No. 011 -00-1/202 4 -02 date: 21.3.2025.
CONSTITUTIONAL COURT
11000 BELGRADE
Bulevar Kralja Aleksandra 15
Pursuant to Article 168, paragraph 1 of the Constitution of the Republic of Serbia (Official Gazette of the Republic of Serbia, Nos. 98/06, 115/21 and 16/22), Article 29, paragraph 1, item 1 and Article 50, paragraph 1 of the Law on the Constitutional Court (Official Gazette of the Republic of Serbia , Nos. 109/07, 99/11, 18/13 – decision of the Constitutional Court , 40/15 – other law, 103/15 – other law, 10/23 and 92/23), the Commissioner for the Protection of Equality submits the
PROPOSAL FOR THE ASSESSMENT OF CONSTITUTIONALITY AND LEGALITY
Of Article 27, paragraphs 2 and 3 and Article 31, paragraphs 4 and 5 of the Special Collective Agreement for Employees in Primary and Secondary Schools and Student Dormitories (“Official Gazette of the Republic of Serbia”, Nos. 21/15, 92/20, 123/22 and 13/25)
On January 30, 2025, the Ministry of Education, on behalf of the Government of the Republic of Serbia, concluded a Special Collective Agreement with the representative trade unions in the field of education at the level of the Republic of Serbia, namely: the Education Trade Union of Serbia, the Branch Trade Union of Education Workers of Serbia “Independence”, the Union of Trade Unions of Education Workers of Serbia and the Trade Union of Education Workers of Serbia, on amendments and supplements and extension of the validity period of the Special Collective Agreement for Employees in Primary and Secondary Schools and Student Dormitories. The Collective Agreement was published in the Official Gazette of the Republic of Serbia, No. 13, on February 14, 2025, and entered into force on the eighth day from the date of publication.
The aforementioned Collective Agreement amended the provisions of Articles 27 and 31 of the current Special Collective Agreement for Employees in Primary and Secondary Schools and Student Dormitories[1] (hereinafter referred to as: SCA).
By the provision of Article 12, paragraph 1 of the Special Collective Agreement on Amendments and Supplements and Extension of the Validity Period of the Special Collective Agreement for Employees in Primary and Secondary Schools and Student Dormitories, it is stipulated that in Article 27 of the SCA,[2] after paragraph 1, new paragraphs 2 and 3 are added.
After amendments and supplements, Article 27 of the SCA now reads:
“The employer is obliged to pay the employee severance pay upon termination of employment for the purpose of exercising the right to a pension, in the amount of three times the employee’s last paid salary, provided that the severance pay thus paid is not lower than three average salaries per employee at the employer at the time of payment, or three average salaries per employee paid in the Republic of Serbia according to the latest published data of the republican body responsible for statistics, if this is more favorable for the employee.”
The right referred to in paragraph 1 of this Article belongs to the member of the representative trade union that is the signatory to this agreement, in accordance with the general act of the representative trade union.
Employees who do not belong to representative trade unions that are signatories to this agreement are entitled to the rights referred to in paragraph 1 of this article in accordance with the law.
Severance pay is paid within 30 days from the date of termination of employment.”
Also, Article 14, paragraph 1 of the Special Collective Agreement on Amendments and Supplements and Extension of the Validity Period of the Special Collective Agreement for Employees in Primary and Secondary Schools and Student Dormitories stipulates that in Article 31, paragraph 4 of the SCA, after the word “awards”, the words: ” for members of representative trade unions of the signatories of this agreement, in accordance with the general act of the representative trade union” shall be added, as well as that a new paragraph 5 shall be added after paragraph 4, and that the previous paragraph 5 shall become paragraph 6.
After amendments and supplements, Article 31 of the SCA now reads:
“The employer is obliged to pay the employee a jubilee bonus.”
The jubilee award is paid to an employee in the year in which they reach 10, 20, 30, 35 or 40 years of service.
Time spent working under contracts for temporary and occasional work, part-time work, professional training and advanced training, additional work, as well as special insurance periods in accordance with the regulations of the Pension Insurance Act (e.g. birth of a third child, sports engagement, time for which the insured person independently paid contributions, etc.), as well as time spent performing self-employment activities, is not considered work in an employment relationship.
