Obligation to index salaries annually. Is the annual indexation of wages mandatory? The nuances of documenting

From the Determination of the Constitutional Court dated June 17, 2010 No. 913-О-О:
"... indexation of wages should be provided to all persons working under an employment contract."

Remember the phrase of the Black Queen from "Alice Through the Looking Glass": "Well, here, you know, you have to run as fast as you can just to stay in the same place!"? It illustrates the situation with our salaries in the context of inflation as accurately as possible: in order for the salary to remain at the same level and not depreciate, it must be indexed regularly.

However, in many companies, salary indexation is either not carried out at all, or is carried out so rarely that employees do not even remember when it was the last time. The question arises, are employers obliged to index wages and, if so, how often?

Indexation is mandatory, but it doesn't make it easier for workers

Salary indexation is one of the main state guarantees on wages of an employee in art. 130 of the Labor Code of the Russian Federation.

Two years ago, the Constitutional Court indicated that the employer is obliged to index Determination of the COP dated June 17, 2010 No. 913-О-О... This position is shared by Rostrud as well.

FROM AUTHORIZED SOURCES

Deputy Head of the Federal Service for Labor and Employment

“The employer's evasion from the indexation of wages due to the rise in consumer prices for goods and services can be regarded as a violation of labor legislation, in particular Art. 134 of the Labor Code of the Russian Federation. And for violation of labor legislation, the employer may be subject to administrative liability ”.

Indexing - one of the ways to protect the population ... from inflation, which consists in the fact that the state and other entities [for example, employers] ... increase the monetary incomes ... of citizens in accordance with the rise in prices ... Thus, purchasing power is maintained population and average real incomes of people.

Modern Economic Dictionary

This is all good, of course. But we do not have a single indexing mechanism. The Labor Code only says that indexing is carried out art. 134 of the Labor Code of the Russian Federation:

  • in budgetary organizations - in the manner prescribed by labor legislation and other regulatory legal acts... However, there is still no such order. Therefore, the salaries of state employees of various levels are indexed only by a special go-ahead - by the order of the Government of the Russian Federation Government Decree of May 31, 2011 No. 957-ror executive body subject of the Russian Federation see, for example, Resolution of the Governor of the Leningrad Region dated 09.28.2011 No. 90-pg or municipality a see, for example, Resolution of the Administration of the Skovorodinsky District of the Amur Region dated 05/18/2011 No. 490;
  • in commercial organizations - in the manner prescribed by the collective agreement, agreements, local regulations. But, firstly, not all companies have such documents. Secondly, even if they are, then the order of indexing is not always established in them. This can be boasted mainly by large companies, in respect of which there are industry agreements, where the obligation to index salaries is directly fixed. see, for example, clause 3.8 of the Federal Sectoral Agreement on the Construction and Industry of Building Materials of the Russian Federation for 2011-2013. ; p. 3.2.4 of the Federal sectoral agreement on the coal industry of the Russian Federation for 2010-2012..

WARNING THE LEADER

If in collective agreement or agreement there is an indexation condition salaries, but it is not performed, the labor inspectorate may fine employer for 3000-5000 rubles. or issue a warning art. 5.31, part 1 of Art. 23.12 Administrative Code of the Russian Federation... Even a reference to the company's dire financial situation will not save you from responsibility.

It turns out that the order of indexation (including its frequency) is entirely left to the discretion of the employer. And, taking advantage of this, unscrupulous employers may well secure in their local acts that indexation is carried out in an organization ... once every 20 years. What? Is there an order? There is. And how often to index is a private matter of the organization. The labor inspectorate will no longer be able to find fault with the employer, and workers will be left with a nose ...

And it also happens that organizations simply include in labor contracts a phrase such as: “If financial opportunities are available, the employee's salary can indexed according to the orders (instructions) of the Employer. "

That is, it is prescribed right, not the employer's obligation to index employee salaries.

FROM AUTHORIZED SOURCES

YAKOVLEV Robert Andreevich

Chief Researcher, Institute of Labor and Social Insurance, Ministry of Labor of Russia

“Since at present the Labor Code does not stipulate a mechanism for indexing wages, in fact it turns out that the decision to carry out indexation is left to the employers. And most of them are not eager to do it.

Voluntarily our business, especially small and medium-sized ones, will definitely not part with their money. Meanwhile, when inflation in European countries was as high as ours, it was the law that obliged businessmen to increase the salaries of their employees! ”

In turn, Rostrud believes that if the indexing procedure is not provided for in the local regulations of the organization, then they need to be supplemented with the relevant provisions and Rostrud letter dated 19.04.2010 No. 1073-6-1.

At the same time, we managed to find a court decision, which states that if the conditions and procedure for indexing are not stipulated by collective or labor contracts or local acts, then the employer is not at all obliged to index salaries at The cassation ruling of the Perm Regional Court dated 08/10/2011 No. 33-8127... At the same time, the court did not take into account the position of Rostrud, saying that his letter was not a normative act.

The question arises: can a labor inspector who has come to check on a complaint from workers to fine an employer who does not have an indexation procedure, due to which he does not index wages for a long time? Here is what the specialist from Rostrud explained to us.

FROM AUTHORIZED SOURCES

Chief Legal management Federal Service for Labor and Employment

“I believe that in this situation, the labor inspector has the right to issue an order to the employer obliging him to make appropriate changes (additions) to the organization's local acts or labor contracts within a certain period of time.

If the order is not fulfilled by the appointed date, then the head of the organization and the employing organization may be fined for failure to comply with the labor inspector's order under Art. 5.27 of the Administrative Code for violation of labor legislation a ”.

It is possible that the labor inspectorate may also fine the company and its head under Part 1 of Art. 19.5 of the Administrative Code of the Russian Federation for failure to comply with the order within the prescribed period

If a decision is made to index

Then the first step is to decide on the procedure for its implementation and fix it in a local normative act, for example, in the regulation on remuneration of employees. Let's see what should be written in it.

Which payments are indexed and which are not. For example, you can index salaries, but not index flat bonuses. The employer also no one bothers to establish a threshold amount within which the income of employees will be indexed in full. Here's how it can be phrased:

2.2. The following payments to employees are subject to indexation:
- salary within the amount not exceeding 20,000 rubles;
- tariff rates;
- piece rates and time rates.

