Constitutional Court: Principle of Equality and Prohibition of Discrimination in Calculating Salary Compensation for Maternity Leave and Leave for Childcare

Constitutional Court: Principle of Equality and Prohibition of Discrimination in Calculating Salary Compensation for Maternity Leave and Leave for Childcare

March 06, 2024

By Decision no. IUz 60/2021 dated January 18, 2024, published in the Official Gazette of RS no. 11/2024 dated February 14, 2024 (“Decision”), it was established that, due to the violation of the constitutionally guaranteed prohibition of discrimination, the provision of Article 13, paragraph 1 of the Law on Financial Support to Families with Children (Official Gazette of 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), which regulates the basis for salary, i.e., wage compensation for maternity leave and leave for childcare, is partially unconstitutional.

Regulatory framework

The Constitution of the Republic of Serbia guarantees special protection for families, mothers, single parents, and children, as well as providing special support and protection to mothers before and after childbirth, in accordance with the law. Accordingly, the detailed regulation of these matters is left to the legislator.

The Labor Law provides for special protection for women in case of maternity, whereby, during maternity and childcare leave, employed women are entitled to salary compensation, a right also enjoyed by employees during temporary incapacity for work.

In this regard, and in accordance with the Law on Health Insurance, employed women can also be entitled to salary compensation due to temporary incapacity for work, among other reasons, due to illness or complications related to pregnancy maintenance.

The basis for salary compensation is the average earnings that the insured person has earned in the previous 12 months before the month in which the temporary incapacity for work occurred. If the insured person has not earned any income in the previous 12 months, the basis for salary compensation is the average amount of earnings for the periods in which the insured person has earned income, while for months without income, the basis is the minimum salary for those months (determined in accordance with the Labor Law).

The amount of salary compensation is provided at 100% of the basis, as long as such temporary incapacity for work lasts, or until the commencement of maternity leave (in accordance with the provisions of the Labor Law).

The Law on Financial Support to Families with Children regulates the right to salary compensation for maternity and childcare leave for employees of legal and natural persons, with such compensation being paid from the budget of the Republic of Serbia.

Under this law, prior to the Decision, the basis for salary compensation was determined based on the sum of monthly bases on which contributions were paid for earnings that qualify as salary, for the last 18 months preceding the first month of absence due to complications related to pregnancy maintenance or maternity leave, if maternity leave due to complications related to pregnancy maintenance was not used. Therefore, the sum obtained is divided by 18, and the resulting amount represents the monthly basis for salary compensation.

Reasons for the Decision 

Considering the aforementioned constitutional and legal provisions, the Constitutional Court has concluded the following:

  • For determination of salary compensation during maternity and childcare leave, earnings that qualify as salary and on which contributions were paid during a period of 18 months are relevant, but this period is not calculated in the same manner in all cases of such leave.
  • Specifically, which 18 months are taken into account depends on whether the woman was temporarily incapacitated for work due to complications related to pregnancy before the commencement of maternity leave or not.
  • When it comes to a woman who did not experience pregnancy-related complications, the calculation of salary compensation takes into account 18 months preceding the month in which maternity leave commenced.
  • Conversely, in the case of using leave for pregnancy-related complications, the calculation of salary compensation during maternity and childcare leave considers 18 months preceding the first month of absence due to complications related to pregnancy maintenance.
  • Therefore, the period during which the woman was temporarily incapacitated for work due to complications related to pregnancy and for which she received salary compensation in accordance with the Law on Health Insurance, at 100% of the basis, is not included in the calculation of salary compensation during maternity and childcare leave.
  • This further means that such women have their salary compensation calculated based on earnings that qualify as salary earned significantly earlier than the start of maternity leave compared to women whose pregnancy proceeded without complications.
  • On the other hand, for a woman who did not use leave for pregnancy-related complications but received salary compensation due to temporary incapacity for work for some other reason during the 18 months preceding the month in which maternity leave commenced, in accordance with the Law on Health Insurance, the calculation of salary compensation during maternity and childcare leave includes the period of 18 months preceding the month in which maternity leave commenced. In other words, temporary incapacity for work due to other reasons covered by the Law on Health Insurance, i.e., the right to salary compensation obtained accordingly, do not affect the calculation of the relevant 18-month period and the income earned during that period for the calculation of salary compensation during maternity and childcare leave.

Considering all the above, as well as the principle of equality before the Constitution and the law, and the prohibition of discrimination, the Constitutional Court, in its Decision, assessed that the aforementioned differentiation does not serve a legitimate purpose, and therefore it lacks objective and reasonable justification.

According to the above, the disputed provision of the Law on Financial Support to Families with Children now reads:

The basis for salary, i.e., wage compensation during maternity leave and leave for childcare, for individuals referred to in Article 12 of this law, is determined based on the sum of monthly bases on which contributions were paid for earnings that qualify as salary, for the last 18 months preceding the first month of maternity leave commencement.

This article is to be considered as exclusively informative, with no intention to provide legal advice. If you should need additional information, please contact us directly.