The amount of the anniversary award for members of the representative trade unions of the signatories to this agreement, in accordance with the general act of the representative trade union, is:
1) half the average salary – for 10 years of work completed in the employment relationship,
2) one average salary – for 20 years of work performed in an employment relationship,
3) one and a half average salaries – for 30 years of work performed in an employment relationship,
4) two average salaries – for 35 years of work spent in an employment relationship,
5) two and a half average salaries – for 40 years of work spent in an employment relationship.
Employees who are not members of the representative trade unions of the signatories to this agreement are entitled to a jubilee bonus in the amount of 50% of the amounts specified in paragraph 4, items 1)-5).
The average salary referred to in paragraphs 3 and 4 of this Article is the average salary per employee in the institution in the previous month, or the average salary paid in the Republic of Serbia in the previous month relative to the month of payment of the jubilee award, according to the latest published data of the republican body responsible for statistics, if that is more favorable for the employee.”
Regarding the above provisions of the Special Collective Agreement on Amendments and Supplements and Extension of the Validity Period of the Special Collective Agreement for Employees in Primary and Secondary Schools and Student Dormitories, employees in schools, as well as trade unions and associations, addressed the Commissioner for the Protection of Equality, indicating that the above provisions put them in an unjustifiably less favorable position compared to employees who are members of representative trade unions of the signatories to the agreement, i.e. that in this way the equality of employees in educational institutions is violated, by discriminating against employees based on union membership.
In this regard, the Commissioner points to the provisions of the Constitution of the Republic of Serbia,[3] which in Article 21 stipulates that everyone is equal before the Constitution and the law (paragraph 1); that everyone has the right to equal legal protection, without discrimination (paragraph 2); that any discrimination, direct or indirect, on any ground is prohibited, and in particular on the grounds of race, sex, nationality, social origin, birth, religion, political or other opinion, property, culture, language, age and mental or physical disability (paragraph 3). Article 55, paragraph 1 of the Constitution guarantees freedom of political, trade union and any other association and the right to remain outside any association. Article 194, paragraphs 3 and 4 and Article 195, paragraph 1 of the Constitution of the Republic of Serbia stipulate that all laws and other general acts adopted in the Republic of Serbia must be in accordance with the Constitution, i.e. they must not be in conflict with ratified international treaties and generally accepted rules of international law, as well as that all by-laws of the Republic of Serbia, general acts of organizations entrusted with public powers, political parties, trade unions and citizens’ associations, and collective agreements must be in accordance with the law.
The European Convention for the Protection of Human Rights and Fundamental Freedoms[4], in Article 14, prohibits discrimination and stipulates that the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Article 11 of the Convention stipulates that everyone has the right to freedom of peaceful assembly and freedom of association with others, including the right to form and join trade unions for the protection of their interest (paragraph 1). No restrictions shall be placed on the exercise of these rights, other than those prescribed by law and necessary in a democratic society in the interests of national safety or public security, for the prevention of disorder or crime, for the protection of health or morality, or for the protection of the rights and freedoms of others. This article does not prevent lawful restrictions on the exercise of these rights by members of the armed forces, police or state administration (paragraph 2).
The International Covenant on Civil and Political Rights guarantees that everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of their interests (Article 22, paragraph 1). The Covenant also specifies that the enjoyment of this right may be subject to restrictions prescribed by law which are necessary in a democratic society in the interests of public order or the rights and freedoms of others (Article 22, paragraph 2).
The Law on the Prohibition of Discrimination [5], in Article 2, paragraph 1, item 1, stipulates that discrimination and discriminatory treatment mean any unjustified distinction or unequal treatment, or omission (exclusion, restriction or giving preference ), in relation to persons or groups, as well as to members of their families, or persons close to them, in an open or covert manner, which is based on race, skin color, ancestry, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, sex, gender, gender identity, sexual orientation, sexual characteristics, income level, property status, birth, genetic characteristics, health status, disability, marital and family status, convictions, age, appearance, membership in political, trade union and other organizations and other real or presumed personal characteristics.
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.
In addition, Article 6 of this law stipulates that direct discrimination exists if a person or group of persons is or has been placed in a less favourable position or could be placed in a less favourable position in the same or similar situation by any act, action or omission, due to their personal characteristics.
