No. 011-00-1/2025-02 date: 14.1.2025.
MINISTRY OF FINANCE
Siniša Mali, Minister
11000 BELGRADE
Kneza Miloša 20
Subject: Initiative for amendment, i.e. mutual harmonization of regulations relating to equalizing the position of women during pregnancy, maternity leave and leave from work to care for a child, regardless of the basis of their employment, i.e. equalizing the position of entrepreneurs and women engaged based on contracts outside of an employment relationship with the position of women employed by an employer in terms of exercising rights related to the same life event – pregnancy and childbirth
Dear Mr. Mali,
The Commissioner for the Protection of Equality, within the scope of the competences prescribed by the Law on the Prohibition of Discrimination,[1] monitors the implementation of laws and other regulations and initiates the adoption or amendment of regulations to promote equality and protection against discrimination.
The Commissioner’s practice, as well as the addresses of women and civil society organizations, indicate that, although significant amendments have been made to the Law on Financial Support for Families with Children in the last few years[2], women entrepreneurs, as well as women working under a contract outside of an employment relationship, when it comes to exercising their rights regarding pregnancy and childbirth, are not fully equal to women who are in an employment relationship with an employer, or who are employed by another person, i.e. who are not employed.
Namely, by analyzing the Commissioner’s practice, and taking into account various research, two problems have emerged. The first problem relates to the position of women entrepreneurs and those who are employed under contracts (contracts for temporary occasional work, author’s contracts, part-time contracts…) in the sense that the benefits they receive for childbirth and child care and special child care do not include taxes and contributions (Articles 17-20 of the Law on Financial Support for Families with Children), while in the case of an employed woman, the benefit paid by the state includes the compensation for earnings, i.e. wages, and paid taxes and contributions (Article 14). The second problem that has emerged relates to employees employed under a contract outside of an employment relationship and their rights regarding pregnancy and childbirth. Namely, employed women who are in an employment relationship have all the rights arising from the employment relationship, including the right to maintain pregnancy, maternity leave, following the law, be terminated from their employment contract during pregnancy, maternity leave, and leave from work for child care. The law provides for their protection during work and in connection with work in terms of protection regarding overtime, night work, redistribution of working hours, etc. Women who work based on contracts outside of an employment relationship do not have these rights under the current legislation, although they should have them under the Constitution of the Republic of Serbia and ratified conventions.
It is important to understand that female entrepreneurs, as well as women who work under various contracts outside of an employment relationship, represent a category of women who, before the birth of a child, earned income on which contributions are paid, but which does not have the character of earnings within the meaning of labor regulations. That is, these are different forms of work engagement that do not constitute an employment relationship within the meaning of the Labor Law, so these women are not considered employees within the meaning of the Labor Law and do not have the same rights regarding pregnancy and childbirth as women employed by an employer, even though they earned income on one of the aforementioned grounds during the prescribed period. This category of women has the right, following the Law on Financial Support for Families with Children, to other benefits based on the birth and care of a child and special care for a child[3], but not the right to compensation for earnings or wages, which also includes compensation for taxes and contributions (Article 14 of the Law on Financial Support for Families with Children).
Considering the importance of the issue of exercising the right to earnings/benefits based on the birth and care of a child and special care for a child of every woman, regardless of whether she is employed for a fixed or indefinite period of time or is engaged on the basis of a contract outside of an employment relationship, the Commissioner has repeatedly addressed the Constitutional Court with proposals for the assessment of the constitutionality of the Law on Financial Support for Families with Children. In addition to the proposals for the assessment of the constitutionality, the Commissioner has previously addressed the competent ministry with initiatives to amend this regulation. Upon the Commissioner’s last proposal, the Constitutional Court adopted Decision IUz-299/2018[4] on December 22, 2022, by which it determined that the provision of Article 17, paragraph 4 of the Law on Financial Support for Families with Children is not in compliance with the Constitution. This proposal was preceded by proposals for the assessment of the constitutionality of the same law, based on which the Constitutional Court, in its decisions IUz-216/2018, IUz-247/2018, and IUz-266/2018, determined that the provisions of Article 12, paragraph 7, Article 14, paragraph 8, Article 17, paragraph 2, Article 18, paragraphs 2, 4 and 6 of the Law on Financial Support for Families with Children are not in compliance with the Constitution. In the proposals, the Commissioner, among other things, pointed out that the Law on Financial Support for Families with Children makes a distinction in the exercise of rights (the right to salary compensation and the right to other benefits) for the same life event, which is the birth of a child, and that making a distinction based on a woman’s employment status is not justified, especially considering the primary goal of this law, such as financial support for families with children, improving the conditions for meeting the basic needs of children, harmonizing work and parenthood, special incentives and support for parents to achieve the desired number of children, as well as improving the financial situation of families with children.
