How to achieve a salary gain: a lawyer explained loopholes in law

Last year, employees of the budget sector indexed a salary by 3%. Meanwhile, the employees of private firms are not raised by the salary years, while inflation eats a significant part of income. Bankiros.ru talked to the Governing Partner of the Law Firm BLS Elena Kozhemyakina and learned whether it was possible to demand a pay for the law?

White stains of the law

The expert noted that salaries indexing is a sensitive and difficult topic for employers, as in difficult times, not all companies can afford to afford additional spending. In addition, the Labor Code (TK RF) indicates the indexation only casual: on the one hand it is mandatory for everyone, but how, when and how much to index the salary is not said.

"In fact, in the Labor Code there is one phrase in Article 134 -" Ensuring an increase in the level of real content of salaries includes indexation in connection with the growth of consumer prices, "says Kozhemyakina.

Meanwhile, there are already current judicial practice: the Supreme Court of the Russian Federation has repeatedly decided that if the law is established by the procedure for indexing, it means that it must be carried out. But in the very TK RF, it is only mentioned, and there is no clear order.

"In this regard, no year, labor inspection (GIT) believed: if the company has a local act about the annual wage raising - it is necessary to carry out if not -" no and no court, "explained the Bankiros.ru interlocutor.

It turns out that companies use the fact that Git does not respond to the fact that employers do not increase salary for years, although they are obliged to do this by law.

How exactly is the employer to index the salary?

According to Kozhemyakina, there are several options. The first - the firm may index the salary to a certain percentage, for example, by 3%, by 4%. The second is to develop a mechanism that may depend on the financial indicators of the enterprise for the year, the level of inflation and other parameters.

"The question with the regularity of indexation also remains open, because the law does not say anything about it. Theoretically, this can be done once a year, and once every three years. But one thing is invariably - it must be held in relation to all employees of the company, "the lawyer said.

In addition, according to Article 134 of the Labor Code of the Russian Federation, it is necessary that the real salary content has increased. That is, the indexation for 100 rubles. Labor inspection is likely to recognize fictitious.

Kozhemyakina summed up that indexation is a mandatory measure, but how to carry out it - can determine the employer itself, consolidating in its local acts. If these rules do not formulate, then in the case of inspections or court it will be difficult to prove its position.

What decision does the Supreme Court take, if the firm refuses to raise the salary?

The expert told that a year ago was an indicative matter. The Tyumen Regional Court considered the claim of the Deputy Director to his employer, who previously dismissed him to reduce it. An employee demanded to pay him compensation from 2012 to 2017. According to him, according to a collective agreement, the company was obliged to index the salary, but did not even determine how to do it, and did not hold it. The case was considered in several instances. The first - supported the employer, recognizing the awards that were paid to employees, the indexing method. The story reached the Supreme Court, which sent the case for a new consideration.

As a result, the appeal has changed its decision. The court recognized the guilt in the impassment of the salary indexation and recovered from the company almost 4.7 million rubles, of which 2.8 million rubles of debt on indexation, 1.75 million rubles - compensation under Art. 236 TK RF (compensation for salaries delay), 125 thousand rubles - expenses for the payment of services of the representative in court and 10 thousand rubles of moral damage.