Do I need a regional coefficient for the minimum wage. Is it necessary to charge a regional coefficient on the regional minimum wage? How to calculate the regional coefficient to wages

The minimum wage and the district coefficient in 2018 - about whether there is a relationship between these values, read our article. We will consider this issue not only from a theoretical point of view, but also analyze the current judicial practice.

Is the regional coefficient included in the minimum wage?

Northern district coefficients and allowances due to workers in the regions of the Far North or in territories with a similar legal status should not be taken into account when analyzing whether the level of remuneration of these persons meets the requirements of the law.

This rule is confirmed in the established judicial practice (for example, section 1 of the “Review of the practice of consideration ...”, approved by the Presidium of the Supreme Court of the Russian Federation on February 26, 2014, determination of the Supreme Court of the Russian Federation of December 21, 2012 No. 72-KG12-6).

Let's summarize: the employee's salary (all its components are implied in the amount: salary, tariff rate, bonuses, surcharges, etc. - see article 129 Labor Code RF), which has completed the full work time, is established in the amount of at least the minimum wage (including regional - in the cases specified in Article 133.1 of the Labor Code of the Russian Federation). And only then raycoefficients are already charged on it.

The issues of remuneration for the work of persons working part-time are disclosed in more detail in our other article: “In what cases is part-time work established?”

Regional minimum wage and district coefficient: what does the salary include?

Even if the employer organization is a party to a regional agreement on the minimum wage level in a given constituent entity of the Russian Federation (Article 133.1 of the Labor Code of the Russian Federation), the mechanism for determining whether the salary level meets the requirements of the law in terms of exceeding or being at the level of the minimum wage remains the same. Regional coefficients are not used in this case, but all other payments in addition to the salary and the tariff rate - bonuses, surcharges, allowances - are subject to accounting.

The main difference in this case is that the level of the employee’s salary is not compared with the federal minimum wage, which is equal to 9,489 rubles from 01/01/2018. (see Article 3 of the Law “On Amendments…” dated December 28, 2017 No. 421-FZ). It is compared with the regional one (see, for example, the “Moscow tripartite agreement for 2016-2018 between the Government of Moscow, Moscow trade unions and Moscow associations of employers”).

The regional minimum wage cannot be lower than that regulated at the federal level.

Is the regional coefficient charged on the minimum wage?

The question of accruing regional coefficients can be answered in the affirmative in cases where such accrual is required, i.e., the employee actually performs his labor functions in the regions of the Far North or in territories with a similar status.

At the same time, the size of the district coefficient depends on the place of actual management. labor activity employee, and not from the address of registration or the location of the employer itself (see letter from Rostrud dated 01/15/2016 No. ТЗ / 23333-6-1).

Determination of the correspondence of the level of wages to the established minimum wage should be made even before the calculation of the coefficient for the amount of remuneration to the employee for work.

So, in order to determine whether the established salary complies with the requirements of labor legislation, all components of the salary, including bonuses or surcharges, should be taken into account when calculating, but the district coefficient is not used in this case.

When calculating the district coefficient, it should also be taken into account that its size is determined by the actual place of work performed by the employee of the organization, and not by the location of the employer.

In accordance with Art. 148 of the Labor Code of the Russian Federation wages at work in areas with special climatic conditions is carried out in the manner and in the amount not lower than those established by labor legislation and other regulatory legal acts containing labor law norms.

Joint Decree of the USSR State Committee for Labor, the Secretariat of the All-Union Central Council of Trade Unions dated July 2, 1987 No. 403 / 20-155 “On the size and procedure for applying regional coefficients to wages workers and employees for whom they are not established, in the Urals and in the production sectors in the northern and eastern regions of the Kazakh SSR, a regional coefficient was approved for the wages of workers and employees of enterprises, organizations and institutions located in the Republic of Bashkortostan, in the amount of 1.15.

Article 2 of the Labor Code of the Russian Federation defines the basic principles of legal regulation labor relations and other relations directly related to them, to which, based on generally recognized principles and norms international law and in accordance with the Constitution of the Russian Federation include, among other things, ensuring the right of each employee to fair working conditions and ensuring the right of each employee to the timely and full payment of fair wages that ensure a worthy existence for him and his family, and not less than the federal minimum wage

According to Part 1 of Art. 129 of the Labor Code of the Russian Federation, wages include remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation payments(surcharges and allowances of a compensatory nature, including for work in conditions that deviate from normal, work in special climatic conditions and in territories subjected to radioactive contamination, and other compensation payments) and incentive payments (additional payments and allowances of a stimulating nature, bonuses and other incentive payments).

In accordance with Part 3 of Art. 133 of the Labor Code of the Russian Federation, the monthly salary of an employee who has fully worked out the standard of working hours for this period and fulfilled the labor standards ( labor obligations) cannot be lower than the minimum wage.

By virtue of the requirements of Art. 146 of the Labor Code of the Russian Federation, the labor of workers employed in areas with special climatic conditions is paid at an increased rate.

