by Mariagiusy Guarente*
and Marcello Abbondandolo*
In the Italian legal landscape, the issue of reconciling work and family life occupies an increasingly central role. Article 42-bis of Legislative Decree no. 151/2001, integrated and recalled by Legislative Decree no. 165/2001, offers parents working in the public administration a relevant tool to guarantee family closeness in the first years of their child’s life. However, its application raises several practical and legal issues.
Article 42-bis regulates the right of public worker parents to obtain a temporary assignment to a workplace located in the same province or region in which the other parent works, for a maximum overall period of three years and in the first three years of the son’s life. This tool aims to support the parental role and encourage a fair distribution of family burdens.
In the context of the application of the aforementioned article, jurisprudence, both administrative and constitutional, has intervened to resolve interpretative doubts and outline the balance between the right to transfer and the organizational needs of public administrations.
The Council of State specified that dissent to the transfer must be based on objective and documented reasons, not on generic operational difficulties. In particular, sentence no. 3176/2023 reiterated that the law protects the parental function as a constitutionally guaranteed value, which cannot be sacrificed in the name of ordinary organizational needs.
A further impetus for the recognition of the right to transfer came from the Constitutional Court with sentence no. 99/2024. The Council has in fact declared the illegitimacy of the rule in the part in which it limits the transfer to the province or region of work of the other parent, believing that this restriction is unreasonable and contrary to the principles of family unity and protection of parenthood enshrined in articles 29 and 30 of the Constitution.
Article 42-bis therefore represents a fundamental pillar for the right to parenthood in the public sector, but its implementation requires uniform application and a balance between family and organizational needs. Jurisprudence has contributed to strengthening the right to transfer, reiterating that the protection of the family and minors prevails over ordinary organizational needs. However, an organic reform of the regulatory text could fill the gaps still present, guaranteeing greater effectiveness and certainty in the application of the law.
(*: Lawyer Managers ASL Avellino)
#Temporary #parental #transfer #limits #rights
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## Balancing Family and Work: A Discussion on Parental Transfers in Italian Public Administration
**Introduction:**
Welcome to World Today News. Today, we delve into the complex issue of reconciling work and family life in the Italian public sector, specifically focusing on Article 42-bis of Legislative Decree no. 151/2001 and its impact on parents.
We are joined by two esteemed guests to shed light on this crucial topic:
* **Dr. Mariagiusy Guarente**, Lawyer Manager at ASL Avellino, co-author of the insightful article on this subject.
* **Dr. Marcello Abbondandolo**, Lawyer Manager at ASL Avellino, and co-author of the article, providing his legal expertise on this matter.
**Section 1: Understanding Article 42-Bis**
* Dr. Guarente, could you elaborate on the purpose of Article 42-bis and how it aims to support working parents in the public sector, particularly in the first three years of a child’s life?
* Dr. Abbondandolo, what are the main provisions of Article 42-bis regarding temporary workplace assignments for parents in the Italian public administration?
**Section 2: Jurisprudence and Interpretation**
* Dr. Guarente, the article mentions that jurisprudence has played a significant role in interpreting and shaping the application of Article 42-bis. Could you provide some examples of how judicial decisions have clarified the scope and limitations of this right?
* Dr. Abbondandolo, specifically, how have court rulings addressed the balance between the right to parental transfer and the organizational needs of public administrations? What criteria are used to assess requests for transfer and potential objections from employers?
**Section 3: Constitutional Considerations and the Role of Parents**
* Dr. Guarente, the article highlights the Constitutional Court’s landmark decision regarding Article 42-bis. Can you explain how this decision strengthened the right to parental transfer and expanded its scope?
* Dr. Abbondandolo how does this constitutional interpretation emphasize the fundamental value of parental care and its priority over purely organizational considerations?
**Section 4: Challenges and Future Directions**
* Both, despite the legal progress, what challenges remain in ensuring the effective implementation of Article 42-bis across different public administrations?
* Do you believe an organic reform of the regulatory text is necessary to address these challenges and ensure greater clarity and certainty for all stakeholders involved?
**Conclusion:**
Thank you both for joining us today and sharing your invaluable insights on this important topic. This discussion highlights the ongoing efforts to balance the demands of work and family life, and the critical role of legal frameworks like Article 42-bis in empowering parents to prioritize their children’s well-being. As societal norms evolve and the value of work-life balance is increasingly recognized, it is essential to continue reviewing and adapting policies to ensure equal opportunities for all.