The provision of Article 8 stipulates that a violation of the principle of equal rights and obligations exists if a person or group of persons, due to their personal chracteristics, is denied rights and freedoms or is imposed obligations that are not denied or imposed on another person or group of persons in the same or similar situation, unless this is justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
The provision of Article 25 prohibits discrimination based on political or trade union affiliation, in such a way that discrimination based on the political beliefs of a person or group of persons, or membership or non-membership in a political party or trade union organization, is prohibited.
Also, Article 16 of the Law on Prohibition of Discrimination stipulates that discrimination in the field of labor is prohibited, namely the violation of equal opportunities for establishing an employment relationship or the enjoyment 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 satisfactory working conditions, to rest, to education and joining a trade union, as well as to protection against unemployment, while paragraph 2 of the same article stipulates that protection against discrimination from paragraph 1 of this article shall be enjoyed by persons in an employment relationship, persons performing temporary and occasional work or work under a contract for work or other contract, persons working part-time, persons performing public function, member of the military, persons seeking a job, students and apprentices, persons undergoing professional training and advanced training without employment, volunteers and any other person who participates in work on any basis.
Article 1, paragraph 1 of the Labor Law [6]stipulates that rights, obligations and responsibilities arising from an employment relationship, or based on work, shall be regulated by this Law and a special law, in accordance with ratified international conventions, while paragraph 2 stipulates that rights, obligations and responsibilities arising from an employment relationship shall be regulated by both a collective agreement and an employment contract, and by the labor regulations, or an employment contract – only when so determined by this Law.
Article 4 of this Law stipulates that the general and special collective agreement must be in accordance with the law, as well as that the employer’s collective agreement, work regulations and employment contract must be in accordance with the law, and in the case of employers referred to in Articles 256 and 257 of this law – with both the general and special collective agreement.
Article 8, paragraph 1, stipulates that a collective agreement, labor regulation, and employment contract may not contain provisions that grant employees fewer rights or establish less favorable working conditions than those established by law while paragraph 2 stipulates that a general act and employment contract may establish greater rights and more favorable working conditions than those established by law, as well as other rights not established by law, unless otherwise provided by law.
Member 13 of the Labor Law further stipulates that employees, directly or through their representatives, have the right to associate, participate in negotiations for the conclusion of collective agreements, peacefully resolve collective and individual labor disputes, consult, inform and express their views on important issues in the field of labor.
Article 18 of this law prohibits direct and indirect discrimination against persons seeking employment and employees, with regard to sex, birth, language, race, skin color, age, pregnancy, health status or disability, nationality, religion, marital status, family obligations, sexual orientation, political or other beliefs, social origin, property status, membership in political organizations and trade unions, or any other personal characteristic.
According to the provision of Article 20 of the Labor Law, discrimination is prohibited, among other things, in relation to working conditions and all rights arising from the employment relationship.
Article 22 of the Labor Law stipulates that it shall not be considered discrimination to make a distinction, exclude or give preference in relation to a particular job when the nature of the job is such or the job is performed under such conditions that the characteristics associated with one of the grounds referred to in Article 18 of this Law constitute a genuine and determining condition for performing the job, and that the purpose sought to be achieved thereby is justified.
Provisions of the law, general act and employment contract relating to special protection and assistance to certain categories of employees, especially those relating to the protection of persons with disabilities, women during maternity leave and leave from work for childcare, special childcare, as well as provisions relating to special rights of parents, adoptive parents, guardians and foster parents – shall not be considered discrimination.
Article 206 of the Labor Law guarantees the freedom of trade union organization and action, without prior authentification and with registration.
The provision of Article 119, paragraph 1, item 1 of this Law stipulates that the employer is obliged to pay, in accordance with a general act, a severance pay to an employee upon retirement, at least in the amount of two average salaries. The provision of Article 120, paragraph 1, item 1) of this Law stipulates that the right to a jubilee bonus and solidarity assistance may be determined by a general act, that is, an employment contract.
The provision of Article 189, paragraph 1, items 1 and 4 of the Law on the Foundations of the Education System stipulates that funds for severance pay and jubilee awards shall be provided in the budget of the local self-government unit.