Thus, in the sense of the above provisions of the law, the additional payment to the salary in the form of a regional coefficient is not related to the volume and (or) quality of the work performed, but depends only on natural conditions areas where work is performed, namely for work and residence with adverse climatic conditions. Otherwise, the goal is diminished, for the achievement of which wage supplements are established in the form of a regional coefficient for work in areas with adverse climatic conditions. It follows that when developing a wage system, the employer must establish a reasonable differentiation of wages, including depending on conditions in which work is carried out.

From the analysis of the above legislation, it follows that if the employee fulfills the labor norm during the month and worked the norm of time during this period, he is guaranteed the payment of the minimum wage regardless of the climatic conditions in which it performs labor function , that is, even when the work is performed in normal climatic conditions, and therefore compliance with the requirements of Art. Art. 146, 148 of the Labor Code of the Russian Federation Russian Federation for employees working in special climatic conditions, it is possible only if compensation for work in such conditions is calculated on the amount of the MRO, and is not included in it.

Decision No. 2-1654/2015 2-1654/2015~M-1546/2015 M-1546/2015 dated November 23, 2015 in case No. 2-1654/2015

Belebeevsky City Court of the Republic of Bashkortostan

Decree of the Constitutional Court of the Russian Federation No. 38-P dated 07.12.2017 considered the issue of including the district coefficient and the percentage allowance accrued in connection with work in areas with special climatic conditions, in particular in the regions of the Far North and areas equated to them, in the composition of the minimum the amount of wages (hereinafter - the minimum wage).

Labor law provisions

In accordance with Part 2 of Art. 146 and Art. 148 of the Labor Code of the Russian Federation, the labor of workers employed in areas with special climatic conditions is paid at an increased rate; remuneration for work in such areas is made in the manner and in amounts not lower than those established by laws and other regulatory legal acts.

According to Art. 315 of the Labor Code of the Russian Federation, remuneration in the regions of the Far North and equivalent areas is carried out using regional coefficients and percentage bonuses to wages. At the same time, the size of the district coefficient and the percentage allowance, the procedure for their application for calculating the salaries of employees of organizations located in the regions of the Far North and areas equivalent to them, are established by the Government of the Russian Federation (Articles 316 - 317 of the Labor Code of the Russian Federation). In addition, the organs state power subjects of the Russian Federation and bodies local government has the right at the expense of funds, respectively, from the budgets of the subjects of the Russian Federation and the budgets municipalities establish higher district coefficients for government agencies subjects of the Russian Federation, public institutions subjects of the Russian Federation, local authorities, municipal institutions. A normative legal act of a constituent entity of the Russian Federation may determine the maximum size of the increase in the regional coefficient established by the municipalities that are part of the constituent entity of the Russian Federation.

According to Part 1 of Art. 133 of the Labor Code of the Russian Federation, the minimum wage is established simultaneously throughout the territory of the Russian Federation by federal law and cannot be lower than the subsistence minimum for the able-bodied population. The monthly salary of a person who has fully worked out the standard of working hours for this period and fulfilled the labor standards (labor duties) cannot be lower than the minimum wage.

At the same time, Art. 133.1 of the Labor Code of the Russian Federation provides that in a constituent entity of the Russian Federation, a regional agreement may establish the minimum wage for employees of the region, with the exception of employees of organizations financed from the federal budget.

For your information: Employees of the Ministry of Health and Social Development in their Letter dated 07/09/2010 No. 22-1-2194 noted that wages, including incentive and compensation payments, cannot be lower than the minimum wage. In this case, it is allowed to establish a tariff rate, salary (official salary) below this amount.

Position of arbitrators

In the commented ruling, the arbitrators noted that increased wages due to work in special climatic conditions should be made after determining the amount of wages, taking into account the requirement to ensure the minimum wage. This means that the district coefficient (coefficient) and the percentage allowance accrued in connection with work in areas with special climatic conditions, in particular in the regions of the Far North and equivalent areas, cannot be included in the minimum wage. If we assume the opposite, then the monthly salary of workers who have fully worked out the norm of working hours in areas with special climatic conditions would not differ from the wages of people working in regions with a favorable climate. Thus, the guarantee of increased wages in connection with work in special climatic conditions would lose its real content.

Consequently, the district coefficient and the percentage allowance must be calculated in excess of the minimum wage for persons employed in work in areas with special climatic conditions.

Note that this is not the only ruling. Previously, the arbitrators were of the opinion that the inclusion of a district coefficient and a percentage allowance in the minimum wage depends on the area in which the employee works:

- if he works in the regions of the Far North and areas equated to them, then the salary should be set in the amount of at least the minimum wage, after which it is necessary to accrue a regional coefficient and a percentage bonus for the length of service in these areas and localities (Review of the Armed Forces of the Russian Federation of February 26 .2014, definitions of the Armed Forces of the Russian Federation of July 29, 2011 No. 56-B11-10, of June 24, 2011 No. 3-B11-16). This is due to the fact that Art. 315 of the Labor Code of the Russian Federation establishes that remuneration in the regions of the Far North and equivalent areas is carried out using regional coefficients and percentage bonuses to wages;
- if he works in areas with special climatic conditions that do not belong to the regions of the Far North and equivalent areas, in this case the right to increased wages, established by Art. 146 of the Labor Code of the Russian Federation. By virtue of Art. 133 of the Labor Code of the Russian Federation prerequisite when accruing a monthly salary to an employee who has fully worked out the norm of working hours for this period and fulfilled labor standards (labor duties), it is the establishment of its size not lower than the minimum wage. For these workers, the salary, including the district coefficient and the percentage allowance, exceeds the minimum wage. So, the rights of such workers are not violated. These clarifications were presented in the Ruling of the Supreme Court of the Russian Federation dated 08.08.2016 No. 72-KG16-4.