In these proposals for the assessment of constitutionality, the Commissioner emphasized that there is no objective and reasonable justification for making a distinction between beneficiaries of the right in completely comparable circumstances based on whether they are self-employed, perform independent activities, or are employed by an employer. Instead of this measure being an integral part of the support measures that the state undertakes to develop female entrepreneurship and self-employment, such a distinction leads, in addition to an unequal position, to the suppression of female entrepreneurship and self-employment, a feeling of lesser importance for both women and children, or that their motherhood and parenthood are not supported by society in an equal manner. Such unequal treatment favors only one form of employment, namely employment with an employer, as opposed to other forms of employment (work outside of an employment relationship, self-employment, entrepreneurship). This further supports the fact that such a distinction between women, in the current circumstances on the labor market, has no rational justification. The Constitutional Court confirmed the arguments presented by the Commissioner when it determined in its decisions that certain provisions of the Law on Financial Support for Families with Children were not in compliance with the Constitution.
Various studies indicate that there are more and more new forms of employment that do not involve an employment relationship, but rather work outside of an employment relationship, and that the ban on employment that has been in effect for many years has led to an increase in the number of employment contracts that involve the conclusion of various contracts that do not involve an employment relationship, but rather work outside of an employment relationship. The uncertainty and length of employment under a contract undoubtedly also have an impact on the decision to have a child. Current regulations do not recognize new forms of employment, but rather give primacy to the employment relationship with the employer, which dates back to the times of the socialist system, when the largest number of women were employed either in state bodies, public services, public enterprises or with another employer, and a very small number of them opted for self-employment and entrepreneurship. Given the reality, namely the number of workers engaged based on various contracts that do not constitute an employment relationship, it is necessary to find ways to prescribe the same types of protection for these types of employment, which include the protection of pregnant women and mothers during the duration of the employment. In this regard, the Law on Financial Support for Families with Children has already recognized these trends and the need to protect women who are not employed by an employer but work through self-employment or based on some of the contracts that do not fall under employment contracts, but rather contracts outside of the employment relationship. In this sense, this law provided that these women exercise certain rights, the same as those employed by an employer, but not the right to payment of taxes and contributions. Considering that these amendments imply the harmonization of several regulations, we believe that these regulations need to be amended or harmonized to ensure equal treatment for all women regardless of the form of employment, i.e., whether they are employed by an employer or are self-employed. Such harmonization necessarily implies the improvement of the Labor Law, as a lex specialis in the field of labor and employment, as well as other laws such as the Law on Financial Support for Families with Children, the Law on Contributions for Mandatory Social Insurance, the Law on Personal Income Tax, the Law on Health Insurance, the Law on Companies, and the Law on Pension and Disability Insurance.
Data on individual indicators in the labor market indicate the position of women in the field of labor and employment. The Commissioner’s practice has shown that for women who are employed on contracts outside of an employment relationship, the contract is not extended by employers after the period for which it was concluded when they learn that the employee has become pregnant, even though the provision of Article 187, paragraph 3 of the Labor Law applies not only to the termination of an employment contract but also to the termination of an employment relationship, including based on the expiration of the time for which the contract was concluded. Also, women find it harder to advance to better positions at work, as shown by the results of a survey on factors contributing to the “glass ceiling” effect, in which 78% of women claim that women and men are not treated equally in the workplace, as many as 67% of respondents work in lower-level positions as staff members, while only 4% of women in Serbia hold positions of directors, or presidents and members of supervisory boards. More than half of the women in Serbia are only partially able to balance professional and private obligations. According to the same research, 54% of respondents have a lower income than their partner, and 56% have a lower income than a colleague who works on the same or similar job, while for almost half of them, flexible working arrangements are not possible.[5] The position of women is also illustrated by a case in which the Commissioner for the Protection of Equality recently won a court case they initiated to protect women during pregnancy and maternity leave in the field of labor and employment. The Commissioner also pointed to the positions of the European Court of Human Rights on this issue, in particular citing parts of the decision of the European Court on the complaint (complaint no. 54711/15 of February 4. 2021, which became legally binding on May 4, 2021) where the Court took a clear position that the refusal to employ or to grant employment-related benefits (health insurance benefits based on pregnancy complications, and later maternity leave) to a pregnant woman constitutes direct discrimination based on sex, which led to a violation of her Convention rights, i.e. a violation of Article 14 of the European Convention on Human Rights in conjunction with Article 1 of Protocol No. 1 to the Convention. Also, according to the European Court, the termination of an employment relationship with a pregnant woman constitutes by itself an act of discrimination, namely direct discrimination based on the woman’s sex, and such action is contrary to Article 2, paragraphs 3 and 5 of Directive 76/207/EEC[6]. The Court expressed concern about the implications of the conclusions of domestic courts suggesting that women should not work or seek employment during pregnancy, warning that such gender stereotypes constitute a serious obstacle to the achievement of real substantive equality between the sexes. It found that such considerations not only violate domestic law, but are also in conflict with international standards of gender equality.