2.3 Indexation is not subject to:
- part of the salary exceeding 20,000 rubles;
- surcharges, allowances, bonuses established in a fixed amount;
- earnings retained by dismissed employees for the period of employment.

A specialist from Rostrud shared with us his opinion on what principle to adhere to when indexing additional payments, allowances and bonuses.

FROM AUTHORIZED SOURCES

“I believe that the mentioned payments, set as a percentage of the salary, do not need to be indexed, since after indexation they will be calculated from the already indexed salary. The same payments, set in a fixed amount, should ideally be indexed along with the tariff part of the salary (salary, tariff rate) so that there is no real decrease in the level of wages.

At the same time, employers who do not belong to the public sector independently determine which components of wages are indexed ”.

Rostrud

Indexing frequency. It can be done at least every month. But it is more convenient to do this less often: quarterly, once every six months or annually.

3.1. Indexation of employees' income is carried out once every six months in accordance with the indexation coefficient.

How to calculate the indexing coefficient. The TC links indexation with an increase in consumer prices for goods and services and art. 134 of the Labor Code of the Russian Federation... But in the absence of a unified procedure for indexing, the employer is free to choose his own benchmark for indexing. The specialist of Rostrud agrees with this.

FROM AUTHORIZED SOURCES

“Based on the provisions of Art. 134 Labor Code RF, the employer has the opportunity to provide for any procedure for indexing wages in the relevant acts. Thus, the value of indexing can be determined, in particular:

  • <или> based on the officially established consumer price index for a certain period (for example, a quarter, half a year, a year) in Russia or in the region;
  • <или> the amount of inflation recorded in the annual federal law on the federal budget or the budget of the corresponding region a see, for example, paragraph 1 of Art. 1 of the Law of the Kamchatka Territory dated November 14, 2011 No. 676; clause 1 of Art. 1 of the Law of the Kabardino-Balkarian Republic of December 30, 2011 No. 129-RZ; clause 1 of Art. 1 of the Law of the Astrakhan region dated 01.12.2011 No. 97/2011-OZ;
  • <или> the growth of the living wage of the able-bodied population (in Russia or in a specific region) ”.

Rostrud

Let's go over each of these metrics.

You will find all-Russian consumer price indices both by years and by months: rosstat website → Prices → Consumer prices Regional consumer price indices for both years and months can be found on the websites of the regional offices of Rosstat. For example, the indices for Moscow can be found: mosgorstat website → Prices and tariffs → Operational information → Consumer prices

1. Consumer price index it is officially established both for the country as a whole and for a specific region. It is published monthly by Rosstat and its territorial bodies by subjects of the Russian Federation. So, in 2011, the consumer price index in Russia amounted to 106.1%.

2. Projected inflation rate in the Russian Federation, provided, for example, by the Law on the Federal Budget for 2012 - no more than 6% clause 1 of Art. 1 of the Law of 30.11.2011 No. 371-FZ.

3. The size of the subsistence minimum is determined as a whole for the Russian Federation by the Government on a quarterly basis on the basis of the consumer basket and Rosstat data, and for a specific region - in the manner prescribed by the relevant law of the subject of the Russian Federation nn. 1, 2 tbsp. 4 of the Law of 24.10.97 No. 134-FZ.

You will find the value of the subsistence minimum in Russia and for a number of subjects: section "Reference information" of the ConsultantPlus system

So, for example, rise in the cost of living of the working-age population for the I quarter of 2012 compared to the IV quarter of 2011 was:

  • in Russia - 1.74% (6827 rubles. Government Decree of June 19, 2012 No. 613 / 6710 rub. Government Decree of 28.03.2012 No. 247 x 100 - 100);
  • in Moscow - 1.39% (10,490 rubles. Resolution of the Moscow Government dated 05.06.2012 No. 258-PP / 10 346 rub. Resolution of the Moscow Government dated 20.03.2012 No. 94-PP x 100 - 100).

Again, all of the above values \u200b\u200bare optional. In principle, for the indexation of wages, the employer can choose any other benchmark that takes into account the rise in the cost of living.

Actually indexing order. Here's how it can be formulated by linking indexation, for example, to the consumer price growth index in Russia as a whole:

3.2. The value of the indexation coefficient is calculated on the basis of official data on the growth of the consumer price index in Russia for the previous six months.

3.3. The value of the indexation coefficient is calculated by the chief accountant at the end of the first month of the current half-year by multiplying the monthly consumer price growth indices in Russia for the previous half-year. This uses the official data of the Federal Service state statistics on the inflation rate in Russia for the previous half year. The resulting coefficient is applied from January 1 and July 1.

When carrying out each indexing, it is advisable to issue an order signed by the head, in which you need to indicate the specific value of the indexing coefficient and the date from which it is applied. The order will be the basis for calculating the salaries of employees in an increased amount. Here's a sample.

LLC "Trading company" Azimut "

ORDER No. 23
on the indexation of wages

moscow

In order to ensure an increase in the level of real salary content in accordance with Articles 130, 134 of the Labor Code of the Russian Federation and the Regulation on the indexation of income of employees of LLC " Trade company "Azimuth""

I ORDER:

2. Senior accountant M.I. Osechkina to charge wages taking into account indexation from July 1, 2012

Control over the execution of this order shall be entrusted to the chief accountant N. S. Maslova.

I have read the order:

Indexation \u003d pay rise?

Is the indexation of wages an increase and a change in the obligatory condition of an employment contract on payment for labor? art. 57 of the Labor Code of the Russian Federation?

In Rostrud they believe that it is.

FROM AUTHORIZED SOURCES

“Indexation of wages entails a change in its size or the size of its components (salary, allowances, additional payments). Terms of remuneration (including the size of the wage rate or salary ( official salary)) of the employee refer to the mandatory terms of the employment contract and must include art. 57 of the Labor Code of the Russian Federation.

Thus, a change in the amount of wages is reflected in labor contracts with employees and art. 72 of the Labor Code of the Russian Federation” .

Rostrud

But so that the employer does not prepare a huge number of documents before each indexation, it is possible to prescribe in the employment contract with each employee that the employee's salary is the salary, taking into account indexation. And also indicate that the indexation of salaries is carried out in accordance with the Regulations on the remuneration of employees of the organization.