In conclusion, we note that the commented decision is a decision of the Constitutional Court of the Russian Federation, which put an end to the current dispute. He pointed out that the minimum wage is a general guarantee provided to employees, regardless of the locality in which they work (Part 3, Article 37 of the Constitution of the Russian Federation). According to Part 1 of Art. 133 of the Labor Code of the Russian Federation, the minimum wage is set simultaneously throughout the territory of the Russian Federation, that is, without taking into account the climatic conditions of various regions of the country. Accordingly, the district coefficient and the percentage allowance accrued in connection with work in areas with special climatic conditions, in particular in the regions of the Far North and equivalent areas, are not included in the minimum wage. In addition, for setting wages in a smaller amount than determined by labor legislation, an administrative fine is provided for, Part 6 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation: for officials- in the amount of 10,000 to 20,000 rubles; for legal entities- from 30,000 to 50,000 rubles.

In our Krasnoyarsk Territory, employees are provided with wages for the payment of coefficients and allowances for work in special climatic conditions, which corresponds to Art. 146 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation). Recently, there has been a lot of controversy in determining the minimum wage (minimum wage), whether the coefficients and allowances for work in special climatic conditions should be included in the minimum wage or whether they are charged in excess of the minimum wage. Art. 133 of the Labor Code of the Russian Federation provides that the monthly salary of an employee who has fully worked out the norm of working hours and fulfilled labor standards (labor duties) cannot be lower than the minimum wage.

Previously, in law enforcement practice, there was a unified approach to solving this issue that the wages of workers in special climatic conditions should be higher than the minimum wage before the application of the district coefficient and the allowance, and this point of view was supported by the Supreme Court of the Russian Federation.

But in 2016, the Supreme Court of the Russian Federation, within the framework of definitions in specific cases, twice recognized the above approach as unjustified by law and ruled that regional coefficients and allowances are included in the minimum wage. The practice of the highest judicial body was picked up by the courts of general jurisdiction and the employees were forced to apply on this issue to the Constitutional Court of the Russian Federation. On December 7, 2017, the Constitutional Court of the Russian Federation put an end to this dispute, to which residents of the Republic of Karelia, the Irkutsk Region and the Altai Territory applied. The Constitutional Court of the Russian Federation decided to charge "northern" allowances in excess of the minimum wage.

Hearing of the case on the verification of the constitutionality of the provisions of Art. 129, 133 and 133 of the Labor Code of the Russian Federation passed on November 14.

Trade unions have repeatedly demanded not to include district allowances in the minimum wage. A few years ago, the FNPR held a campaign in all regions “You give the minimum wage according to the law!”, During which workers who receive wages at the minimum wage level filed lawsuits accompanied by trade union activists.

Last year, the railway workers' union collected signatures for its initiative on the ROI website to amend Art. 133 of the Labor Code of the Russian Federation so that compensation, incentives and social payments are not included in the minimum wage. In early June, more than 130,000 signatures for maintaining the structure of the federal minimum wage and not including district coefficients in it in the Committee on Regional Policy, Problems of the North and Far East The State Dumas of the Russian Federation were handed over by representatives of the All-Russian Electroprofsoyuz.

FNPR chairman Mikhail Shmakov at a May meeting with Russian President Vladimir Putin said that compensation and incentive payments should be charged on the minimum wage "from above", and the president agreed that the issue "needs to be worked out": "The position of the government and mine is that There is no reason to include these allowances in wages.” Not so long ago in the regions there was a series of trade union rallies on the same occasion, including in the Arkhangelsk region. And in the Constitutional Court, the position of the applicants was represented by a trade union lawyer. That is why we believe that the judgment proclaimed on December 7, 2017 is an unconditional common victory for the trade unions.”

“Trade unions have challenged the constitutionality of these articles because they allow employers to interpret the law as they see fit,” says Nikolai Gladkov. Federation Secretary independent trade unions Russia, K. Yu. n. - And calculate salaries either as "minimum wage plus" northern, or as "northern" within the minimum wage. The court ruled that regional coefficients and allowances (Articles 316, 317 of the Labor Code of the Russian Federation) are charged to actual earnings. Not even to the minimum wage. It is to the salary, which, as you know, includes a salary plus incentive and compensation payments. To all this salary, to the total amount, the regional coefficient and the percentage allowance are charged. The applicants filed their complaints precisely on this issue”.

