By Decision no. IUz 60/2021 dated January 18, 2024, published in the Official Gazette of RS no. 11/2024 dated February 14, 2024 (“Decision”), it was established that, due to the violation of the constitutionally guaranteed prohibition of discrimination, the provision of Article 13, paragraph 1 of the Law on Financial Support to Families with Children, is partially unconstitutional.
The respective provision regulates the basis for salary, i.e., wage compensation for maternity leave and leave for childcare.
Regulatory framework
Namely, the Constitution of the Republic of Serbia guarantees special protection for families, mothers, single parents, and children, as well as providing special support and protection to mothers before and after childbirth, in accordance with the law. Accordingly, the detailed regulation of these matters is left to the legislator.
The Labor Law provides for special protection for women in case of maternity, whereby, during maternity and childcare leave, employed women are entitled to salary compensation, a right also enjoyed by employees during temporary incapacity for work.
In this regard, and in accordance with the Law on Health Insurance, employed women can also be entitled to salary compensation due to temporary incapacity for work, among other reasons, due to illness or complications related to pregnancy maintenance.
The basis for salary compensation is the average earnings that the insured person has earned in the previous 12 months before the month in which the temporary incapacity for work occurred. If the insured person has not earned any income in the previous 12 months, the basis for salary compensation is the average amount of earnings for the periods in which the insured person has earned income, while for months without income, the basis is the minimum salary for those months (determined in accordance with the Labor Law).
The amount of salary compensation is provided at 100% of the basis, as long as such temporary incapacity for work lasts, or until the commencement of maternity leave (in accordance with the provisions of the Labor Law).
The Law on Financial Support to Families with Children regulates the right to salary compensation for maternity and childcare leave for employees of legal and natural persons, with such compensation being paid from the budget of the Republic of Serbia.
Under this law, prior to the Decision, the basis for salary compensation was determined based on the sum of monthly bases on which contributions were paid for earnings that qualify as salary, for the last 18 months preceding the first month of absence due to complications related to pregnancy maintenance or maternity leave, if maternity leave due to complications related to pregnancy maintenance was not used. Therefore, the sum obtained is divided by 18, and the resulting amount represents the monthly basis for salary compensation.
Reasons for the Decision
Considering the aforementioned constitutional and legal provisions, the Constitutional Court has concluded the following:
Considering all the above, as well as the principle of equality before the Constitution and the law, and the prohibition of discrimination, the Constitutional Court, in its Decision, assessed that the aforementioned differentiation does not serve a legitimate purpose, and therefore it lacks objective and reasonable justification.
According to the above, the disputed provision of the Law on Financial Support to Families with Children now reads:
“The basis for salary, i.e., wage compensation during maternity leave and leave for childcare, for individuals referred to in Article 12 of this law, is determined based on the sum of monthly bases on which contributions were paid for earnings that qualify as salary, for the last 18 months preceding the first month of maternity leave commencement.”