The organization pays employees a one-time remuneration on the anniversary date: 40, 45, 50, 55 and 60 years.
Is the amount of such remuneration subject to Unified Social Tax in terms of contributions to state extra-budgetary funds (FSS of the Russian Federation, Compulsory Medical Insurance Fund of the Russian Federation)?
According to Art. 236 of the Tax Code of the Russian Federation, the object of taxation for the unified social tax is payments and other remuneration accrued by taxpayers in favor of individuals under employment and civil law contracts, the subject of which is the performance of work, the provision of services, as well as under copyright agreements.
In accordance with paragraphs. 2 p. 1 art. 238 of the Tax Code of the Russian Federation, all types of compensation payments established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government (within the limits established in accordance with the legislation of the Russian Federation), including those related to compensation for harm, are not subject to taxation by the unified social tax caused by injury or other damage to health.
Clause 4 art. 237 of the Tax Code of the Russian Federation establishes that when calculating the tax base, payments and other remuneration in kind in the form of goods (work, services) are taken into account as the cost of these goods (work, services) on the day of their payment, calculated on the basis of their market prices (tariffs). And with state regulation of prices (tariffs) for these goods (works, services) - based on state regulated retail prices.
In this case, the cost of goods (works, services) includes the corresponding amount of value added tax, and for excisable goods - the corresponding amount of excise taxes.
According to Art. 129 of the Labor Code, wages (employee remuneration) - remuneration for work depending on the qualifications of the employee, complexity, quantity, quality and conditions of the work performed, as well as compensation payments (additional payments and allowances of a compensatory nature, including for work in conditions that deviate from normal, work in special climatic conditions and in areas exposed to radioactive contamination, other compensation payments) and incentive payments (additional payments and incentive allowances, bonuses and other incentive payments).
Art. 164 of the Labor Code establishes the concepts of guarantees and compensation. Thus, guarantees are the means, methods and conditions by which the implementation of the rights granted to employees in the field of social and labor relations is ensured. Compensations are monetary payments established for the purpose of reimbursing employees for costs associated with the performance of their labor or other duties provided for by the Labor Code and other federal laws.
In accordance with paragraph 4 of Art. 20 of the Federal Law of July 16, 1999 N 165-FZ “On the Basics of Compulsory Social Insurance,” types of payments for which insurance contributions are not charged are determined by the Government of the Russian Federation.
Decree of the Government of the Russian Federation dated January 5, 2000 N 9 approved the List of payments for which insurance contributions to the compulsory health insurance funds are not charged. The list of payments for which insurance premiums are not charged to the Social Insurance Fund of the Russian Federation was approved by Decree of the Government of the Russian Federation dated July 7, 1999 N 765.
Based on the above, only the payments specified in these Lists are not subject to the unified social tax in terms of contributions to the relevant state extra-budgetary funds. Moreover, the Lists themselves are exhaustive.
A similar opinion was expressed by the Russian Ministry of Finance in Letters dated 03/05/05 N 03-03-01-04/1/90 and dated 01/18/05 N 03-03-01-04/1/12.
Based on the provisions of the above norms, since a one-time remuneration for the anniversary date - 40, 45, 50, 55 and 60 years - is not mentioned in the above Lists, in this case the organization must accrue and pay a single social tax.
The validity of such conclusions is confirmed by judicial practice. Thus, the FAS of the Far Eastern District in Resolution dated 05/11/05 N F03-A04/05-2/809 indicates that payments made by the company for anniversaries and holidays are not indicated in the FSS of the Russian Federation, therefore they do not exempt the company from calculating insurance premiums for amounts paid to employees. Similar conclusions are set out in the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated January 11, 2006 N F08-6318/2005-2503A.
However, in Letter dated October 17, 2006 N 03-05-02-04/157, the Ministry of Finance of Russia comes to the conclusion that payment of bonuses to employees on holidays and anniversaries (50, 55, 60 years of birth) are not classified as expenses that reduce tax base for corporate income tax in the current reporting (tax) period, and these payments are not subject to the unified social tax on the basis of clause 3 of Art. 236 Tax Code of the Russian Federation.
There is also judicial practice with a position that is positive for taxpayers.
For example, in the Resolution of the Federal Antimonopoly Service of the West Siberian District dated October 2, 2006 N F04-6179/2006 (26651-A27-25), the court indicated that a one-time remuneration for the anniversary date - 50, 55 and 60 years - “is not included in the remuneration system employees and does not apply to payments for which insurance premiums are calculated; in addition, the net profit of the enterprise was used for these social payments.” According to the court, the basis for calculating contributions to the Social Insurance Fund of the Russian Federation is payments accrued for a certain labor result. Insurance premium rates are set for employers for payments accrued to employees. Accordingly, payments not included in the workers' compensation fund are not subject to contributions to the Social Insurance Fund.
Thus, taking into account the position of the Ministry of Finance of Russia on this issue, as well as the established arbitration practice, one-time remuneration for the anniversary date - 40, 45, 50, 55 and 60 years - paid to employees is not subject to the unified social tax in terms of contributions to the relevant state extra-budgetary funds (Compulsory Medical Insurance Fund of the Russian Federation and Social Insurance Fund of the Russian Federation).
True, there may be dissatisfied people (from among the consumers of these incentives). They say the sums are meager, they don’t pay anything for your birthday.
This can be avoided by inviting the team to the discussion and translating the joint result into a collective agreement. Or better yet, in a separate application to it.
Who calculates incentive payments to employees?
Such a worthy official is chief accountant or simply accountant. He must know the procedure for calculating and calculating incentive payments, and know the formulas for calculating them, which will be discussed below.
Attention! Afterwards, the accountant is obliged to withhold and pay tax payments to the budget before paying incentive payments.
We talked about the peculiarities of taxation of funds allocated for bonuses to employees.
However, this issue is not the subject of this article.
An assistant accountant in matters of calculating incentive payments often acts as company personnel worker. He, as a rule, is better acquainted with the primary sources, which contain the procedure and methods for calculating incentive payments (which include the corresponding internal agreement, as well as the collective agreement).
What is the maximum and minimum indicator?
Moreover, if the previous edition of this article did not provide for restrictions on the amount of bonus payments and left this issue to the employer, then in this edition such a democratic approach applies only to non-state structures.
In short, the above article of the Labor Code of the Russian Federation states that the structure of incentives for public sector workers is subject to establishment:
Companies financed from the budget establish the types and amounts of incentive payments based on the rates provided for by the Unified Tariff Schedule, within the limits of allocated budget allocations.
Thus, on the one hand, for public sector workers, the maximum bonus amount is also not established. But on the other hand, it is clear that the natural limiter for rewards and material incentives is the budget, which is known to be “not rubber”.
As for the owners and managers of private companies, they are not deprived of the right to independently manage their own funds, within the limits of the law, including at their discretion to set the amount of incentive payments.
There are no reservations regarding the minimum limit of incentive payments in the legislation of the Russian Federation. Article 133 of the Labor Code of the Russian Federation stipulates the minimum wage, but it is immediately stipulated that incentive payments are not included in it.
Principles by which size is determined
Here we are talking about the principles that apply when determining the amount of incentive payments. There are two main principles here.