In addition to the above, the Commissioner also points out the obligations under international documents ratified by the Republic of Serbia. Article 2 of the International Labour Organization Convention No. 87 on freedom of association and Protection of Trade Union Rights[7] stipulates that workers and employers, without any exceptions, have the right, without prior authorization, to form organizations of their own choosing and to join such organizations, subject only to compliance with the statutes of such organizations. Article 11, which regulates the protection of trade union rights, stipulates that each member of the International Labour Organization for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure the free exercise of trade union rights by workers and employers.
The provision of Article 1, item 1, of the International Labour Organization Convention No. 111 concerning discrimination in respect of employment and occupation[8], stipulates that the term discrimination includes, inter alia, any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in respect of employment or occupation. This Convention stipulates that special measures of protection or assistance shall not be considered discrimination, and that each Contracting State may define as non-discriminatory all special measures introduced with the aim of taking into account the special needs of persons for whom protection or special assistance is generally recognized for reasons such as sex, age, disability, family responsibilities or social and cultural level.
The Regulation on the ratification of the International Labour Organization Convention No. 98[9] concerning the application of the principles of organizing and collective negotiation stipulates that workers should enjoy appropriate protection against all acts of discrimination in employment that could be detrimental to trade union freedom. It further stipulates that such protection may be applied in particular in the case of acts that would have the purpose of making the employment of a worker subject to the condition that they do not join a trade union or that they cease to belong to a trade union , to dismiss a worker or to cause them harm by any other means because they are a member of a trade union or because they participate in trade union activities outside working hours or with the consent of the employer during working hours. It is also stipulated that workers’ and employers’ organizations should enjoy appropriate protection against all acts of interference by one another, either directly or through their agents or agents or members, in their formation, functioning and administration. For the purposes of this provision, acts of interference include measures which seek to cause the creation of workers’ organizations dominated by the employer or employers’ organizations. or supporting workers’ organizations with financial or other means, with the intention of placing these organizations under the control of employers or employers’ organizations.
The Commissioner also points to the positions of the Constitutional Court from Decision No. IUo-18/2010 of 17 March 2011 (“Official Gazette” No. 30/11), by which the Court determined that the provision of the Collective Agreement of the City Transport Company, which stipulates that presidents of union branches with fewer than 7.5% of employees are not entitled to paid hours for performing union functions, is not in compliance with the Constitution and the law. The statement of reasons for the decision states that the disputed provision violates the freedom of trade union association, the right to free formation of a trade union organization and free accession to the organization. We point out that although the aforementioned decision does not explicitly state whether the trade union organizations are representative or non-representative, this case also involves unequal treatment in relation to the number of members of the organization, which is one of the basic conditions for acquiring the property of representativeness.
The Commissioner indicates that the Special Collective Agreement for Employees in Primary and Secondary Schools and Student Dormitories regulates the rights, obligations and responsibilities based on the work of employees in primary schools, secondary schools and student dormitories whose salaries are provided from the budget of the Republic of Serbia, the procedure for amending and supplementing the agreement, as well as the mutual relations of the participants in the Agreement (Article 1).
From the amended provisions of the SCA, it is indisputable that a distinction is made in the exercise of the right to a jubilee award and severance pay, by placing members of representative unions, signatories of the PKU, in a privileged position.
Namely, by concluding this collective agreement, a more favorable right has been agreed for union members who belong to representative unions, signatories of the SCA, so that these persons will receive severance pay upon termination of employment in order to exercise the right to a pension, in the amount of three times the last salary paid to the employee, provided that the severance pay paid in this way cannot be lower than three average salaries per employee with the employer at the time of payment, or three average salaries per employee paid in the Republic of Serbia according to the latest published data of the republican body responsible for statistics, if this is more favorable for the employee , while employees who do not belong to representative unions that are signatories to this agreement will exercise the right to severance pay in accordance with the law , i.e. in the amount of two average salaries.