4.3. The employee has a salary of 20,000 rubles, which is indexed once every six months in accordance with the Regulations on remuneration of LLC “Azimut Trading Company” dated 01.06.2005 No. 23- / 06-11, with which the Employee was familiarized before signing this labor contract.

True, there is another point of view, according to which the indexation of wages in connection with inflation is not an increase, because the real content of wages remains unchanged. In addition, the obligation of the employer to index the wages of employees in connection with the rise in consumer prices is directly provided for in the Labor Code of the Russian Federation. However, if we agree with this approach, then the indexation of salaries, in particular salaries, cannot be taken into account when calculating the average earnings for paying business trips, vacation pay, etc. p. 16 of the Regulations, approved. Government Decree of 24.12.2007 No. 922

With regret, we have to admit that currently the obligation to index is of a declarative nature. However, in our opinion, periodic salary indexation is beneficial for the employer, if only because it significantly increases the motivation and loyalty of employees. After all, by indexing wages, the employer demonstrates to the employees that he cares about them.

Experts will tell you how to properly index salaries in budgetary and commercial organizations, what features managers need to take into account.

In the article:

A selection of documents that need to be prepared for indexing:

When is salary indexation carried out in 2019

Since January 1, 2018, salary indexation for budgetary organizations at the federal level has been 4% (Government Decree No. 1456 dated December 2, 2017, Government order No. 2716-r dated December 6, 2017).

The salary increase by 4% occurred not only for all state employees, but also for civil servants. This percentage markup is linked to the inflation index.

Business entities in the extra-budgetary sphere have a number of questions related to indexation. This is due to the fact that article 134 of the Labor Code of the Russian Federation provides extensive information and indicates that general order indexation and increase in wages of employees in off-budget companies are established by labor, collective agreements or local regulations. With this in mind, many employers, personnel officers and accountants believe that wage increases are a right, but not an employer's obligation. This is not true.

In the definitions of the courts, in the letters of Rostrud dated April 19, 2010 under No. 1073-6-1 and dated December 26, 2017 under No. 14-3 / B-1135, a number of other informative acts explain that the employee has the right to receive a real increase in wages... It should be noted that the employer determines the procedure for indexing wages independently, establishing the amount, method and frequency of wage increases. In the absence of indexation, employees have the right to file a complaint with labor inspection.

Useful table from "Systems Personnel". Indexation factors for child benefits

It must be taken into account that if the organization does not have a local act or a separate condition on indexing, then during the check the inspector will definitely pay attention to this fact, and will force it to immediately correct it. Each employer should provide for an appropriate indexation procedure, since he himself determines the criteria for increasing wages. The main thing is to correctly establish the size of the additive and the frequency, while everything must be formulated as concretely as possible, without using vague phrases.

Indexation of wages: determining the frequency

The Labor Code does not indicate specific terms of indexation and the increase rate. But at the same time, the need to index the wages of employees is directly related to the rise in consumer prices for household, foodstuffs and services.

Indexation of wages in 2019, as in all other years, should be carried out by both budgetary and commercial organizations (Article 134 of the Labor Code of the Russian Federation). The procedure for indexing wages for state employees is established by labor legislation and other regulatory legal acts. All commercial organizations have the right to independently resolve issues of increasing wages at the local level.

The frequency of the increase directly depends not only on the conscientiousness of the employer, but also on the financial capabilities of the company. By general rule, indexing is carried out annually.

Not every company has a collective agreement. Even if it is concluded, indexation is not always indicated in the employer's obligations. It is important to take into account that the wording "If the organization has financial capabilities" always raises a number of complaints from the regulatory authorities, since indexation refers to the employer's obligation, and not to the law.

Sample collective agreement

To correct the situation, you can make the appropriate changes to the collective agreement, to agreements, to local regulations, including in the case when the procedure for indexing wages was not spelled out in the documents. In one of these documents provide a separate chapter, which describes the procedure for indexing. The second way to remedy the situation is to issue a separate local indexing act. All employees of the organization are introduced to the established procedure for increasing salaries on receipt.

Indexation of public sector wages in 2019

Indexation of wages in 2019 for state employees is planned.

From October 1, 2019, the salaries of federal state employees are planned to be indexed by 4.3%. Government agencies and GRBS were instructed to take appropriate measures. The basis is the order of the Government of 13.03.2019 No. 415-r.

More than two million state employees and civil servants will be subject to the indexation of salaries in 2019. The previous indexation affected only certain categories of state employees.

Journal "Personnel business", No. 4, April 2019 Indexation of wages: new positions of the Ministry of Labor and the Supreme Court

The law obliges the employer to index wages, but does not specify how commercial companies should do this. For budgetary organizations, indexation criteria are determined by regulatory ...


The procedure for indexing wages

The salary indexation coefficient for 2019 for state employees and civil servants is determined by the Government of Russia. At the same time, in commercial organizations, the employer has the right to independently choose the indexation value. The most common way is to increase tariff rates or salaries by a certain factor.

Attention! The specific size of the increase in wages is determined by static data on inflation, by the rise in prices in a particular region, by changes in the total cost of the consumer basket.

If the organization is subject to industry agreements, the provisions of the specific industry agreement must be considered when determining the boost index. With this option, there is no need to independently determine the indexation coefficient.

If the organization is not subject to any agreements, the indexing factor may correspond to the following indicators:

  • the officially established consumer price index for the country or region based on the results of the relevant period;
  • the total amount of inflation recorded in the annual federal law on the federal budget or the budget of the constituent entities of Russia, on the territory of which the organization operates;
  • the general growth of the living wage for the working-age population, and so on.

For the annual indexation of wages, it is rational to use the annual inflation rate, and for the quarterly one, take into account the subsistence minimum. When calculating the indexation coefficient, the starting indicators do not refer to the mandatory value. If the procedure has not been determined by the labor, collective agreement, you can choose an arbitrary indexation value. So, if the projected inflation rate is 5 percent, it is permissible to raise wages by 3, 5 or 6 percent. The employer has the right to choose any other indicators.

Indexation of wages: indexation order

In accordance with the terms of the collective agreement or local act, the employer decides on indexing and draws up it.