- Firstly, the amount of the incentive payment is usually set as a fixed figure (for example, equal to the rate), or as a predetermined percentage of the worker’s regular rate.
- Secondly, if we talk about the amount of incentives for an employee for a labor feat within a specific time period (quarter, year), then it is customary to take into account the time he actually worked.
There is some justice in this, which manifests itself in the fact that a worker who has worked for a year without absences should receive more encouragement than one who was absent from work part of the time.
Formula and its decoding
So, how is the amount of incentive payments to employees calculated? We can talk about two formulas for calculating bonuses:
Formula 1, for incentives in a fixed amount equal to salary for a certain period of time - P = Z / KO x CF, Where:
- P – bonus;
- Z – worker’s salary;
Formula 2, for incentives as a percentage of salary, for a certain period of time - P = Z x RP / 100 / KO x CF, Where:
- P – bonus;
- Z – worker’s salary;
- RP – the amount of incentive in the form of a set percentage of the salary;
- KO – total number of working days in the period;
- CF – actual number of days worked in the period.
Examples
Now it's time to apply the formulas for calculating incentives using specific examples.
Let's try formula 1 on the following plot:
The worker Vaskin has a salary of 25 thousand rubles. Based on the results of his successful work, he is entitled to the same salary. It is clear that if he worked all the days, then he should be awarded 25 thousand.
But we will take a complicated version, when the total number of working days in the quarter is 64, and Vaskin worked only 57 of them. The reason for his seven-day absence from work was rainy and inclement weather, about which Vaskin was in severe despondency and melancholy, due to which , did not consider it necessary to bother going to work.
We get:
25,000 / 64 x 57 = 22,265.62 rubles.
Now, let’s try formula 2 on the same plot, setting the worker Vaskin a quarterly incentive in the amount of 30% of the salary for successful work:
25,000 x 30 / 100 / 64 x 57 = 6,679.68 rubles.
Let's make it more difficult again. Let our Vaskin, a worker in the regions of the Far North, where there is a regional coefficient of 15%.
Reference! According to Article 316 of the Labor Code of the Russian Federation, for companies located in the regions of the Far North and in localities equivalent to them, a regional coefficient for monthly earnings has been established.
Article 316. Regional coefficient for wages
The size of the regional coefficient and the procedure for its application for calculating wages of employees of organizations located in the regions of the Far North and equivalent areas are established by the Government of the Russian Federation.
State authorities of the constituent entities of the Russian Federation and local self-government bodies have the right, at the expense of funds from the budgets of the constituent entities of the Russian Federation and the budgets of municipalities, respectively, to establish higher amounts of regional coefficients for state bodies of the constituent entities of the Russian Federation, state institutions of the constituent entities of the Russian Federation, local government bodies, and municipal institutions.
A regulatory legal act of a constituent entity of the Russian Federation may establish a limit on the increase in the regional coefficient established by the municipalities included in the constituent entity of the Russian Federation.
The amounts of these expenses relate to labor costs in full.
The essence of this coefficient is that it is a delta of the increase in monthly earnings for work in difficult climatic circumstances.
This increasing coefficient is calculated by a specific employer, in accordance with the provisions of the employment contract, and, consequently, for incentives.
We also take into account that quarterly incentives are usually issued in the calendar month following the quarter, along with the monthly rate. At the same time, the specified coefficient is calculated for both wages and incentives.
We calculate what kind of monthly salary and incentive payment Vaskin will receive, taking into account the regional coefficient of 15%:
(25,000 + 6,679.68) x 1.15 = 36,431.63 rubles.
It should be noted that the above formulas are fundamental and may vary depending on specific factual circumstances.
In conclusion, I would like to say that the issue of correctness and fairness of the procedure for calculating incentives to the soldiers entrusted to you, as the head of the company, is entirely in your hands.
Settle this issue with the company’s internal documents, and this will help you properly stimulate the team and encourage them to perform great feats of labor, which will become a good prerequisite for business development.
Didn't find the answer to your question? Find out, how to solve exactly your problem - call right now:
A bonus is a monetary payment to an employee in excess of wages for achieving certain results in work.
The bonus system for employees of an organization can be established in collective or employment contracts, agreements, and local regulations of the organization.
The use of bonus systems is aimed at creating a material interest among employees in achieving those indicators that are not provided for by the basic remuneration at tariff rates and official salaries.
It should be noted that the bonus system is a powerful incentive for employees and always has a beneficial effect on productivity and labor efficiency. Therefore, employers, by developing a bonus system in the organization, will ensure the attraction and retention of highly qualified personnel. In addition, the desire of each employee to achieve the best results will be developed and, as a result, the goals facing the organization as a whole will be achieved.
Bonus issues are individual for each specific organization, that is, they are developed and established by the organization independently. When developing employee incentive systems, organizations need to consider the following recommendations regarding established bonuses:
· the award of the bonus must be made taking into account the personal contribution of each employee;
· established bonuses should not be perceived by employees as part of their salary;
· the amount of premiums must be economically justified;
· when developing bonus systems, it is necessary to determine the conditions and establish indicators upon the fulfillment of which the bonus payment will be made.
Bonuses can be divided into two groups: bonuses included in the remuneration system and those not included in it.
1. Bonuses included in the remuneration system are provided for by the bonus regulations, labor or collective agreement or other local regulations of the organization. Such a bonus is paid subject to the achievement of results determined in advance by the bonus indicator, therefore their achievement gives employees the right to receive a bonus. Accordingly, if this indicator is not achieved, the right to a bonus does not arise.
Bonus indicators can be quantitative (fulfillment and overfulfillment of production targets for product output; fulfillment of technically sound production standards; development of progressive production standards, etc.) or qualitative (reduction of labor costs; saving of raw materials, materials, fuel; increasing the share of products of the highest quality category; impeccable customer service).
Along with the indicators, bonus conditions can also be established, that is, additional requirements, if not met, the bonus will not be awarded to the employee or its amount will be reduced.
If the employer plans to pay several types of bonuses to employees, then the Regulations on bonuses for employees must indicate all their types and bonus indicators for each of them.
2. Bonuses not included in the remuneration system, are one-time in nature and therefore are paid not for the fulfillment of pre-established indicators and conditions, but on the basis of an overall assessment of the work of a given employee. In addition, their payment is often not related to specific achievements in work and is carried out at the unilateral discretion of the employer. Incentive bonuses are a right and not an obligation of the employer, therefore its conditions are determined by the employer independently and do not require a pre-established basis.
Note. Bonuses that are not included in the remuneration system are not taken into account when calculating the employee’s average earnings and are not subject to protection in commissions for the consideration of labor disputes, but can be entered in the work book as an incentive measure.
In addition to the above division of awards into two groups, they can be classified as follows:
1. Bonuses, the payment of which occurs at a certain frequency:
· monthly bonus;
· quarterly bonus;
· bonus based on the results of work for the year (annual bonus).
2. One-time bonuses related to the production process:
· bonus for increasing labor productivity;
· award for achievements in work;
· bonus for completing a particularly important and urgent task;
· bonus for many years of conscientious work.
3. Bonuses not related to the production process, the payment of which occurs upon the occurrence of certain events:
· bonus for the employee’s anniversary;
· bonus for professional holiday;
· bonus for the organization’s anniversary;
· holiday bonus;
· bonus in connection with the employee's retirement.
This list of types of bonuses is not exhaustive. Each specific organization can choose other criteria for material incentives for its employees.
Let's look at some types of bonuses from our list.
Monthly bonus.
Monthly bonuses are paid to employees in order to strengthen their financial interest in the timely and conscientious performance of official duties. This bonus is paid to each specific employee based on the results of his work for the month.
The main indicators for the payment of a monthly bonus are: successful and conscientious performance by the employee of his official duties; initiative, creativity and application of modern forms and methods of work organization in work.
The bonus for timely and high-quality performance of official duties based on the results of work for the month is paid simultaneously with wages for the time worked and is included in the average earnings to pay for annual leave and in other cases provided for by the legislation of the Russian Federation.
Quarterly bonus.
Employees are awarded bonuses based on their performance results for the quarter. This bonus is paid once a quarter, subject to each employee’s compliance with the high quality, volume and deadlines for completing production tasks, works and services during the quarter. The quarterly bonus is paid to employees, as a rule, in the last month of the 1st, 2nd and 3rd quarters of the year. The calculation period for calculating this premium is quarterly. Bonuses are calculated based on the official salary, monthly increment to the official salary and are not limited to maximum amounts.
The specific amounts of bonuses to employees are determined taking into account the actual time worked in the quarter, within the limits of the wage fund for the corresponding financial year.
Bonus based on work results for the year.
A bonus based on the results of work for the year is paid to employees based on the results of work in the past year, taking into account the achieved production indicators (increased labor productivity, improved product quality) and compliance with labor discipline. This bonus is paid once a year, subject to the fulfillment of a production task, for each employee’s compliance with the high quality, volume and timing of work and services during the year. The calculation period for calculating this premium is set at 1 year (from January 1 to December 31 of the corresponding year).
Bonuses for the billing period are paid in an amount proportional to the actual time worked.
Example 1.
At the end of the year, the employee was to be paid a bonus of 10,000 rubles. During the billing period, out of 250 working days, the employee actually worked 230 days. In this regard, this employee will receive a bonus equal to:
10,000 / 250 x 230 = 9,200 rubles.
End of the example.
In addition to bonuses based on the results of the organization’s activities for a month (quarter, year), the employer can pay employees bonuses for anniversaries, holidays, bonuses for participation in competitions, sports competitions and other similar events. Such bonuses are not related to a specific result of labor, so they are generally considered non-productive.
Bonuses for employees on anniversaries.
Bonuses to employees in connection with their personal anniversaries are not related to their performance of work duties or the production process. An anniversary bonus is paid to employees who had an anniversary in the corresponding month (20, 30, 40, 50, 55 years and then every 5 years). The amount of bonuses for anniversary dates is established by order of the head of the organization as a percentage of the official salary of the corresponding employee or in a fixed amount.
Unlike production bonuses, which are paid at the end of the month along with wages, anniversary bonuses are paid directly on the employee's birthday.
Bonuses for anniversaries, holidays, special events, and other similar bonuses, as a rule, are not provided for in bonus systems and are considered one-time, therefore they are not taken into account when calculating the average salary.
Based on Article 135 of the Labor Code of the Russian Federation, bonus systems are included in the remuneration systems in force for each specific employer. Bonus systems are established by collective agreements, agreements, local regulations in accordance with labor legislation and other regulatory legal acts containing labor law norms. Local regulations establishing remuneration systems are adopted by the employer, taking into account the opinion of the representative body of employees.
Note!
In the previous edition of the Labor Code of the Russian Federation, the right of all employers to establish various bonus systems was enshrined in Article 144 of the Labor Code of the Russian Federation. In the new edition of the Labor Code of the Russian Federation, this article provides for the procedure for establishing remuneration systems, including bonus systems only for employees of state and municipal institutions.
In accordance with Article 144 of the Labor Code of the Russian Federation, remuneration systems, including bonus systems for employees of state and municipal institutions, are established:
in federal government institutions - collective agreements, agreements, local regulations in accordance with federal laws and other regulatory legal acts of the Russian Federation;
in state institutions of the constituent entities of the Russian Federation - collective agreements, agreements, local regulations in accordance with federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation;
in municipal institutions - collective agreements, agreements, local regulations in accordance with federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation and regulatory legal acts of local governments.
Budgetary organizations determine the types and sizes of bonuses based on the rates and salaries provided for by the Unified Tariff Schedule, within the allocated budgetary allocations. Clause 5 of the Decree of the Government of the Russian Federation of October 14, 1992 No. 785 “On differentiation in levels of remuneration for public sector workers based on the Unified Tariff Schedule.”
All other employers independently establish various bonus systems at their own expense.
One of the main elements of the bonus system is the bonus indicator, that is, the result of production activity, the achievement of which is necessary for the employee to have the right to receive a bonus.
It is advisable to form a system of factors that serve as the basis for bonus payments to employees in different ways for different categories of employees - taking into account the nature of the work performed, the procedure for recording and standardizing the results of work of various categories of employees.
For improving the quality of products - according to such indicators as an increase in the share of products of the highest quality category, the highest grade, an increase in the delivery of products from the first presentation, a decrease in defects, a reduction in cases of returns of substandard products, and the absence of complaints about products from consumers;
For the growth of labor productivity and production volumes - fulfillment (exceeding) of the planned target, growth in production volumes, fulfillment (exceeding) of production standards, fulfillment of the production plan by the deadline with a smaller number of workers, reduction in the labor intensity of products;
For mastering new equipment - increasing the shift ratio, reducing the time required to master advanced technologies, increasing the equipment load factor, reducing the cost of its operation;
For reducing material costs - saving raw materials, materials, fuel and energy resources, tools, spare parts, reducing losses and waste.
Bonuses are given to specialists and employees for the actual improvement of the organization's performance: an increase in profits and production volumes. Bonus indicators must be closely linked to the final results of the work of a department, division, service, workshop or other structure.
Indicators of bonuses for workers involved in servicing machinery and equipment include a reduction in downtime, an increase in the degree of mastery of technical parameters, and an improvement in their utilization rate.
Bonuses for management employees are linked to the achievement of final labor results, increased labor productivity, the production of high-quality products, a reduction in their labor intensity and other performance indicators.
Bonus indicators are determined taking into account the specifics of the organization’s activities and the tasks assigned to employees, and the indicators and conditions for bonuses must be established in such a way that the improvement of some indicators does not cause a deterioration in others.
As already mentioned, bonuses can be specified both directly in the employment contract, and in a collective agreement or in a local regulatory act of the organization, which may be. In a small organization, it is better to specify possible types of bonuses in the employment contract. In a large organization, a complex bonus system may be established, so in order not to spell it out in every employment contract with an employee, it is more advisable to do this in the bonus regulations or in the collective agreement (if there is one). In this case, the employment contract must make a reference to these documents and familiarize the employee with them (with the obligatory signature of the employee).
The bonus system established in an organization by a collective agreement must provide for the payment of bonuses to a certain circle of people based on pre-established specific indicators and bonus conditions.
When establishing a bonus system in an organization by a collective agreement, all employees of the organization must be familiar with the agreement against receipt.
You can find out more about the issues related to the procedure for concluding and the content of a collective agreement in the book “Personnel 2005” by the authors of JSC “ BKR-INTERCOM-AUDIT.”
Approaches to determining the size of premiums may be different.
Budgetary organizations determine the size of bonuses within the allocated budgetary allocations. The size of the bonus of all other organizations is limited only by the relevant internal documents (regulations on bonuses, collective agreement).
The size of the bonus can be set as a fixed sum of money or as a certain percentage of the employee’s official salary.
The most convenient way is to determine the premium size as a percentage or its minimum and maximum limit. Since in this case there is no need to constantly make changes to the Regulations on Bonuses related to indexing the size of the bonus. In addition, the percentage determination of the bonus size makes it possible to differentiate employee incentives depending on the position they occupy and the amount of official salary.
As a rule, upon achieving the intended results, bonuses are awarded to specialists and employees as a percentage of the official salary or in an absolute amount, and for workers - as a percentage of the tariff rate (piece-work earnings) or in a specific amount.
You can also enter additional criteria for determining the size of the bonus. In particular, the amount of the bonus may be increased depending on the length of service in the organization.
If an employee has worked for less than a full month (quarter) or has terminated his employment relationship with the employer for valid reasons, in these cases the bonus is usually paid for the actual time worked in the accounting period.
The amount of remuneration paid based on the results of work for the year may depend on the length of continuous work in a given organization. Also, the amount of remuneration based on the results of work for the year can be set in the amount of the tariff rate (salary) or several tariff rates (salaries) for a fully worked calendar year. If employees (for good reasons) have not worked the entire calendar year, remuneration is paid in proportion to the time worked.
Example 2.
In accordance with the adopted regulations on bonuses for Mars OJSC, employees are paid a remuneration in the amount of two monthly salaries based on the results of their work for the year.
Salary of Mars OJSC employee A.B. Krasnov. is 9,500 rubles. In 2006, Krasnov worked for 11 months, and was on leave without pay for 1 month.
(9,500 x 2) / 12 x 11 = 17,416.67 rubles.
End of the example.
Remuneration based on the results of work for the year, depending on the length of continuous work experience in a given organization, is paid as a percentage of the employee’s earnings for the year or in days of earnings.
Example 3.
In accordance with the adopted regulations on bonuses for Mars OJSC, employees are paid remuneration based on the results of their work for the year depending on their length of service at the OJSC: up to 3 years - in the amount of 10% of annual earnings, from 3 to 5 years - 15%, from 5 to 7 years - 20% and so on.
Krasnov A.B. worked at JSC Mars for 6 years. For 2006, he received a salary in the amount of 40,000 rubles.
Remuneration based on the results of work for 2006 will be:
40,000 x 20% / 100% = 8,000 rubles.
End of the example.
If the bonus is established by the employment contract in accordance with the current employer’s remuneration system, then in the event of a reduction in the size of the bonus in the absence of production omissions, appropriate changes must be made to the employment contract.
According to Article 72 of the Labor Code of the Russian Federation, any terms of an employment contract can be changed only by agreement of the parties to the employment contract. An agreement to change the terms of an employment contract determined by the parties is concluded in writing and is an integral part of the employment contract. According to Article 72 of the Labor Code of the Russian Federation, any terms of an employment contract can be changed only by agreement of the parties to the employment contract. An agreement to change the terms of an employment contract determined by the parties is concluded in writing and is an integral part of the employment contract.
In case of production omissions in work, for the billing period in which the specified omission occurred, individual employees or the entire team may be deprived of the bonus in whole or in part. The list of specific production omissions and the procedure for deprivation are established by the employer, taking into account the opinion of the representative body of employees.
The presence of such a local regulatory act as the Regulations on Bonuses is not mandatory in the organization. However, it is being developed and adopted by many companies.
Firstly, it is convenient, because not every organization has collective agreements and agreements. But overloading an employment contract with a section regulating bonus issues only makes sense if the organization does not have a unified system for rewarding employees and individual types of bonuses are established for each of them. In all other cases, it is more expedient to develop a single document regulating the bonus system for employees of the organization and make a reference to this local regulation in the employment contract.
Secondly, the presence in the organization of a Regulation on bonuses for employees, which outlines the indicators, terms and amounts of bonuses, has a stimulating effect on employees, since they know in advance that if their work meets the indicators specified in this document, they will have the right to expect additional remuneration.
Thirdly, the Regulations on bonus payments to employees make it possible to document the organization’s expenses for making incentive payments to employees and, accordingly, reduce the taxable base for income tax.
As a general rule, the Regulations on bonuses should define:
· indicators and conditions of bonuses (that is, for what the employee is entitled to a bonus);
· amount of bonus payments;
· a list of employees to whom this provision applies (for example, all employees or only full-time employees; in addition, the list of positions depends on the bonus indicator);
· frequency of bonuses;
· timing and sources of payments.
In addition, the Regulations on Bonuses must reflect the procedure for issuing bonuses, indicate the persons authorized to make decisions on issuing bonuses, and also include in this local regulatory act provisions regulating issues of deboning.
If all the points specified in the Regulations are present, employees have the right to receive a bonus, and the employer has the obligation to pay it.
As an example, we can cite the standard form of the Regulations on bonus payments to employees of a Limited Liability Company.
"APPROVED"
CEO
OOO __________________
"___" __________2005
Regulations on bonus payments to employees of the Limited Liability Company .
1. GENERAL PROVISIONS
These Regulations determine the procedure for making payments to employees of the Limited Liability Company in amounts in excess of their official salary (basic earnings) in order to reward them for achieved labor successes and stimulate further improvements in labor efficiency (bonus payments, bonuses).
1.1. The amounts of bonuses for all categories of employees are established by the General Director of the Company (based on the results of work for six months, a year).
1.2. The amount of bonuses established by the General Director of the Company is indicated in US dollars, but bonuses are paid in rubles at the exchange rate of the Central Bank of the Russian Federation on the day the bonus is calculated.
1.3. The General Director of the Company and the HR Manager monitor the correctness of bonuses in accordance with these Regulations.
2. PROCEDURE FOR ACCRUAL AND PAYMENT OF PREMIUMS
2.1. The organization has established individual bonuses for employees for achieving high performance indicators. For achieving the same performance indicators, employees are entitled to equal bonuses.
2.2. Bonus amounts due to employees are paid simultaneously with the salary for the month following the month in which the bonus was accrued.
2.3. Specific indicators that must be achieved by the Company and each employee as a condition for paying bonuses will be reported annually (no later than January 31) by order of the manager.
2.4. Bonuses are not paid to employees who received disciplinary sanctions during the period for which the bonus is awarded.
2.5. Managers/heads of structural divisions draw up a “Reward Recognition” for the employees subordinate to them (the form of the Reward Representation is given in Appendix No. 1). The decision to approve the proposal and pay the bonus is made by the General Director of the Company.
2.6. “Reward proposals” approved and signed by the General Director of the Company are transferred to the HR Manager. Based on the Submission, the HR Manager prepares a draft Bonus Order, after which he submits it to the General Director of the Company for signature.
