Annual leave (in force from 13 September 2018)
Several amendments have been made relating to paid leave. These changes are included in Legislative Decree No. 713 regulating paid leave for employees subject to the general private sector labour regime. The main changes are set out below.
Leave in advance
Leave can be taken in advance borrowed from the next vacation period as long as there is a written agreement between the employer and employee, in accordance with the provisions of the law.
If the employment relationship is terminated, the leave days that have been granted in advance to an employee will be deducted from leave days the employee has accrued at the date his or her employment ends. The employee will not be liable to compensate the employer for any days taken that are in excess of and cannot be deducted from days accrued.
Upon written request an employee, can divide his or her holiday period as follows:
The split and timing of an employee’s holiday must be agreed in writing between the parties.
Payment in lieu of leave
Employees’ holidays can be reduced from thirty to fifteen calendar days with the employee receiving fifteen days’ salary as compensation. The reduction must be agreed in writing.
The reduction can only be applied to the part of the holiday entitlement that can be taken in periods of under seven calendar days.
We believe that this change is positive, because previously, employees had to take seven vacation days when they only need two days. Now an employee can use holiday entitlement according to his or her needs. It is important to remember that there must be an agreement between employer and employee on these new holiday arrangements.
Equal pay (in force since 9 March 2018)
Law 30709 was enacted, law prohibiting wage discrimination between men and women as set out below.
The Regulation linked to this Law, which sets out detailed provisions of the Law contains the following provisions.
Employers must establish charts of categories and functions within their organisation with the following minimum content:
Employers have the power to establish remuneration policies, which do not directly or indirectly discriminate on the basis of sex.
If wage discrimination based on gender is alleged, the employer must prove that the positions concerned are not equal or do not have the same value.
Workers belonging to the same category may receive different salaries if these differences are justified by objective criteria such as seniority, performance, collective bargaining, a shortage of supply of skilled labour for a given position, cost of living, work experience, academic or educational profile, performance or workplace, among others.
Under no circumstances shall differences related to pregnancy, maternity, paternity, breastfeeding, family responsibilities or being a victim of violence be considered objective and reasonable.
The employer is responsible for implementing measures to guarantee a work environment based on respect and non-discrimination, as well as compatibility with or conciliation of personal, family and work life.
Policies based on the qualifications required for the performance of the job or means of training offered are not considered discriminatory because they are based on an objective and reasonable justification.
Likewise, job offers intended to promote a more equitable gender balance within a specific occupational sector are not considered discriminatory.
We believe that this regulation was necessary to prevent discrimination. Before this Law, there were only two conditions: non-discrimination and equal pay for equal work. It was also very difficult to determine the ‘value’ of a job (a formal procedure which, by analysing the content of jobs, assigns them a numerical value).
The objective of Law 30709 is to ensure compliance with the principle of equal pay for work of equal value. So, the employer must create a table setting out the categories and functions of all employees’ roles. Once the chart is created, there will be salary ranges, according to the characteristics of each type of work in the company.
In summary, the Law seeks to eliminate wage discrimination between men and women, except in situations that are objectively and reasonably justified.
Paternity leave (In force since 6 July 2018)
Law 29409, granting the right to paternity leave to employees in the public and private sectors has been amended. Now an employer must grant ten days’ paid leave to a father after the birth of his child. Paternity leave allowance must be the same as the pay the employee would have received for a normal working day. The details of the amended Law are set out below:
The term of the paternity leave will start from the date the employee indicates from one of these alternatives (chosen by the employee):
If the mother dies in childbirth or during her maternity leave, the father will take over her leave entitlement.
An employee who requests this paid paternity leave will have the right to use his holiday entitlement to extend his absence, from the day after paternity leave ends. The intention to take holiday must be communicated to the employer no less than fifteen calendar days before the anticipated date of birth.
Paternity leave is granted specifically because of childbirth. For that reason, if the birth occurs during the employee’s annual leave or paid breaks, paternity leave cannot be carried over and taken at a later date.
We believe that this amendment is positive because it facilitates more quality time for fathers with their children, which will tend to lead to a better working environment. We also think that paternity leave entitlement should be increased to close to the length of leave given to mothers, since newborns have specific needs.