- 1. Labor Code of the Russian Federation (extraction) 2. Resolution of the Government of the Russian Federation on
In many companies, employees often travel on business during the year. These are, as a rule, sales managers, equipment installation and installation engineers, journalists, photojournalists, auditors, internal auditors, etc. And even on work sites with respect to such professions it is often stated that travel over 50% of working time. In our article, we’ll lose sight of how frequent and short or rare, but long business trips will be reflected in the purse of employees in the future, when they are going to go on annual paid leave. Will travel allowance pay for vacation pay?
Having become accustomed to their mode of operation, some travel enthusiasts even ask them to schedule their trips so that they can be on a business trip for as long as possible. The interest in this is usually personal, financial – to get more daily allowances at once (especially in cases when the cost of breakfast and dinner is included in the hotel bill). Many employers encourage such a love of official travel by paying extra compensation in various forms to business travelers.
But how do the sums received in connection with business trips affect other payments due to employees, in particular, the amount of vacation pay? Let’s see.
VACATION AND TRAVELERS: GENERAL ORDER
The size of vacation pay depends on a large number of factors, including travel.
NA No. 3-2008 Recall that the time of annual leave and travel time is paid on the basis of average earnings, calculated in accordance with the Regulations on the features of the procedure for calculating the average wage, approved. Government Decree of
The calculation of the average earnings to determine the amount of vacation pay to the employee is made on the basis of the actual wage calculated for him and the time he actually worked for the previous 12 months of vacation
According to Art. 139 of the Labor Code of the Russian Federation for calculating the average wage, all types of payments provided by the remuneration system used by the employer, regardless of the sources of these payments, are taken into account.
Holiday pay, which the employer is obliged to pay to all employees (including the summed-up accounting of working time) during the annual paid leave provided in calendar days, is calculated according to formula 1 (Article 114 and 139 of the Labor Code of the Russian Federation; clause 8 of Regulation No. 922):
Formula 1. Calculation of vacation pay during the annual paid vacation
At the same time, the calculation period for calculating the average earnings during the holidays is the last 12 calendar months preceding the month of the beginning of the holidays. At the same time, the local regulatory act of the employer can be set to a settlement period of a different duration, if this does not lead to a decrease in the average wage of the employee (hh 3 and 6 article 139 of the Labor Code of the Russian Federation, clause 4 of Regulation No. 922).
The settlement period is considered to be fully worked out if, during this time, the employee did not have a vacation, business trip, sick leave and other periods excluded from the settlement (clause 5 of Regulation No. 922). Otherwise, the billing period is not fully developed. The order of calculation of holiday pay depends on it.
If the settlement period is fully developed, then the estimated number of days for the settlement period in formula 1 is determined by formula 2 (part 4 of article 139 of the Labor Code of the Russian Federation, clause 10 of Regulation No. 922).
Formula 2. Calculating the number of days in a fully calculated billing period
If the settlement period is not fully developed, then the estimated number of days for the settlement period in formula 1 is determined by formulas 3 and 4 (clause 5 and 10 of Regulation No. 922):
Formula 3. Estimated number of days in a not fully completed settlement period
Formula 4. The estimated number of days in each of the incomplete months of the billing period
Formulas 1 and 2 for the calculation of vacation pay apply if the employee’s business trips did not fall within the billing period (as a rule, in the case of single trips), and formulas 1, 3 and 4 — when the business trips entered the billing period (with regular business trips).
In the reference period for calculating the average earnings, the time is not included when the average salary for the employee remained, except for breaks for feeding the child.
Recall that on the basis of sub. “A” p. 5 of Regulation No. 922 when calculating the average earnings from the billing period, time is excluded, as well as the amounts accrued during that time, if the employee maintained the average earnings in accordance with the legislation of the Russian Federation. This rule directly applies to seconded workers.
Article 167 of the Labor Code of the Russian Federation establishes that when an employee is sent on a business trip, he is guaranteed the preservation of the place of work (position) and average earnings, as well as reimbursement of expenses related to the business trip. In addition, in accordance with Part 1 of Art. 168 of the Labor Code of the Russian Federation to the seconded employee are reimbursed:
- travel expenses; living expenses; additional costs associated with living outside the place of permanent residence (per diem); other expenses incurred by the employee with the permission or knowledge of the employer.
The procedure and amount of their compensation is determined by the local regulatory acts of the employer or by the collective agreement (part 2 of article 168 of the Labor Code of the Russian Federation).
So, if the employee’s travel period falls into the settlement period for calculating vacation, then the days of travel and the amounts accrued during this time (average earnings for the trip period), daily allowances and travel compensation should not be taken into account to calculate vacation pay. Therefore, the amount of vacationers of an employee traveling on business trips will differ from the amount of vacationers of the same employee, if he did not go anywhere, to the smaller side.
The employee used the vacation in the amount of 28 calendar days from July 4, 2011. The calculation period (July 2010 – June 2011) was not fully fulfilled. He was not on vacation, but on two occasions he went on a business trip: from December 20 to December 24, 2010, the worker was on a business trip in St. Petersburg and from April 11 to 15, 2011, the worker was on a business trip in Tver. In this case, the monthly wage of an employee is 40,000 rubles. Thus, in just 12 months, the employee received 461780,53 rub. and the average earnings for the time spent on a business trip in the amount of 16180 rubles. How was the amount of vacation pay calculated?
Days of travel and amounts accrued to the employee during this time are not taken into account when calculating the average earnings of the employee to determine the amount of vacation pay. Accordingly, in this situation, the algorithm for calculating the holiday pay was as follows:
Step 1. Definition of full and incomplete months of the settlement period.
In the billing period was:
- ten full months – July, August, September, October, November 2010, January, February, March, May, June 2011, since they do not include travel periods excluded from the calculated period; two incomplete months – December 2010, April 2011
Step 2. Determining the number of calendar days in each of the incomplete months of the billing period.
When counting days in incompletely worked months, all calendar days (working days, weekends and non-working holidays) are taken into account, excluding days excluded from the billing period. And in order to determine their number in the incomplete month of the billing period, it is enough to subtract the number of calendar days falling into the period excluded from the billed one from the number of calendar days in a particular month (28, 29, 30 or 31).
December 2010 is an incomplete month since it accounts for the period when the employee was on a business trip in St. Petersburg (5 calendar days excluded from the billing period). The time worked in December 2010 is 26 calendar days (31 days – 5 days), including 18 working days and 8 days off.
April 2011 is an incomplete month, since it accounts for a business trip to Tver (5 calendar days excluded from the billing period). The time spent in April 2011 is 25 calendar days (30 days – 5 days), including 16 working days and 9 days off.
The time worked in December 2010 was 26 calendar days when the employee was not on a business trip, and the time worked in April 2011 was 25 calendar days when the employee was not on a business trip.
Step 3. Determination of the estimated number of days in each of the incomplete calendar months of the settlement period:
- December 2010: 29.4 days: 31 days. x 26 days = 24, 7 days; April 2011: 29.4 days: 30 days x 25 days = 24.5 days
Step 4. Determination of the estimated number of days in the billing period:
10 months x 29.4 days + 24.7 days + 24.5 days = 343.2 days
Step 5. Calculation of employee’s vacation pay:
28 days x 461 780.53 rub. : 343.2 days = 28 days x 1 345,514 rubles per day = 37 674.40 rub.
For comparison, if such an employee did not go on business trips during the billing period and the billing period would be worked out completely, the amount of his vacation pay would be:
28 days х 480 000 rub. : (12 months x 29, 4 days) = 28 days х 480 000 rub. : 352.8 days = 28 days x 1 360,544 rub. / days = 38 095.24 rub.
As you can see, the difference in the amount of vacation pay due to two short-term business trips that fell during the billing period is 420.84 rubles. (38 095.24 rubles – 37 674.40 rubles). At the same time, if business trips that fall within the billing period exceed 50% of the working time, this difference will be much larger and will be noticeable for the personal budget of the seconded worker.
SUPPORT FOR WORK IN THE OUTPUT (FESTIVE) DAYS ON TRAVEL AND CALCULATION OF VACATION
Engaging workers to work on weekends and non-working holidays, regardless of whether these days are for the period of a business trip or not, is done with their consent if it is necessary to perform unforeseen works, the urgent performance of which later depends on the normal work of the organization as a whole or its individual structural divisions (part 2 of article 113 of the Labor Code of the Russian Federation).
The employee’s consent to work on a weekend or a holiday must be recorded in writing (part 2 of article 113 of the Labor Code of the Russian Federation). As a rule, for these purposes, a corresponding notification is sent, where a special line is provided to mark the employee about consent or disagreement working during a business trip on weekends or holidays, consent to leave for a business trip on a holiday or weekend.
Attention, the problem!
About whether to take into account or not to take into account for calculating the average earnings, the time spent on a business trip on weekends and non-working holidays, when the employee does not save the average earnings and wages are paid according to the rules of art. 153 of the Labor Code of the Russian Federation not less than double the amount, the opinions of experts diverge.
Recall, Section 5 of Regulation No. 922 states that when calculating the average earnings, the time period is excluded from the billing period (as well as the amounts accrued during this time) when the average earnings remained for the employee, except for breaks for feeding the child. According to art. 167 of the Labor Code of the Russian Federation for the period of a business trip the employee maintains an average earnings.
The common opinion is that it doesn’t matter whether a worker is on a business trip on weekends, holidays or working days – these days are from the time of the business trip. And for the period of the trip, initially under art. 167 of the Labor Code of the Russian Federation, the employee maintains average earnings. Consequently, it is not necessary to take into account weekends and holidays to calculate the average earnings, despite the fact that they are paid according to special rules, just like other days of the trip.
But there is another point of view on this issue. The fact is that literally in the sub. “A” p. 5 of Regulation No. 922 does not say that for the calculation of average earnings
it does not take into account the time of “business trip”, literally, it is a question of time and accrued amounts, when the employee “maintained the average earnings in accordance with the legislation of the Russian Federation”.
Indeed, as a general rule, for the time of a business trip, an employee retains his average earnings, but not in cases when, while on a business trip, he is employed to work on weekends or non-working holidays.
Judge for yourselves, work on weekends and holidays, even during a business trip, in accordance with clause 5 of Regulation No. 749 is paid, and not less than double, as provided for by art. 153 of the Labor Code of the Russian Federation. Consequently, the average earnings for the employee for these days is not saved.
It turns out that the time the employee works on a business trip on weekends or holidays, as well as the amounts accrued during this time when calculating the average earnings from the billing period are not excluded and, accordingly, are taken into account when calculating vacation pay to the employee. In the sub. “L” p. 2 of Provision No. 922 also states that for calculating average earnings, all types of payments provided for in the wage system, including payments related to payment for work on weekends and non-working holidays, are taken into account.
On the fact of attracting an employee to work on weekends or non-working holidays, a separate order is issued. Such a written order of the employer should be reflected in the order to send the employee on a business trip issued in a unified form No. T-9 (No. T-9a), approved. Resolution of the State Statistics Committee of Russia
NA 12’2008Working on a business trip on weekends and non-working holidays is paid to the employee in the same way as if he was involved in work on the indicated days without being on a business trip, that is, not less than double the amount (Article 153 of the Labor Code RF). So, in paragraph 5 of the Regulations on the features of the direction of workers in official travel, approved. Government Decree of
At the request of an employee traveling on a business trip (coming from a business trip) on his day off (holiday), or working on a day off or holiday, instead of double payment, he may be given another day of rest. In this case, work at the weekend (holiday) is paid in a single amount, and the additional rest day is not payable (Article 153 of the Labor Code of the Russian Federation).
However, in the billing period for the payment of vacation pay to the seconded employee, the days off on business as well as payment for them will not be included. Indeed, despite the double payment, these days belong to a business trip. And such a time in the billing period for vacation pay is not included. Foundation – Sub. “A” p. 5 of Regulation No. 922.
DEPOSITS TO ACTUAL EARNING DURING THE PERIOD OF TRAVEL AND CALCULATION OF VACATION
It is possible to pay time for a business trip on the basis of salary only if the average salary is less than the salary (part 4 of article 8, part 2 of article 9 and article 167 of the Labor Code of the Russian Federation, paragraph 9 of Regulation No. 749)
Understanding the financial losses caused by numerous business trips to workers when they lose in payment, receiving average earnings for traveling days, but not a salary, some employers meet workers and give them additional payments when they are sent on a business trip.
The employer’s local statutory act, for example, in the Regulations on business travel, may provide for the following obligation of the employer: “The employer pays for the dispatched workers to actual earnings in cases when the average earnings are lower than the actual earnings of such an employee” or “The employer undertakes to pay the time spent by workers on a business trip, based on actual, rather than average, wages, but in an amount not lower than the average salary. ”
This may be a surcharge to the actual earnings of the employee, which he could get, not leaving on a business trip, and working at his place of work.
We want to prescribe in our Regulation on travel the rule about the additional payment to the employees before their actual earnings in cases when saving the average earnings for them is unprofitable. However, in a letter from the Federal Labor Service
In our opinion, this position of Rostrud is not perfect. One of the principles of legal regulation of labor relations is ensuring the right of every employee to timely and full payment of fair wages, as well as a combination of state and contractual regulation of labor relations (article 2 of the Labor Code of the Russian Federation). In accordance with Art. 5 of the Labor Code of the Russian Federation, labor relations are also regulated by collective agreements, agreements and local regulatory acts containing labor law norms.
Moreover, by virtue of Art. 8 of the Labor Code of the Russian Federation, the norms of local normative acts that worsen the situation of workers in comparison with the established labor legislation are not applicable. Thus, labor legislation establishes a guaranteed minimum amount of payments to an employee on a business trip, while the employer, in turn, may stipulate in a local regulatory act the obligation to pay the employee for the time spent on a business trip average earnings, and in the case where the amount of average earnings is lower wage the employee for the same period, to pay him extra to the current wage or to pay directly wages.
In this situation, the employer fully respects the interests of the employee, since the employee continues to perform his labor function while on a business trip, and he must be paid wages, but subject to the requirements of art. 167 of the Labor Code of the Russian Federation, its amount may not be lower than the average earnings calculated in the prescribed manner. Therefore, the employer can make the accrual and payment of wages to the employee for the period he is on a business trip, provided that this possibility is provided for by the employment (collective) contract or local regulatory legal act of the company and that the amounts of the accrued wages exceed the average earnings for the corresponding period.
In any case, the size of the vacation such surcharges can not affect. They, like other payments made by the employee during his business trip, are not taken into account when calculating the average earnings for vacation pay. This option is not provided for by labor legislation (Art. 139 of the Labor Code of the Russian Federation, Sub. “A”, paragraph 5 of Regulation No. 922).
REMUNERATION FOR THE DURATION OF A STAY IN TRAVEL AND CALCULATION OF VACATION
Many organizations have established additional remuneration for employees sent on business trips. Such rewards are usually paid in the form of monthly bonuses.
In the local regulations of the employer, for example, in the Regulations on official travel or in the Regulations on remuneration and bonuses, it may be provided:
“The following types of additional bonuses are paid to seconded workers:
- if the stay on a business trip exceeded 50 calendar days on a cumulative total from the beginning of the year and did not reach the 81st calendar day, then for each day of traveling on business trips after the 50th day and on the 80th day a premium of 650 rubles is paid; if a business trip exceeded 80 calendar days on a cumulative basis from the beginning of the year, but did not reach the 101st calendar day, then for each day of traveling on business trips, starting from the 81st day and on the 100th day, a bonus of 750 rubles is paid; if the stay on a business trip exceeded 100 calendar days on a cumulative basis from the beginning of the year, but did not reach the 151st calendar day, then for each day of being on business trips from the 101st day to the 150th day a premium of 1000 rubles is paid; if a business trip exceeded 150 calendar days on a cumulative basis from the beginning of the year, but did not reach the 181st calendar day, then for each day of traveling on business trips from the 151st day to the 180th day, a premium of 1,500 rubles is paid. ; if the stay on a business trip exceeded 180 calendar days on a cumulative basis from the beginning of the year, then for each subsequent day a premium of 2500 rubles is paid.
Additional payments are made in the form of a bonus for the month following the reporting month. Day of departure and arrival are considered two calendar days of stay on a business trip, except in cases where the day of arrival and departure coincide. In this case, the day of departure is determined by the date of the travel document, and the day of arrival – as the day of the actual arrival at the station (at the airport). ”
The employee’s salary consists of his salary (wage rate), as well as compensation and incentive payments made.
To calculate the average salary for the billing period, when determining vacation pay, all types of payments provided for by the wage system are used for the respective employer, regardless of the sources of these payments (part 2 of article 139 of the Labor Code of the Russian Federation, paragraph 2 of Regulation No. 922). In particular, such payments include monthly bonuses stipulated by the remuneration system (subclause “n”, clause 2 of Regulation No. 922).
When calculating the vacation premiums are included in the salary accrued to the employee for the billing period. This takes into account only the premiums actually accrued in the billing period (part 4 of article 139 of the LC RF). These are the premiums accrued within the billing period, regardless of the time for which the accrual occurs (letter from Rostrud
If the premium is accrued after the billing period, although for the months included in it, it is not taken into account when calculating the average earnings (clause 15 of Regulation No. 922). Thus, when calculating vacation pay, a monthly bonus is taken into account for the duration of travel, which is actually accrued in the billing period, but not more than one payment for each indicator for each month of the billing period (clause 15 of Regulation No. 922).
On this basis, the amount of additional remuneration for the length of stay on business trips provided for in the wage system and fixed in the employer’s local regulatory act should be taken into account when calculating the average earnings for paying vacation pay in the general procedure.
So, we have considered the features of the calculation of vacation pay to an employee who was on a business trip during the reference period. The results will be given in the table.
The impact of payments to seconded workers on the calculation of vacation pay