The circumstances of our society’s severe demographic crisis calls for the necessity of state’s intervention through the adoption of various regulations and measures for the purpose of providing parental aid so that parents could accomplish their needs to the greatest achievable extent and align their parenting with their professional engagement, which was accomplished also through the adoption of the Labour Law (“Official Gazette of RS”, no. 24/2005, 54/2009, 32/2013, 75/2017 Decision of the Constitutional Court, 113/2017 and 95/2018 – authentic interpretation), the Law on Financial Support to Families with Children (“Official Gazette of RS”, no. 113/2017, 50/2018, 46/2021 – Decision of the Constitutional Court, 51/2021 – Decision of the Constitutional Court, 53/2021 – Decision of the Constitutional Court and 66/2021’’), the Law on Gender Equality (“Official Gazette of RS”, no. 52/2021). However, our society’s practice indicates that equal rights do not necessarily imply equal positions, which leads us to a conclusion that working parents daily encounter various forms of direct and indirect discrimination at the workplace, while changes occurring on a day-to-day level in the domain of labour law significantly influence an already complex position of the employee with family commitments, as well as that of the employer.
Protection of employed persons under the labour law can be divided into two categories: general and special protection of specific categories of employed persons.
General labour law protection includes protection which applies to all categories of employed persons without exception in accordance with the Labour Law, the collective agreement and other legal acts governing the subject of labour law.
On the other hand, special protection of specific categories of employed persons is related to specific particulars of employed person (parent) due to a significantly different position when compared with other employees. Employed women benefit from special protection due to the call for female emancipation and their equality with men in all aspects and rights, and protection considering the female physical constitution, as well as protection in view of her role in the reproduction of population. The reasons for their special protection are based on the necessity of bringing employed women into the position of equal opportunity with others, in the exercise of their social-economic rights at work and in connection with work
The protection of women and maternity in view of the woman’s role in the reproduction of population does not only include the protection of women, but also the need for care and protection of children.
General protection of expectant mothers in early stages of pregnancy is provided by domestic legal regulations (Labour Law), which prescribe that a woman is protected from every risk which might endanger her health and pregnancy seeing as how employed women cannot be engaged in tasks which are deemed by a health authority as being harmful to her health and the health of the baby, and particularly on tasks which require heavy lifting or include exposure to harmful radiation or extreme temperatures. In the final stage of pregnancy, the protection of expectant mothers is increased through absolute restriction of overtime and night shifts during the final eight weeks of pregnancy, regardless of the health authority’s findings.
With the aim of protecting parenthood, an option of overtime and nights shifts is provided for one of the parents of a child up to 3 years of age, along with a written consent from the other parent. This right in equal measure belongs to both the mother and the father, should the mother wish to go beyond this regulation.
The mainstay of this protection of employed women includes the crucial binding sources of law for our country (of international, European, and domestic law). Standing out predominantly is Convention no. 3 on the Employment of Women before and after Childbirth from year 1919, ILO which is related to the protection of women in connection with childbirth and pregnancy. Special protection is included in the United Nation’s Universal Declaration of Human Rights (Article 25, Paragraph 2), then in the ILO Convention no. 103 on maternity protection, and in the ILO Recommendation no. 95 on maternity protection in international documents (“Official Gazette of FNRJ”, no. 9/1955). At the level of European noncommunity law, the subject matter is governed by The European Social Charter, Article 8.
The Labour Law provides the possibility of working overtime and in night shifts for a single parent with a child up to seven years of age or a severely disabled child along with their personal written consent, which is important for parents. On the one hand it leaves the parent with the option of periodically working overtime or in night shifts since the earnings are in such cases higher considering that in these circumstances the parent would need substantial additional funds due to increased expenses, and on the other hand the child should be provided time and attention. Overtime, night shifts and redistribution of working time is also conditioned by the employee’s consent in events when the employee is a child’s adoptive parent, foster parent, or carer.
In view of maternity leave and childcare leave, the employed woman begins with the use of said leave just before delivery, with the duration of said leave being 12 months (and 24 months for the third and every subsequent child).
The Labour Law provides the option of starting maternity leave no less than 45 days before the time scheduled for delivery with previously acquired findings from the competent health authority, while a mandatory start of maternity leave is provided for 28 days before scheduled delivery. Optional start of maternity leave is related to the entitlement for maternity leave, while obligatory is related to the use of leave. Seeing as how the right to maternity leave stems from the law itself, it is thereby not conditioned by a decision, and the adoption of such decision has a declaratory character. The duration of maternity leave can be associated with the period of three months and 28 days, which represents the shortest maternity leave, while the longest can be associated with the period of 4 months and 15 days.
The Labour Law prescribes the right to childcare leave, which is added on to and starts immediately after the expiry of maternity leave and continues until the expiry of 365 days from the starting date of maternity leave. Childcare leave starts automatically, by force of law, in continuity upon the expiry of maternity leave and continues until the completion of 365th day from the commencement date of maternity leave, without interruption.
The father of the child can substitute the mother in case of the mother’s justified absence and inability to use her right to maternity leave (death, severe illness, abandonment od child, serving a prison sentence etc.) for a time period of three months from the date of delivery, in which case we are discussing a subsidiary exercise of right to maternity leave, while the father has the same right at his disposal should the mother be unemployed, which means that in this case the father’s right is authentic and not derivative. The leave of absence for childcare can be exercised by the father with no conditions and in agreement with the child’s mother.
An employed woman is entitled to use maternity leave without childcare leave in the event of a still birth or the death of a child before the expiry of maternity leave lasting three months from the date of delivery, for the purpose of emotional and physical recuperation.
One of the parents, one of the adoptive parents, foster parents, or carers responsible for an incapacitated person is entitled, upon the expiry of maternity leave and childcare leave, should the child require special care and attention due to the severity of physical or mental incapacity, be absent from work or work half of the total working hours (atypically shortened working time) under cumulatively prescribed conditions which are: that the maximum time for the duration of said rights is until the child has turned five, that the need for special care cannot be satisfied under the health insurance regulations, and that the rights can be used exclusively on the basis of an opinion provided by the competent authority for the evaluation of the degree physical and mental disability of the child. The methods and means of exercise of rights are further defined in the Rulebook on Detailed Methods, Procedures and Means for the Exercise of Right to Leave of Absence from Work or Work with Half of Full-time Hours due to Special Childcare. Employed parents are entitled to salary compensation in accordance with Article 12 of the Law on Financial Support for Families with Children.
The employee is entitled to annual leave while at work, and in case of absence due to maternity leave, childcare leave and special childcare seeing as how for the use of specified rights the employee is deemed to have been employed and is therefore entitled to proportionate annual leave.
Among the novelties which have found their place in view of the legal matter governing the issued related to the protection of parenthood and family, over the recent years we can highlight a positive shift regarding women with part-time employment whose work contract had expired during pregnancy, or the use of maternity leave or childcare leave. Their employment was extended until the completion of exercise of these rights by force of law, thereby preventing the employer from terminating the work contract for a parent exercising these rights regardless of the reason for termination.