Sample order for the indexation of wages

Changes to staffing table

Based on the issued order, changes are made to the staffing table. This can be done in two ways. In the first method, the staff is drawn up in new edition and approve by order. This will visually reflect all changes in the table. The second way is to issue an order to amend the current staffing table. After the preparation of the administrative document in the "Note" section indicate the number, date of the order to make changes.

Supplementary agreement to the employment contract

An additional agreement to the main employment contract is concluded with the employee. When indexing, the terms of remuneration are changed, which are considered mandatory conditions of the TD (employment contract). The additional agreement is made which points of the TD are changed. Typical form such a document has not been developed and approved, therefore, an additional agreement is drawn up in any form.

Salary Indexing Supplementary Agreement

The employer's liability for evasion of wage indexation

For non-compliance with all requirements of labor legislation, including the mandatory indexation of employee salaries, employers and officials of the organization bear administrative responsibility.

An employer can be found guilty of evading indexation of wages, taking into account two circumstances affecting the amount of the fine:

  1. Indexation provisions are specified in the collective agreement and in any other local regulation of the organization.
  2. The employer regularly reviews the size of employees' salaries when consumer prices rise.

If the provisions on indexation are not established in the collective agreement and in the local regulatory legal acts of the organization, then the company faces a fine (part 1 of article 5.27 of the Administrative Code of the Russian Federation):

  • for officials - from 1000 to 5000 rubles;
  • for organizations - from 30,000 to 50,000 rubles.

If the employer has established an indexation procedure, but at the same time the salaries of employees have not been revised, during the inspection of the inspection he will receive an order to pay employees in full not only the amount that should be paid as a result of indexation. He will also have to pay interest in the amount of 1/150 of the refinancing rate of the Central Bank of the Russian Federation for each overdue day (Article 236 of the Labor Code of the Russian Federation).

Those employers who have independently established the indexation of wages are also fined lower than that established by the industry agreement, provided that it applies to the organization.

The employer is required to index the wages of his employees, as consumer prices for household goods, food products and services rise. Indexation affects all employees without exception.

At the same time, the employer determines the coefficient of increase in the organizations of the commercial sector independently. The employer can be held liable if he has not determined the indexing procedure, does not follow it, or does it on an irregular basis.

This is not the goodwill of the employer and must be carried out without fail. However, many employers are of the opinion that the indexation of wages is their good will.

Even if it is possible to convince the first instance court of the recommendatory nature of the indexing, it is unlikely that such a decision will be resisted by a higher court. Therefore, it is better for the employer to develop a local act and regulate in it all the issues of the indexation of employees' salaries, especially since the Labor Code of the Russian Federation provides the employer with such an opportunity. It is in the employer's interest to identify as many factors as possible that affect the indexing procedure. For example, the employer may provide that the company's losses are the reason why the indexation is not carried out, and that he is not obliged to raise wages by a specific amount for certain period time. The employer also has the right to determine the frequency of indexation at its own discretion. It should be noted that not every employee will work, for example, for 5 years. An indexing interval that is too long can cause unnecessary claims, so it is better to carry out it at least once a year.

The absence of a wage indexation procedure in the law does not remove the employer's obligation to carry it out. The Labor Code of the Russian Federation provides that budgetary organizations index wages in the manner prescribed by law. At the same time, other employers must index wages in the manner prescribed by the collective agreement or other local regulations (Article 134 of the Labor Code of the Russian Federation).

In practice, this rule raises questions as to whether indexation of wagesthe right or obligation of a commercial organization, and whether it can be avoided. In this case, the rationale could be the fact that indexation is simply not provided for in the collective agreement. At the same time, this point of view is controversial, and the literal interpretation of Art. 134 of the Labor Code of the Russian Federation does not speak in favor of the employer.

This norm directly states that employers "produce" the indexation of wages. This formulation implies the imperativeness of the norm. That is, it is the obligation that has been established, and not the right to index wages.

The same conclusion follows from the ruling of the Constitutional Court of the Russian Federation of June 17, 2010 No. 913-О-О, which states that the indexation of wages should be carried out by everyone working under an employment contract.

On the same path goes arbitrage practice... At the same time, Rostrud noted that the indexation procedure was not established by law. Only the obligation to carry out indexing is established, but it is not explained how exactly this should be done. At the same time, he explained that such a procedure must necessarily be enshrined in the local acts of the employer.

The lack of such an order in local acts can be regarded by the regulatory authorities as a violation of Art. 5.27 of the Administrative Code of the Russian Federation.

At the same time, some courts of first instance conclude that if the appropriate procedure has not been established, then the employer has no reason to index. The position is based on the fact that the court cannot independently establish the rules for the indexation of wages, and therefore the employer is not obliged to make indexation if he does not have such a procedure.

However, the jurisprudence of the higher courts confirms the illegality of this position. So, the courts indicate that if the indexation of wages is not provided for labor contract, then the employer is obliged to determine the procedure for indexing and fix it in the collective agreement, agreement, local regulatory act. Thus, the employee's decision on indexing is subject to satisfaction even in the absence of such an order in local acts.

If the procedure for indexing wages is not established, then the employer increases the risk of claims, both from the labor inspectorate and the employees of the organization themselves.

It would be more correct to make indexation dependent not only on the inflation rate or the growth of consumer prices, but also on other indicators. For example, from the financial performance of the organization or the compliance of the established salary with the market level. This can provide additional reasons for saving, however, in this case, you need to be ready to justify your decision about the absence of the need to index wages. Such a decision can be justified, for example, by recording in writing the results of independent research on the correspondence of the salary for a particular position to the average market indicator.

When setting the indexation size, the employer has the right to choose any indicator. Since the procedure for indexing wages is not legally fixed, the employer has the right to establish its size and frequency of its conduct independently.

By determining the period, the employer has every right to make indexing, for example, monthly, quarterly, once a year or once every several years. At the same time, there is a risk that setting too large an interval between indexing may cause unnecessary interest from the labor inspectorate or the employees of the organization themselves. This is due to the fact that not every employee will work in the organization for a long time; accordingly, those who quit are deprived of the right to indexation. For a long period of time, the purchasing power of wages will remain lower than it would have been if indexed more frequently. Therefore, it is not recommended to set the indexation frequency for more than a year.

As for the size of such indexation, the employer can choose from several indicators as a guideline. So, the indication in the Labor Code of the Russian Federation to carry out indexation in connection with an increase in consumer prices means only that such an increase is the basis for its implementation, but not a mandatory indexation value.