2.7. An employee may be awarded several types of bonuses simultaneously in accordance with these Regulations.
3. TYPES OF BONUS
The organization establishes the following types of bonuses for employees and heads of departments:
3.1. Bonus based on annual performance results. It is paid to the Company's employees based on the results of work in the past year, taking into account the achieved production indicators (increased labor productivity, improved product quality) and compliance with labor discipline (absence of disciplinary sanctions). This bonus is paid once a year, subject to the fulfillment of production tasks by the Company as a whole for each employee’s compliance with the high quality, volume and timing of work and services during the year. The calculation period for calculating this premium is set at 1 year (from January 1 to December 31 of the corresponding year).
3.2. Bonus based on performance results for the half-year. The Company's employees are paid based on their work results in the past six months, taking into account the achieved production indicators (increased labor productivity, improved product quality) and compliance with labor discipline (absence of disciplinary sanctions, tardiness). This bonus is paid once every six months, subject to the fulfillment of production tasks by the Company as a whole for each employee’s compliance with the high quality, volume and timing of work and services within six months. The calculation period for calculating this premium is set at 0.5 years (from January 1 to July 1 and from July 1 to December 31 of the corresponding year).
3.3. One-time personal bonus. Paid for completing particularly important production tasks, participation in new projects, for the development and implementation of new technologies, for reducing production costs, for showing initiative. Can be paid to any distinguished employee of the Company upon the recommendation of a superior manager.
4.1. In addition to the conditions listed in these Regulations, factors influencing bonuses are the financial condition of the Company, as well as investment projects and development plans of the Company as a whole. Taking into account these factors (according to accounting and statistical reporting), in the absence of funds for these purposes, the Company reserves the right not to pay bonuses.
4.2. Disputes regarding the payment of bonuses in accordance with these Regulations, if they cannot be resolved directly between the employee and the management of the Company, are subject to consideration in the manner prescribed by law.
4.3. The Company's employees are notified of the introduction of a new Regulation on bonuses, amendments to individual articles or the cancellation of the Regulation as a whole no later than 2 months in advance.
Appendix No. 1
Promotion submission form
to CEO
_________________________
The idea of encouragement
__________. ______. 2005
Moscow
I ask you to award a bonus to an employee for high production performance
______________________ (full name of the employee) for ___________ (period) in the amount of _____________
________________________ ______________________________
(Signature of the group manager) (Deciphering the signature)
End of the example.
You can find out more about issues related to the procedure for calculating, accounting, and paying bonuses in the book “Bonus Payment” by the authors of JSC “ BKR-INTERCOM-AUDIT.”
The system of incentives for work proposed by Russian legislation does not always meet modern requirements. In the context of the development of a market economy, Russian employers are trying to find new modern methods of rewarding their employees, using foreign experience. Western companies have long and quite successfully used various non-standard forms and methods of incentives to encourage their employees to perform better and more efficient work. The bonus system for rewarding work is very popular among foreign employers. In recent years, Russian employers have increasingly tried to apply such a reward system in practice.
A bonus is a pre-agreed incentive payment to an employee for certain achievements in work.
Note.
It is interesting to note that the word “bonus” is borrowed from the Latin language and translated means “good”. In the sense of incentives, this term refers to the monetary reward paid to an employee for the successful performance of his or her job duties.
The establishment of a bonus incentive system allows employees to be interested in the final results of their work. Let's consider what the meaning of the bonus reward system is.
So, the amount of remuneration that he will receive based on the results of his successful work is agreed upon in advance with the employee of the organization. The size of the bonus can be expressed either in a fixed fixed amount or determined as a predetermined percentage of the organization's profits. The amount of the bonus payment can be quite significant, sometimes comparable to the amount of wages for a month or an even longer period. The conditions under which this payment will be made are determined. Since the bonus incentive system is not regulated in any way by law, all conditions relating to such payments depend on the desire and ability of the employer.
The period for paying the bonus is also set by the employer. The bonus payment is made based on the results of work for a month, for a year or upon completion of a specific task.
The bonus fund, from which payments are made, is formed as a percentage of the profit received from the results of the organization’s economic activities.
The advantage of the bonus system is its flexibility, since the criteria by which bonuses are paid can be easily changed. In addition, the advantages of this system include the fact that its use helps reduce staff turnover, which is important in modern conditions. Because if an employee is promised bonuses, then it will be more difficult to lure him to another company.
Of course, the bonus system is not without its drawbacks. For example, if the profit does not meet the employer’s expectations, and the amount of bonuses is fixed, then the employer may suffer serious losses.
In order for the bonus system to work and bring the expected benefits, it is necessary to create certain rules for its use: understandable to employees and economically justified.
Labor legislation does not oblige the employer to legally formalize the procedure for paying bonuses promised to the employee. However, such registration will be desirable both for the employee and for the employer himself.
You can include conditions for the payment of bonuses in the employment contract. However, such inclusion is not very beneficial for the employer, since in this case the bonus takes the form of an incentive payment and, therefore, is taken into account when calculating the employee’s average earnings. This, in turn, leads to an increase in the amount of vacation pay, sick pay and other similar payments due to the employee while he maintains his average earnings. Consequently, the inclusion of conditions for the payment of bonuses in the employment contract will lead to an increase in the organization’s labor costs.
If you enter into civil, rather than labor, contracts with employees, which stipulate the procedure and conditions for paying bonuses, then regulatory authorities will easily establish that such civil contracts conceal labor relations with all the ensuing consequences.
There is another option for designing the procedure for paying bonuses. An organization may invite an employee to register as an individual entrepreneur and enter into a civil contract with him, which will provide for a bonus payment. In this case, the work performed by the employee will be regulated by civil law. This is easier for the employer, but not entirely convenient for the employee. An employee may not agree to become an entrepreneur, since the status of an individual entrepreneur implies additional responsibilities for calculating and paying taxes. Even if he has no income, he will have to file tax returns for these taxes.
The most convenient option for both the employer and the employee is to mention in the employment contract the possibility of accruing bonus payments to the employee. And it makes sense to stipulate in detail all the essential conditions regarding the procedure for determining the amount and receiving bonuses in a separate agreement between the organization and the employee, or to define such conditions in another local regulatory act of the organization. Such a local act could be a provision on the payment of bonuses. In this provision, it is advisable to provide for the procedure for forming a bonus fund, determine the method for calculating the individual amount of bonuses, and also stipulate the conditions under which their payment will be made.
The provision on the payment of bonuses may also provide for the employer’s right to reduce or deprive the employee of bonus payments. Also in this document, you can make reservations in case of a decrease in the organization’s profit, dismissal of an employee, and so on.
It is also necessary to take into account the fact that since the payment of bonuses is not an obligation, but the right of the employer, the employee, in the event of a dispute, does not have the opportunity to go to court.
Another form of incentives for work that has recently appeared in the Russian Federation and is not established by any regulatory legal acts is the so-called “profit sharing system” of the organization. The system is based on the division of profits between employees and owners of the company. This system can cover either all personnel or apply to individual employees. When applying a “profit sharing system,” the organization establishes a share of the profit that goes to forming a bonus fund. Regular payments to employees are made from this fund. The procedure and conditions for making such payments are established by agreement between employee representatives and employers. The size of payments depends on the amount of profit received as a result of the organization’s work for a certain period (month, quarter or year), and they are calculated in proportion to the salary of each employee. Let's look at how the “profit sharing system” works using the example of a joint stock company.
Example 5.
