On February 14, 2024 the Constitutional court announced the decision that the provision of the Law on Financial Support for Families with Children, which stipulates that maternity leave (so-called pregnancy maintenance) is not included in the calculation for maternity benefits, is unconstitutional. Namely, employed mothers who used pregnancy maintenance for the calculation of compensation were observed for the last 18 months in relation to the start of the sick leave, and those who did not use this sick leave were observed for the last 18 months in relation to the opening of maternity leave. As a result, according to the court’s decision, pregnant women who used pregnancy maintenance were discriminated, since those months were not counted, for which they are entitled to compensation of wages in the amount of 100% of the base according to the Law on Health Insurance.
Who is entitled to compensation?
Those mothers who received their decision on the amount of maternity allowance after April 19, 2019 have the right to compensation. This is because the Law on the Constitutional Court stipulates that the amendment of a final or legally binding individual act is only possible if no more than two years have passed since the submission of the initiative for constitutionality assessment. As the initiative was submitted on April 19, 2021, mothers who were served with decisions on April 18, 2019 and earlier do not have the right to amend the act that would lead to compensation.
Only mothers who were employed on the basis of an employment contract have the right to compensation, not entrepreneurs, farmers, employees under a labor contract, a contract for performing temporary and casual work, or an author’s contract.
Who is considered harmed?
- Mothers who did not have a full 18 months of work before leaving for pregnancy maintenance
Due to counting 18 months back from the start of sick leave, the first 1, 2, 3 or whatever months were counted as zero dinars for these mothers. In the new calculation (since the opening of maternity leave), the months during sick leave are now included (at 100% of the base), which is why the average salary or salary compensation is higher.
- Mothers who received a salary increase in the last 18 months before leaving for pregnancy maintenance
Even if the mother had 18 months of work before the start of pregnancy maintenance, it is possible that a few months of her old salary and the last few months of the new increased salary were included in the calculation. Due to the new calculation, the number of months with a higher salary would increase and the number of months with the old, lower salary would decrease.
Is there a deadline by which a claim for compensation must be submitted?
Claims for compensation must be submitted by August 14, 2024. This is because the Law on the Constitutional Court stipulates that the amendment of the decision can be requested within 6 months from the date of publication of the decision of the Constitutional Court in the Official Gazette, and the decision was published on February 14.
Danilo Babić- lawyer in Novi Sad