Recall that residents of the Republic of Karelia, the Irkutsk region and the Altai Territory applied to the Constitutional Court of the Russian Federation. When calculating their salaries, the regional coefficient and the percentage allowance for work in areas with special climatic conditions are included in the minimum wage (SMIC). The courts refused to allow the applicants to recalculate their salaries, taking into account the allowances. Meanwhile, the applicants believe that allowances should be charged in excess of the minimum wage established by federal law and their inclusion in the minimum wage violates the principle welfare state and the constitutional principle of equality: workers who work in adverse conditions are subject to the same social guarantees the same as other workers. In practice, the contested provisions allow the employer to set a salary, the amount of which, taking into account the regional coefficient and the percentage allowance for work in an area with special climatic conditions, does not exceed the minimum wage. Therefore, the applicants reached the Constitutional Court, challenging the norms that do not comply with Art. 7 hours 2, 17, 19, 37 hours 3, 55 of the Constitution of the Russian Federation.

Resolution of the Constitutional Court

On December 07, 2017, the Constitutional Court proclaimed the ruling on its official website: “ Legal regulation in the field of remuneration should be based on the principles of equality and fairness, allowing to determine wages based on the qualifications of the employee, objective criteria of labor activity and taking into account the conditions for its implementation. Remuneration for work not lower than the established minimum wage is guaranteed to everyone, and its value is established simultaneously throughout Russia. However, the geographical location of the country obliges to take into account the negative impact that work has on human health in special climatic conditions, including in the regions of the Far North. To do this, the legislator has established a system of special guarantees and compensations, including increased wages - district coefficients and percentage bonuses. The Constitutional Court has repeatedly emphasized that the wage system must also comply with the norm guaranteeing a conscientious employee a salary not lower than the minimum wage, and other norms of labor legislation, in particular, the rule on higher wages in the northern regions. Such increased payment must be made after the determination of the salary and the fulfillment of the minimum wage requirement.

Accordingly, the district coefficient and the percentage allowance cannot be included in the minimum wage. Otherwise, wages in areas with special climatic conditions might not differ from wages in regions with a favorable climate. Thus, the guarantee of increased wages in adverse conditions would lose its real content, turning into a fiction, and the right of citizens to compensation for increased costs would be violated. The constitutional principles of equality and fairness would also be violated, from which the duty of the state follows to ensure fair wages based on objective criteria and to prevent the application of the same rules to workers in different situations.

Thus, the challenged norms do not contradict the Constitution, since they do not imply inclusion in the minimum wage in the subject of coefficients and allowances accrued in connection with work in special climatic conditions. The federal legislator has the right to improve legislation in this area, including taking into account the legal positions of the Constitutional Court of the Russian Federation. The applicants' cases are subject to review."

According to the decision of the Constitutional Court, regional coefficients and "northern" allowances not only should not be included in the minimum wage (minimum wage), but, on the contrary, should be charged on all wages.

The unions view the court's ruling as a complete victory, confirming that all their demands for "net minimum wage" payments were and are fair. In the near future, the FNPR intends, through the subjects of legislative initiative, to stimulate the introduction of amendments to certain articles of the Labor Code, so that no one else has any questions about what is included in the minimum wage.

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Many accountants are concerned about the question: is it necessary to calculate the district coefficient when paying wages equal to the minimum wage?

The situation is not simple, because in the event of unlawful non-accrual of the district coefficient, the employer may be held administratively liable on the basis of Article 5.27 of the Code of Administrative Offenses of the Russian Federation “Violation of labor and labor protection legislation”. In the case of "excessive" accrual and payment of the district coefficient, these amounts during a tax audit may be recognized as unlawfully included in the number of expenses that reduce taxable income.

So, let's turn directly to the norms of labor legislation.

In the previous version of Article 129 of the Labor Code of the Russian Federation, the legislator established the concept of the minimum wage. The article clearly stated that “the amount of the minimum wage does not include additional payments and allowances, bonuses and other incentive payments, as well as payments for work in conditions that deviate from normal, for work in special climatic conditions and in territories exposed to radioactive pollution, other compensation and social payments”.

In the current version of this article, the concept of the minimum wage is absent. However, there is a definition of wages (remuneration) of an employee. So, wages are:

- remuneration for work (salary, tariff rate);

— compensatory payments (surcharges and allowances of a compensatory nature, including for work in conditions deviating from normal, work in special climatic conditions and in territories subjected to radioactive contamination, and other compensation payments);

- incentive payments.

Monthly accrued wages (remuneration) of an employee who has fully worked out the norm of working hours (fulfilled the norms of labor), including salary ( tariff rate), compensatory and incentive payments and other types of payments provided for by the remuneration system, cannot be lower than the minimum wage (Article 133 of the Labor Code of the Russian Federation). Let me remind you that from January 1, 2009, the minimum wage is 4,330 rubles per month.

As you can see, in the minimum wage, the legislator took into account all the elements of wages, including regional rates. Above the minimum wage, the district coefficient does not need to be calculated.

The rule is unfair. This is due to the fact that the regional or so-called "northern" coefficients in different regions differ significantly from each other. If, for example, in the city of Kirov the district coefficient is 15%, then in some districts of the Komi Republic it is already 30%. But if the employee's wages correspond to the minimum wage, then in both Kirov and Komi he will receive one amount equal to 4,330 rubles.

Chervotkin Dmitry

Head of Taxpayer Protection Department, Arso-Audit LLC

Art. one federal law dated 19.06.2000 N 82-FZ

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All articles Payroll from the minimum wage.

The Supreme Court of the Russian Federation has lost the meaning of the district coefficient (Egorov V.)

Federal Law No. 54-FZ of April 20, 2007 “On Amendments…”, which entered into force on September 1, 2007, from Art. 129 of the Labor Code of the Russian Federation, part two was excluded, which established that the amount of the minimum wage does not include compensatory, incentive and social payments. Nine years later, the Supreme Court of the Russian Federation, in Ruling No. 51-KG16-10 of September 19, 2016, concluded: if the monthly salary of an employee, taking into account the salary for the position, the regional coefficient, the northern allowance, exceeds the federal minimum wage, then the employer does not violate the law. We will talk about how the locals reacted to this discovery in this article.

Took under the visor

cleaning lady kindergarten M. was given a salary of 5,400 rubles, as well as a 30% bonus for work in an area equivalent to the regions of the Far North, and 30% - a regional coefficient. Total 8 640 rubles.
She filed a lawsuit, stating that she should have paid 12,000 rubles. (7,500 rubles x 60%).
M. substantiated her claim by the fact that the size of the minimum wage cannot be lower than 7,500 rubles.
At the same time, remuneration for work performed in the regions of the Far North and equivalent areas is carried out using regional coefficients and percentage bonuses to wages (Articles 148, 315, 316 and 317 of the Labor Code of the Russian Federation).
To this, the Pudozhsky District Court (Republic of Karelia), in its decision of April 12, 2017 N 2-158 / 2017, indicated that it follows from the provisions of the Labor Code of the Russian Federation that the amount of salary as an integral part of the monthly wage may be lower than the minimum wage.
M.'s arguments that, in accordance with Art. Art. 146, 148 of the Labor Code of the Russian Federation, the labor of workers employed at work in areas with special climatic conditions is paid at an increased rate, and also that remuneration for work in areas with special climatic conditions is made in the manner and in amounts not lower than those established by labor legislation and other regulatory legal the acts containing the norms of labor law, the court declared insolvent, since the payment of the district coefficient is already included in the monthly salary of the plaintiff. Thus, the right of M. to an increased amount of wages in connection with the implementation of labor activities in areas with special climatic conditions is not violated.
On this basis, the court dismissed M.'s claim.
At the other end of the country, an auxiliary worker in a kindergarten, K., who works at 0.5 rates, was paid 2,743 rubles. and compensation payments: 50% - district coefficient, 50% - northern allowance.
He decided that his salary should be half the minimum wage (3,750 rubles), and he should be credited with the district coefficient and the northern allowance.
However, the Verkhnebureinsky District Court ( Khabarovsk region) in decision No. 2-336/2017 dated March 9, 2017, K. objected, pointing out that the labor legislation does not provide for a condition according to which the amount of salary as an integral part of the monthly salary determined by the employer for the employee cannot be lower than the minimum wage. By virtue of Art. 133 of the Labor Code of the Russian Federation, a prerequisite for the calculation of monthly wages for an employee who has fully worked out the norm of working hours for this period and fulfilled labor standards (labor duties) is only the establishment of its size not lower than the minimum wage. On this basis, K.'s claim was dismissed.
A similar decision was made by the Arkhangelsk Regional Court in the Appeal ruling dated March 6, 2017 N 33-1412/2017.

The local minimum wage is also without a district coefficient

The secretary of the secondary school K. was paid a salary for January 2017 in the amount of 7,587 rubles.
The prosecutor applied to the court with a demand to pay K.'s salary in the amount of 8,100 rubles.
He substantiated this by the fact that according to the Regional Agreement "On the minimum wage in the Komi Republic" in the southern regions of the republic, the minimum wage is 8,100 rubles.
The Knyazhpogostsky District Court (Republic of Komi), in decision No. 2-286/2017 dated April 10, 2017, agreed with the calculation of the stated claims indicated in the claim, since it was made in accordance with the norms of the current legislation.

Are these circumstances new?

However, there were enough courts that at one time decided that the district coefficient should be charged on the minimum wage.
So, the Petrovsk-Zabaykalsky City Court (Zabaikalsky Krai), in its decision of November 25, 2016 N 2-1089 / 2016, stated that in their area the minimum wage is considered as follows: 7,500 rubles. x 1.7, where 7,500 rubles. - Minimum wage, 40% - regional coefficient and 30% - northern allowance. It was echoed by the Sayan City Court of the Irkutsk Region (decision of December 27, 2016 No. 2016 N 2-1050/2016).
After the appearance of the Rulings of the Armed Forces of the Russian Federation dated 08.08.2016 N 72-KG16-4, dated 09/19/2016 N 51-KG16-10, many organizations applied to the courts with applications to review previous decisions due to new circumstances in accordance with Art. 392 Code of Civil Procedure of the Russian Federation.
So, secondary school applied to the court with an application to review the decision of the Turochaksky District Court of the Republic of Altai dated May 13, 2016 N 2-174 / 2016 on imposing the obligation to set the salary of a teacher without taking into account the district coefficient in the amount of not less than the minimum wage, to contribute to labor contract changes in terms of setting wages without taking into account the regional coefficient in the amount of not less than the minimum wage, on the recovery of underpaid wages.
On this Supreme Court Republic of Altai in the Appellate ruling dated 12.04.2017 N 33546/2017 stated that the cancellation of the executed judgment in connection with the change by the highest judicial body after the issuance this decision interpretation of the norms of law underlying it will lead to a deterioration legal status employee as obviously more weak side in labor relations.
According to the legal position of the Constitutional Court of the Russian Federation, set out in the Ruling of December 16, 2010 N 1650-О-О, the limitation of the reverse recovery from the employee of the amounts paid to him on the basis of a court decision that has entered into force is one of the guarantees and aims to maintain a balance the rights and interests of the employer and employee, who, as a rule, do not have other sources of income, except for wages and payments that compensate for its loss.
In itself, the consolidation of procedural guarantees of protection labor rights of employees participating in good faith in the litigation of an individual labor dispute is aimed at ensuring the implementation of the constitutional right of employees (as a weaker party in an employment relationship) to judicial protection and is consistent with the provision of Art. 1 of the Labor Code of the Russian Federation, which provides for the establishment of state guarantees of the labor rights of workers as the goal of labor legislation.
On this basis, the court found no grounds to satisfy the complaint.
The Supreme Court of the Republic of Tuva in the Appellate Ruling dated February 21, 2017 N 33-551 / 2017 proceeded from the fact that the Ruling of the Judicial Collegium for Civil Cases of the RF Armed Forces dated September 19, 2016 N 51-KG16-10 is not a decision of the Presidium of the RF Armed Forces or a decision of the Plenum of the Supreme Court RF, therefore, is not a new circumstance, respectively, the basis for the cancellation of the court decision in accordance with Art. 392 Code of Civil Procedure of the Russian Federation.
But the Trans-Baikal Regional Court in the Appellate Ruling dated April 13, 2017 N 33-1631 / 2017, on the contrary, decided that the legal position set forth by the Supreme Court of the Russian Federation entails a change in the enforcement of the above norm and affects the essence of the already considered dispute. Under such circumstances, the court decided that the review of the case on new grounds was lawful and justified.

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The decision of the Constitutional Court, which decided to charge the Northern in excess of the minimum wage, looks extremely timely ...

... the existing problem has long been dubbed the call sign "Minimum wage + Northern". In the wording, the essence is either to consider the northern ones included in the minimum wage, or to charge the northern ones in excess of the minimum wage.

It is clear that the domestic bureaucracy would like to work according to the first option.

For citizens who work in the North, the second option is better.

For such Arctic regions as the Arkhangelsk region, the issue of "minimum wage + Northern", or "minimum wage including Northern", has become the most acute. More than a year there was a battle for the truth. And today the battle is over...

In the Federation of Trade Unions of the Arkhangelsk Region (FPAO), there is an atmosphere of relief - they do not drink champagne, since it is the middle of the week, but there is satisfaction from the difficult path overcome.

For several years, FPAO has been fighting for the accrual of "northern" allowances in excess of the minimum wage (minimum wage).

How was the fight? FPAO took over the legal support function. And in this way, through the courts, the trade unions managed to achieve the payment of many tens of millions of rubles of “northern” ones that were not additionally accrued by employers to the wages of workers.

But it was a struggle with varying success. After the victories there was the bitterness of defeats ...

If at first the courts in the Arkhangelsk region took the side of the workers on the issue of calculating regional coefficients and "northern" allowances in excess of the established minimum wage - that is, they agreed with the validity of the practice of the minimum wage + NORTHERN, then the situation changed radically ...

So on January 16, the Arkhangelsk Regional Court satisfied the appeal of the director of one of the Centers additional education Vinogradovsky district of the Arkhangelsk region, who considered that the minimum wage ALREADY INCLUDES NORTHERN.

Thus, the regional court, it is not clear from whose suggestion and it is not clear what guided by, decided that the 7800 rubles of the minimum wage also includes the NORTHERN - a percentage allowance for work in the North.

Then few believed in the success of continuing the struggle. But the unions decided not to give up...

The Chairman of the Federation of Trade Unions of the Arkhangelsk Region, Alla Safonova, already then noted that the position of the Supreme Court of the Russian Federation on this issue was ambivalent and drew attention to a direct and irremovable contradiction - further, the quote:

- Until August 2016, the position set out in the Review judicial practice of the Supreme Court, was that the "northern" allowances should be accrued in excess of the minimum wage.

Later, the directly opposite position of the Supreme Court was published: wages, together with the regional coefficient for work in the regions of the Far North and areas equivalent to them, as well as a percentage bonus for the length of service in the regions of the Far North and areas equivalent to them, can be equal to the minimum wage.

At the same time, the aforementioned Review of Judicial Practice was not cancelled.

