OPINION

The opinion was issued in the procedure regarding the complaint of AA, which he submitted on behalf of VV and BB, filed against two city municipalities of Niš: the City Municipality of Palilula and the City Municipality of Niška Banja. The complaint states that there is a different procedure when calculating and paying compensation in the City Municipality of Palilula and the City Municipality of Niška Banja, compared to all other city municipalities, because these two city municipalities of Niš calculate and pay compensation for the work of council members, due to their age and awarded pension, by deducting that amount from the determined amount of compensation for the work of the municipal councilor or by paying them a lump sum in the amount of 30% of the full compensation for work. The statement on the complaint of the City Municipality of Palilula, among other things, states that the councilor BB is a military old-age pensioner and is not permanently employed in the City Municipality of Palilula, and that accordingly, he is entitled to a salary equal to the difference between pension and salary he would receive for that position, had he not exercised the right to a pension. The statement of the City Municipality of Niška Banja, among other things, states that VV does not perform the function of councilor in the City Municipality of Niška Banja on a permanent basis, which is why he is entitled to compensation in the amount of the difference between the amount of salary he would earn if he performed the function of councilor on a permanent basis and other income he earns, i.e. his pension. During the procedure, the Commissioner, in accordance with Article 37, paragraph 2 of the Law on Prohibition of Discrimination, asked the city municipalities of Pantelej, Crveni Krst and Mediana to give a statement and provide this body with information on whether there is a difference in payment of salary/compensation of members of the Municipal Council and if so, for what reasons and in accordance with which regulations. Acting upon the said request, the City Municipality of Pantelej submitted a statement to the Commissioner within the set deadline, stating that the Pantelej City Council has five members, three of whom are permanent employees in this municipality, while two are employed by another employer and are not working on a permanent basis, as well as that the salaries of the members of the council are calculated and paid in accordance with the Rulebook on salaries of elected and appointed persons in the bodies of the City Municipality of Pantelej. During the procedure, the opinion of the Ministry of State Administration and Local Self-Government was obtained regarding the application of regulations governing the right to salary/compensation and their amount to members of the municipal/city councils in local self-government units, who are pension beneficiaries. After the conducted procedure, it was determined that BB and VV are beneficiaries of pensions, and that they do not perform the function of council members in the City Municipality of Palilula and the City Municipality of Niška Banja on a permanent basis. It was also determined that VV’s right to compensation for performing the function of councilor is the difference between the amount of salary he would earn if he performed the function of a member of the City Council of Niška Banja on a permanent basis and other income he earns, i.e. his pension. Furthermore, it was established that a monthly allowance was determined for BB in the amount of 30% of the total amount of salary he would receive for the function he performs if he were permanently working in the bodies and services of the city. It was also determined that the right to salary/compensation of members of the councils in the city municipalities of Palilula, Niška Banja and Pantelej has been determined by individual decisions of the employer, and that the calculation and payment of salary/compensation depends on whether the council member performs their function as a permanent employee in the city municipality or not (because they are employed by another employer, or are a pension beneficiary). Therefore, the basis for calculating and paying salaries compensation to councilors are individual decisions that determine the employment status of a council member in the municipality, i.e. whether they perform the function of a council member on a permanent basis or not, as well as individually determined coefficients for calculation for salary payment. Therefore, the Commissioner determined that the right to salary/compensation recognized to council members in the city municipalities of Niš is not related to their age, which is why age cannot be the basis for discrimination, as stated in the complaint. Furthermore, the Ministry of State Administration and Local Self-Government, in its opinion submitted to the Commissioner, stated, inter alia, that if a member of a municipal or city council is not permanently employed in a local self-government unit, they are entitled to compensation for their work, which is determined by the employer in each individual case. Considering that there has been no change in the part of regulations related to the elements and calculation of salaries, i.e. compensation of officials’ salaries, Article 42 of the Law on Labor Relations in State Bodies continues to be applied accordingly, which stipulates that elected persons, except for persons at permanent positions (judges, public prosecutors), who exercised the right to a pension before being elected to office, are entitled to a part of the salary equal to the difference between their pension and the salary they would receive at that position if they had not exercised the right to pension. Having in mind all the above, as well as that in this case individual decisions determined the legal-employment status of council members in the City Municipality of Palilula and the City Municipality of Niška Banja, as well as the right to salary/compensation, the Commissioner pointed out that this body is not authorized to examine and determine the basis or legality of these decisions in accordance with the positive regulations governing the position and right to the salary of officials-members of the municipal council. In accordance with the instruction on the legal remedy from the mentioned decisions, a dispute may be initiated against them before the competent court within the prescribed time limit. After the conducted procedure and established factual situation in this case, the Commissioner issued the opinion that the provisions of the Law on Prohibition of Discrimination were not violated in the procedure on the complaint of AA, filed on behalf of BB and VV, against the City Municipality of Palilula and the City Municipality of Niška Banja.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković