Using annual vacation in parts (more flexibility vs. protection of employees)

According to the legislation in force in Serbia, employees may use their annual vacation all at once or in parts. If annual leave is used in parts, the first part must be at least two work weeks to be used without interruption until the end of the calendar year, while the remaining days can be used until 30th June next year.

Consequently, the law does not envision the possibility of splitting the first part of the annual leave into two or more smaller parts. Also, the first part of the annual leave in duration of at least 10 days (two work weeks) must be used until the end of the calendar year, meaning that any unused days may not be carried over to the next year.

In practice, legal norms are sometimes circumvented, often based on initiative of employees who prefer to use their vacation in more smaller parts and to enjoy more flexibility. Deviating from the legal framework comes with certain risks, mainly for the employer (irregularities found in case of labor inspection and potential liability for misdemeanour).

For the same purpose, paid leaves are also used, as well as medical leaves without doctor’s report (for a limited number of days), although the desired effect cannot be fully achieved in this way.

This is by no means a trivial issue, since at certain jobs and in certain industries (such as IT), duration and structure of annual leave represent an important part of the „package“ that the employers offer to candidates for deficit jobs where the demand for work force is high.

Having in mind the above tendencies, initiatives for amending the law have appeared, with the aim of providing more flexibilty when it comes to annual vacation (one such initiative comes from NALED). The idea is to enable use of the first portion of annual vacation (i.e. the part which cannot be carried over to the next year) in parts, which is justified by employees’ preferance for a differently structured annual leave.

Representatives of certain employee unions spoke up adamantly against these initiatives, which according to them would open the door to potential abuses by employers. Specifically, employers would be enabled to fraction the annual leave into small bits and thus disable the employees from using it in a meaningful manner.

If we agree that the aim of regulation in the area of labor law is to protect the employees as the weaker party to the extent which is necessary, while leaving room for consensual arrangements which reflect the interests of both parties, the key question becomes whether the existing law protects employees from potential abuses or it limits them from organizing their well-earned vacation in accordance with their preferences?

The issue is further complicated by the fact that different individuals can have (and certainly do have) different views when it comes to annual vacation. Different preferences may to some extent be correlated to the type of job, industry, earnings etc. Specifically, employees with higher earnings generally benefit more from „fractioned“ vacation (e.g. they can afford more shorter trips and other leisure activities). At the same time, these employees have a better negotiating position toward the employer, which generally decreases the risk of abuses and the need for legislative intervention.

The next question which arises is whether the law can provide protection to the employees who need it, while at the same time enable flexible vacation organization for those who want it?

Due inherently unequal position of employees relative to the employer (to a greater or lesser extent), employees’ disposition or initiative for different structure of annual vacation is probably not an adequate solution which would prevent potential abuses. Also, most companies in the private sector do not have active employee unions and thus it cannot be expected that employees’ preferences will be articulated through the collective bargaining process.

Given these conflicting positions and apparent difficulty in formulating any compromise solution, the most realistic outcome is that the status quo will persist for the time being. This means that the employers (especially in certain industries) will continue to balance between compliance with the law and meeting employees’ requests. In case that the latter need prevails, it is necessary to correctly assess the risk, in light of all the circumstances of the case, which among other things include the overall work environment, company culture, type of work etc. Moreover, it is advisable to ensure that employees’ initiative for using annual vacation in parts is properly documented.

The alternative is to make deviations from the legal framework informal, and keep the official records strictly within the law, which in turn entails certain risks due to discrepancies between the formal records and the actual situation (e.g. liability for breach of work duties or damages while the employee was officially on vacation, injuries during work etc.), which should be assessed on a case-by-case basis.

Depending on the needs and circumstances, paid leave and medical leave without doctor’s report can be used in parallel, as long as the procedure is regulated by internal acts.

In any case, deviating from the legal framework against employees’ will is not recommended.

This text is written for informational purposes only and does not constitute legal advice. We are at your disposal for any additional information.

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