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The Constitutional Court Decided in Favor of Employed Pregnant Women and Mothers: Changed Rules on the Calculation of Compensation of Salary During Maternity Leave and Leave of Absence for Nursing a Child

The Constitutional Court Decided in Favor of Employed Pregnant Women and Mothers: Changed Rules on the Calculation of Compensation of Salary During Maternity Leave and Leave of Absence for Nursing a Child

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On 14 February 2024 the Decision of the Constitutional Court of the Republic of Serbia no. IUz-60/2021 was published, which determines that the provision of Article 13, Paragraph 1 of the Law on Financial Support for Families with Children (“Off. Gazette of the RS”, no. 113/17, 50/18, 46/21 – Decision of the CC, 51/21 – Decision of the CC, 53/21 – Decision of the CC, 66/21, 130/21, 43/23 – Decision of the CC and 62/23), is not in accordance with the Constitution of the Republic of Serbia in the part that reads:

absence due to complications related to pregnancy maintenance, or” and “if leave due to complications related to pregnancy maintenance was not used.”

In its explanation, the Constitutional Court found that the different calculation of the relevant period for determining the right to remuneration during maternity leave and child care leave unjustifiably places women who were prevented from working due to complications related to maintaining a pregnancy in a less favorable position compared to women whose pregnancy passed without complications.

Namely, according to the contested provision, for a woman who has started leave due to complications related to pregnancy maintenance, the salary compensation base is determined on the basis of the sum of the monthly basis on which the contributions to earnings that have the character of salary have been paid for the last 18 months preceding the first month of starting the leave. On the other hand, in the case of an employee who did not have complications related to pregnancy maintenance, the period relevant for the calculation is the last 18 months preceding the first month of maternity leave.

According to the opinion of the Constitutional Court, this further means that for women who had complications related to the maintenance of their pregnancy, the compensation of salary is calculated according to earnings that have the character of salary earned in a significantly earlier period compared to the moment when maternity leave began, than for women whose pregnancy went without complications. The contested provision stipulates that, when calculating the compensation of salary during maternity leave and child care leave, the period in which the employed woman was temporarily prevented from working due to complications related to maintaining the pregnancy and for which, in accordance with the valid Law on Health Insurance, she achieved the right to compensation of salary in the amount of 100% of the basis for compensation, on the basis of which the contributions were paid.

Practically, a woman who uses the so-called “pregnancy sick leave” and who has a working experience of less than 18 months before the start of the leave, as a result, receives a significantly lower compensation of salary during maternity leave and leave of absence for nursing a child compared to a woman without pregnancy complications. 

Finally, in accordance with the current Law of the Constitutional Court, as well as the invitation of the Secretariat for Social Protection of the City of Belgrade, women who belong in the damaged category, and who have a final decision on the right to compensation of salary during maternity leave and child care leave, adopted starting from 19 April 2019, may submit a request to amend the existing decision.

The request for amendment of decisions by users residing in the territory of the city of Belgrade can be submitted to the Secretariat for Social Protection, 27 Marta Street, no. 43-45, Belgrade, no later than 14 August 2024. Along with the duly completed and signed request form, it is necessary to attach a scanned ID card and a photocopy of the bank account card.

Decisions that have not yet become final will be changed ex officio

By Marko Ilic, Senior Associate and Marija Vranic, Associate, JPM & Partners

Serbia Knowledge Partner

SOG in cooperation with Kinstellar is a full-service business law firm in Serbia that provides foreign and domestic clients with premium-quality legal advice and assistance across a wide range of key areas of corporate law. The firm was founded in 2015 by a group of seasoned, internationally-trained lawyers. SOG has developed a distinctively dynamic culture, bringing together top talent, fostering entrepreneurship, and maintaining exceptional relationships with its clients.

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Establishing permanent cooperation with Kinstellar is part of realising SOG's long-term development strategy to be the leading provider of legal services in the Western Balkans market.

Firm's website: https://www.kinstellar.com/

 

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