End of quote.

The contradiction led to a significant destabilization of the socio-economic situation in a number of regions, including the Arkhangelsk region.

So, for five years in the Arkhangelsk region, unlike most other subjects of the Russian Federation, it was not possible to conclude a regional agreement on minimum wages. One of the key contradictions was precisely in the dispute about whether to include "northern" allowances in the amount of the minimum wage.

As a result, the regional minimum wage in the Arkhangelsk region has been at the level of the federal minimum wage for 5 years. The working people are furious...

The only way to somehow raise the salary of workers in the Arkhangelsk region of the region to the level of the subsistence level in central Russia is the accrual northern coefficients and allowances above the minimum wage ...

This was obvious, but the workers and the trade unions of the Arkhangelsk region that came to their defense had to achieve this through the courts and the prosecutor's office for more than one year.

The struggle went on gradually and on several fronts at once ...

Here is the chronicle of this struggle ...

June 22 at a meeting of the Arkhangelsk Regional Tripartite Commission on the initiative of the FPAO signed by all three parties social partnership- executive power, employers and trade unions - an appeal was made to the State Duma on the need to amend the Labor Code of the Russian Federation in terms of establishing the concept of minimum wage.

In May–August 2017, requests were collected from labor collectives addressed to the Russian government and State Duma deputies with demands to return the previous version of Article 129 to the Labor Code.

The answer that came from the Duma Labor Committee, social policy and Veterans Affairs was frankly not in the interests of the people.

This is to put it mildly...

The answer said that at that time there were several bills in the State Duma on the ratio of the minimum wage and the components of wages. Specific terms of consideration of these legislative initiatives were not reported.

For the whole of 2017, the Federation of Trade Unions of the Arkhangelsk Region carried out the actions “Minimum wage according to the law!”.

- Our position has always been clear: compensatory and incentive payments should be charged in excess of the minimum wage. The decision of the federal authorities to gradually increase the minimum wage to the subsistence minimum does not cancel the struggle of the trade unions for the exclusion of compensation and incentive payments from the minimum wage. First of all, "northern" allowances and regional coefficients.

End of quote.

In fact, the trade unions of the Arkhangelsk region insisted that it is necessary to return the concept of the minimum wage to the Labor Code as amended in 2007 ...

Namely, the Trade Unions demanded to determine that the minimum wage is the minimum wage for the work of an unskilled worker working for simple jobs and under normal working conditions.

In other words, the unions insisted that the minimum wage was official salary. And not a penny more...

Meanwhile, the Government of Russia managed to submit a bill to the State Duma for consideration, according to which, from January 1, 2018, the federal minimum wage will increase by 1,689 rubles and amount to 9,489 rubles.

And this was slyness. For, the government bill did not specify what kind of payments are included in this amount.

In essence, the bill introduced, it turned out that everything would be included in the 9,489 rubles of the new minimum wage - northern allowances, regional coefficients, additional payments for work experience, for harmful conditions labor, etc.

Alla Safonova - Chairman of the Federation of Trade Unions of the Arkhangelsk Region then clearly laid out the essence of the demands of the workers - further, the quote:

- We believe that from January 1, 2018, for workers in the North, a socially fair wage formula should look like this: minimum wage (9,489 rubles salary + 4% surcharge for harmfulness + 30% for work experience + 25% monthly bonus) x district coefficient x percentage premium.

That is, from January 1, 2018, the amount of 9489 rubles should not include, for example, such compensation payments as an additional payment for harmfulness, a regional coefficient and a percentage allowance, as well as, for example, such incentive payments as an additional payment for work experience and a bonus.

The district coefficient and the percentage allowance, according to Article 315 of the Labor Code of the Russian Federation, are charged on the entire salary, therefore, in the example considered, the salary of an employee working in the North should be 25,648.76 rubles.

End of quote.

The question is now...

Now the inexorable eve of 2018...

Collisions that are expected to be extremely unfavorable, both for the economy and for the legal field…

Due to the fact that there is no clear concept of the minimum wage, fatal contradictions may arise as early as January 1.

If the minimum wage is increased by 1,689 rubles at a time, then only with the calculation of the regional coefficient and the "northern" allowance, this amount will have to be more than 16 thousand rubles in the Arkhangelsk region (16,131 rubles in areas equivalent to the Far North and 20,876 rubles in areas of the Far North ).

Not every employer wants to pay such a salary.

In order to “optimize” their costs, employers could begin to cut staff, remove some of the employees from the state, change the working hours (for example, offer work not full-time, but 0.9 rates) or reduce the labor rate.

Therefore, until the concept of the minimum wage is enshrined in the Labor Code of the Russian Federation as amended in 2007, the Federation of Trade Unions of the Arkhangelsk Region intends to carry out the action “Simum wage according to the law!”.

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Should district coefficients be included in the minimum wage or not?

If the minimum wages are calculated incorrectly in an institution, there is a high probability of labor disputes. Moreover, the court will require salaries to be recalculated, even if the minimum wage is formally the correct size, but when determining it, regional coefficients and allowances are not taken into account.