The Commissioner points out that in the context of this initiative, it is important to keep in mind the demographic picture of our country, which has been characterized for a long time by demographic aging and a high average age of the population as a result of major changes that occurred in the age structure in the 20th century, caused primarily by the long-term decline in the fertility rate, then by the high mortality rate, as well as migration movements. According to the results of the latest census, the Republic of Serbia has a population of 6,690,887, which is 6.9% less than in 2011, when the previous census was conducted. The decrease in the number of inhabitants was recorded in all regions (around 10%), except in the Belgrade region, where the number of inhabitants increased by around 1.6%. The effects of population decline are numerous, and the economic effects of this situation exceed the negative effects of population aging because they negatively affect the labor market and especially certain sectors of the economy (e.g., the construction industry, infrastructure), which leads to a decrease in GDP and lower aggregate growth of the entire country, especially regions that are particularly affected by depopulation, according to a number of reports and research at the global level.
The position of women concerning pregnancy and maternity engaged under contracts that, following the Labor Law, constitute work outside the employment relationship, was also pointed out by the Association “Mothers are the Law”, which proposed amendments to the Labor Law, namely Articles 202a and 202b, with a calculation of the financial resources necessary for the implementation of the law amended in such a way. The aforementioned association, within the framework of the project “Maternity Leave – a Right, not a Privilege”, cited a financial analysis of maternity leave prepared by the Institute for Development and Innovation. The analysis stated that for the implementation of the proposed amendments to the law, it is necessary to provide annual financial resources at the general state level, ranging between 2,868 million dinars (24.4 million euros) and 4,030 million dinars (34.3 million euros). Of the estimated amount of funds for implementation at the general state level, funds related to the budget of the Republic of Serbia are estimated at 2,645 million to 3,360 million dinars, while the funds that need to be provided from the budget of the Republic Health Insurance Fund are estimated at 223 to 669 million dinars, all of them on an annual basis[7].
The proposed amendment to the Labor Law through Article 202a, which refers to granting the right to employees engaged outside of an employment relationship (temporary occasional work contract, part-time contract, professional training and advanced training contract, supplementary work contract) to have the right to maternity leave and leave for childcare, and following Articles 94, 94a and 95 of the Labor Law, indicates that there will be a cost at the general state level in terms of salary compensation for employees outside of an employment relationship during maternity leave and leave for childcare for a period of 12 months, as well as for related taxes and contributions. The aforementioned analysis highlights that the wage compensation for employees outside of an employment relationship, which is provided for by this amendment to the Labor Law through Article 202a, cannot be less than the minimum wage, in order to be in accordance with paragraph 8, Article 14** of the Law on Financial Support for Families with Children. Namely, the costs resulting from the amendment to the Labor Law through the proposed Article 202a will not be incurred in full because the part of general state costs related to wage compensation is already covered by Other benefits based on the birth and care of a child and special care of a child, which are defined by Article 17 of the Law on Financial Support for Families with Children and which employees outside of an employment relationship receive. The financial cost to the general state level exists due to the payment of related taxes and contributions, as well as in the case of women who are employed outside of an employment relationship and receive other benefits based on childbirth and childcare that are less than the minimum wage in the Republic of Serbia.
The Commissioner takes the opportunity to point out anti-discrimination regulations as well as regulations relating to the position of women during pregnancy and childbirth in the work and employment process.
Article 4 of the Law on the Prohibition of Discrimination stipulates that everyone is equal and enjoys equal status and equal legal protection, regardless of personal characteristics, and that everyone is obliged to respect the principle of equality, i.e., the prohibition of discrimination. A special form of discrimination is indirect discrimination, which exists if an apparently neutral provision, criterion or practice places or could place a person or group of persons, due to their personal characteristics, in a less favorable position compared to other persons in the same or similar situation, unless this is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. The provision of Article 14, paragraphs 1 and 2 of the Law on the Prohibition of Discrimination stipulate that special measures introduced for the purpose of achieving full equality, protection and advancement of persons, or groups of persons, who are in an unequal position, shall not be considered discrimination, and that special measures shall be applied until the goal for which they were prescribed is achieved, unless otherwise provided by law.
The provision of Article 16 prohibits discrimination in the field of labor, i.e. the violation of equal opportunities for establishing an employment relationship or the exercise, under equal conditions, of all rights in the field of labor, such as the right to work, to free choice of employment, to promotion in the service, to professional development and professional rehabilitation, to equal remuneration for work of equal value, to fair and favorable working conditions, to vacation, to education, to join a trade union, as well as to protection against unemployment. Protection from discrimination under paragraph 1 of this Article shall be enjoyed by a person in an employment relationship, a person performing temporary and occasional work or work under a part-time contract or other contract, a person performing supplementary work, a person performing a public function, a member of the military, a person seeking employment, a student and an apprentice, a person undergoing professional training and development without an employment relationship, a volunteer and any other person who participates in work on any basis.
Furthermore, the provisions of Article 20 of this Law stipulate that discrimination based on sex exists if the principle of gender equality, i.e. the principle of respect for equal rights and freedoms of women and men in political, economic, cultural and other aspects of public, professional, private and family life, is violated. The same article prohibits the denial of rights or public or covert recognition of benefits related to sex, i.e. gender and gender identity, or due to sex change, i.e. adjustment of sex to gender identity, as well as due to pregnancy, maternity leave, leave for childcare or special child care.
The Law on Business Companies[8] regulates the legal status of companies and other forms of organization, and thus the legal status of entrepreneurs (Article 1, paragraph 1). The provision of Article 83 of this Law defines the term entrepreneur as “a legally capable natural person who carries out an activity with the aim of generating income and who is registered as such following the law on registration”. Entrepreneurs also include natural persons who are entered in a special register and who carry out a liberal profession if this is determined by a special regulation (writers, artists, etc.).
Furthermore, the provisions of Article 89 of this Law stipulate that an entrepreneur may, by written authorization, entrust the management of the business to a legally capable natural person, i.e. a manager. The manager must be employed by the entrepreneur (Article 89, paragraph 3 of this Law). Exceptionally, if the entrepreneur is temporarily absent for justified reasons (illness, education, election to a position, etc.) and does not have an employed manager, they may entrust the general management of the business to a member of their family household during that absence, without the obligation to employ them, within the meaning of this Law, childbirth and/or absence from work to care for a child is considered a justified reason for the entrepreneur’s temporary absence.
If a woman entrepreneur does not hire a manager and does not have a family member to entrust management to, she must discontinue/close, temporarily or permanently, her business. Therefore, the birth of a child puts at risk the survival of the entrepreneurial business, and therefore the future sources of income of the woman who has decided to close her entrepreneurial business due to pregnancy and childbirth. In this way, unfortunately, female entrepreneurs are put in a situation where they have to choose between motherhood and doing business.
Furthermore, the provisions of Articles 7, 8, and 9 of the Law on Mandatory Social Insurance Contributions[9] stipulate that entrepreneurs are, among others, liable for contributions to pension and disability insurance, health insurance, and unemployment insurance, in accordance with the laws governing these systems. The provisions of Article 22 of this Law stipulate that the contribution base for entrepreneurs who, in accordance with the law governing personal income tax, pay tax on actual income, is the monthly amount of personal income within the meaning of the law governing personal income tax (paragraph 1, item 1) or taxable profit if the entrepreneur does not pay personal income from paragraph 1, item 1 of this Article. Article 65b of this Law stipulates that for an entrepreneur who receives other benefits based on the birth and care of a child and special care of a child following the law regulating financial support for families with children, contributions for mandatory social insurance on that basis are not paid during the period of exercising the right to that benefit (paragraph 1). By way of exception to paragraph 1 of this Article, for an entrepreneur who continues to carry out entrepreneurial activity during the period of exercising the right to other benefits, the contribution base shall be personal earnings, i.e., taxable profit, i.e., flat-rate income (paragraph 2 of this Article). Paragraph 3 stipulates that the person liable for payment of contributions during the period of exercising the right to other benefits shall be the entrepreneur referred to in paragraph 2 of this Article.
The Law on Health Insurance[10] stipulates that compulsory health insurance is the insurance that ensures the right to health care and the right to financial benefits for insured persons and other persons in accordance with this Law (Article 3), and that the funds for exercising the right to compulsory health insurance are provided by paying contributions, as well as from other sources, in accordance with the law (Article 9, paragraph 1). Following this Law, entrepreneurs are also included in the list of insured persons (Article 11, item 18 of this Law).
