Wrongful and discriminatory interpretation of the provisions on the payment of the annual leave allowance by the President of the Employers’ Organization 11 April 2018
The Helsinki Committee for Human Rights strongly reacts to the statement of the President of the Employers' Organization, Angel Dimitrov, regarding the interpretation of the provisions of the General Collective Agreement for the private sector in the field of the economy, which refer to the payment of the allowance for the annual leave of workers who used maternity and/or parental leave, which in the Republic of Macedonia, are mainly women.
In a press statement issued on April 6, 2018, Dimitrov gave a wrongful and arbitrary interpretation of a provision from Art. 35 of the General Collective Agreement for the private sector in the field of commerce (Official Gazette of the Republic of Macedonia No. 115/2014 of 01.08.2014) according to which “an employee is entitled to reimbursement of the expenses related to work, including the right to a recourse for vacation in the amount of at least 40% of the base salary, provided that the employee has worked with the same employer for not less than 6 months within one calendar year”. Namely, Dimitrov says that the intention when creating this provision as a condition for using the right to financial compensation for recourse to annual leave, “was for the workers to have been actively going to work for 6 months", although in the collective agreement this is not regulated in such a manner at all. This is an absolutely wrongful interpretation of the provision of the collective agreement for the private sector, which creates legal uncertainty. We emphasize that the maternity and/or parental leave can in no way be considered to be an interruption of the employees’ employment, a resumption of employment or an “inactive period” and may not serve as a reason not to pay the annual leave allowance to the workers who used their right to maternity and/or parental leave. The term “maternity and/or parental leave” or as stipulated in the law “Absence from work due to pregnancy, birth and parenthood” indicates that an absence from work is in question, and not termination of the employment which does not leave space for arbitrary interpretation. In fact, the workers who use maternity leave do not lose their right to annual leave, which is closely related to the payment of the allowance. Hence, it is unclear how, and on the basis of which provision, workers who have used the maternity and/or parental leave and the annual leave in the same calendar year can be prevented from exercising the right to an allowance for the annual leave.
In addition, such an interpretation of the President of the Organization of Employers and the announcement that in the revision and amendment to the provisions of the collective agreement, Article 35 will be “further specified” by introducing a condition for the employee to have been actively coming to work with the same employer for 6 months, increases the discriminatory character the interpretation of this provision of the collective agreement and constitutes a violation of the principles of equal opportunities and the treatment of men and women guaranteed by the Constitution and the laws, taking into account that most of the workers on maternity and/or parental leave are women, and this interpretation is indirect discrimination on grounds of sex and gender.
The Helsinki Committee previously also urged in relation to the registered cases of different and unequal application of the provisions of the collective agreement in the area of commerce, related to the allowance for an annual leave by the State Labor Inspectorate. Namely, in some of the cases reported to the labor inspectorate sent by the Helsinki Committee regarding the non-payment of an allowance for an annual leave, the inspectors found that the right to recourse to annual leave is applicable to the workers who used maternity or parental leave. On the other hand, in some cases, the inspectorate found that the workers who used their maternity or parental leave during the calendar year, were not eligible for the allowance for an annual leave with the same “justification” and interpretation of the provision from article 35 of the General Collective Agreement for the private sector in the area of commerce, as the interpretation of the President of the Organization of Employers.
For these reasons, the Helsinki Committee urges for rightful application and interpretation of the General Collective Agreement for the private sector in the area of commerce by the Employers’ Organization and payment of the allowance for an annual leave to the female and male workers who used maternity and/or parental leave. Otherwise, if the uneven practice of payment of the allowance for an annual leave and the discriminatory attitude towards the female and male workers who used their maternity and/or parental leave continues, well-grounded charges will be brought for protection against discrimination on grounds of sex and gender.