105/2022 provides three months of allowance to each parent individually, stressing the character of „non-transferability” (as required by the EU Directive) as well as three additional months of allowance to both parents alternatively to each other.

Thus, the aim of the amendment becomes clear: ensuring that the leave is actually taken by both parents, thereby breaking the trend towards women being their sole beneficiaries. In Italy between 2015 and 2019, over 80 % of the beneficiaries of parental leave were women.

This approach confirms that the protection of parenthood must not only be pursued through the provision of tools that allow individuals to take care of the family, but also through instruments that do not hinder and rather promote the full realization of each individual in the world of work, moving away from the initial approach, now anachronistic, according to which the institution of “leave” has been introduced in the Italian legal system, namely the protection of the „essential family function” of the mother, pursuant to art. 37 Italian Constitution.

While underlining the importance of this legislation, there can be found at least two limitations: the choice to not increase the percentage of compensation and the discretion in the allocation of the additional three months of payable leave. These limits, taken together, leave a high risk that the additional months of leave will in any case be entrusted to the woman, who would benefit of six months of paid leave. As a matter of fact, this would not actually change the situation.

In any case, it is interesting to note that the amendments are also extended in the case of working parents who are registered to a specific national contribution system and when there is only one parent in the family, who will enjoy eleven months of continuous or split allowances, of which nine are eligible for 30% of remuneration. In addition, the novel also extends parental leave to each of the self-employed parents (no longer exclusively to mothers), recognising the right to leave work for three months within the child’s year of life.

Concluding remarks
As it can be noted, the transposition of the Directive doesn’t deal with the actual recognition of new rights with regards to work-life balance for parents (apart from some exceptions, such as the leave for self-employed and the right to carers’ leave), however it comes up with a strategy to make the existing rights more effective and gender-balanced. Moreover, it shows that policy-makers have understood that structural discrimination, rooted in cultural prejudices, realize unequal opportunities that cannot be tackled without a cultural shift. With this Directive, the EU wants to foster this shift by insisting on incentives and on the financial treatment. Of course, we still have to see if this new approach will prove to be effective.

Courtesy of: Federica Palmirotta, PhD Candidate in Labour, Development and Innovation, University of Modena and Reggio Emilia – Marco Biagi Foundation