The rise in the minimum inter-professional salary (SMI) for 2019 from 735.90 to 900 euros per month has been a 22.3% increase, the highest in recent years. The exceptional nature of the measure has generated many doubts about how the new minimum wage has to be applied in practice.
First, you have to go to the norm that approves this new minimum wage (Royal Decree 1462/2018), which sets the amounts according to the reference period used for the calculation: 30 euros per day, 900 euros per month and 12,600 euros per year (divided by 14 payments). Household employees will charge a minimum of 7.04 euros per hour and temporary workers and 42.62 euros per day.
What is meant by SMI?
The SMI is the minimum amount that a worker must receive for a real work day, regardless of their sex, age or whether they are permanent, seasonal or temporary, an amount that is set annually by the Government by Royal Decree, after consulting the Government with the most representative trade unions and business associations, taking into account factors such as the CPI, the average national productivity achieved or the increase in the share of work in the national income and the general economic situation.
We must always speak in gross concepts for full days. The relevant is the annual computation (currently 12,600 euros), regardless of how you pay, be in 12, 14 or more pay; in the case of partial days, it will be calculated proportionally.
In the minimum wage, only the monetary remuneration is computed, without the salary in kind being able, in any case, to result in the reduction of the entire amount of the liquid to be received.
Who does this rise in the SMI affect?
This increase is aimed at those who charge less than this amount for a full day in annual computation.
For those workers whose salary is above 12,600 gross euros per year they will not notice any change directly, but indirectly, by increasing the limits of salaries and indemnities paid by the Wage Guarantee Fund (FOGASA) or the amount of salary protected against an embargo.
The workers most benefited by this increase are those who do not have a collective agreement for application, unless they have agreed to a higher salary with the employer.
What if there is an agreement?
For those workers who have collective agreement of application, it will be necessary to be what is established in the same, to its validity and to the possible link of the base salary foreseen in them to the SMI established by royal decree.
Given the exceptional nature of the increase established for 2019, the royal decree establishes exceptions to the rise of the SMI.
On the one hand, it is not applicable in the cases in which the regional or local regulations use it as a reference index to determine the amount of certain benefits or to access certain benefits, benefits or public services.
Nor is it directly applicable in the case of individual or collective agreements, in which the agreements must be included, which use the SMI as reference to establish the base salary. When they determine the base salary according to the SMI plus various supplements, it will not have to be increased if the sum exceeds the current minimum interprofessional salary.
How does it affect collective agreements that use the SMI as a reference? Is this 22.3% also up?
The answer is a non-initial. In accordance with article 12 of Royal Decree Law 28/2018, the new amounts for 2019 do not apply to the collective agreements in force on January 1, 2019 that use the SMI as a reference to determine the amount or increase of the base salary or of salary supplements, unless the legitimated parties agree otherwise. The amount of the SMI will be understood as referred during 2019 to:
a) Collective Agreements in force on January 1, 2017: The SMI for 2016 is taken into account, 655.20 euros / month, increased by 2%.
b) Collective agreements that entered into force after January 1, 2017 and that continued in force as of December 26, 2017: The SMI is taken into account for 2017, that is, 707.70 euros / month, increased by 2%.
c) Collective agreements that entered into force after December 26, 2017 and in effect on December 28, 2018: The SMI is taken into account for 2018, this is 735.9 euros / month.
However, it is a non-initial, because the standard specifically provides that they will have to revise the agreements that establish salaries that as a whole are lower than the new SMI. That is, the sum of the SMI and the respective supplements that are collected in the payroll, can never be less than 12,600.00 euros per year.
Are complements included in the calculation?
We have to go to the agreed by collective bargaining or in the individual contract with the employer, which specifies what comprises the base salary and what supplements that may be perceived according to the specific circumstances of the worker, their work or the results of The company or the criteria agreed upon can be compensated or not to reach the SMI.
Are Compensable or absorbable wage concepts those that are taken into account in the global calculation of the salary to reach the minimum wage. It would not be compensable, for example, the pact of exclusive dedication to not have homogeneous character with the base and to be paid in a specific way by an individual pact. This supplement can not be compensated with the SMI.
Yes, the sum of the SMI and the respective supplements that are collected in the payroll, can never be less than 12,600.00 euros per year.
To know more about minimum salary and how it is applied in doubtful cases, consult Ciss Laboral and click here.