The provisions of the SCA have also been amended in the part that defines that for members of representative trade unions, signatories of this agreement, in accordance with the general act of the representative trade union, the anniversary award amounts to: half the average salary – for 10 years of work performed in an employment relationship, one average salary – for 20 years of work performed in an employment relationship, one and a half average salary – for 30 years of work performed in an employment relationship, two average salaries – for 35 years of work performed in an employment relationship, two and a half average salaries – for 40 years of work performed in an employment relationship. Unlike employees who are not members of the representative unions, signatories of this agreement, who will exercise this right in an amount 50% less than the amount of the anniversary award for members of representative trade unions, signatories of the SCA.
The Constitution of the Republic of Serbia, the Law on the Prohibition of Discrimination, and the Labor Law clearly stipulate when certain distinctions will not be considered discrimination.
Thus, the Constitution, in Article 21, prescribes the principle of prohibition of discrimination by first stating that everyone is equal before the Constitution and the law (paragraph 1), further stipulating that discrimination, whether indirect or direct, is prohibited on any grounds (paragraph 3), but that special measures that the Republic of Serbia may introduce in order to achieve full equality of persons or groups of persons who are essentially in an unequal position with other citizens are not considered discrimination .
These provisions of the Constitution are further elaborated by both the Labor Law, which is a lex specialis in the field of labor, and the Law on the Prohibition of Discrimination, which is a lex specialis in the field of prohibition of discrimination. The Labor Law, in Article 20, contains an imperative norm that prohibits discrimination in relation to working conditions and all rights arising from the employment relationship, while Article 22, paragraph 1, prescribes when a certain distinction shall not be considered discrimination – it is not considered discrimination to make a distinction, exclude or give priority in relation to a certain job when the nature of the job is such or the job is performed under such conditions that the characteristics associated with some of the grounds referred to in Article 18 of this Law represent a real and decisive condition for performing the job, and that the purpose sought to be achieved thereby is justifie , while paragraph 2 prescribes that the provisions of the law, general act and employment contract relating to special protection and assistance to certain categories of employees, and in particular those on the protection of persons with disabilities, women during maternity leave and absence from work for the purpose of caring for a child, special care for a child, as well as provisions that are relate to the special rights of parents, adoptive parents, guardians and foster parents – are not considered discrimination.
The Law on the Prohibition of Discrimination also stipulates that discrimination is any unjustified distinction or unequal treatment, or omission (exclusion, restriction or giving priority), in relation to persons or groups, as well as members of their families, or persons close to them, in an open or covert manner, and which is based, among other things, on membership in political, trade union and other organizations. Therefore, the prohibition of discrimination on the basis of trade union membership is already contained in the general prohibition of discrimination, both direct and indirect, as well as in the principle of equality (Articles 1, 4, 6 and 8), but it is also prohibited as a special case of discrimination in Article 25 that corresponds in content and structure to Article 11 of the European Convention, which in paragraph 1 of this article determines the rule regarding freedom of association and in paragraph 2 allows for deviations in extremely restrictive cases. As we have already mentioned, the Law on the Prohibition of Discrimination, taking into account the importance of the field of work and employment, also contains a special norm relating to discrimination in this area. Also, Article 14 of the Law on the Prohibition of Discrimination prescribes when it is possible to make an exception to the rule of equal treatment. Paragraph 1 of this Article stipulates 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, while paragraph 2 stipulates that these special measures shall be applied until the goal for which they were prescribed is achieved, unless otherwise prescribed by law. When it comes to special measures, prescribing these explicit exceptions deviates from formal equality, which requires equal treatment of all individuals and favors group rights over individual ones, because an individual acquires a privileged position by being a member of a group that was or is still in a difficult, or essentially unequal position.
The Commissioner points out that Article 189, paragraph 1, item 1 of the LFES stipulates that the budget of a local self-government unit, among other things, provides funds for severance pay (item 1) and funds for jubilee awards as well as assistance to employees in primary and secondary schools (paragraph 1, item 4). One should not forget the fact that all citizens participate in the budget of the local government unit regardless of their union membership, and thus the explanation of the introduced changes cannot be justified by possible allocations for union membership fees.
