Arbitrary and inconsistent interpretation of provisions on annual leave pay for workers on parental leave 25 January 2018
The Helsinki Committee of Human Rights has reacted severely regardinga case of incorrect application of provisions related to annual leave pay for workers who have been on parental leave, who in the Republic of Macedonia are most often women.
In the past period the Helsinki Committee of Human Rights has registered cases of inconsistent application of provisions of the collective labour agreement of the sector economy, related to annual leave pay. Following complaints filed to the labour inspectorate, regarding failure to pay annual leave pay, popularly called k-15 pay, the inspectorate found that female workers who were on maternity leave during the calendar year, were not entitled to annual leave pay. This position was ‘justified’ by interpreting provision in Article 35 of the General Collective Labour Agreement for the private sector in the sector economy (Official Journal of RM no. 115/2014 from 01/08/2014), pursuant to which “the worker is entitled to reimbursement of work related costs, including the right to annual leave pay in the amount at least 40% of the base of the salary, provided the worker had worked at least 6 months in the calendar year with the same employer”. Use of maternity leave during the calendar year, is considered by some inspectors as failure of the worker to meet the condition of working for at least 6 months in the calendar year with the same worker. On the other hand, some inspectors consider that female workers using maternity leave are entitled to annual leave pay anyhow.
This is absolutely incorrect and inconsistent application of this provision of the Collective Labour Agreement for the private sector, the interpretation of which has caused legal insecurity. We stress that parental leave cannot in anyway be considered as a break of employment with the employer or new beginning of employment, thus it cannot be considered to be a reason for failure to pay annual leave pay to male and female workers who used their entitlement to parental leave. The very term – parental leave, or as proscribed in the law as “absence from work due to pregnancy, giving birth and parenthood”, points out that this is absence rather than break of employment, and may not be in anyway arbitrarily interpreted. Moreover, workers using parental leave do not lose the entitlement to annual leave, which on the other hand is closely linked to payment of the annual leave pay. Therefore it is unclear which groundshave the labour inspectors chosen to decide when the entitlement to annual leave pay is lost, in the same cases when the right to annual leave is not. This interpretation and the varied application of provisions for annual leave pay are contrary to the principles of non-discrimination and equal opportunities and treatment of men and women guaranteed by the Constitution and the laws.
This problem is linked to past identified problems related to treatment and counting of parental leave, i.e. non-inclusion of parental leave in the benefits for years of service for early retirement. There have been cases identified at the Interior Ministry of failure to include months when the entitlement to absence from work is used due to pregnancy, giving birth and parental leave as benefits for years of service of workers who use this type of entitlement to absence. This practice has led to employees at the Interior Ministry who used their entitlement to parental leave, in this case mostly women, to reach the point of retirement 3 months later than employees, mostly men, who did not use parental leave and worked equally long as the former at the Ministry.
Therefore, the Helsinki Committee is calling upon the Ministry of Labour and Social Policy to draft and send guidelines to the State Labour Inspectorate for the purpose of consistent practice of legal provisions related to annual leave pay, since it is obvious that there is inconsistent application of the collective agreement at disadvantage to female workers. If the State Labour Inspectorate fails to change this practice, female workers may initiate appropriate procedures to protect their rights.