No. 07-00-180 / 2020-02 date: 19.3.2020.
PUBLIC ENTERPRISE “POŠTA SRBIJE”, acting director
11000 BELGRADE
Takovska 2
Dear Ms. Petrovic,
The Commissioner for the Protection of Equality was addressed by several parents of minor children and persons with disabilities employed in the Public Enterprise „Pošta Srbije“, who after the adoption of the Decision on declaring a state of emergency[1] on March 15, 2020, are faced with the problem of coming to and from work. Employed parents pointed out the unequal position in which the employed fathers of minor children were placed by the decision of the Public Enterprise „Pošta Srbije“, because according to their allegations, this company made a decision, with the aim of implementing the Decree on organizing the work of employers during the state of emergency[2] of March 16, 2020, that only mothers of children under the age of 12 should be allowed not to come to work during the state of emergency to take care of their minor children. Also, the Commissioner was addressed by several persons with disabilities employed in the same public enterprise, pointing out the lack of understanding by the employer regarding the problem they have when coming to and from work in the state of emergency, since, as they stated, this public enterprise did not provide them the possibility to decide not to come to work during the state of emergency.
For the purpose of the struggle that Republic of Serbia is leading at this moment on suppression of the spread of the COVID-19 virus and protection of all its citizens, the Decision on declaring a state of emergency[3] on March 15, 2020 on the territory of the Republic of Serbia was passed.
Also, in addition to the Decree on measures during the state of emergency[4] of 16 March 2020, which prescribes measures derogating from the constitutionally guaranteed human and minority rights during the state of emergency, the Decree on organizing the work of employers during the state of emergency[5] of March 16, 2020 was also passed, which regulates the special manner and organization of work of employers on the territory of the Republic of Serbia during the state of emergency. Article 2 of this Decree stipulates, among other things, that during the state of emergency, the employer is obliged to enable employees to perform work outside the employer’s premises at all workplaces where it is possible to organize such work in accordance with the general act and employment contract, and if the general act and the employment contract do not provide for such a manner of work, the employer may, by a decision, enable the employee to perform work outside the employer’s premises, if the organizational conditions allow it. Also, Article 3 of this Decree stipulates that it is necessary for an employer whose nature of activity is such that it is not possible to organize work in the manner provided for in Article 2 of this Decree, to harmonize its operations with the conditions of the state of emergency, i.e. if it is possible and it does not require additional funds, to organize work in shifts, so that as few employees and other persons engaged in work are at the same time in one room, as well as to enable all business meetings to be held electronically or in other appropriate ways and to postpone business trips in the country and abroad, in accordance with the decision of the competent authority on the ban, i.e. temporary restriction of entry and movement.
Bearing in mind that the adopted documents do not prescribe a derogation from the right to non-discrimination guaranteed in Article 21 of the Constitution of the Republic of Serbia[6], the Commissioner for Protection of Equality, even in the period of the state of emergency, and following the organization of work in the manner prescribed by the Decree on organizing the work of employers during the state of emergency, monitors the situation in the field of equality on the territory of the Republic of Serbia and acts in accordance with the competencies prescribed in Article 33 of the Law on Prohibition of Discrimination[7] in order to protect all citizens from discrimination,.
The Commissioner first points out that the employed parents of minor children, after the adoption of this decision, faced the problem of taking care of their children, since a decision was made at the national level to close preschools and schools, and in parallel with that, a decision to ban movement of the elderly above 65 years in urban, and 70 years in rural areas, as well as a recommendation on their self-isolation, since this is the category at greatest risk of contracting the disease COVID-19. In this way, employed parents of minor children, and especially single employed parents, are practically completely prevented from reconciling work and parenthood, i.e. they found themselves in a situation where they are forced to choose between going to work and staying at home and taking care of their children.
Also, all categories of persons with disabilities, as one of the most vulnerable groups of citizens, who, according to the practice of the Commissioner, are most often exposed to discrimination, are faced, with the adoption of the Decision on declaring a state of emergency in the Republic of Serbia and measures aimed at suppressing the spread of the COVID-19 virus, with an even greater number of obstacles in exercising their rights, while some of them, due to the nature of their disability, are at higher risk of contracting COVID-19 disease than persons without disabilities. Having in mind the above, it is clear that to some employees with disabilities going to work and coming from work, in a state of emergency, represents an unsolvable problem.
Analyzing the situation in which all employed parents of minor children found themselves, including parents employed in the Public Enterprise „Pošta Srbije“, with the adoption of the decision on declaring a state of emergency on the territory of the Republic of Serbia and the measures aimed at suppressing the spread of the COVID-19 virus, the Commissioner for the Protection of Equality submitted to the Government an Initiative for drafting an Instruction on the conduct of employers during the state of emergency towards employed parents of minor children in accordance with the Decree on organizing the work of employers during the state of emergency, in order to precisely and clearly prescribe the manner in which employers can fulfill the obligation from Article 2 of this Decree. The proposed manner would certainly primarily improve the fight that the Republic of Serbia is currently waging in order to suppress the spread of the COVID-19 virus and protect all its citizens, but it would also overcome the problem faced by employed parents of minor children on the one hand, as well as prevent any unjustified discrimination or unequal conduct of employers towards employed parents of minor children.
In accordance with the above, the Commissioner for the Protection of Equality, in addition to a call for solidarity, points to the obligation of all employers, including the Public Enterprise „Pošta Srbije“, to respect the obligations prescribed by this Decree at the time when there is a great struggle to suppress the spread of the COVID-19 virus, and to make decisions on employees who will perform work outside the employer’s premises, i.e. who will be enabled to stay in their homes during the state of emergency, by fully respecting all recommended measures given in order to suppress the spread of the infection and without discrimination on any grounds.
The Commissioner points out that any distinction on any grounds by the employer when making these decisions, including gender, family and marital status or disability, which the employees of the Public Enterprise „Pošta Srbije“ pointed out to us in a telephone address and in their complaints, represents discrimination in the sense of the Law on Prohibition of Discrimination, regarding which we will continue the regular procedure in accordance with the Law. However, due to the need for urgent response, in order to prevent situations in practice in which the health system of the Republic of Serbia would be further burdened by an increase in the number of infected, especially people with disabilities, or employed fathers of minor children would be denied the opportunity to stay at home and take care of their children, especially in the case of single fathers or minor children whose mothers are employed in jobs where due to the importance of their work they do not have this opportunity (e.g. in health or social care systems), the Commissioner once again points out the obligation to respect the rights established by the Constitution and the Law.
We believe that in the conditions of the state of emergency you will implement the recommendations of the Commissioner for the Protection of Equality, whose activities at the moment are primarily aimed at strong support to all measures and efforts currently undertaken by the Government and the President of the Republic of Serbia to suppress the spread of the COVID-19 virus, and that respecting the principles of equality and non-discrimination represents a significant contribution to this struggle.
With respect,
COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković
[1] „Official Gazette of the Republic of Serbia“, no. 29/20
[2] „Official Gazette of the Republic of Serbia“, no. 31/20
[3] „Official Gazette of the Republic of Serbia“, no. 29/20
[4] „Official Gazette of the Republic of Serbia“, no. 31/20
[5] „Official Gazette of the Republic of Serbia“, no. 31/20
[6] „Official Gazette of the Republic of Serbia“, no. 98/06
[7] „Official Gazette of the Republic of Serbia“, no. 22/09