The Commissioner further points out that Article 105 of the Labor Law stipulates that the salary referred to in Article 104, paragraph 1 of this Law consists of wages for work performed and time spent at work, wages based on the employee’s contribution to the employer’s business success (awards, bonuses, etc.) and other income based on the employment relationship, in accordance with the general act and the employment contract (paragraph 1). Paragraph 3 of the same Article stipulates that wages within the meaning of paragraph 1 of this Article shall be considered to be all income from the employment relationship, except for income referred to in Article 14, Article 42, paragraph 3, items 4) and 5), Article 118, items 1-4), Article 119, Article 120, item 1) and Article 158 of this Law.
Articles 119 and 120 of the Labor Law stipulate what is included in other income. Thus, Article 119, paragraph 1, stipulates that the employer is obliged to pay, in accordance with the general act: 1) severance pay to an employee upon retirement, at least in the amount of two average salaries; 2) compensation for funeral expenses to the employee in the event of the death of a close family member, and to close family members in the event of the death of the employee; 3) compensation for damages to an employee due to an injury at work or occupational disease.
Article 120, paragraph 1, item 1) of this Law stipulates that a general act, that is, an employment contract, may establish the right to: 1) jubilee award and solidarity aid.
In order to assess whether the disputed provisions of the SCA are discriminatory, i.e. whether the prescribed rule that members of representative trade unions, signatories of the SCA, are placed in a privileged position solely because of their personal membership in a particular trade union, i.e. in the trade union that is the signatory to the agreement, it is necessary to consider whether there is an objective and reasonable justification for granting only these persons the right to a higher severance pay and a higher jubilee bonus. In accordance with Article 8 of the Law on the Prohibition of Discrimination, it is necessary to examine: whether the aim achieved by this measure is permissible and justified, and whether the aim (or aims) can be achieved by the prescribed measure, that is, whether there is a proportion between the measures taken and the aims achieved by that measure.
In order to answer this question, it is necessary to examine the essence and content of the right to severance pay and jubilee bonus.
The Commissioner first points out that labor law is based on principles, among which the principles of equality and the prohibition of discrimination are particularly important. Both rights represent income to which an employee is entitled in accordance with the law. The right to severance pay is one of the fundamental rights of employees. An employee is entitled to severance pay in two cases – upon retirement and upon termination of employment, if due to technological, economic or organizational changes the need to perform a certain job ceases or the scope of work decreases, i.e. in the case of being declared redundant. When it comes to calculating severance pay upon retirement, the Labor Law stipulates that the employer is obliged to pay the employee an amount in accordance with the general act, and at least in the amount of two average salaries in the Republic of Serbia according to the latest published data from the republican body responsible for statistics. When it comes to the jubilee award, it is related to the years of work achieved in the employment relationship. Therefore, both of these rights are rights from the employment relationship that are financed from the budget of the local self-government unit. In terms of their content and essence, these rights should belong to everyone with the employer under equal conditions and should not depend on whether the employee is a member of a particular union or not. The fact is that representative unions have negotiating authority, but this authority was established precisely in order to represent the interests of all employees and to secure for them, through their negotiations, better working conditions and greater rights than those provided for by law. Therefore, it is true that representative unions have the right to achieve the most favorable working conditions and rights for employees in the negotiation process, but their negotiating cabapility is limited by mandatory regulations and cannot be related to the negotiation of fundamental rights by distinguishing between employees based on union membership.
Making a distinction between whether an employee is a member of the representative trade union, signatory of the agreement, or not, means that, just because an employee has a membership card of a particular trade union, his years of service with the employer are now worth more. The contested provisions of the SCA create a dangerous precedent that in the future, other rights from the employment relationship that will be recognized to a greater extent through the negotiation process will only apply to members of the representative trade union. In this way, the freedom of association and the principle of equality are violated, because by offering the possibility of greater rights solely on the basis of membership in a particular trade union in practice has impact on union association and greater influence of employers on trade unions, which is prohibited by ratified conventions and domestic regulations. In particular, no rational justification can be found in the fact that employees who are members of the representative trade union, signatory of the agreement, have greater rights and a privileged position, with these rights remaining even if they lose their representativeness in the meantime, bearing in mind that the SCA is concluded for a period of three years, i.e. that the validity of the SCA was extended until March 5, 2028, by amendments and supplements to the SCA (Article 18).