The provisions of Article 13 of this Law stipulate that an entrepreneur’s status as an insured person on the prescribed basis ceases during the temporary deregistration from carrying out their activity, if during that time, they do not pay contributions, except for the duration of temporary inability for work that occurred before temporary deregistration, following the Law on Health Insurance. Of course, it is important to point out that, outside the categories of insured persons following Article 11 of the Law on Health Insurance, i.e. persons who do not meet the conditions for acquiring the status of insured person from Article 11 of this Law and who do not meet the conditions to be insured as family members of the insured person, are still considered insured persons within the meaning of this Law and these are, among other things, persons in connection with family planning, as well as during pregnancy, childbirth and up to 12 months after childbirth (Article 16, paragraph 1, item 2 of the Law on Health Insurance). Article 17 of the Law on Health Insurance stipulates that persons who are not compulsorily insured within the meaning of this Law may join compulsory health insurance in order to secure for themselves and their immediate family members the rights under compulsory health insurance, under the conditions, in the manner, in the content and scope prescribed by this Law and by-laws adopted for the implementation of this Law (paragraph 1). By way of exception to paragraph 1 of this Article, an entrepreneur whose status as an insured person has ceased pursuant to Article 13 of this Law, as well as the spouse or common-law partner of an employee who has been posted abroad in accordance with the law, and whose rights and obligations arising from the employment relationship are suspended for the period of posting, may join compulsory health insurance in order to secure for themselves and their immediate family members the rights arising from compulsory health insurance, under the conditions, in the manner, in the content and scope prescribed by this Law and by-laws adopted for the implementation of this Law. Following the provisions of Article 72, paragraph 1, item 2 of this Law, entrepreneurs are entitled to compensation for their earnings from the funds of the compulsory health insurance. It is additionally stipulated that entrepreneurs are also entitled to compensation for their earnings during temporary inability to work, if the health condition of the insured person, or a member of their immediate family, is such that the insured person is prevented from working for reasons prescribed by this Law, regardless of the payer of the compensation for earnings, and if, among other things, they are temporarily unable to work due to illness or complications related to maintaining pregnancy (Article 73, paragraph 1, item 3). The provision of Article 85 of the same law stipulates that the insured person referred to in Article 11, paragraph 1, item 18 of this Law (entrepreneur and freelance artist) is not entitled to salary compensation from the funds of the mandatory health insurance if, during the period of temporary inability for work, they have not temporarily deregistered from performing the activity, regardless of who is the payer of the compensation, while paragraph 2 of the same article stipulates that in the case referred to in paragraph 1 of this article, the insured person who has employees (one or more) is entitled to 50% of the salary compensation that would have been due to them if they had deregistered from performing the activity.
The provisions of Article 13 of the Personal Income Tax Law[11] stipulate that, within the meaning of this law, wages are, among other things, considered to be wages earned based on an employment relationship, defined by the law regulating employment relationships and other income of employees (paragraph 1). Wages, within the meaning of this law, are also considered to be contractual remuneration and other income earned by performing temporary and occasional work based on a contract concluded directly with the employer, as well as based on a contract concluded through a youth or student cooperative, except for a person under the age of 26, if they are studying in secondary, higher and higher education institutions (paragraph 2). Earnings, within the meaning of this law, are also considered to be the personal earnings of entrepreneurs and agricultural entrepreneurs determined following this Law (paragraph 3). Incomes determined by this law are exempt from taxation. Thus, personal income tax is not paid on incomes earned based on incomes earned following the law regulating financial support for families with children, except for compensation for earnings, i.e., wages (Article 9, paragraph 1, item 2 of the Personal Income Tax Law).
The Law on Pension and Disability Insurance[12] stipulates that, among others, self-employed persons are compulsorily insured, i.e., insured persons are persons who independently carry out an activity (Article 10, paragraph 1, item 2). Furthermore, the provision of Article 12 stipulates, among other things, that self-employed persons are persons who, in accordance with the law, independently carry out a business or other activity, if they are not compulsorily insured based on employment (paragraph 1, item 1), persons who, in accordance with the law, carry out agricultural activity as entrepreneurs, if they are not compulsorily insured based on employment (paragraph 1, item 4a), as well as persons who have ceased to carry out self-employment, while receiving financial compensation according to the regulations on labor and employment (paragraph 1, item 5). The provisions of Article 14 establish the beginning and termination of the status of an insured person, which is acquired on the day of commencement and terminates on the day of termination of employment, performance of independent or agricultural activity, or performance of contracted work (paragraph 1). In this regard, we cite the provisions of paragraph 4 of this Article, according to which, exceptionally from the provisions of paragraph 1 of this Article, the status of an insured person for a farmer may be suspended for a maximum of five years during the insurance period for objective reasons (natural disasters, illness and maternity leave), provided that this cannot be for five consecutive years. This is because the provisions of this Article cover all insured farmers, and it can be concluded that this group also includes those who perform agricultural activity as entrepreneurs.
Labor Law[13] stipulates that the rights, obligations, and responsibilities arising from the employment relationship, or on the basis of work, are regulated by this law and a special law, in accordance with ratified international conventions (Article 1, paragraph 1). Rights, obligations, and responsibilities arising from employment are regulated by both a collective agreement and an employment contract, and by the labor regulations, or by an employment contract – only when so determined by this law (Article 1, paragraph 2). Furthermore, the provisions of Article 2 of this Law stipulate that the provisions of this Law shall apply to employees working on the territory of the Republic of Serbia, with a domestic or foreign legal or natural person, as well as to employees sent to work abroad by the employer, unless otherwise provided by law; to employees in state bodies, bodies of territorial autonomy and local self-government and public services, unless otherwise provided by law; to employees of employers in the field of transport, unless otherwise provided for by a special regulation, as well as to employees of foreign citizens and stateless persons working for an employer on the territory of the Republic of Serbia, unless otherwise provided for by law. Also, Article 12 of the Labor Law stipulates that an employee has the right to adequate wages, safety and health at work, health care, protection of personal integrity, personal dignity and other rights in the event of illness, reduction or loss of working capacity and old age, material security during temporary unemployment, as well as the right to other forms of protection, following the law and a general act, i.e. the employment contract. Paragraph 2 of this Article stipulates that an employed woman has the right to special protection during pregnancy and childbirth, while paragraph 3 stipulates that an employee has the right to special protection for the purpose of caring for a child, following this Law.
Given that the Labor Law is the umbrella law in the field of labor and that it created a regime of work outside of an employment relationship, changing the position of women who work outside of an employment relationship will best be achieved by amending the relevant articles of this law (197-203).[14]
The Commissioner for the Protection of Equality also points out the importance of amending and supplementing Articles 94-96 of the Labor Law[15], in order to enable women engaged on contracts outside of an employment relationship to exercise the right to leave from work due to pregnancy and childbirth, as well as leave from work for the purpose of caring for a child, as well as special care for a child, on an equal basis with women employed based on an employment contract for an indefinite or fixed term. The above-mentioned must also be harmonized with the provisions of the current Articles 115 and 187 of this Law, which relate to the right to compensation for wages, as well as with special provisions relating to protection from termination of employment contracts for women engaged on some of the contracts outside of an employment relationship.
The Commissioner also reminds that the Strategy for Encouraging Births of the Republic of Serbia[16] provides for measures and mechanisms aimed at the economic empowerment of potential. In support of this, we will list two specific strategic objectives and their individual measures and/or mechanisms for achieving them. Within the specific objective of the Strategy (2.2.1. specific objective 1) – alleviating the economic cost of raising a child, two individual objectives are provided for. The first is the reduction of the direct costs of raising children and financial measures to encourage births (1.1.), while the second individual objective (1.2.) relates to incentives in the housing sector. The second specific objective is objective 2 (2.2.2. specific objective 2) which refers to the reconciliation of work and parenthood, the implementation of which is also envisaged through two individual objectives – reconciliation of the parental and professional domains (2.1.), and reconciliation of work and parenthood through childcare for employed parents (2.2.). The Strategy elaborates on these objectives through a large number of measures, activities and mechanisms aimed at the economic empowerment of parents and potential parents directly or indirectly (for example: “all types of employment contracts, including temporary and occasional employment contracts, vocational training and advanced training contracts, part-time contracts, contracts for additional work, etc., should be treated in the same way with regard to the right to compensation during pregnancy, maternity leave and leave from work for childcare purposes (3)”, “ensuring conditions so that women do not lose their jobs during pregnancy and after returning to work after an absence (7)”, etc.).
By analyzing all the above regulations, it can be concluded that there is still unequal treatment of women who independently perform activities or work based on a contract outside of an employment relationship in comparison to employed women, which represents a violation of Article 21, which stipulates that[17] everyone is equal before the Constitution and the law, as well as Article 63, paragraph 2 of the Constitution, which stipulates that the Republic of Serbia encourages parents to decide to have children, in which it helps them, as well as Article 66, paragraphs 1 and 2 of the Constitution, which stipulates that the family, mother, single parent and child in the Republic of Serbia enjoy special protection, in accordance with the law, and that the mother is provided with special support and protection before and after childbirth. The Commissioner also points to the provisions of Article 18 of the Constitution, which regulates the direct application of guaranteed rights. This article stipulates that human and minority rights guaranteed by the Constitution shall be directly applicable (paragraph 1). Human and minority rights guaranteed by generally accepted rules of international law, confirmed by international treaties and laws, are guaranteed by the Constitution, and as such, shall be directly applied. The law may prescribe the manner of exercising these rights only if this is expressly provided for by the Constitution or if this is necessary for the exercise of a particular right due to its nature, while the law may in no case affect the essence of the guaranteed right (paragraph 2 of the same article). The provisions on human and minority rights shall be interpreted in favor of the advancement of the values of a democratic society, in accordance with applicable international standards of human and minority rights, as well as the practice of international institutions that supervise their implementation (paragraph 3 of the same article).
