A New Decision of the Constitutional Court in Favor of Working Mothers

From the beginning of the application of the Law on Financial Support to Families with Children (hereinafter: the Law) on July 1, 2018. based on submitted initiatives its provisions were the subject of the constitutionality assessment procedure five times and all five times the unconstitutionality of certain provisions of that law was determined.

In the last conducted procedure, the subject of the assessment was the provision of Article 13, paragraph 1 of the Law, which read:

“The salary compensation basis, i.e. the salary compensation for the persons referred to in Article 12 of this law, is determined based on the sum of the monthly bases on which the contributions to incomes that have a salary character were paid, for the last 18 months preceding the first month of leave due to complications related to with pregnancy maintenance, or maternity leave, if the leave was not used due to complications related to pregnancy maintenance.”

The parts of the provision about which the initiative was submitted are: “absences due to complications related to pregnancy maintenance, or” and “if leave due to complications related to pregnancy maintenance was not used.”

What was disputable in the mentioned parts of the provision?

Described solution implied that the salary compensation for the period of maternity leave, leave from work for child care and leave from work for special child care was calculated in a different way depending on the fact whether the working mother used leave due to complications related to by maintaining the pregnancy (the so-called pregnancy sick leave).

If the working mother did not use pregnancy sick leave before the maternity leave or used some other type of leave other than pregnancy sick leave, the 18 months preceding the start of the maternity leave are taken as the relevant period for calculating the salary compensation.

On the other hand, if the working mother used pregnancy sick leave, the 18 months preceding the start of pregnancy sick leave were taken as the relevant period for the calculation of salary compensation. Accordingly, period of pregnancy sick leave was not included in the period that is relevant for the calculation of salary compensation during maternity leave.

In practical application, this solution led to a less favorable treatment of mothers who used pregnancy sick leave, especially those who would only have a relevant average income for the 18 months observed by law for the calculation of salary compensation if the period of pregnancy sick leave was taken into account.

The Constitutional Court found that such different treatment does not aim at a legitimate goal and that it has no objective and reasonable justification and found that Article 13, paragraph 1 of the Law is unconstitutional in the part “absence due to complications related to maintaining a pregnancy, or” and “if not used leave due to complications related to the maintenance of pregnancy”, whereby the said part of Article 13, paragraph 1 of the Law ceased to be valid on February 14, 2024., when the decision of the Constitutional Court was published, and that way, working mothers who used pregnancy sick leave were completely equalized with working mothers who did not use this leave.

It is interesting to note that the same solution is contained in Articles 16b, paragraph 1 of the Law (leave from work for child care and leave from work for special child care and salary compensation, i.e. salary compensation of the child’s father, if the child’s mother is a person who independently performs activities or as the holder of a family farm, she has the status of a person who independently performs activities according to the law regulating personal income tax) and 18, paragraph 1 of the Law (other benefits based on the birth and care of a child and special care of a child), however, they were not the subject of the assessment of the Constitutional Court, and remain unchanged for now. To simplify, the latest Decision of the Constitutional Court refers exclusively to employed mothers.

In the short term after the publication of the Decision of the Constitutional Court, on February 22, 2024. The Ministry for Family Care and Demography has issued an Instruction on the actions of municipal – city administrations in the application and implementation of the Decision of the Constitutional Court.

In the instruction, it is specified that the city-municipal administrations will ex officio review all decisions on compensation of salary, which are not final and legally binding.

On the other hand, the Law on the Constitutional Court specified that a proposal to amend a final or legally binding individual act, adopted on the basis of a law or other general act, which was determined by a decision of the Constitutional Court to be inconsistent with the Constitution, generally accepted rules of international law, confirmed international contracts or the law, can be submitted within six months from the date of publication of the decision in the “Official Gazette of the Republic of Serbia”, if no more than two years have passed from the submission of the individual act to the submission of the proposal or initiative for the initiation of the procedure.

Accordingly, beneficiaries can submit a request to amend an individual decision based on the last Decision of the Constitutional Court if the decision on compensation of salary was delivered to them starting from April 19, 2019., whereby the request itself can be submitted no later than August 14, 2024. The request is submitted to the authority that issued the decision on compensation of salary.