Is the employer obliged to index the salary to employees annually? Explanations of the lawyer Superjob

Krympress reports:

The question of the need to conduct wage indexes annually faces many employers. The law does not clearly regulate this issue, and it may seem that indexation is not necessary. But this is not entirely true. Why? Says Alexander Yuzhalin, head of legal practice in Superjob.

In short: the indexation of wages is the obligation of all employers, without exception, established by Article 134 of the Labor Code of the Russian Federation. According to it, all employers are divided into two groups: state organizations (state bodies, local governments, state and municipal institutions) and all the rest (that is, non -state and, including commercial organizations).

For state organizations

For the first group, the indexation procedure should be determined by a separate regulatory act that will apply to a particular organization. This may be an order or order to conduct indexation of the state body under whose jurisdiction the organization is located.

For commercial organizations

There are no such separate regulatory legal acts for the commercial sector. The Labor Code of the Russian Federation allows these employers to independently decide how to index in their company. But such an indexation still needs to be carried out, and it should be associated with an increase in the level of real wages due to the growth of consumer prices for goods and services.

Indexing itself may look different. Here is how the definition of the Supreme Court of the Russian Federation sounds: “The Labor Code of the Russian Federation does not provide for any requirements for the indexation mechanism, therefore, employers who do not receive budget financing are entitled to choose any procedure and conditions for its implementation (including its frequency, the procedure for determining the value of indexation, The list of payments to be indexed) depending on specific circumstances, the specifics of their activities and the level of solvency ”(review of the judicial practice of the Supreme Court of the Russian Federation N 4, approved by the Presidium of the Supreme Court of the Russian Federation 11/15/2017).

Therefore, the employer decides for himself in what form to conduct indexation.

Indexing at the expense of premiums

Often employers close the issue of indexation at the expense of bonuses, which also does not contradict the requirements of the law if such an indexation procedure is assigned to the organization.

Supreme Court of the Russian Federation: “Based on the literal interpretation of the provisions of Art. 134 of the Labor Code of the Russian Federation indexation is not the only way to ensure an increase in the level of real wage content. The obligation to increase the real content of employees’ wages can be executed by the employer and by periodic increasing, regardless of the indexation order, in particular, by increasing the official salaries, the payment of premiums, etc. ” In other words, simply by increasing the employees of salaries or by paying bonuses, the employer may prove that he complies with the requirements established by Article 134 of the Labor Code of the Russian Federation.

Nevertheless, in order to avoid risks, it is better not only to increase salaries and pay bonuses, but also to prescribe the order of such indexation, which can subsequently refer to. Otherwise, the payment of bonuses or increasing salaries may be recognized as not related to the procedure for indexing wages in your organization.

Local regulatory act for indexing

In order to conduct indexation in a commercial organization, you need to develop a separate local regulatory act or include indexing conditions in the current local act (for example, in the regulations on remuneration). The law does not indicate what should be indicated in this local act, but based on the tasks that need to be solved using the document, it should be determined:

The frequency of indexation. Given the purpose of indexation (ensuring the increase in the real content of wages in connection with the growth of consumer prices for goods and services), it is recommended to produce wages annually;

The term of indexation.

The procedure for conducting indexation. It is necessary to determine the mechanism of indexation and set the size of indexation (or indicate how and what it is determined). There may be different options: setting a percentage of salary, increasing the size of wages in a solid amount, and so on. The employer has the right to choose the most convenient way for himself and describe it in a local act or collective agreement.

Indexation — an imperative duty

It is important to once again note that the law does not index wages depending on the desire or possibility of the employer. The indexation of wages should be made in relation to all employees who work under employment contracts.

The Supreme Court of the Russian Federation in the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation of 08.04.2019 N 89-kg18-14: “Article 134 of the Labor Code of the Russian Federation establishes an imperative duty of employers, including not related to the budget sphere, to index the wages employees in order to increase the level of real content of wages, its purchasing power. ”

The Supreme Court indicated: “The right of the employee to indexing wages does not depend on the discretion of the employer, that is, on whether he was fulfilled by the obligation to include the relevant provisions on indexation in local regulatory acts of the organization. The employer is not entitled to deprive employees of the guarantee provided for by law to increase the level of real wage content and evade the establishment of the indexation procedure. ”

Accordingly, the indexation should be carried out in any case, regardless of whether the organization has the established procedure for its conduct or not. The lack of wage indexation may serve as the basis for holding the employer liable under Part 1 of Article 5.27 of the Code of Administrative Offenses. If such a violation is identified, the inspection body may oblige the employer to establish indexation and indexation in the prescribed manner.

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