In order to interest employees in increasing the profits of the joint-stock company, the board of directors proposes to allocate a share of the profits to the formation of a special bonus fund. Shareholders at the general meeting approve the size of this share as a percentage. A decision is made at the general meeting of shareholders, which fixes the share of the company's employees in profits. The procedure and conditions for paying remuneration to employees from the share of profit assigned to them is established in a collective agreement.
Note.
The organization’s profit remaining after taxation (net profit) is used to form this bonus fund, and the amount of remuneration paid from net profit is not included in the organization’s labor costs (clause 21 of Article 270 of the Tax Code of the Russian Federation) and is not subject to the unified social tax ( paragraph 3 of Article 236 of the Tax Code of the Russian Federation).
Despite the fact that, at first glance, the division of profits between employees and shareholders gives rise to certain contradictions between them, however, the interest of shareholders in increasing the amount of profit by using the similar interest of the company's employees allows us to reduce these contradictions to a minimum.
End of the example.
This system is a form of collective reward for work, so it is often compared to a collective bonus system. In these two systems, the methods for calculating appropriate payments to employees of organizations coincide, as well as the dependence of these payments on the final results of the organization as a whole.
However, there are certain differences between profit sharing and collective bonuses. In collective bonuses, bonuses are awarded to employees for production performance, and in a profit-sharing system, the amount of remuneration depends not so much on production efficiency as on the profitability of the company, that is, on the influence of external market factors on its commercial position, such as the level of competition, changes in prices for raw materials and materials, decrease or increase in stock prices.
Different organizations may have their own procedure and forms for making payments from the bonus fund. Thus, in particular, profits can be distributed among employees annually, and a specific share of each can be paid either in the form of a cash bonus or provided with company shares. Also, the payment can be reserved for a specific employee and the accumulated amount can be given to him in the event of dismissal, retirement or in another similar case. Please note that interest may accrue on such savings.
Participation in profits in an organization can also be carried out in the form of current payments. In this case, remunerations from profits are paid to employees regularly: monthly or quarterly based on the results of the financial and economic activities of the organization.
The “profit sharing” system used in the organization must be clear to every employee. To do this, all possible additional material remuneration should be reflected in employee contracts, employment agreements or annexes to them and their receipt should be made directly dependent on the employee’s achievement of certain goals. However, these issues must be reviewed annually.
The profit sharing system is a new type of employee remuneration for their work. To date, it has not become widespread, however, experts in the field of labor law consider this form of incentive to be very promising and undoubtedly worthy of the attention of Russian employers.
The Labor Code of the Russian Federation does not define the concepts of “surcharge” and “addition” and does not differentiate between them.
Usually, additional payments and allowances are sums of money paid in excess of the basic salary, with the help of which individualization of wages is ensured, taking into account the intensity of work and professional skills of the individual employee, his attitude to work, as well as for work in conditions different from normal. Unlike bonuses, additional payments and allowances are permanent in nature and are paid not for future achievements of employees, but for already achieved results and individual qualities of the employee, ensuring high performance of his work.
Note!
If in the previous edition of the Labor Code of the Russian Federation the issues of establishing allowances and additional payments were regulated by Article 144 of the Labor Code of the Russian Federation, then in the new edition the rules allowing the employer to establish allowances and additional payments are contained in Article 135 of the Labor Code of the Russian Federation.
In accordance with Part 5 of Article 135 of the Labor Code of the Russian Federation, the employer, taking into account the opinion of the representative body, adopts local regulations establishing remuneration systems. Based on Part 2 of Article 135 of the Labor Code of the Russian Federation, remuneration systems include additional payments and allowances of a compensatory and incentive nature.
Additional payments and allowances of a compensatory nature are established in order to reimburse employees for additional costs associated with the performance of their labor or other duties.
Compensatory bonuses and additional payments include payments: for combining professions, for performing the duties of a temporarily absent employee; for leading a team, for working in difficult and hazardous working conditions, for working at night.
Accordingly, additional payments and bonuses of an incentive nature are established in order to encourage employees to improve their qualification level and professional skills, as well as to aim them at achieving results determined by the employer.
Incentive bonuses and additional payments include payments: for high professional skill, for class, for an academic degree, for high achievements in work, for performing particularly important work, and so on.
When establishing bonuses and additional payments, the employer can independently determine the grounds for their payment, or can use the “List of additional payments and allowances to tariff rates and official salaries of employees of associations, enterprises and organizations of production sectors of the national economy for which bonuses are awarded”, approved by the Resolution of the USSR State Committee for Labor and Secretariat of the All-Union Central Council of Trade Unions dated November 18, 1986 No. 491/26-175. This document is still valid today, since it does not contradict the legislation of the Russian Federation.
Based on this list, the organization can establish the following types of allowances and additional payments:
For combining professions (positions);
Expanding service areas or increasing the scope of work;
Carrying out the duties of a temporarily absent employee;
Work with difficult and harmful and especially difficult and especially harmful working conditions;
Labor intensity;
Work according to a schedule dividing the day into parts with breaks between them of at least two hours;
Night work;
For products (at state farms and other state agricultural enterprises);
One of the types of material incentives for employees for conscientious work is rewarding with a valuable gift.
A valuable gift is an item that has material value. The term “valuable” itself means that the gift should not be symbolic (for example, souvenirs, pens, notepads, etc.), but must constitute a significant part of the employee’s salary or exceed it (for example, an item of household electronic equipment). The maximum value of a valuable gift is not limited by law and is determined by the employer at his discretion, based on the personal merits of each employee.
An employee can be awarded a valuable gift for conscientious performance of official duties, increased productivity, improved quality of work performed, long and impeccable work, for other achievements in work, as well as in connection with a personal anniversary or holiday.
Sample order for awarding a valuable gift.
About awarding Petrov I.I.
For the conscientious performance of official duties and in connection with the 50th anniversary of his birth.
I ORDER:
1. Award Ivan Ivanovich Petrov, the foreman of the production site, with a valuable gift - a wristwatch in a gold-plated case worth 500 rubles.
2. The order should be brought to the attention of the organization’s employees.
CEO
surname signature
The purchase of a valuable gift is the responsibility of the organization’s economic department or accounting department. Funds will be allocated for the purchase of a valuable gift. The amount for the purchase of a valuable gift is determined either by the employer himself or by a joint decision of the management and staff of the organization.
A valuable gift is presented in a solemn atmosphere by the head of the organization or other persons on his behalf.
Note.
The cost of a valuable gift is included in the employee’s total annual income, and if it exceeds 4,000 rubles, then the excess amount is subject to personal income tax (clause 28 of Article 217 of the Tax Code of the Russian Federation).
You can find out more details regarding the specifics of documenting incentives for work, and the procedure for entering information about incentives and awards into the employee’s work book, in the book “Incentives for Labor” by the authors of JSC “ BKR-INTERCOM-AUDIT.”
The Labor Code says little about bonuses. It only says that the company has the right to pay them. For what exactly, in what amount and within what time frame - all this is left to the discretion of the employer. There is only one requirement - the discretion must be put in writing and strictly observed.
However, practice shows that there are more requirements: the conditions for paying bonuses must be extremely clear, employees must be aware of them, and the reasons for non-payment must be formulated as precisely as possible.
If all this is followed, depriving the employee of additional money will be legal. Otherwise, he will be able to force the company to pay bonuses.
The employee has the right to sue the company for deprivation of bonuses within one year
Since October 2016 Art. 392 of the Labor Code of the Russian Federation is set out in an updated version, according to which the period for an employee to go to court to collect unpaid wages or bonuses has been extended 4 times - from 3 months to 1 year.
It is counted from the day set by the employer for payment of the uncollected amount.
Editor's note:
in the previous 3-month period, many employees dissatisfied with the deprivation of bonuses did not have time to file a claim. This followed from their numerous appeals received by the Ministry of Labor of the Russian Federation and Rostrud, as well as from court decisions refusing to consider the claim due to the expiration of the statute of limitations. The problem was that after a long wait for payment of wages or bonuses, workers first turned to the labor inspectorate, as well as other regulatory government agencies, and only after that to the court, and by this time the 3-month period, as a rule, had already expired.
Now a year should be enough for all authorities.
This period must be calculated from the date when the employee learned or should have learned about the non-payment of the bonus. This is usually the set date for payment. The fact that the employee is deprived of it, he must find out from the pay slip and the deprivation order, as well as when a shortage is detected in the amount that is transferred to his card.
If neither the pay slip nor the order were brought to him, and it is impossible to identify the transferred amount on the card (for example, due to the fact that the purpose of the payment was not indicated), then the starting point can be shifted forward, and quite significantly, up to date of dismissal of the employee (Appeal ruling of the Penza Regional Court dated September 23, 2014 No. 33-2122).
The grounds for deprivation of a bonus can only be specified in the Regulations on Bonuses
Rostrud believes that the company will not violate anything if it adopts the Regulations on Bonuses and only lists the grounds for both payment and non-payment of bonuses.
For example, it is possible to provide a condition for the deprivation or reduction of bonuses of violation of the deadlines for the transfer of primary documentation to the accounting department. This will be legal and based on Part 1 of Art. 8 and part 4 art. 13 of the Labor Code of the Russian Federation, which allow the adoption of local regulations containing labor law standards.
Thus, officials do not consider it obligatory to stipulate the conditions for payment of bonuses directly in employment contracts, despite the fact that in strict accordance with Art. 129, 135 of the Labor Code of the Russian Federation, a bonus is included in the concept of wages, and it should be established precisely by the employment contract.
In addition, Rostrud separates non-payment of bonuses from disciplinary sanctions.
The latter include reprimand, reprimand and dismissal on appropriate grounds (parts 1 and 5 of Article 192 of the Labor Code of the Russian Federation). But not depriving the employee of a bonus in itself. Moreover, when imposing one of the disciplinary sanctions, they must take into account the severity of the offense committed and the circumstances under which it was committed.
LETTER of Rostrud dated December 18, 2014 No. 3251-6-1
Editor's note:
disciplinary measures and deprivation of bonuses are initially independent things, but may well be interconnected. That is, the company has the right to provide that the imposition of a disciplinary sanction is grounds for a reduction or non-payment of bonuses.
For example, when a reprimand is announced, the premium is reduced by 50 percent, and if there is a reprimand, it is not paid at all (Appeal ruling of the Moscow City Court dated November 16, 2016 No. 33-45712/2016).
Conditions for non-payment of bonuses are the exclusive prerogative of the employer
An employee working in the Moscow metro as an electric train driver filed a lawsuit to recover an unpaid bonus from the employer.
He indicated that by order “On bonuses for workers for October 2015,” the size of his bonus was reduced from 30 to 15 percent. The reason is a violation of the procedure for issuing route sheets.
The court rejected the application, finding the employer's actions legal for the following reasons.
The salary established by the employment contract was paid to the employee in full, which was not disputed by him.
The award, by its nature, is optional. The current labor legislation does not establish any requirements for the procedure for calculating incentive payments. The employer is allowed to independently determine the grounds, amount and procedure for calculating such payments.
Thus, the presence or absence of a bonus is made by law dependent solely on the will of the employer. Payment of the bonus and determination of its value are his exclusive prerogative, which is embodied in local acts adopted by the enterprise.
An incentive bonus, by its legal nature, is that part of the salary, the right to which arises when the employee fulfills the appropriate conditions and achieves certain results in work. Therefore, a reduction or complete deprivation of a bonus for a specific period due to omissions from work or violation of work discipline cannot be regarded as discrimination in payment, but is only a consequence of the employee’s improper performance of his job duties.
In this case, the employee did not fulfill his duties. According to the Regulations on the route sheet, if the driver ends his shift not according to schedule, the actual time of the end of the shift must be entered in the route sheet by the person on duty at the electric depot, certified with a signature and indicate his last name.
The driver, in violation of this rule, filled out the indicated fields independently, which served as the basis for reducing his bonus.
Thus, the employer had the right to reduce the premium from 30 to 15 percent.
DECISION of the Moscow City Court dated September 27, 2017 No. 4g-11458/2017
Financial problems are not a reason to deprive a bonus if this is not stated
The employee filed a claim against the employer (bank) to collect the debt for the payment of a monthly bonus.
In the lawsuit, she wrote that as soon as the bank had financial problems due to the revocation of its license, it stopped paying the monthly bonus. However, in the Regulations on remuneration and bonuses there is no such basis for deprivation of bonuses.
The courts of two instances agreed with the employee’s arguments and granted her claim because:
- the defendant did not provide the court with evidence of the plaintiff’s failure to meet bonus targets, failure to fulfill the official duties assigned to her, or the existence of disciplinary sanctions against her, that is, established grounds for non-payment of the bonus;
- The revocation of the bank's license, its subsequent declaring it bankrupt and the adoption by the temporary administration of a decision to optimize labor costs cannot be grounds for non-payment of the disputed bonus, since this is not provided for by law and local regulations of the employer, the judges pointed out.
However, the RF Supreme Court overturned these decisions and sent the case for review.
Having agreed with the above arguments of the courts, the senior judges drew attention to the fact that their colleagues did not take into account one more circumstance: the bank provided the judges with the original Regulations on remuneration and bonuses, in which the wording of the clause on bonuses differed significantly from the wording of the same clause in the copy of the Regulations provided employee.
The courts did not assess this circumstance and did not establish the true content of this document, while the decision in the case could depend on it.
DECISION of the Supreme Court of the Russian Federation dated November 14, 2016 No. 45-КГ16-15
Editor's note:
In recent years, courts have been fond of repeating that paying an employee an annual bonus is a right, not an obligation, of the employer.
Therefore, if a company prescribes in advance, under conditions of depreciation, whether in an employment contract or a bonus provision, that bonuses are not paid in case of unprofitable activities, then this will be legal (Appeal ruling of the Moscow City Court dated September 20, 2017 No. 33-23998/2017 ). Or it will tie the payment of the bonus to operating profit, which is also legal (Appeal ruling of the Moscow City Court dated July 28, 2014 No. 33-25649/14).
Failure to fulfill a personal sales plan is a reason for non-payment of a bonus, even if the department has distinguished itself
An employee of the department sued the employer for not paying bonuses for August, September and October.
He indicated that the company has a Regulation on Bonuses, on the basis of which bonuses are paid depending on the fulfillment of the current monthly sales plan established for the department.
Based on the results of work for August-October 2015, the department exceeded the sales plan, but the bonus was not paid to it.
The judges understood that, according to the Regulations on Remuneration, bonuses are paid for individual labor contribution to collective labor results when high production indicators are achieved.
A list of bonus indicators is established for each department, taking into account the specifics of the functions performed, the priority of specific tasks facing each department for specific bonus indicators.
Bonuses for employees are the right of the administration, which depends on the financial condition of the company and the performance indicators of specific structural units, departments, specific employees and, therefore, is not mandatory.
In addition, the Regulations provide for the right of the employer to reduce the amount of the bonus to the employee or not to award it in full for failure to complete tasks under the control of the general director.
The sales director determined individual sales plans for the specified period, with which each employee was personally familiarized with his signature, including the plaintiff.
However, he did not fulfill this plan, and therefore, despite the achievement of indicators by the department as a whole, he is not entitled to receive an incentive payment.
APPEAL DECISION of the Yaroslavl Regional Court dated August 15, 2016 No. 33-5574/2016
An unpaid bonus can expose a low salary and force you to pay extra to the minimum wage
The employee demanded in court to recover back wages from the employer in the form of unpaid bonuses, as well as underpaid wages.
Regarding the bonus, the court rejected the claim because it saw no basis for its payment: from the terms of the employment contract it followed that bonus payments are of an incentive nature and are not a guaranteed part of the salary; payment of the bonus is the exclusive right of the employer, but not his responsibility.
The court was not presented with evidence that the company made decisions to pay the plaintiff a bonus during the disputed period, as well as evidence of a positive result in the performance of his labor functions.
As for the salary, the court ordered the company to pay the employee a certain amount.
The fact is that he received from 14 to 23 thousand rubles monthly. At the same time, from the terms of the employment contract, pay slips, as well as 2-NDFL certificates, it followed that in the indicated amounts the official salary was only 12 thousand rubles, the rest were bonuses.
Meanwhile, in the city of Moscow, the minimum wage from 06/01/2015 was set at 16.5 thousand rubles, from 11/01/2015 - 17.3 thousand rubles, from 10/01/2016 - 17.5 thousand rubles.
By virtue of Art. 133.1 of the Labor Code of the Russian Federation, salaries in the capital cannot be lower than these amounts.
In this regard, the employee must be paid an additional 72 thousand rubles, the judges concluded.
APPEAL DECISION of the Moscow City Court dated September 18, 2017 No. 33-32389/2017
An order for non-payment of premium must contain a detailed description of the reasons
The former employee filed a complaint that upon dismissal, she was not paid bonuses based on the results of work for the third and fourth quarters and based on the results of work for the year, which she asked to recover from the organization.
The employer submitted objections, but the courts sided with the plaintiff, recognizing her arguments as more valid. See table.
TABLE: “Arguments in a dispute between an employer and an employee about the reasons for non-payment of bonuses”
Employer's arguments | Employee's counterarguments |
The bonus was not paid due to the employee’s improper performance of her official duties. Evidence of this is internal email correspondence regarding the implementation of the sales plan, as well as internal and explanatory notes from the boss | An order for non-payment of a bonus to an employee must contain a detailed description of the fact and circumstances of the violation or improper performance by the employee of official duties provided for in the employment contract and other local acts of the employer, entailing non-payment of the bonus. It must also contain a clear and understandable statement of guilt for the employee for the violation charged to him, and a reference to the norms of local acts that were violated. In this case, the content of the order to deprive her of the bonus does not allow her to unambiguously determine for failure to comply with which production and economic violations the bonus was not paid to her: — in relation to which counterparties and to what extent financial violations were committed; — what specific measures to repay overdue receivables have not been completed; — which deadlines for submitting reports were violated and which reports were not provided within these deadlines; - what data presented on planned measures to repay overdue receivables do not correspond to the reporting data, in what forms. The absence of these circumstances in the order for non-payment of the premium indicates its illegality |
The employee did not fulfill the sales plan in the specified periods completely, but only 95.3 percent | This is true. However, this is not the employee’s fault. This figure can only be explained by the fact that the director himself provided deferrals and installment plans for payment of payments to some counterparties. |
The employee prematurely raised the issue of paying her a bonus based on the results of her work for the entire year, since the general meeting of shareholders of the company on the issue of approving work reports for the year was not held | The regulations on material incentives do not contain any clauses on the accrual of an annual bonus based on the results of the annual meeting of shareholders. This meeting never resolved the issues of accrual and payment of remuneration based on work results. The company’s lack of reserves for paying bonuses is not grounds for failure to fulfill obligations under the employment contract. |
The court found the employee's arguments to be more valid and satisfied her demands.
APPEAL DECISION of the Penza Regional Court dated September 23, 2014 No. 33-2122
The company cannot change the Regulations on bonuses unilaterally
An employee dismissed due to staff reduction filed a claim in court to recover the bonus. In the last six months he received only half of the allotted amount.
The lawsuit explained that, in accordance with the Bonus Regulations, a bonus was set at 50 percent of the official salary. All employees, including the plaintiff, were familiarized with it. However, then the employer adopted a new Regulation on bonuses, in which the bonus was provided in the amount of 25 percent.
The new local act worsened the situation of employees compared to the previously valid document, which contradicts Part 4 of Art. 8 of the Labor Code of the Russian Federation and the terms of the collective agreement. In addition, the plaintiff was not familiar with the new Regulations, therefore, by virtue of Art. 22, 57, 72 of the Labor Code of the Russian Federation were not subject to application.
The employer stated in court that the latest Regulation was adopted in compliance with all procedures established by labor legislation, and therefore is legal. The company had the right to unilaterally change this local act, since the bonus provided for in the employment contract is not a guaranteed payment and is awarded to the employee upon achieving positive results in the activities of the company as a whole based on the order of the manager.
The court rejected these objections and granted the claim, noting the following.
According to the clause of the employment contract, the employer’s responsibilities include: “Pay the full amount of wages due to the employee on time.” Another clause of the employment contract states the employer’s right to provide bonuses to the employee in accordance with the current Regulations on Bonuses. One of the clauses of the Regulations on bonuses stipulates that bonuses are part of the employee’s salary.
Thus, given that the new Regulation worsened the working conditions of the plaintiff, who was not familiar with it, the previously valid Regulation should have been applied when calculating the bonus.
In addition, the employer did not provide evidence that the plaintiff during the disputed period did not meet the bonus indicators, namely, did not comply with the schedule of preventive work. The order to deprive the plaintiff at the enterprise was not issued.
Consequently, the plaintiff is entitled, in accordance with the Bonus Regulations, to a monthly bonus in the amount of 50 percent of the salary.
APPEAL DECISION of the Rostov Regional Court dated 06/07/2012 No. 33-6441
AccountingEditor's note:
in another case, the employer went a little further - he invited employees to familiarize themselves with and sign the new Regulations on bonuses. The employee saw that the bonus amount had been cut and refused to sign it. Then the company drew up an act of refusal to sign the familiarization sheet and then submitted it to the court.
But this also did not help, since the new provision, which worsened the employee’s situation, was subject to application only with the employee’s signature certified upon agreement with it. The employee did not agree and did not sign. The act of refusal to sign only confirmed this (Appeal ruling of the Perm Regional Court dated February 16, 2015 No. 33-1676).
