Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

• Author: Krstic, Ivana
• Pages: 55-56

55

5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

a) Scope for positive action measures

In Serbia, positive action in respect of racial and ethnic origin, religion and belief, disability,

age and sexual orientation is permitted in national law.

Article 21(4) of the Constitution recognises that spe cial measures that are int roduced in

order to achieve the full equality of individuals or groups of individuals who are in a

substantially unequal position in comparison with other citizens shall not be deemed to be

discrimination. This provision applies to all groups that are identified as being in a

substantially unequal position in society, including LGBTQ+ people.

Article 14 of the LPD also prescribes that measures which are introduced for the purpose

of achieving the full equality, protection and progress of an individual or a group of people

in an unequal position shall not be considered to constitute discrimination.

The LPDPD provides that there is no discrimination if a provision of a law, a regulation, a

decision or a special measure was adopted with the aim of improving the situation of people

with disabilities, their family members and associations of persons with disabilities, when

this special support is necessary in orde r to ensure that they can enjoy and exercise their

rights under the same conditions as the general population (Arti cle 8(1)). Furthermore, a

‘decision or the retention of existing laws or measures aimed at eliminating or repairing

the adverse situation of people with disabilities who are given special support’ is not

considered to be discrim ination either (Article 8(2)). In addition, Article 23(2) stipulates

that incentive measures should be introduced to speed up the employment of people with

disabilities, in accordance with the law regulating t he employment of persons with

disabilities.

b) Quotas in employment for people with disabilities

In Serbia, national law provides a quota for the employment of pe ople with disabilities.

The National Action Plan for Employm ent for 2019 r ecognises persons with disabilities as

a less employable category of persons,170 while the Law on Professional Rehabilitation and

Employment of Persons with Disabilities introduces a quota system. Article 24 e stablishes

a duty on employers with at least 20 employees to employ a certain number of people with

disabilities. An employer with 20 to 49 employees is obliged to employ one person with

disabilities (Article 24(2)). An employer with 50 or more employees i s obliged to employ

at least two people with disabilities and one more for every additional 50 employees (Article

24(3)). This obligation is not imposed on a newly established employer for a period of 24

months from the day of the establishment of the business.

According to Article 26, an employer can be relieved of this obligation if they pay, on a

monthly basis, a sum of at least 50 % of the average salary per employee for every person

with a disability whom they do not employ. This amount is paid to the budget of the

Republic of Serbia for the Fund for the Profe ssional Rehabilit ation and Employment of

Persons with Disabilities.171 In addition, an employer receives a wage subsidy for a duration

of 12 months for an employee with disabilities and without work experience who is hired

for an indefinite period of time.

170 National Action Plan for Employment for 2019 (њacionalni akcioni plan zapošljavanja za нлм9), Official

Gazette of the Republic of Serbia, No. 105/2018, 29 December 2019.

171 This obligation is defined in the Regulation on the monitoring of the execution of duties on the employment

of persons with disabilities and the method of proving the execution of these obligations (Pravilnik o načinu

praćenja izvršavanja obaveze zapošljavanja osoba sa invaliditetomi načinu dokazivanja izvršavanja te

obaveze), Official Gazette of the Republic of Serbia, No. 101/2016, 24 December 2016.