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Associate: Marija Molović
The Law on Gender Equality (hereinafter: the Law), which has been in force since July 1, 2021, has caused a lot of controversies and opposing views in the public. Despite this, it introduced a large number of important novelties in the field of gender equality, aimed at the eradication of gender-based stereotypes, and prejudices, as well as the idea of (gender) conditioned division of professions into “masculine” and “feminine”.
One of the topics that are in the public eye is the obligation for all employers, which consists of the use of gender-sensitive language, to influence the removal of gender stereotypes when exercising the rights and obligations of women and men.
In addition to this general obligation, the Law on Gender Equality has introduced another obligation for companies with more than 50 employees and temporary workers, together with public authorities – the adoption of internal acts aimed at achieving gender equality, as well as the duty to implement special measures, submit special reports and keep records for this purpose. 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.
The Law was passed to minimize and eliminate all stereotypes within the division of professions into “masculine” and “feminine”, and thus encourage the employment of the less represented gender to achieve full gender equality in society. The law regulates the definition, significance, and measures that the state plans to implement to achieve gender equality within society. 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 implies 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 results 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 following legal obligations and that, in the event they have not, they do so as soon as possible.
Employers who employ more than 50 people are obliged to adopt annual plans or work programs that must also include a section on gender equality at the employer, which contains a brief evaluation of the situation regarding the position of women and men at the employer, along with a list of special measures that will be implemented to achieve equality, and other information under the Law.
Employers whose plans or programs are not publicly available are obliged to inform the Ministry for Human and Minority Rights and Social Dialogue (hereinafter: the Ministry) within 15 days of their adoption, and employers whose plans or programs are publicly available are obliged to within the same period, inform the Ministry about where the plan or program is published (the employer’s website).
In addition to this, the obligation to adopt the Annual Report on the implementation of the annual plan or program is also prescribed, and regarding which there is the same obligation to notify the Ministry concerning the adoption of the plan or program, with the fact that in this case, it is a deadline of 30 days from the day of adoption.
Employers are also obliged to record data on the achievement of gender equality classified by gender, such as the total number of employees, their gender structure and age, qualifications, etc., which is carried out on a separate form.
Employers are obliged to provide the recorded data to the competent inspection, as well as to the Ministry at its request.
Employers are also required to prepare annual reports on the achievement of gender equality, which, in addition to the filled-in form with records, contains an assessment of the situation in terms of achieved gender equality, including the reasons why the prescribed equal representation of women and men in the composition of the employer was not achieved, if that representation was not realized.
Employers are obliged to submit these reports to the Ministry no later than January 15 of the current year for the previous year.
Although the obligation to adopt the Risk Management Plan for the violation of the principle of gender equality is foreseen by public authorities, this document, according to the letter of the Law, can also be adopted by employers.
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.
Balanced representation implies the presence of 40-50% of one gender with the other, followed by the category of noticeable imbalance when the representation of one gender is less than 40% concerning the other.
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.
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 trying to include new documents that will promote 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 is also reflected in those professions that predominantly count members of the male gender, such as old trades, mechanical engineering, public transport, or the IT sector, which will not be able to fulfill the existence of the minimum 40% of female employees so easily. The question remains open as to how the Ministry should promote a greater number of women in the mentioned professions, without penalizing employers.
Precisely due to inconsistency and evident legal uncertainty, some legal experts have lodged a request for examining the legality of the Law to the Constitutional Court. The reasons behind this are, among others, the 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 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 under gender-sensitive language, the Government has published Guidelines for the Use of Gender-sensitive Language. It is a non-binding document that serves as a guideline for companies on 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.