Article 60 of the Constitution stipulates that the right to work is guaranteed, following the law (paragraph 1), that everyone has the right to free choice of work (paragraph 2), and that all jobs are available to everyone under equal conditions (paragraph 3). Everyone has the right to respect for their personal dignity at work, safe and healthy working conditions, necessary protection at work, limited working hours, daily and weekly rest, paid annual leave, fair remuneration for work, and legal protection in the event of termination of employment. No one may waive these rights (paragraph 4 of the same article). Women, youth, and people with disabilities are provided with special protection at work and special working conditions in accordance with the law (paragraph 5 of the same article).
We also recall that the Convention on Equal Opportunities and Treatment for Men and Women Workers (Workers with Family Responsibilities), No. 156 of 1981, applies to workers who have responsibilities towards children they support and when these responsibilities limit their ability to engage in economic activity and progress. Member States have undertaken to make it an objective of national policy to enable these persons to enjoy all rights arising from employment without discrimination.
The International Labor Organization Maternity Protection Convention No. 183 of 2000 stipulates the obligation of each Member State to adopt measures to ensure that maternity is not a source of discrimination in the field of employment.
The Action Plan for Chapter 19, which relates to social policy and employment, envisages equalizing the status of mothers engaged under non-employment contracts with mothers engaged under employment contracts. The plan envisages harmonizing the Labor Law with Council Directive 92/85/EEC of October 19, 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant women and women who have recently given birth or are breastfeeding, in the sense of applying all the provisions of the Directive to other employed women, to protect not only employees, but all working women engaged under non-employment contracts or on other grounds.
In the Regular Annual Report on the Status of Equality Protection for 2023,[18] the Commissioner also provided a general recommendation for measures to improve equality to the Ministry of Labor, Employment, Veteran and Social Affairs, the Ministry of Economy, the Ministry of Agriculture, Forestry and Water Management, the Ministry of Rural Affairs, the National Employment Agency, local self-government and territorial autonomy units, and employers. The recommendation states that it is necessary to use active measures and subsidies to encourage the employment of women, the development of women’s entrepreneurship and agricultural holdings, the achievement of equality in access to jobs, equal wages, conditions for advancement, as well as a more balanced representation of women in management positions and management bodies. The effects of measures taken should be analyzed at the local community level and improved in relation to the achieved results.
The Commissioner’s Special Report on Discrimination in the Field of Labor and Employment[19] indicates that multiple discrimination against women in the labor market based on gender and marital and family status as personal characteristics is the most common. The report states that the gender gap in the labor market persists despite the attention paid to this problem in national strategies in the field of employment and gender equality.[20] During the implementation period of the Action Plan, the share of women among entrepreneurs increased slightly (from 26% in 2011 to 34% in 2017). However, most female entrepreneurship is driven by the necessity to become self-employed in the face of obstacles in the labor market rather than by good business resources, which reduces the chances of women’s businesses becoming sustainable and successful. The gender wage gap persists, although it is not as high as in some other countries.[21] This report states that measures to increase employment, entrepreneurship and agricultural activity are part of the systemic conditions that enable the economic empowerment of women, but that they can only be partially attributed to the implementation of this action plan, as they originate from an earlier period of reform of employment, social inclusion and gender equality policies.
Considering all of the above, the Commissioner believes that in order to equalize the position of self-employed women, that is, women who independently perform an activity or are engaged under a contract outside of an employment relationship with women who are employed by an employer, it is necessary to review all relevant regulations and harmonize them so that all working women are equal, i.e. have the same treatment and the same rights regarding the same life event – pregnancy and childbirth.
[1] “Official Gazette of the Republic of Serbia”, Nos. 22/09 and 52/21, Article 33, paragraph 1, item 7, in relation to item 5.
[2] “Official Gazette of the Republic of Serbia”, Nos. 113/17, 50/18, 46/21 – Decision of the Constitutional Court, 51/21 – Decision of the Constitutional Court, 53/21 – Decision of the Constitutional Court, 66/21, 130/21, 43/23 – Decision of the Constitutional Court and 62/23, 11/24 – Decision of the Constitutional Court and 79/24
[3] Decision of the Constitutional Court No. IUz-299/2018 of 1.02.2023. p.7
[4]More at: http://www.ustavni.sud.rs/page/view/149-102933/saopstenje-sa-16-sednice-ustavnog-suda-odrzane-22-decembra-2022-godine-kojom-je-predsedavala-snezana-markovic-predsednica-ustavnog-suda
[5] “Regular Annual Report of the Commissioner for the Protection of Equality for 2022” – https://ravnopravnost.gov.rs/wp-content/uploads/2023/03/RGI-2022_15.3.pdf
[6] Case C-117/88 Dekker v Stichting Vormingscentrum voor Jonge Wasswansen Plus (1990) ECR I- 3941
[7]file:///C:/Users/ P overenik%20403/Downloads/Finansijska%20analiza%20Predloga%20zakona%20o%20dopunama%20Zakona%20o%20radu_High%20Quality.pdf . Research conducted in 2022.
[8]” Official Gazette of the Republic of Serbia”, Nos. 36/11,99/11,83/14 – other law, 5/15,44/18,95/18,91/19 and 109/21
[9] “Official Gazette of the Republic of Serbia”, Nos. 84/2004, 61/2005, 62/2006, 5/2009, 52/2011, 101/2011, 7/2012 – adjusted dinar amounts, 8/2013 – adjusted dinar amounts, 47/2013, 108/2013, 6/2014 – adjusted dinar amounts, 57/2014, 68/2014 – other law, 5/2015 – adjusted dinar amounts, 112/2015, 5/2016 – adjusted dinar amounts, 7/2017 – adjusted dinar amounts, 113/2017, 7/2018 – adjusted dinar amounts, 95/2018, 4/2019 – adjusted dinar amounts, 86/2019, 5/2020 – adjusted dinar amounts, 153/2020, 6/2021 – adjusted dinar amounts, 44/2021, 118/2021, 10/2022 – adjusted dinar amounts, 138/2022, 6/2023 – adjusted dinar amounts, 92/2023, 6/2024 – adjusted dinar amounts, and 94/2024)
[10] “Official Gazette of the Republic of Serbia”, Nos. 25/19 and 92/23
[11] “Official Gazette of the Republic of Serbia”, No. 24/01, 80/02, 80/02 – other law, 135/04, 62/06, 65/06 – correction, 31/09, 44/09, 18/10, 50/11, 91/11 – Decision of the Constitutional Court, 7/12 – adjusted dinar amounts, 93/12, 114/12 – Decision of the Constitutional Court, 8/13 – adjusted dinar amounts, 47/13, 48/13 – correction, 108/13, 6/14 – adjusted dinar amounts, 57/14, 68/14 – other law, 5/15 – adjusted dinar amounts, 112/15, 5/16 – adjusted dinar amounts, 7/17 – adjusted dinar amounts, 113/17, 7/18 – adjusted dinar amounts, 95/18, 4/19 – adjusted dinar amounts, 86/19, 5/20 – adjusted dinar amounts, 153/20, 156/20 – adjusted dinar amounts, 6/21 – adjusted dinar amounts, 44/21, 118/21, 132/21 – adjusted dinar amounts, 10/22 – adjusted dinar amounts, 138/22, 144/22 – adjusted dinar amounts, 6/23 – adjusted dinar amounts, 92/23, 116/23 – adjusted dinar amounts, 6/24 – adjusted dinar amounts and 94/24
[12] “Official Gazette of the Republic of Serbia”, Nos. 34/03, 64/04 – decision of the Supreme Court of the RS, 84/04 – other law, 85/05, 101/05 – other law, 63/06 – decision of the Supreme Court of the RS, 5/09, 107/09, 101/10, 93/12, 62/13, 108/13, 75/14, 142/14, 73/18, 46/19 – Decision of the Supreme Court, 86/19, 62/21, 125/22, 138/22, 76/23 and 94/24
[13] “Official Gazette of the Republic of Serbia”, Nos. 24/05, 61/05, 54/09, 32/13, 75/14, 13/17 – Decision of the Constitutional Court, 113/17 and 95/18 – Authentic interpretation
[14] file:///C:/Users/Poverenik%20403/Downloads/Finansijska%20analiza%20Predloga%20zakona%20o%20doponama%20Zakona%20o%20radu_High%20Quality.pdf .
[15] “Official Gazette of the Republic of Serbia”, Nos. 24/05, 61/05, 54/09, 32/13, 75/14, 13/17 – decision of the Constitutional Court, 113/17 and 95/18 – authentic interpretation
[16] “Official Gazette of the Republic of Serbia”, No. 25/18-16 https://aler.rs/files/STRATEGIJA_PODSTICANJA_RADJANJA.pdf
[17]“Official Gazette of the Republic of Serbia”, No. 98 /06, 115 / 21 and 16/22
[18]https://ravnopravnost.gov.rs/wp-content/uploads/2024/03/RGI-2023.pdf
[19]https://ravnopravnost.gov.rs/wp-content/uploads/2023/03/12-19.pdf
[20] Final evaluation report of the Action Plan for the Implementation of the National Strategy for Gender Equality of the Republic of Serbia , SeCons – Development Initiative Group, 2018, available at Internet addresses: https://www.secons.net/files/publications/99-publication.pdf
[21] Ibid., p. 30
COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković
