Decree No. 235 / 1988 Coll.
Decree of the Federal Ministry of Labour and Social Affairs on the detection and use of average earnings
Valid
Effective from 01.01.1989
235
DECLARATION
Federal Ministry of Labour and Social Affairs
of 27 December 1988
on the detection and use of average earnings
According to § 275 (1) (a) of the Labour Code No. 65 / 1965 Coll., as amended by Act No. 188 / 1988 Coll., after consulting the Federal Ministry of Finance and in agreement with the Central Council of Trade Unions and the Association of Cooperative Farmers:
DETERMINATION AND USE OF EXTERNAL REVENUE
Preliminary provisions
The detection and use of average earnings for employment purposes shall be carried out in accordance with this Decree, unless otherwise provided for in another generally binding labour law (1).
(1) The average earnings are collected from gross earnings (Paragraph 3) settled for payment during the relevant period (Paragraph 4) and from periods worked during the relevant period determined in accordance with Sections 7 (2) and 7 (9).
(2) The average earnings first established in the current calendar year are used until the end of that year, unless otherwise specified.
Gross income
(1) Gross earnings include wages, (2) which have been paid to the worker during the relevant period and subject to payroll tax, with the exceptions provided for in paragraph 3. Gross earnings are also included in wages if they do not result in a wage tax deduction simply because the earnings are below the taxable amount. The remuneration for secondary activities (Section 71 of the Labour Code) is assessed separately.
(2) The gross earnings shall not include cash benefits provided by organisations which are not wages for work done in employment, nor compensation for wages and expenses related to the performance of work.3) Gross earnings shall not include types of wages which are wholly or partly exempt from payroll tax, 4) and the following types of wages (income):
(a) stabilisation and recruitment fees (contributions);
(b) share of the economic results or additional remuneration of members of production cooperatives;
(c) in-kind benefits and other similar benefits for the worker, even in his absence at work, and their financial compensation, if they are not withdrawn;
(d) wage compensation and other cash benefits provided for the release and transfer of workers into mining or for the implementation of rationalisation and organisational measures.
(3) However, gross earnings are included, even if exempt from payroll tax,
(a) wages for blind workers;
(b) wages paid to members of the rescue corps established under the special rules for risk workplaces provided for in the rescue operation;
(c) wages on which tax is not deducted under international double taxation conventions;
(d) the remuneration of Members of the national committees who are long-term relieved of their current employment.
(4) Annual remuneration (annual premium) to managers provided under wage regulations or internal wage regulations on the material participation of managers is included in the gross earnings, where their amount is determined by a percentage of the basic salary achieved per calendar year.
(5) In the case of workers remunerated with a monthly salary to whom the supplement was paid up to the average earnings, (5) this supplement is included in the other components of the salary, except in the cases referred to in the second sentence of Paragraph 4 (7).
Applicable period
(1) Unless otherwise specified, the period shall be the previous calendar year. The average earnings shall be collected on 1 January of the current calendar year.
(2) Where an employment relationship is established during the previous calendar year, the period shall be the period from the employment to the end of the previous calendar year.
(3) If, on 1 January of the current calendar year, a worker with a weekly working period of at least 70 days, or a worker with a weekly working period of more than five days, has not worked for the relevant period referred to in paragraphs 1 and 2, 80 days, the relevant period shall be extended until the end of the accounting period preceding the day on which the average earnings are to be established.
(4) When an employment relationship is established in the current calendar year, the period shall be the period from the employment to the end of the accounting period preceding the date on which the average earnings are to be established; the provisions of paragraph 3 shall also apply here.
(5) The same period of validity as in the case of employment
(a) taking up work after the completion of the continuous preparation for the future occupation of a youth organisation (6) and inclusion in the employment contract after completion of the initial practice and further integration (period of basic vocational growth) of secondary and university graduates;
(b) a change in the method of remuneration, consisting of the fact that a worker remunerated by an hourly salary is remunerated by monthly salary and vice versa, and the change in the method of remuneration in the course of the transition to a mixed or share wage from another wage form and vice versa;
(c) re-entry into work after completion of a public office which lasted for at least one year, after completion of the military basic service, further maternity leave and imprisonment,
(d) transfer to another work in connection with the imposition of a penalty for corrective action or a ban on action and on returning to the original work after the execution of those penalties;
(e) change of work or taking up a new place of work within the same organisation that has taken place in connection with the implementation of rationalisation and organisational measures.
(6) At the end of the current employment relationship and the creation of a new employment relationship between the worker and the same organisation on the next subsequent working day, the relevant period shall be assessed in the same way as with the continuous duration of the same employment.
(7) The calendar months for which the worker was granted a compensatory allowance in pregnancy and maternity and for which the worker was paid a wage compensation shall not be included in the relevant period. The calendar months for which the staff member was granted a supplement to the average earnings shall not be included in the relevant period (5) if, in the context of the termination of the grant of the supplement, there is a permanent change in the basic salary in accordance with Paragraph 10; in this case they shall not be included in the relevant period even when the average earnings are determined in the following calendar year. In such cases, no account shall be taken of the earnings settled for those calendar months.
Likely earnings
(1) The likely earnings are used instead of the average earnings if, during the relevant period, a worker with a weekly working time, divided into five working days, or less than five working days, or disproportionately for each day of the week, has not worked at least 70 days, or a worker with a weekly working time, divided into more than five working days, has not worked at least 80 days.
(2) Probable earnings shall be collected on the date on which it was necessary to identify it. The first observed likely earnings are always used until 70 (80) days have been worked and are not re-established at that time, unless there has been a permanent change in the basic wage, cases considered to be employment or change in the agreed length of weekly working time.
(3) Likely earnings shall be collected from earnings earned by the worker since the beginning of the relevant period, adjusted, where appropriate, according to the average earnings of workers performing the same or similar work in the organisation, and, if this is not possible, according to the earnings established under wage regulations, internal wage regulations or collective agreements. Probable earnings are reduced proportionally for an unexcused absence of work. The adjustment of the likely earnings shall be made if there is an unjustified advantage or disadvantage for the worker without it.
(4) The likely earnings shall be used until the end of the calendar year in cases where, due to the length of the period for which certain other components of the salary are provided in the organisation, the average earnings recorded after working 70 (80) days are lower than the likely earnings established under paragraphs 2 and 3; this shall be without prejudice to the provisions of Sections 4 (5) and 10.
Days worked
In order to assess whether the relevant period is extended (§ 4 (3)) and to assess whether the likely earnings are used (§ 5 (1)), it shall be considered as the working day in which the worker:
(a) perform work according to the schedule of shifts;
(b) have taken a spare leave;
(c) he had an unexcused absence at work.
In doing so, no account shall be taken of calendar months which are not included in the relevant period under Article 4 (7).
Method of determining average earnings
(1) The average earnings shall be determined as the average hourly earnings, or as the average daily earnings, unless otherwise specified. The average daily earnings shall be calculated from the average hourly earnings according to the average number of working hours per working day determined according to the schedule of the worker's weekly working hours; it is directly ascertained if it is not possible to detect average hourly earnings due to the method of recording working time and the state of computer technology.
(2) The average hourly (daily) earnings of the worker, including wages for overtime work, are collected
(a) for workers remunerated by hourly wages, by dividing gross earnings by the number of working hours (days) corresponding to the fixed weekly working hours of the worker for the relevant period; this number is reduced by hours (days) of excused absence at work and missed for detention,
(b) for workers remunerated with a monthly salary, by adding to the proportion of the monthly basic wage per hour (day) the average of the other components of the salary determined in accordance with (a); when determining the proportion of the monthly basic wage, the monthly basic wage shall be based on an amount which would be payable to the worker in the month in which he is paid compensation if he worked throughout the month. If the worker has missed work without notice during the relevant period, it shall be treated as an hourly wage-paid worker under point (a).
(3) If the method of recording working time does not allow for the detection of the average hourly earnings referred to in paragraph 2, it may be established that the average daily earnings (average of the other components of the salary) are divided by the average number of working hours corresponding to the working day fixed weekly working hours.
(4) The average hourly (daily) earnings without overtime pay are determined for workers remunerated by hourly wages by reducing gross earnings by the overtime wage, including the allowance, and dividing the number of working hours (days) determined in accordance with paragraph 2 (a). If the performance achieved at the time of overtime cannot be determined separately from the performance achieved at the specified weekly working time, gross earnings, less overtime allowance, shall be divided by the number of hours (days) worked during the relevant period, plus hours (days) of unexcused absence at work.
(5) For workers remunerated by monthly salary, the average of the other components of the salary shall be determined mutatis mutandis in accordance with paragraph 4 for the purpose of using average earnings without overtime.
(1) If the worker has been cleared for payment of the annual remuneration or the annual premium (part of it) during the period in question, if it is included in the gross earnings and is due for the calendar year immediately preceding the year in which they were cleared for payment, the average (average part of it) shall be determined separately by dividing the number of hours (days) worked in the calendar year for which they are due. This average shall be added to the average determined in accordance with the previous provisions; in the case of workers remunerated by hourly wages, gross earnings shall be reduced by such annual remuneration or annual premium (part of it), in the case of workers remunerated by monthly wages, by the other components of the salary referred to in Article 7 (2) (b).
(2) Where two such annual fees or annual premiums (parts of them) have been settled in the period of the applicable period extended pursuant to Paragraph 4 (3), the sum of these shall be treated mutatis mutandis in accordance with paragraph 1, by dividing the number of hours worked (days) in the calendar years for which they are due.
(1) The number of working hours (days) dividing gross earnings according to § 4 to 8 is not reduced by hours (days)
(a) replacement leave;
(b) an unexcused absence of work;
(c) holidays where the worker does not work because it is a holiday if his monthly salary is not reduced. 7)
(2) The provisions of paragraph 1 are also applicable to determining the average of the other components of wages referred to in Paragraph 7 (2) (b) and the average of the annual remuneration or annual premium referred to in Paragraph 8.
Permanent change in basic wage
(1) A permanent change in the basic wage shall be regarded as a change in the basic wage for the purposes of determining the average earnings.
(a) within the specified margin of the relevant wage tariff;
(b) when changing the tariff class (function) and changing the personal (qualification) class of workers,
(c) in connection with a change in the tariff scale, except where the change takes place in connection with a change in working hours, 8)
(d) where a change in the percentage of the income realised is made to workers remunerated with a share wage, if it is made to change the personal (qualification) class of the worker or to change the class of work he does;
(e) in connection with the grant, modification or withdrawal of a personal salary;
(f) in respect of transfer to another work in the cases referred to in Sections 37 (1) and (2) of the Labour Code, unless it is a transfer to another work referred to in Section 4 (5) (d).
(2) As a permanent change in the basic salary, the agreed length of the weekly working time shall be adjusted by adjusting the amount of the other components of the salary settled in the relevant period according to the ratio of the length of the new and earlier working hours; This does not apply to the reduction of weekly working hours without salary reduction.
(3) When introducing a reduced weekly working time without a reduction in wages, the current average earnings are used, with the average hourly earnings being converted according to the ratio of the length of the earlier and reduced weekly working hours.
(4) A permanent change in the basic salary shall not be regarded as
(a) where the worker is remunerated temporarily by a salary equal to the average earnings, 9)
(b) transfer of a worker to another job, if a supplement to the new salary is paid to the average earnings, 5)
(c) transition from the task wage to the time and vice versa;
(d) a change in the class of work carried out for workers;
(e) changes in the basic salary referred to in paragraph 1 (a) to (d) which shall be repeated during the relevant period.
(5) In the event of a permanent change in basic salary, the average earnings of workers remunerated
(a) monthly wage on the new basic salary and separately from other components of the salary,
(b) an hourly wage from the average of a new monthly earnings account, for which the operative period starts from a permanent change in the basic salary and ends in the same way as the reference period in the cases referred to in paragraphs 1 to 4 of Paragraph 4 and separately from the other components of the salary.
In order to determine the average of the other components of the salary referred to in points (a) and (b), the period laid down in Article 4 shall be the relevant period, irrespective of the permanent change in the basic salary.
SURVEILLANCE AND USE OF EXTERNAL REVENUE IN CERTAIN SPECIFIC CASES
For the purposes of compensation for wage in the event of obstacles to work of less than one shift, average earnings without overtime pay are used (§ 7 (4)). In the case of workers remunerated by monthly wages, such obstacles to work shall be compensated for in proportion to the proportion of the monthly basic wage; However, if any of the components of the remuneration expressing personal evaluation during this period are reduced, the average earnings without overtime are used (§ 7 (5)).
(1) The average daily earnings (Section 7 (1)) shall be used for the purpose of compensation for the vacation allowance.
(2) For the purpose of compensating for the salary of recovered transport workers or connections who take leave in calendar days, (10) the average earnings per calendar day shall be collected from the number of calendar days in the relevant period, reduced by days of waived work and missed for detention. The days to be deducted in this way shall be reported on calendar days, irrespective of how many days the remuneration has been paid; the procedure laid down in Article 9 shall be followed mutatis mutandis.
Labour agreements
The average earnings of workers working under the employment agreement shall be collected for the purposes of compensation and in the other cases agreed in the agreement, mutatis mutandis as the average earnings for workers in employment; where the work is carried out on an irregular basis, the calculation of the average earnings shall be based on the number of calendar days in the relevant period.
Average earnings for some workers in business organisations
(1) For the purposes of determining the average earnings of workers in trade organisations, Articles 2 to 11, 12 (1) and 13 shall be followed unless otherwise specified.
(2) As in the case of employment, the period shall be assessed for workers remunerated:
(a) a mixed share or mixed task or collective share wage, if they have a permanent change in the tariff grade, linked to a change in the basic salary;
(b) an individual share wage when changing the percentage of the revenue obtained, if it was obtained for the change of the worker's tariff (personal) class.
(3) For workers remunerated with mixed share or mixed task pay, the fixed part of the salary determined in accordance with generally binding wage regulations shall be used instead of the monthly basic wage for the purposes of determining the average wage.
(4) In the case of commercial operators, with the exception of factory and school catering and accommodation workers, and in the case of technical economic workers and workers who work in a collective with, and are remunerated collectively with, commercial operators,
(a) the average earnings are collected in the same way as for workers remunerated by hourly wages;
(b) when changing the method of remuneration in connection with the transition to mixed or share wages from another wage form and on the other hand, it does not assess the relevant period in the same way as in the case of employment.
Average profit for damages
(1) The average earnings of the worker for the purposes of compensation and for determining the compensation for the salary for the unpaid termination of employment shall be, unless otherwise specified, the average earnings recorded in accordance with Sections 2 to 11, Sections 13 and 14, including, in the basis for its calculation, the share of the economic results or additional remuneration of members of production cooperatives, and the annual remuneration (annual premium) of the managers, even if their amount is fixed at a percentage of the expected annual basic salary and shall not be reduced for the period of absence at work; where they have not been settled, they shall be included in the basis for calculating the average earnings actually achieved or likely to be made.
(2) For the purposes of damages, the average gross monthly earnings shall be collected for workers remunerated by hourly wages by multiplying the average hourly (daily) earnings, including any overtime and overtime wage, by the average number of working hours (days) per month of the total number of working hours (days) per year. In the case of workers remunerated by monthly salary, the average of the other components of the salary per month determined in accordance with the first sentence shall be added to the monthly basic wage.
(3) According to paragraph 2, for workers with a weekly working time spread over five working days, the average hourly earnings shall be multiplied if the weekly working time is
a) 42 1 / 2 hours, 184,79 hours,
(b) 41 1 / 4 hours, 179,35 hours,
(c) 40 hours, 173,92 hours,
(d) 36 hours, 156,53 hours;
the average daily earnings are multiplied by 21.74 days. In the case of a weekly working period other than five working days, the conversion rate for average hourly earnings shall be determined by multiplying the average number of working days by the average number of working hours per working day.
(4) For the purposes of compensation for loss of earnings and in other cases where the average monthly net earnings of the worker are based on the average monthly earnings of the worker, this income shall be collected from gross average monthly earnings (paragraphs 2 and 3) by deducting the wage tax at the rate applicable to the worker in the month in which the entitlement to compensation was established; the same progress is made if it is based on the average earnings of the co-workers.
If, when using average earnings, it is necessary to establish average monthly earnings in cases other than for damages, 11), the application of Article 15 (2) to (4) shall be treated mutatis mutandis.
Average earnings before injury caused by accidents at work
The average earnings of the worker prior to the occurrence of the accident at work shall be the average earnings determined in accordance with Paragraph 15, except where otherwise provided; However, where the average earnings are collected for compensation for loss of earnings for the period of incapacity for work (Section 194 of the Labour Code), the types of wages (income) referred to in Section 15 (1) are not included in its base.
In the case of primary school pupils, special schools and auxiliary schools, for the purpose of determining the level of compensation, 12), the average earnings before the occurrence of injury are the average earnings achieved by professional workers in which, taking into account their mental and physical capacity before the accident, such a pupil could be made after the completion of compulsory schooling.
In the case of a student of a secondary vocational training centre or special vocational training centre, for determining compensation, 13), the average earnings before injury is caused
(a) during the preparatory period, the remuneration payable to it under the relevant legislation, including the value of accommodation and meals provided in whole or in part free of charge;
(b) during the period of professional development, when he was unable to perform productive work as part of practical teaching, the net earnings achieved at that time on average in the organisation in the performance of productive work by other pupils of the same teaching or study field;
(c) from the date on which his preparation for the profession in the field of teaching or study was to end, the average earnings of the staff engaged in the organisation of the work of the type for which the pupil was trained.
In the case of a student of a high school, a secondary vocational school and a university student, the average wage for determining the amount of compensation is 14) before damage occurs.
(a) in the case of a student of a grammar school, the average earnings that that student could earn in the profession pursued after obtaining complete secondary education;
(b) in the case of a student of a secondary vocational school, the average earnings achieved by qualified professional workers for whom he was preparing;
(c) for a university student, the average earnings that that student could earn in the profession pursued after obtaining a higher education.
In the case of non-employment citizens whose training for the profession (activity) is carried out under social security legislation, the average wage is fixed for the remuneration of the occupation according to the qualifications obtained by the preparation and, if the wage rate is set by the margin, its lower limit, but always at least 1 600 CZK.
In the case of persons called on to serve in the armed forces, the average earnings prior to the occurrence of the damage caused by the accident at work are likely to be earnings determined in accordance with § 17. If they were not, for serious reasons, in employment or in a Member's relationship to the cooperative, before the service was started, they shall be based on the earnings which they could have earned due to their qualifications.
From the date on which the worker became disabled or partly disabled as a result of an accident at work which he suffered within five years of the end of compulsory education or studies, the average earnings before the occurrence of the damage caused by the accident at work shall be the average earnings of his co-workers engaged in the work of the type for which the worker was prepared, if this is more favourable to him.
Average earnings before injury caused by occupational disease
(1) In determining the average earnings before the occurrence of damage caused by an occupational disease, paragraphs 17 to 23 shall be followed.
(2) A worker who has been transferred to another work for the purpose of threatening occupational diseases or achieving the maximum allowable exposure (16) and for whom an occupational disease has only been detected after such transfer shall be calculated in the calculation of compensation for loss of earnings, if more favourable to the worker, from the average earnings recorded last before the date of transfer to another work. The same applies if a woman was transferred to another job because of pregnancy or maternity (§ 153 of the Labour Code).
Average earnings for pupils and students in their liability for damage
In cases where the Labour Code is used to regulate the worker's liability for damage to the concept of average monthly earnings, the following shall be taken into account:
(a) in the case of pupils of secondary vocational schools or special vocational schools, remuneration payable to them under the legislation on the financial and material security of secondary school pupils preparing for the professional professions in the teaching and learning fields;
(b) in the case of pupils of secondary schools or secondary vocational schools, the highest remuneration payable to pupils of secondary vocational schools in the preparatory period under the legislation on financial and physical security of pupils in the preparatory period;
(c) in the case of university students, the maximum amount of a benefit scholarship which may be awarded to such students under the legislation on the provision of scholarships and contributions to university students.
FINAL PROVISIONS
It shall be repealed:
(a) Federal Ministry of Labour and Social Affairs Decree No. 112 / 1975 Coll., adjusting certain details of the survey of average earnings,
(b) Decree of the Federal Ministry of Labour and Social Affairs of 7 March 1984 No F 43-8741-4301-220284 on the survey of average earnings for certain workers in commercial organisations (registered in the amount of 6 / 1984 Coll.).
Efficacy
This Decree shall take effect on 1 January 1989.
Minister:
M. Boda v. r.
1) For example, Section 12 of the Government of the CSSR Decree No. 99 / 1987 Coll., on the employment relations of workers of international economic organisations, Section 13 of the Federal Ministry of Labour and Social Affairs Decree No. 102 / 1987 Coll., on the employment and physical security of workers in mining permanently unfit for work.
2) Paragraph 112 (1) of the Labour Code.
3) For example, Decree No. 33 / 1984 of the Federal Ministry of Labour and Social Affairs Coll., on Travel Refunds, as amended, Decree No. 57 / 1979 of the Federal Ministry of Labour and Social Affairs Coll., on Reimbursements for the Use of Road Motor Vehicles on Work, as amended by Decree No. 2 / 1984 Coll.
4) Section 4 of the Decree of the Federal Ministry of Finance, the Ministry of Finance of the Czech Republic and the Ministry of Finance of the SSR No. 161 / 1976 Coll., implementing the Act on payroll tax.
5) Section 115 of the Labour Code.
6) Decree of the State Commission on Finance, Prices and Wages No. 132 / 1967 Coll., on the remuneration and physical security of young people entering the service after compulsory education.
7) Paragraph 55 (1) (d) of Decree of the Government of the Czech Republic No. 223 / 1988 Coll., implementing the Labour Code.
8) Decree of the Ministry of Labour and Social Affairs No. 63 / 1968 Coll., on the principles for reducing weekly working time and for implementing operational and working arrangements with a five-day working week.
9) For example, the provisions of generally binding wage regulations on workers' remuneration in the allocation of certain short-term tasks.
10) Paragraph 102 (5) of the second Labour Code.
11) For example, Articles 4 (2) and 18 (2) of Decree No. 74 / 1970 of the Federal Ministry of Labour and Social Affairs, which regulates the release, placement and physical security of workers in connection with the implementation of rationalisation and organisational measures, as amended.
12) Paragraph 39 (2) of the Decree of the Government of the Czech Republic No 223 / 1988 Coll.
13) Paragraph 39 (3) (a) of Decree of the Government of the Czech Republic No 223 / 1988 Coll.
14) Articles 39 (3) (b) and 39 (4) of the Decree of the Government of CSSR No 223 / 1988 Coll.
15) § 40 (2) of the Decree of the Government of ČSSR No. 223 / 1988 Coll.
16) Paragraph 37 (1) (a) of the Labour Code.
17) Paragraph 39 (1) of the Decree of the Government of the Czech Republic No 223 / 1988 Coll.
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Regulation Information
| Citation | Decree of the Federal Ministry of Labour and Social Affairs No. 235 / 1988 Coll., on the detection and use of average earnings |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.12.1988 |
|---|---|
| Effective from | 01.01.1989 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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