The Labor Law (Official Gazette of RS no. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – decision of the CC, 113/2017, and 95/2018 – authentic interpretation) („the LL“) prescribes the grounds, i.e., situations in which an employer can offer an employee a change of the agreed working conditions (i.e., conclusion of an annex to the employment contract), as well as the procedure that needs to be followed in this respect.

Regardless of the outcome of the respective procedure, the LL stipulates that the employee shall retain the right to challenge the legality of the annex in a court proceeding, namely:

• in the court proceeding regarding the termination of the employment contract, if the employee refused to conclude the offered annex, which resulted in termination of their employment; or
• in the court proceeding pertaining to the legality of the annex, if the employee accepted its conclusion.

Deadline for initiating a labor bispute

Both aforementioned court proceedings represent a labor dispute, i.e., litigation. In this regard, the LL stipulates that the deadline for initiating the dispute is 60 days from the date of delivery of the decision (by which the employee’s right is violated, e.g., the decision on employment termination) or the day of the conclusion of the annex to the employment contract, i.e., knowledge of the violation of their rights.

Position of the court

Regarding this matter, the Supreme Court of Cassation (now the Supreme Court) of the Republic of Serbia, at the session of its Civil Law Department held on October 12, 2021, passed the opinion that, concerning the employment contract and annexes thereto, it is possible to request determination of nullity for the reasons stipulated by the LL, as well as the Law on Obligations (Official Gazette of the SFRY no. 29/78, 39/85, 45/89 – decision of the CC and 57/89, Official Gazette of the SRY no. 31/93, Official Gazette of SCG no. 1/2003 – Constitutional Charter and Official Gazette of RS no. 18/2020) („the LO“), and that the lawsuit for determination of nullity does not become time-barred. Therefore, the lawsuit for determination of nullity of provisions of an annex to the employment contract can be filed regardless of the deadline for filing a lawsuit in a labor dispute.

Namely, the LL stipulates that certain provisions of the employment contract establishing less favorable working conditions than those determined by the law and general enactments, or based on incorrect information provided by the employer about the employee’s rights, obligations and responsibilities, are null and void. Also, the LL stipulates that provisions of the employment contract establishing discrimination are null and void, as well as that the nullity of provisions of the employment contract is established before the competent court, whereby the right to request determination of nullity does not become time-barred.

However, in accordance with the aforementioned opinion, reasons for nullity of the contract prescribed by the provisions of the LO cannot be excluded in a labor dispute, according to which a contract that is contrary to mandatory provisions, public order, or good customs is null and void, as well as when the subject matter of the contractual obligation is impossible, inadmissible, indefinite, or indeterminate, or if there is no legal basis for the obligation or it is inadmissible. This is because the employment contract, in a broader sense, is a type of civil law contract, to which, in addition to the LL, the rules of contract law regarding the validity of contracts, as determined by the provisions of the LO, are subsidiarily applied.

In accordance with the above, the LL does not regulate the consequences of determining the nullity of the employment contract, or its annex (only the annulment of an unlawful employment termination), so in this regard, the provisions of the LO are applied.

In line with the above, the conclusion of the court is that the lawsuit for the nullity of provisions of the employment contract (or its annex) can be filed regardless of the deadline prescribed by the LL (60 days), i.e., that it should not be tied to the aforementioned preclusive deadline in a situation where the employee requests determination of the nullity of provisions of the employment contract (or an annex thereto) based on:

• less favorable working conditions than those determined by law and general enactments (Article 9, paragraph 2 of the LL);
• incorrect information provided by the employer about the employee’s rights, obligations and responsibilities (Article 9, paragraph 2 of the LL);
• discrimination (Article 20, paragraph 2 of the LL);
• safety and protection of life and health at work, in accordance with the law (Article 80, paragraph 1 of the LL).

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