For the convenience of determining the size of indexation, the consumer price index for the country as a whole or in a particular region is most often used. Also, the employer can take as a basis the amount of inflation specified in the law on the federal budget or the budget of the corresponding region in the territory of which the organization is located. The percentage of growth in the subsistence minimum of the working-age population in the country as a whole or in a specific region is often used as an indicator.

The employer also has the right to use other indicators reflecting the dynamics of growth in prices for goods and services. But if the procedure for indexing is not determined, then the court may apply a specific indicator for indexing it, namely the consumer price growth index

Losses of the organization - a reason not to index

Some organizations, in the context of the annual indexing, indicate that for its implementation necessary condition is the company receiving positive financial results. At the same time, some courts support the position that the receipt of losses by the enterprise based on the results of the financial year indicates that there is no reason for indexation. The position is based on the fact that labor legislation does not contain mandatory rules for indexing commercial organizations... If a specific date of indexation has not been set, then the violation can be recognized as continuing.

The employee has the right to collect the difference in wages, taking into account indexation, within three months from the day when he learned or should have learned about the indexation (Article 392 of the Labor Code of the Russian Federation). The term missed for a good reason may be restored by the court.

In the case of indexation, the date of the violation will be the date when the employer should have made it, but did not. If the term for going to court has expired, and good reason there are no passes, then the court will most likely refuse to satisfy the employee's claim.

Thus, we can conclude that if the organization did not set a specific date for indexing and at the same time it was not carried out, then such an offense can be considered continuing (by analogy with a delay in wages). In this case, the employer's statement that the employee missed the deadline for going to court cannot serve as a basis for refusing to satisfy his claim.

In practice, the question arises about the need to make changes regarding the amount of remuneration in labor contracts with employees in connection with the indexation. Considering this issue, it is necessary to be guided by Art. 134 of the Labor Code of the Russian Federation, which implies that the indexation of wages is aimed at increasing the level of its real content. That is, indexation is inherently not an increase in wages ... Indexation is only one of the ways to protect workers' incomes from inflation due to rising consumer prices. In this case, it does not matter whether the labor contract provides for a condition on the indexation of wages or not. Thus, it will be enough for the employer to provide in the employment contract a reference to the local normative act, in accordance with which the indexation will be carried out. There is no need to amend employment contracts.

Indexation of wages in 2015

In past years, many companies could afford to index employee salaries. But the devaluation of the ruble has become a serious hindrance to this glorious tradition.

Indexation is an increase in the wages of all employees of a company without exception, as a rule, by applying increasing coefficients to their tariff rates (official salaries).

For whom salary indexation is required

According to article 134 of the Labor Code, indexation is a state guarantee for working citizens, which ensures an increase in the level of real wages.

Rostrud considers indexing mandatory for everyone

Rostrud's letter dated 19.04.2010 No. 1073-6-1 states that both budget organizations and commercial companies are obliged to carry out indexation.

Budgetary organizations carry out indexing on the basis of the relevant order of the Government of the Russian Federation or the executive body of the Russian Federation.

Commercial companies must themselves develop an indexation procedure and fix it in a collective agreement, agreement or local regulation. Note that until now, many heads of commercial companies regard the Rostrud letter dated 19.04.2010 No. 1073-6-1 as a recommendatory document, not mandatory for use.

The opinion of the arbitrators of the Constitutional Court

Previous position. In the Determination of the Constitutional Court of the Russian Federation of June 17, 2010 No. 913-О-О, the possibility of indexation was made dependent on circumstances significant both for the employees and for the employer.

If, for example, the company was unprofitable, it could not have funds for indexation. Therefore, the demand for an increase in wages due to an increase in consumer prices for goods and services, in the opinion of the judges, was not subject to satisfaction (Appellate ruling of the Kostroma Regional Court of May 26, 2014). And such circumstances could not be considered as violating the constitutional rights of workers (clause 2 of the RF Constitutional Court Determination No. 913-О-О of June 17, 2010).

The absence in the collective or labor agreement of a condition on indexation was also recognized by the judges as a legal basis for refusing to carry it out (Appellate ruling The Supreme Court Of the Republic of Bashkortostan from 23.07.2013).

This conclusion applies to both budgetary and commercial organizations.

A new look at indexing. Last year, in the Decision No. 1707-O of July 17, 2014, the arbitrators of the Constitutional Court of the Russian Federation indicated that the employer has no right to deprive employees of the guarantees provided by the law and to evade the establishment of the indexation procedure in a collective or labor agreement or in a local normative act.

How an employer avoids wage indexation in practice

An employer may try to ...

... remove the indexation clause from the collective agreement

Employee consent is a serious obstacle. A collective agreement is one of the forms of social partnership, which is aimed at streamlining labor and other related relations (part 1 of article 27 of the Labor Code of the Russian Federation).

The list of conditions and obligations of the collective agreement is determined by its two parties: the employer and employees (part 1 of article 41 of the Labor Code of the Russian Federation). By signing such a bilateral document, the employer cannot unilaterally amend it. It is unlikely that the other party (employees) will agree to the cancellation of the indexation condition.

Punishment for the absence of an indexation condition. If indexing is not provided in local act and accordingly is not carried out, the company may be fined in the amount of 30,000 to 50,000 rubles, and for a repeated violation - from 50,000 to 70,000 rubles. (parts 1 and 4 of article 5.27 of the Administrative Code of the Russian Federation).

If it comes to court. The arbitrators will take into account the Definition of the Constitutional Court of the Russian Federation dated 17.07.2014 No. 1707-O. The reference to the absence of an indexation clause in the text of the collective agreement is no longer a ground for refusing to carry it out.

... the indexing condition is simply not met

According to part 2 of article 22 of the Labor Code, the employer must comply with the terms of the collective agreement.

Control over the employer's compliance with the terms of the collective agreement is exercised by trade unions or other representatives elected by employees (Articles 29, 31 and Part 1 of Article 370 of the Labor Code of the Russian Federation)

Administrative responsibility. If the collective or labor contracts contain a clause on indexation, but in fact it is not carried out, the employer can be held administratively liable under Article 5.31 of the Code of Administrative Offenses of the Russian Federation: warning or imposition of an administrative fine in the amount of 3,000 to 5,000 rubles. (Article 55 of the Labor Code of the Russian Federation).

To do this, a trade union or other representative body of workers must apply to the body for the settlement of collective labor disputes - the labor inspection (Article 23 of the Federal Law of 12.01.96 No. 10-FZ, clause 5.5.10 of the Regulation on Federal Service on labor and employment, approved by the Government of the Russian Federation of June 30, 2004 No. 324).

Going to court. At the same time, the union cannot go to court to oblige the employer to comply with the collective agreement. This conclusion follows from the Ruling of the Supreme Court of the Russian Federation dated 25.01.2013 No. 44-KG12-5.

The judges pointed out that non-compliance with the terms of the collective agreement on the indexation of wages is an unresolved collective labor dispute (Article 398 of the Labor Code of the Russian Federation). Such a dispute is not resolved in court, but with the help of conciliation procedures provided for in Article 401 of the Labor Code (Articles 402-404 of the Labor Code of the Russian Federation):

- consideration of the dispute by the conciliation commission (mandatory stage);
- consideration of a dispute with the participation of a mediator, if it was not possible to reach an agreement at the first stage;
— labor arbitrationif it was not possible to resolve the dispute at the second stage. When creating an arbitration tribunal, the parties undertake to comply with its decisions (part 1 of article 404 of the Labor Code of the Russian Federation), therefore they are binding.
But the employee himself can apply to the court with an individual claim to restore his violated rights (Art. 398-418 of the Labor Code of the Russian Federation). Such individual labor disputes are subject to consideration and resolution in civil proceedings (part 2 of article 383 of the Labor Code of the Russian Federation, Determination of the Supreme Court of the Russian Federation of February 24, 2004 No. 75-B04-1).

This means that the court may oblige the employer to pay the employee not only the amount by which his salary for a certain period should be indexed, but also compensation for its late payment (Appeal ruling of the Moscow City Court dated 04.10.2013 No. 11-25768 / 2013) ...

Please note: for such claims, employees are exempt from payment of duties and legal costs regardless of the outcome of the case (Article 393 of the Labor Code of the Russian Federation, Determination of the Supreme Court of the Russian Federation of December 23, 2011 No. 18-B11-100).

... not to index if the company is in the process of reorganization and liquidation

When reorganizing a company, the owners often violate the labor rights of employees, because the optimization of assets, liabilities and staff is always a difficult moment. Some employers believe that the collective agreement is not valid during the reorganization period. But this is not the case.

Reorganization in the form of transformation - Part 4 of Art. 43 of the Labor Code of the Russian Federation;
Reorganization in the form of merger, acquisition, division, separation - is valid during the period of reorganization. Loses effect after the end of the reorganization. To extend the validity of the old collective agreement (for up to three years) or conclude a new one, it is necessary to conduct collective bargaining (Chapter 6 of the Labor Code of the Russian Federation). Employees of both reorganized companies must represent the interests of employees.
Change of name - Part 4 of Art. 43 of the Labor Code of the Russian Federation;

Change of the form of ownership of the company - continues to operate for three months from the date of transfer of ownership of Part 5 of Art. 43 of the Labor Code of the Russian Federation;

Liquidation - continues to operate during the liquidation period of Part 8 of Art. 43 of the Labor Code of the Russian Federation.

Establish grounds for temporary suspension of indexing

In the light of the Definition of the Constitutional Court of the Russian Federation dated July 17, 2014 No. 1707-O, such actions of the head are now illegal. True, in arbitration practice and after the publication of the said Definition, the courts occasionally took the side of the employer.

So, in the Decision of the Moscow City Court of 12.09.2014 No. 4g / 1-9076 it is indicated that the employer's obligation to index wages is not unconditional, but depends on various factors, including economic indicators organizations. If the company has unfulfilled monetary obligations, including debts to employees on the basis of judgments, this indicates the difficult financial situation of the company and, consequently, the absence of conditions for salary indexation.

As you can see, after the Decision of the Constitutional Court of the Russian Federation of 17.07.2014 No. 1707-О was adopted, formally, there was no reason left not to index wages. However, today's realities are such that:

— this decision RF Constitutional Court may be revised;
- lower courts will be able to substantiate decisions of a different orientation, taking into account not only the letter of the law, but also the actual position of the employing company.

Changing the frequency of indexing

If the employer wants to change the frequency of indexation or the coefficient and the consumer price index for the inflation index, will the consent of workers be required to apply the new rules to wages, or is he entitled to do this unilaterally?
- In the event that the procedure for indexing the wages of employees of the enterprise is fixed in a local act, its change will require compliance with the procedure for adopting local acts established by Art. Art. 8, 372 of the Labor Code of the Russian Federation. In the absence of a local act at the enterprise governing the issues of indexation of wages, including the frequency and size of indexation, but when the employer actually indexes wages, no agreements with employees will be required to apply the new indexation rules, since such rules are neither earlier nor later are not fixed by anything.

- If the employer decided to carry out an extraordinary increase in the wages of employees, will this be a reason not to index wages in a certain period?
- An extraordinary indexation of workers' salaries will violate the frequency of consideration of the issue of indexation, that is, violate the procedure established by a local act, but will not violate the rights of workers. In this case, there will be no grounds for actually re-indexing (within the period specified in the employer's local act). Although, indexation several times a year in violation of the order established at the enterprise will also not be a violation of the rights of employees. See the positions of courts in similar situations, when indexation was actually carried out by employers, but either in violation of the established order at the enterprise, or in the absence of an established order at all.

The full text of Art. 134 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 134 of the Labor Code of the Russian Federation.

Ensuring an increase in the level of real wages content includes the indexation of wages in connection with an increase in consumer prices for goods and services. State bodies, local governments, state and municipal institutions make indexation of wages in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms, other employers - in the manner prescribed by the collective agreement, agreements, local regulations.

Commentary on Article 134 of the Labor Code of the Russian Federation

1. One of the main state guarantees for wages is the adoption of measures to increase the level of real wages ().

According to the provisions of the commented article, ensuring an increase in the level of real wages content includes the indexation of wages in connection with the rise in consumer prices for goods and services.

Thus, under Art. 134 of the Labor Code of the Russian Federation, the employer's obligation to periodically index wages is due solely to an increase in consumer prices for goods and services. Indexation of wages is aimed at ensuring that wages grow at no less pace than prices for goods and services.