Why is it impossible to include district coefficients in the minimum wage?

v The relationship between district payments and the minimum wage.

Is there a district coefficient for the minimum wage? Article 129 of the Labor Code of the Russian Federation establishes that the salary of an employee of an enterprise for work depends on the level of complexity of his work, quantity, quality. The composition of wages includes compensation payments: allowances and additional payments.

To understand whether a district coefficient is charged on the minimum wage, it is necessary to understand the concept of "district coefficient".

This is an indicator that is used to determine the amount of wages based on work in difficult climatic conditions. Article 148 of the Labor Code of the Russian Federation says that work is paid in a special manner for citizens who work in regions with an unfavorable climate. This order means an increased amount of earnings. If an employer, for example, is located in the regions of the Far North, has subdivisions and branches there, he must pay wages taking into account the regional coefficient. His obligation is enshrined in Article 316 of the Labor Code of the Russian Federation.

Salary bonuses are accrued for the duration of work in the regions of the Far North (length of service). This is how the district coefficient is taken into account when determining the minimum wage. It is wrong to state that the district coefficient is included in the minimum wage. If an accountant includes a district coefficient in the minimum wage, he acts incorrectly, violating the rights of an employee working in adverse conditions. It is necessary to calculate the district coefficient for the minimum wage, but not include it in the indicator itself. Otherwise, it turns out that the workers of the Far North do not differ in terms of wages from other citizens working in normal climatic conditions. There is also no need to wind up the regional coefficient for the minimum wage, since the accountant must act within the framework of the law.

v What is written in the labor law.

Wage - this is remuneration for work, as well as compensation and incentive payments (part 1 of article 129 of the Labor Code of the Russian Federation). Moreover, compensation payments are accrued, including for work in special climatic conditions.

Part 3 of Article 133 of the Labor Code of the Russian Federation provides that the monthly salary of a person who has fully worked out the norm of working hours for this period and fulfilled labor standards (labor duties) cannot be lower than its minimum amount. At the same time, the labor of workers employed in areas with special climatic conditions is paid at an increased rate (p.

2 tbsp. 146 of the Labor Code of the Russian Federation).

It turns out that the employee is guaranteed the payment of the minimum wage, regardless of the climatic conditions in which he works. Therefore, the institution will comply with the requirements of labor legislation only if compensation for work in special climatic conditions is calculated on the amount of the minimum wage, and is not included in it.

v Arguments of the judges.

If an employee decides that he is underpaid, he can go to court. There is already extensive practice on the issue of calculating coefficients for the minimum wage.

§ So, Constitutional Court of the Russian Federation indicated the following. An institution as an employer is obliged to comply not only with the provisions of part 3 of article 133 of the Labor Code of the Russian Federation, but also with the norms of articles 146, 148, 315, 316 and 317 of the Labor Code of the Russian Federation. Including the rule on remuneration in the regions of the Far North and equivalent areas in an increased amount compared to the remuneration of identical labor in normal climatic conditions (determinations of February 25, 2010 No. 162-O-O and December 17, 2009 No. No. 1557-О-О).

§ BUT Supreme Court of the Russian Federation in the ruling dated October 7, 2011 No. 3-B11-31 clarified that the salary specific employee determined on the basis of the requirements of labor legislation, taking into account working conditions. At the same time, remuneration for work performed in the regions of the Far North and areas equated to them occurs using regional coefficients and percentage bonuses to wages. In other words, if the minimum wage does not charge a district coefficient for work in certain areas, then the meaning of this coefficient is lost.

§ This argument is actively used courts in the regions . For example, the Nizhneomsky District Court of the Omsk Region applied it in its decision of December 2, 2014 No. 2-548/2014, and the Petropavlovsky District Court of the Altai Territory - in its decision of November 28, 2014 No. 2-328/2014.

§ All of the above applies to the calculation of hospital benefits. SAC RF in the ruling dated May 26, 2014 No. ВАС-5881/14 indicated that in areas where there is a regional coefficient, it is necessary to first calculate the average daily earnings based on actual payments. Then compare the resulting value with the average daily wage based on the minimum wage increased by such a coefficient. And only after that, consider the allowance from a larger amount.

v Conclusions.

The salary of employees of organizations located in areas with special climatic conditions must be determined in the amount of at least the minimum wage established by federal law. After that, the district coefficient should be applied to it.

v How is the regional coefficient for the minimum wage calculated?

The Ministry of Labor establishes the minimum wage and regional coefficient for work in the Far North. The wages of workers who work in an unfavorable climate should not be less than the minimum wage. After its determination, allowances for the length of service and the district coefficient are accrued to wages. This provision follows from the definition of the RF Armed Forces dated 2012 No. 7212-b, as well as from other documents issued by the RF Armed Forces.

Example:

An employee of the enterprise receives a salary of 20,000 rubles.

The amount of bonuses and incentives fixed in the labor agreement is 5,000 rubles.

The coefficient that is applied in the area where he works is 20%.

In the event that the employee has worked the calendar month in full, the calculation is as follows:

salary 20,000 rubles + bonuses 5,000 rubles.

 

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