New rules for calculating additional payments up to the minimum wage - what do you need to know?
These allowances and additional payments, based on the employee’s duties, included payments for overtime work, night work, work on holidays and weekends.
As we can see, the fixed salary of this employee was much lower than the minimum wage, so the employer, on the basis of Part 3 of Article 133 of the Labor Code of the Russian Federation, was forced to make an additional payment to the level of the minimum wage. But how did he do it? It’s very simple: to the meager salary he added all compensation payments, including for work in conditions deviating from normal (overtime, work at night and on holidays, as well as the regional coefficient), thus “catching up” the additional payment to the minimum wage.
The employee did not agree with this calculation of his wages and began to appeal it in court. As a result, the Constitutional Court sided with the employee. The court clearly recognized that if an employee is paid additionally up to the minimum wage, then payment must be made for the time actually worked in the amount of the minimum wage (even with an additional payment up to the minimum wage).
Procedure for additional payment up to the minimum wage 2021 – 2021 (nuances)
Important!
The Labor Code of the Russian Federation guarantees citizens wages in an amount not less than the minimum wage (paragraph 7 of Article 133 of the Labor Code of the Russian Federation). At the same time, the regional minimum wage cannot be lower than the federal one.
We draw attention to the following points: In addition to the minimum wage determined at the federal level, some constituent entities of the Russian Federation set their own minimum wage in accordance with the rules of Art.
133.1 Labor Code of the Russian Federation. It is the employee’s salary that must reach the established level of the minimum wage (federal or regional), taking into account all its components: salary, bonuses, compensation payments, etc. (see Article 129 of the Labor Code of the Russian Federation). Of course, if the employee is paid only a salary, then it should be compared with the minimum wage level and, if necessary, increased to it (see.
letter of the Ministry of Finance of the Russian Federation dated November 24, 2009 No. 03-03-06/1/768, ruling of the Khabarovsk Regional Court dated April 26, 2013 No. 33-2252/2013). Salary level
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What accruals are not included in the “minimum wage”
The minimum wage for an employee in 2021 is calculated in the amount of 11,280 rubles. What is included in the minimum wage in 2021, and are compensation and incentive payments included in the minimum wage?
In practice, for the position of a guard, it is often the summarized recording of working time that is established. In this case, the normal number of working hours for the accounting period is distributed over months or weeks based on a shift schedule, which is developed in such a way that overtime is not allowed. Please note that in different weeks (months) an employee can work a different number of hours, the main thing is that he fulfills the work norm for the accounting period. It should be taken into account that overtime hours are paid at an increased rate to employees for whom summarized working time recording is established, based on the results of the billing period. Let's look at specific examples.
In the Tariff and Qualification Characteristics for industry-wide professions of workers, approved by Resolution of the Ministry of Labor of the Russian Federation of November 10, 1992 No. 31, intended to establish the categories of workers, the following job responsibilities are defined for the position of “watchman”:
Guarantees regarding minimum wage.
The normal number of working hours for the accounting period is determined based on the weekly working hours established for this category of workers. The procedure for introducing summarized recording of working time is established by the internal labor regulations.
The debate that some types of additional payments for work in non-standard conditions were simply dissolved in the minimum wage did not subside until April 2021. Some officials believed that the minimum wage should include all types of salary accruals. Other experts disagreed, expressing the opinion that additional payments for “non-standard” and “excessive” work should be paid above the minimum wage.
Night holidays are included in the minimum wage in 2021
h.
a link to the relevant regulatory legal act at the federal or regional level regulating the current minimum wage amount; information about the employee in respect of whom this order is issued: last name, first name, patronymic, position, name of the structural unit in which he is employed; amount of surcharge; date of payment; indication of persons responsible for executing the order; signature of the employer’s authorized person with a transcript; signatures with a transcript of the persons responsible for executing the order, and the inscription “I have read the order”, the date of familiarization. A sample of the mentioned document can be found at the link below: Order for additional payment up to the minimum wage - sample.
Minimum wage (minimum wage) in the Russian Federation 2021, taking into account the region of residence (table) If the enterprise has a flexible wage system, with the use of incentives and compensation, then the minimum wage may include:
Additional payment up to the minimum wage for an incomplete month worked
The employer is required to keep records of the actual hours worked by each employee. The norm is determined taking into account the provisions of Order of the Ministry of Health and Social Development of the Russian Federation dated August 13, 2021 No. 588n. Overtime payment is carried out in accordance with Art. 152 of the Labor Code of the Russian Federation, for weekends and holidays - according to Art. 153 Labor Code of the Russian Federation. The procedure for payment (especially overtime) will depend on whether the enterprise has introduced summarized recording of working hours or not.