The Commissioner also points out that the disputed provisions may lead to someone becoming a member of the representative trade union, signatory to the agreement, for example, just before the right to a jubilee bonus is determined, and that immediately after the payment of that jubilee bonus, that person leaves the union, which would mean that these economic benefits directly affect the motive and reason for joining a particular trade union, thereby making all other trade unions less competitive.
Considering the purpose of negotiations in the name of improving the position of all employees, as well as the essence and content of the right to severance pay and jubilee bonus, and the fact that they are paid from the budget of the local government unit, and not from the funds of the union, the amount that employees should receive on these grounds should in no way be in any causal relationship with any personal status of the employee, nor membership in a political, union or other organization. The prohibition of discrimination, i.e. the prohibition of unequal treatment of employees based on membership in political, union or other organizations, is strictly prescribed by the Constitution and the law, and by an analysis of all regulations one can conclude that there is no justified or rational reason for the scope of exercising rights to differ based on union affiliation.
The Commissioner points out that the same article of the Labor Law also provides for other benefits, such as compensation for funeral expenses in the event of the death of a close family member, as well as compensation for damages due to an injury at work or an occupational disease, which means that by applying the same rule, these rights would also be subject to different treatment depending on whether the employee is a member of a representative trade union, signatory to the SCA. If the disputed provisions remain in force, as stated, a precedent would be created that would give the participants in the negotiations the opportunity to negotiate other employee rights, i.e. to negotiate privileged treatment for employees who are members of a representative trade union, signatory of the SCA.
Starting from the principle of equality of all before the Constitution and the law and the principle of prohibition of discrimination, which implies equal treatment of all, as well as that unequal treatment (discrimination), in the broadest sense of the word, represents different treatment of persons in the same or similar situations without objective and reasonable justification, the disputed provisions place employees who are not members of representative trade unions in an unequal position when exercising their right to a jubilee award and severance pay in relation to members of representative trade unions, signatories of the agreement, and that such differentiation has no objective and reasonable justification, nor does it seek to achieve a legitimate goal.
The Commissioner proposes that the Constitutional Court urgently react and review the disputed provisions, given that they violate the equality of employees before the law and the exercise of rights that arise and are a consequence of work and years of service with the employer. Based on all of the above, using its legal competences to submit a proposal for the assessment of constitutionality and legality, pursuant to Article 50, paragraph 1 of the Law on the Constitutional Court, the Commissioner for the Protection of Equality proposes that the Constitutional Court, after the procedure has been carried out, issue the following
DECISION
It is determined that the provisions of Article 27, paragraphs 2 and 3 and Article 31, paragraphs 4 and 5 of the Special Collective Agreement for Employees in Primary and Secondary Schools and Student Dormitories (“Official Gazette of the Republic of Serbia”, Nos. 21/15, 92/20, 123/22 and 13/25) are not in compliance with the Constitution of the Republic of Serbia and the Law on the Prohibition of Discrimination.
[1] “Official Gazette of the Republic of Serbia”, No. 21/15, 16/18-other regulations, 8/19-other regulations, 92/20, 27/22-other regulations and 123/22
[2] “Official Gazette of the Republic of Serbia”, No. 21/15, 16/18-other regulations, 8/19-other regulations, 92/20, 27/22-other regulations and 123/22
[3] “Official Gazette of the Republic of Serbia”, Nos. 98/06 and 115/21
[4] “Official Gazette of Serbia and Montenegro – International Treaties”, Nos. 9/03, 5/05, 7/05 – corrected and “Official Gazette of the Republic of Serbia – International Treaties” , Nos. 12/10 and 10/15
[5] “Official Gazette of the Republic of Serbia”, Nos. 22 /09 and 52 /21
[6] “Official Gazette of the Republic of Serbia”, Nos. 24/05, 61/05, 54/09, 32/13, 75/14, 13/17 – CC , 113/17 and 95 / 18-authentic interpretation
[7] “Official Gazette of the FPRJ – International Treaties and Other Agreements”, No. 8/58
[8] Regulation on the ratification of the International Labour Organization Convention No. 111 concerning discrimination in respect of employment and occupation, “Official Gazette of the FPRJ – International Treaties and Other Agreements”, No. 3/61
[9] “Official Gazette of the FPRJ – International Treaties and Other Agreements”, No. 11/58
COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković
