ACHIEVING GENDER EQUALITY IN ACCORDANCE WITH THE LAW – WHAT SHOULD COMPANIES DO?

03
Nov 2021

Although the Law on Gender Equality, which has been in force since July 1, 2021, has caused a lot of controversies and opposing views in the public, one thing is for certain; The Law on Gender Equality (hereinafter: the Law) has introduced another obligation for companies with more than 50 employees and temporary workers, together with public authorities – the obligation to implement special measures, as well as to use gender-sensitive language within their annual plans. If this obligation is not met, the prescribed fines range from 50,000 to 2,000,000 dinars.

Based on the laws that have been passed in the last couple of years, it is evident that the legislator prescribes extremely high fines, in similar or identical ranges, for companies that do not comply with the obligations imposed on them. Similar fines are prescribed by the Law on Archival Material and the Law on Personal Data Protection. This Law serves as a means to encourage gender equality and the use of gender-sensitive language in the Republic of Serbia.

What is the Purpose of This Legal Solution?

The Law was passed to minimize and eliminate all stereotypes within the division of professions into “masculine” and “feminine”, as well as to enable the achievement of gender equality in society. The law regulates the definition, significance, and measures that the state plans to implement to achieve gender equality within the society. As of this year, instead of denoting men and women practicing law with the term “advokat” (masculine noun for an attorney in Serbian), both masculine and feminine forms of nouns will be used from now on – “advokat” (attorney m.) and “advokatica” (attorney f.), “tužilja” (f.) and “tužilac” (m.) for the party starting a court dispute. The situation is identical within the IT sector. From now, on the Law implies the position of software developer to be marked as the position of a “programer” (developer m.) and the position of a “programerka” (developer f.).

Gender equality is defined as a term that consists of equal rights, responsibilities, and opportunities, as well as equal participation and equal representation of women and men in all areas of social life. In addition, while respecting all the biological, social, and formal differences that exist between women and men, there must be equal opportunities for personal development and equal rights, opportunities, and equal benefits from the result of work.

What makes this Law specific is that in addition to introducing innovations in the field of law, it also introduces innovations within the Serbian language. Although the existing laws within the Serbian legal system do not include the new terms introduced by the Law, this certainly does not diminish the need to abide by the new Law and to adjust the companies’ employment documents with it. This is a great opportunity for companies to review whether they have updated their employment documents in accordance with legal obligations and that, in the event they have not, they do so as soon as possible.

What Should a Company with More Than 50 Employees Do?

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As up to now, following the constitutional principle, any discrimination based on sex, gender characteristics, or gender identity is prohibited.

The supervisory bodies of the ministry will analyze the representation of both sexes in the public and private sectors, and whether there is a balance between them.

Balanced representation constitutes the presence of 40 to 50% of one sex in relation to the other, which is followed by the category of significant imbalance when the representation of one sex is less than 40% compared to the other.

Measures to achieve gender equality are:

  • general
  • special

The obligation of employers with over 50 employees and temporary workers is one of the special measures, which has caused the biggest problems. This obligation is embodied in the form of the implementation of annual plans or work programs, which, in addition to the mandatory elements, must now include special measures to achieve gender equality.

It is expected that the part of the plan dedicated to gender equality will contain analysis and a short assessment of the condition of women in a certain company, a list of special measures that employers apply to achieve equality, and the age of the employees of both sexes. In addition, employers need to prescribe the reasons for implementing the special measures, what they expect to achieve, as well as how and from when, the special measures are applied, and who implements and controls the given measures.

Of course, the above-mentioned is under the supervision and control of the competent Ministry of Human and Minority Rights (hereinafter: the Ministry). In accordance with the stated measures and supervision over their compliance, employers with more than 50 employees must inform the Ministry, within 15 days from the day of the adoption of the special plan for achieving gender equality, about the plan.

In addition to the obligation of notifying or submitting (if the employer does not publish the plan) the plan to the Ministry, employers are required to submit annual reports on the implementation and realization of the plan. The said report should be included within the annual report on the implementation of the annual plan or program, which is adopted, both by the public authorities and by the employer.

What companies also need to keep in mind when it comes to the Law, is the fact that in case of termination of employment, if such wrongful termination of employment is caused in the context of gender equality, in addition to the inevitable court proceedings, according to the Law, employers would be obliged to pay the same fine, from 50,000 to 2,000,000 dinars for a company, because the termination is based on gender inequality. As always, in addition to the company, the responsible person is also obliged to pay a fine in the range of 5,000 to 150,000 dinars, for non-compliance with the provisions of the Law.

Insufficient Instructions to Employers to Comply with the Law

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The discrepancies in the Law are numerous. Does the application of the Law imply a revision of all other laws in Serbian law, which do not make the linguistic distinction of occupations into masculine and feminine, the division based on gender categories? Can companies that have less than 50 employees and temporary workers, in fact, not comply with the law and go unnoticed should they fail to regulate their employment documents?

By imposing the new obligations, the legislator is clearly trying to include new documents that will promote the gender equality on the list of the numerous internal documents of the employer. In addition to the regulations in the field of personal data protection, work organization and systematization of job positions and other internal legal documents, occupational health and safety, and the dangerous consequences for non-adoption and non-compliance, gender equality measures are added to the list.

The problem likewise reflects in those professions that are predominantly male, such as old crafts, mechanical engineering, public transport, or the IT sector, which will not be able to easily fulfill the minimum quota of 40% of female employees. The question remains how the Ministry should increase the number of women in these fields, without punishing the employers.

The Irreconcilability of Legal Certainty and Gender Equality – What is the Epilogue?

Precisely due to inconsistency and evident legal uncertainty, a number of legal experts have lodged a request for examining the legality of the Law to the Constitutional Court. The reasons behind this are, among others, insufficient scope of definition and too generic designations of terms in the Law. Although an application has been lodged until the Constitutional Court decides and the courts adhere to the given stance, a rather long period of time will pass. This certainly does not diminish the obligation of employers to take into account the special measures in their companies.

However, if it is not clear to everyone what terms should be used in accordance with gender-sensitive language, the Government has published Guidelines for the Use of Gender-sensitive Language. It is a non-binding document which serves as a guideline for companies in how to achieve complete equality and respect for both women and men in different fields.

Although not much attention is paid to the Law in practice, it is in force and its provisions apply. Now is the right time to review and determine whether your company also falls within the scope of the companies to which special attention will be paid, and that will be analyzed in terms of the extent to which gender equality is respected internally. It is certainly better to pass the appropriate internal documents on time than to allow the company to lose up to 2,000,000 dinars for this violation alone.

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