Example
According to Article 133 of the Labor Code of the Russian Federation, the monthly salary of an employee in the case of a fully worked-out time limit cannot be lower than the minimum wage. Employers are required to check the compliance of accruals with the regional minimum wage level. What if the employee was absent part of the time from the workplace or the number of hours he worked was less than the norm? Is there an additional payment up to the minimum wage for an incomplete month worked? We will answer the questions posed and give examples of accruals for different cases.
In the first two cases, it does not matter whether the irregular work is carried out within or outside working hours. An employee whose shift fell partly on a weekend or at night is entitled to additional pay.
Payment for night
2.
I work in the regional gas service as an emergency worker and pay 35% at night, do I have the right to sleep? 2.1. The law does not directly establish this. . Working time regime The working time regime should provide for the duration of the working week (five-day with two days off, six-day with one day off, working week with days off on a sliding schedule, part-time work week), work with irregular working hours for certain categories of workers, duration daily work (shift), including part-time work (shift), start and end times of work, time of breaks in work, number of shifts per day, alternation of working and non-working days, which are established by internal labor regulations in accordance with labor legislation and other regulatory
Does the minimum wage include holidays, night and overtime?
is a guaranteed payment, then such a bonus is included in the salary.Legal basisIn accordance with Art.
Determined - usually by the employer, or specifically agreed upon with the employee.
129, 133 of the Labor Code of the Russian Federation - wages (employee remuneration) is remuneration for work (salary, base salary, etc.) depending on the qualifications of the employee, complexity, quantity, quality and conditions of the work performed, as well as compensation payments (additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal ones, work in special climatic conditions and in areas exposed to radioactive contamination, and other payments of a compensatory nature) and incentive payments (additional payments and bonuses of an incentive nature, bonuses and other incentive payments ).The monthly wage of an employee who has fully worked the standard working hours and fulfilled labor standards (job duties) cannot be lower than the minimum wage. The minimum wage cannot be lower than the subsistence level April 03, 2021, 09:02 0 0
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Should overtime be included in the minimum wage: a new decision of the Constitutional Court
The current employer is trying with all its might to “optimize” the salaries of its employees. Or more precisely, reduce it to the minimum possible limits. The Constitutional Court decided to put an end to the long-standing dispute over whether irregular bonuses should be included in wages equal to the minimum wage.
How was it?
The Constitutional Court issued Resolution No. 17-P dated April 11, 2019. The document can be found here.
A resident of Bodaibo (Irkutsk region), who worked as a watchman in one of the local companies, came to the Constitutional Court with a complaint about the provisions of the Labor Code of the Russian Federation.
His salary was just over four thousand rubles. However, according to the law, the salary cannot be less than the minimum wage, so it was calculated in such a way that, taking into account all payments, including overtime for work at night, weekends and non-working holidays, it just reached the level of the minimum wage.
The problem was that with this calculation of wages, the law allows the employer to deprive the employee of the right to an increased wage in conditions that deviate from normal ones.
The employee was not satisfied with this state of affairs, and he went to court. However, the courts were divided. The Bodaibo City Court ruled that the minimum wage should be the basis of wages, but the appeal court overturned this decision. As a result, the case reached the Constitutional Court.
What did the Constitutional Court decide?
The Constitutional Court did not see any contradictions in the current legislation, but in this situation it sided with the employee.
The court's position is as follows. Article 37 of the Constitution guarantees everyone the right to remuneration for work “not lower than the minimum wage established by federal law.”
Payments related to overtime work, work at night, on weekends and non-working holidays, in contrast to compensation payments of a different nature (for work under harmful and (or) dangerous working conditions, in areas with special climatic conditions), cannot be included as part of the regularly received monthly salary, which is calculated taking into account constantly operating factors of labor organization, production environment or unfavorable climatic conditions, etc.
The Constitutional Court writes that, by its nature, the minimum wage is a guarantee of remuneration without taking into account any special working conditions.
The determination of the minimum wage should be based on the characteristics of labor inherent in any work activity, without taking into account the special conditions for its implementation.
At the same time, each employee must be provided, in addition to the minimum wage, with increased pay in case of work performed in conditions deviating from normal, including overtime work, work at night, on weekends and non-working holidays.
Otherwise, the wages of workers who work under normal conditions would not differ from the wages of workers who work overtime or on holidays. And this is already an infringement of the rights of workers.
The Ministry of Labor does not agree with this
The new decision of the Constitutional Court will puzzle many accountants. The fact is that earlier the Ministry of Labor published a letter dated September 4, 2018 No. 14-1/OOG – 7353, which partially contradicts the current decision of the Constitutional Court. The Ministry of Labor believes that it is possible to include work at night or on holidays in the additional payment up to the minimum wage. But this is possible if working hours at night or on holidays are included in the general working hours.
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Night holidays are included in the minimum wage in 2021
However, in some regions (for example, in Moscow, St. Petersburg, the Sakhalin region), the minimum wage is established without taking into account compensation and allowances for harmful (hazardous) work, overtime, going to work on weekends and holidays, as well as part-time work.
To find out exactly what payments are included in the “minimum wage” in your region, you need to familiarize yourself with the relevant agreement. You can find this document: - on the website of the regional government and/or on the websites of associations of trade unions and employers; - in the official printed publication of a constituent entity of the Russian Federation. Info Question: Are holidays included in the minimum wage supplement?
In this way, the state protects low-income citizens.
Now the minimum wage is 85% of the subsistence level. The amount of payments is influenced by several indicators:
- The amount of the minimum wage depends on the number of unemployed.
- First of all, experts estimate the rate of inflation.
- Economists take into account production growth indicators that affect the financial situation of regions.
Since January of this year, employers cannot pay their employees less than 9,489 rubles.
Question: How to correctly calculate additional payment up to the minimum wage?
(Rostrud information portal “Onlineinspection.RF”, December 2021)
Payments due to an employee for performing such work are included in the concept of wages and are taken into account when determining the amount of wages in order to comply with the amount.
Does the minimum wage include compensation payments, namely rural payments, payment for night work, and payment for overtime?
Legal basis: In accordance with the Labor Code of the Russian Federation, wages (employee remuneration) are remuneration for work depending on the employee’s qualifications, complexity, quantity, quality and conditions of the work performed, as well as compensation payments (additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal ones, work in special climatic conditions and in areas exposed to radioactive contamination, and other compensation payments) and incentive payments (additional payments and incentive allowances, bonuses and other incentive payments). According to the Labor Code of the Russian Federation, an employee’s wages are established by an employment contract in accordance with the wage systems in force for a given employer.
How to correctly calculate wages after the decision of the Constitutional Court of April 11, 2021
Allowances, additional payments and other charges that are due to workers for working in non-standard conditions and are not of a regular nature cannot be taken into account when comparing wages with the minimum wage. We are talking about the payments that we have given in the table.
Changes in salary from 04/11/2021
In addition, it does not matter whether night and/or holiday work is carried out within or outside working hours. Part of the shift that occurred at night, on a weekend or on a holiday must be paid at an increased rate. This very additional payment should not be included when comparing earnings with the minimum wage.
In these cases, since the employee is underemployed, the remuneration he receives at the end of the month may be lower than the established minimum wage. In this case, the minimum amount to be paid is calculated in the appropriate proportion of the minimum wage.
- The employee works full time, there are no regional coefficients or bonuses, the salary is 5,000 rubles, the monthly bonus is 2,000 rubles, a budgetary organization. So, the employee receives 7,000 rubles, which is 4,163 rubles. less than the established minimum wage. Accordingly, he needs to pay an additional 4,280 rubles.
- The employee works for a Moscow company that is a party to the regional agreement on the minimum wage in Moscow. Salary – 15,000 rubles, monthly bonus – 2,000 rubles. Since at the moment the regional minimum wage in Moscow is 18,580 rubles. (see “Moscow tripartite agreement for 2021 - 2021 between the Moscow Government, Moscow trade union associations and Moscow employers’ associations”), then the employee must pay an additional 1,580 rubles.
- The employee works in an area equated to the regions of the Far North. Salary - 5,000 rubles, regional coefficient - 1.2, bonus for length of service - 10%, no regional minimum wage. As we wrote above, for this category of workers, the salary part of the salary is brought up to the minimum wage level, without taking into account the coefficient and bonus for length of service. In this case, since there are no other additional payments, we evaluate only the salary. Accordingly, the employee must pay an additional 6,280 rubles. And then the coefficient and bonus will be calculated on the salary amount increased to the minimum wage - 11,280 rubles.
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Additional payment up to the minimum wage for an incomplete month worked
3) workers carrying out labor activities in public and temporary jobs (including internships), organized by the employer for temporary employment of workers as part of the implementation of programs of additional measures to reduce tension in the labor market of the region and promote employment of the population
The minimum wage established by federal law is ensured by: organizations financed from the federal budget - from the federal budget, extra-budgetary funds, as well as funds received from entrepreneurial and other income-generating activities; organizations financed from the budgets of the constituent entities of the Russian Federation - at the expense of the budgets of the constituent entities of the Russian Federation, extra-budgetary funds, as well as funds received from entrepreneurial and other
Constitutional Court of the Russian Federation: work on holidays and weekends must be paid above the minimum wage
He was also paid other bonuses and additional payments provided for by the employer’s local regulations. Overtime work, work at night, on weekends and non-working holidays, the applicant was paid at an increased rate based on the established salary.
The latter was lower than the regional minimum wage, but when assessing the compliance of wages with it, not only it, but also all payments were taken into account, including payment for overtime work, work at night, on weekends and non-working holidays. Citizen Zh. considered that such actions of the employer did not allow him to receive a fair wage and went to court. The Sutyazhnik analytical system will help you assess the prospects for consideration of your case.