The consumer price index is calculated in accordance with the Basic Provisions on the Procedure for Observing Consumer Prices and Tariffs on Goods and paid servicesprovided to the population, and the definition of the consumer price index, approved by the Resolution of the State Statistics Committee of the Russian Federation of March 25, 2002 N 23.

The consumer price index is important indicator, characterizing inflationary processes in the country, and is used, inter alia, for the purpose of revising the minimum social guarantees for the population, characteristics of changes consumer spending population for goods and paid services in the current period compared with the previous (base) period under the influence of changes in prices for these goods and services in certain regions and Russian Federation generally.

2. The legislator provides that state bodies, local self-government bodies, state and municipal institutions carry out indexation in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms.

For example, according to the provisions of the letter of the Ministry of Health and Social Development of the Russian Federation of May 20, 2011 N 22-1 / 10 / 2-4937 "On the indexation of wages of employees of organizations financed from the budgets" in the federal budget for 2011 and for the planning period of 2012 and 2014 budget allocations were determined based on the indexation in 2011 of wage funds for employees of federal government agencies from June 1, 2011 by 6.5%. In this regard, the indexation of wages of employees of subordinate institutions from June 1, 2011 was ensured within the specified allocations.

Other employers make indexation of wages in accordance with the procedure established by the collective agreement, agreements, LNA.

In the letter of Rostrud dated April 19, 2010 N 1073-6-1 "On the indexation of wages and the possibility of establishing irregular working hours for part-time workers" it is indicated that if the LNA of the organization does not provide for such a procedure, given that the indexation salary is the responsibility of the employer, it is necessary to make appropriate changes (additions) to the LNA operating in the organization.

According to R. Yakovlev, “the state does not establish any guarantees regarding the wages of workers with an increase in consumer prices for goods and services. At the same time, the owner of the organization can understand the words "indexation order" as he wants. It is no coincidence that in many collective agreements the chosen order is described succinctly: "The employer indexes wages as the necessary funds are found."

________________
Yakovlev R. On the regulation of wages in the Russian Federation // Man and Labor. 2008. N 1.

Similar information is provided by A. Zuikov, who indicates that, "as a rule, indexing is carried out only large companiesjoining sectoral agreementsin which this obligation is recorded. IN small organizations such adjustment of the wage bill is practically not practiced. And if there is a mention of indexation in a collective or labor agreement or an internal normative act, then with the proviso: "If the employer has financial capabilities."

________________
Zuikov A. Indexation of wages: "guarantee" law // Information bulletin "Express-accounting". 2012. N 21.S. 17.

However, on the issue of the constitutionality of the provisions of Art. 134 of the Labor Code of the Russian Federation The Constitutional Court of the Russian Federation draws attention to the fact that the indexation of wages, by its legal nature, is a state guarantee for the remuneration of employees and should be provided to all persons working under an employment contract.

At the same time, regulatory provisions granting employers who do not receive budgetary funding the right to independently establish the procedure for indexing wages, provide them with the opportunity to take into account the entire set of circumstances that are significant for both employees and the employer, and cannot be considered as vague and violating their constitutional rights (see the definition of the Constitutional Court of the Russian Federation of June 17, 2010 N 913-О-О).

In addition to the indexation of accrued wages, other amounts related to delayed wages are subject to recalculation.

So, according to clause 55 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation, the accrual of interest in connection with the late payment of wages does not exclude the employee's right to index the amounts of delayed wages due to their depreciation due to inflationary processes.

Another comment on Art. 134 of the Labor Code of the Russian Federation

1. Real wages are the volume of those goods and services that an employee can actually acquire for his nominal (monetary) wages. This volume depends not only on the value of the nominal wages, i.e. from the size of the wage rate (official salary), additional payments, allowances, incentive payments and bonuses that are established to the employee in accordance with the terms of the collective agreement and labor contract, as well as with the provisions on remuneration in force in the organization, but also on the price level for goods and services. The rise in prices leads to a decrease in real wages, even while maintaining its nominal size and, as a result, to a decrease in the standard of living of the population. As one of the state guarantees for labor remuneration, the application of measures has been established to ensure an increase in the level of real wages.

2. Among the measures ensuring an increase in the level of the real content of wages, first of all, is the indexation of wages in connection with the growth of consumer prices for goods and services. The procedure for indexing was established by the Law of the RSFSR of October 24, 1991 N 1799-1 "On the indexation of monetary income and savings of citizens in the RSFSR". The mechanism stipulated in this Law, unfortunately, has not been applied to wages even once. After this Law was declared invalid (Article 156 of the Federal Law of August 22, 2004 N 122-FZ), the indexation procedure has not been determined.

3. Along with indexation, the Law of the RSFSR "On the Indexation of Monetary Income and Savings of Citizens in the RSFSR" provided for the possibility of using other methods state regulation income of the population. In the Russian Federation, such a method of ensuring an increase in the level of real wages content is used as a regular revision of minimum size wages, which since the adoption of the said Law has increased almost 3000 times (taking into account the denomination of the ruble in 1998).

4. The procedure for revising the size of the minimum wage in state bodies, local self-government bodies, state and municipal institutions is established by laws and other regulatory legal acts of bodies state power Of the Russian Federation, subjects of the Russian Federation or local authorities. The procedure for changing the size of the minimum wage in organizations funded from federal budget, is set in federal laws and acts of federal executive bodies. The change in the size of the minimum wage in organizations financed from the budgets of the constituent entities of the Russian Federation is established by acts of the state authorities of the relevant entities, in organizations financed from local budgets - by acts of local government.

5. The order of indexation of wages in organizations that are not financed by the budget is established by a collective agreement, agreement or local regulations. These acts must establish an indexation mechanism, including its frequency, the procedure for determining the value of indexation, a list of payments to be indexed, etc. To ensure equality of rights and opportunities for workers and to prevent discrimination, indexation should be applied to the wages of all categories of workers. However, since in accordance with Part 3 of Art. 3 of the Labor Code is not discrimination, the establishment of differences and preferences, which are due to special care for people in need of increased social protection, and these include people with low incomes, it is possible to index the wages of only those workers whose income is below the level established for these goals in a collective bargaining agreement, agreement or local regulation (for example, below the subsistence level).

6. Since the indexation of wages is not an increase in its size established by an employment contract, but a method of increasing its real content provided by law, the employee's consent to indexation is not required.

Legal advice and comments on Article 134 of the Labor Code of the Russian Federation

If you still have questions about Article 134 of the Labor Code of the Russian Federation and you want to be sure of the relevance of the information provided, you can consult the lawyers of our website.

You can ask a question by phone or on the website. Initial consultations are held free of charge from 9:00 to 21:00 daily Moscow time. Questions received from 21:00 to 9:00 will be processed the next day.

The indexation of wages provided for in Article 134 of the Labor Code differs from bonuses, compensations, subsidies and other additional payments. If the indicated charges depend on the output, achievements, or, on the contrary, any negative conditions of the work process, then the recalculation of income depends on the economic situation in the country as a whole.

Article 130 of the Labor Code of the Russian Federation includes obligations to increase earnings in guarantees provided by the state. However, an increase in wages is provided only for the personnel with whom employment contracts have been drawn up.

For those employees who receive remuneration under civil law agreements, salary indexation is not provided.

Indexation of wages is calculated depending on how and from what source the organization is financed.

Budget enterprises index the earnings of their employees, based on labor laws and other regulations.

But private companies are guided by internal rules, which are described in local acts and collective agreements.

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Despite the fact that the legislator tried to protect the rights of employees and stipulate a regular increase in earnings in connection with the inflationary processes taking place in the country, the mechanism for implementing these provisions has not been fully worked out.

So, for example, the law does not say anything about the salary indexation periods in 2018 and the calculation procedure, which gives unscrupulous management the opportunity to freely interpret legal norms. However, the emerging jurisprudence in this area makes it possible to determine the basic principles that fill the gaps in the implementation mechanism.

Employer's obligation or right

As follows from legal regulations, indexation is the employer's responsibility. This is confirmed. It directly states that employers should prescribe the procedure for recalculation in the local regulations of the enterprise.

At the same time, businessmen can focus on:

  • rise in prices in the regions;
  • the growth of the living wage;
  • inflation on regional level;
  • inflation at the federal level.

Each employer in its own way determines the frequency and indexation coefficient of wages for 2018, the law does not stipulate the obligation to increase earnings, guided by the publications of Rosstat. However, the established jurisprudence proves that such indicators should be taken as the smallest threshold for increasing wages.

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Indexation procedure

First you need to create a document-basis for the increase in salary. Such a local act should contain the following information:

  • payments that need to be increased;
  • frequency of conduct;
  • the calculation procedure;
  • how wages will be calculated after recalculation.

note

The payments that need to be indexed are the salaries or tariff rates set by the enterprise. It should be borne in mind that it is possible to recalculate not the entire salary, but only part of it.

Most often, the management leaves all additional payments unchanged, which are calculated as a percentage of the main income.

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The frequency of the increase in payments is left to the discretion of the employer. Recalculation can be carried out once a month, quarterly, six months, a year, or other periods. But the prevailing business customs suggest that earnings should be increased at least once a year. The calculation of the coefficient determines what exactly the employer is guided by when increasing wages.

Example of calculating wage indexation

At Lokomotiv LLC, the chief technologist receives 35,000 rubles, the senior technologist has a salary of 20,000 rubles, and the assistant technologist receives 14,000 rubles.

The internal acts of the company established that salary indexing is carried out annually based on the CPI indicator for the Russian Federation. Earnings in January are recalculated based on the results of the previous year.

The increase in prices for January-November 2017 in relation to the values \u200b\u200bof January-December 2016 was determined at the rate of 102.1%. The conversion factor is 1.02.

Therefore, salaries for 2018 will be as follows: chief technologist 35,000 rubles. * 1.02 \u003d 35,700 rubles. senior technologist 20 000 rub. * 1.02 \u003d 20 400 p. assistant technologist 14 000 rub. * 1.02 \u003d 14,280 p. From the beginning of 2018, payment for the labor of these specialists must be made in the calculated amounts.

Indexation of public sector wages in 2018: the latest news

If an organization increases the salary of its employees, focusing on the CPI indicators for Russia, then the indexation coefficient of wages for 2018 will be 1.02 (the price increase for January-November 2017 in relation to the values \u200b\u200bof January-December 2016 is set at 102.1% ). However, there are some nuances.

In the public sector

Earlier, by the so-called "May decrees" of the president, issued in 2012, some of the state employees were indexed in accordance with the inflation rate.

In 2018, the salaries of "unauthorized" public sector employees (employees of those professions that did not fall into the "May decrees") will be indexed by 4%.

This provision is established by the decree of the Government of the Russian Federation of December 6, 2017 No. 2716-r. It says that salaries budget workers should be increased from January 1, 2018 to the inflation rate in 2017 (the same 4%).

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This ratio will be applied to earnings:

  • employees of federal government, budgetary and autonomous institutions;
  • employees of federal government agencies;
  • civilian personnel military units, institutions and subdivisions of federal executive bodies in which the law provides for military and service equivalent to it.

The rest of the institutions, financed from the state or municipal treasury, must increase the salaries of their employees according to the rules that are developed by higher authorities on the basis of existing laws.

Indexation of wages in 2018 in commercial organizations

Commercial organizations still determine the procedure for indexing themselves.

However, businessmen should take into account that, according to the forecasts of the Central Bank of the Russian Federation, inflation in 2018 will be about 4%, and the CPI indicators are 102.1%.

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Order on the indexation of wages in 2018

To recalculate payments, you need to draw up an order. The legislator has not provided for a uniform form for such a document, therefore it is drawn up arbitrarily, with reference to the legislation. In such an order, as a rule, the following information is displayed:

  • the size of salary indexation;
  • the basis for calculating the coefficient;
  • the employee who is made responsible for the recalculations;
  • order details (date, number);
  • notes on familiarization with the order of the workers mentioned in it.

The recalculation posted automatically changes the conditions labor agreements with people. Therefore, it is required to conclude with employees additional agreements to labor contracts.

In the "supplement", information on the amount of new earnings and the date from which the increased payment will be paid is indicated. It is worth considering that such additional agreements will have to be signed every time, because the size of the salary (or tariff rate) will change every time.