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23. septembra, 2020

SERBIA: Annual leave – rights and obligations

Vacation is your right. You should always use it. According to the Labor Law, an employee is entitled to annual leave of at least 20 working days in each calendar year.

NOTE: The legal minimum of 20 working days can be increased based on work experience, working conditions, contributions at work and education.

 

When an employee acquires the right to use annual leave

You acquire the right to use annual leave in a calendar year after a month of uninterrupted work from the day of employment with the employer. Continuous work also implies possible temporary inability of the employee to work, e.g. in case of illness.

Regulations

The regulations governing the rights and obligations of the employer and the employee regarding the use of annual leave are:

  1. Labor law,
  2. A special law which regulates a certain area, i.e. activity,
  3. Special collective agreement for a certain activity and
  4. General act of the employer (collective agreement with the employer or rulebook), i.e. employment contract for employers who do not have a general act.

 

 

How to use vacation

You need to use annual leave in the current year for that calendar year. Unfortunately, this is not always possible. Therefore, the Law allows you to use a part of the annual leave from the current year in the next calendar year. The deadline for leave use is June 30 of the next year at the latest. There are also cases when you can transfer the entire vacation to the next year.

Before using the annual leave, you need to submit a request for its use. Internal rules are covering this section. The law does not prescribe the obligation that the employee must announce the vacation in a certain period before the beginning of its use. The Labor Law prescribes the obligation of the employer to deliver the decision on the use of annual leave to the employee no later than 15 days before the date set for the beginning of the use of annual leave.

This means that the employee can send an application to the employer for the use of annual leave even one day before the start of the use of the leave. If this does not interfere with the work process of the employer, they can still decide to use the annual leave.

The employer may reject the employee’s request, but the reason must not be the time limit within which he submitted the request. The basis may be the actual work needs of the employee during this period.

 

 

The conditions under which the employee has the right to use the vacation from the previous year in the current year are:

  1. In the previous year, they used the first part of the annual leave for at least two working weeks continuously;
  2. The use of annual leave in the previous year was terminated by the employee due to illness. This lasts until the end of the calendar year. Therefore, the employee was not able to use the first part of the annual leave for the prescribed period of two weeks, or due to illness in the previous year, they did not even start using the first part of the annual leave. It is considered that the condition on using the first part of the annual leave is not fulfilled due to force majeure (illness), and in that case the employee has the right to use the second part of the annual leave for the previous year (2019) no later than June 30, 2020, their first part, lasting at least two working weeks, failed because they had to use it during 2019. On this basis, there is an identical Opinion of the Ministry of Labor, no. 011-00-463 / 2016-02 from 18.7.2016;
  3. An employee who acquired the right to use annual leave in the previous year, and did not fully or partially use the annual leave in that calendar year due to maternity leave, maternity leave and special childcare, has the right to such leave use in the current year, i.e. until June 30.

 

When is the right to use annual leave lost:

  1. when the remaining part of the annual leave for 2019 is not used by employees until 30 June 2020;
  2. If the employee returns from maternity leave or leave from work for the care and special care of the child, after June 30;
  3. if the employee uses the annual leave in one part and starts using the annual leave at the end of 2018, and due to the expiration of the year he did not use at least two working weeks in 2019 (did not acquire the condition for using the annual leave in two parts), if In 2019, that is, from January 1, 2020, he stopped using the annual leave and worked for a while in January (he did not continue to use the entire annual leave continuously), he lost the right to use the remaining part of the annual leave for 2019 in 2020.

 

Exceptions to the rules

There are three exceptions to the rule that annual leave must be used for two weeks in the calendar year to which it relates, so that the second part can be used until 30 June of the following year:

  1. The employee is given the right, paragraph 4 of Article 73 of the Labor Law, that due to maternity leave, leave from work due to the care of a newborn child and due to special child care, if she failed to use the annual leave for the current calendar year in whole or in partially in that year, to use it in full or the remaining part in the period from January 1 to June 30.
  2. If an employee starts annual leave in the calendar year to which the holiday refers, he / she terminates it before the expiration of two working weeks due to an illness that lasts until the end of the calendar year and is therefore unable to use the first part of the annual leave as a whole. This employee can use the remaining days of his total annual leave until June 30 of the following year. It is considered that he did not fulfill the condition for using the first part of the annual leave due to force majeure.
  3. If the employee was on sick leave for the entire calendar year or if he worked the first part of the year, then he used the sick leave until the end of the year and because of that he did not have time to use the first part of the annual leave. He loses the right to that first part of the annual leave, but this employee can use the second part of the annual leave until June 30 of the following year (Opinion of the Ministry of Labor, Employment, Veterans and Social Affairs No. 011-00-463 / 2016-02 of July 18, 2017).

 

Acting contrary to the Law

If the employee does not use the annual leave by the legal deadline (June 30, 2020), his unused days are ruined by his decision. This procedure is not punishable.

If the fault of the employer is the reason why you did not use days of the annual leave, he is obligated to compensate you for the damage. If there is a court dispute, the employee must prove that he did not use the vacation through the fault of the employer. This means that he must prove that he requested annual leave and that employer denied his request or that he stopped using the annual leave at the request of the employer, and later could not use it.

 

Fines

Article 275 of the Labor Law stipulates that the employer will be fined from 400,000 to 1,000,000 dinars for a misdemeanor, and the responsible person in the legal entity will be fined from 20,000 to 40,000 dinars for a misdemeanor.

 

Tax treatment of compensation for unused annual leave

The issue of the tax treatment of unused annual leave compensation paid by the employer in the event of termination of employment is often controversial. There were different interpretations as to whether this compensation was subject to taxation, and if so, whether it had the character of earnings or other income.

According to the provisions of Article 76, paragraph 1 of the Labor Law, in case of termination of employment, the employer is obliged to pay the employee who did not use the annual leave in full or in part, instead of using the annual leave. The amount of this payment is the average salary in the previous 12 months, in proportion to the number of days of unused annual leave. The provision of Article 76, paragraph 2 of the Labor Law stipulates that this compensation has the character of compensation for damage, with the proviso that it is not specified what kind of damage is in question. On the other hand, the provisions of Article 105 of the Labor Law stipulate that all income from employment is considered a salary, except those listed in that article. At the same time, among the incomes that do not have the character of earnings, the compensation for unused annual leave from Article 76 of the Labor Law is not stated.

 

The essence of the opinion of the Ministry of Finance and the Ministry of Labor is that the monetary compensation for unused annual leave is the income of an employee who has the character of a salary. Salary tax and contributions for compulsory social insurance are calculated and paid on this income, based on the amount of monetary compensation as a gross category which includes taxes and contributions paid from wages.