The economic reality of the country with the flexibility of the exchange rate regime has led labor entities to modify their salary proposals to attract highly trained personnel, maintain their payroll of workers and improve their purchasing power.
Mixed salary and disputes upon ending the employment relationship
Currently, it is very common for workers to earn a mixed salary, made up of a portion of their salary in bolivars, which is used as a basis for calculating social benefits and other legal benefits; and another portion in dollars, excluded from the salary, under the connotation of a non-salary bonus or subsidy.
Therefore, the controversy arises at the time of termination of the employment relationship, specifically at the time of payment of social benefits, since for the former worker everything accrued by him during the existence of the employment relationship is of a salary nature. ; and for the workplace, by excluding from said calculation, what by law or by its nature lacks said character, such as the food benefit, transportation bonus, subsidies or facilities, among others, is legally appropriate.
Legal regulations and burden of proof
According to article 104 of the Organic Law of Labor, Male and Female Workers:
“(…) Salary is understood to be the remuneration, benefit or advantage, whatever its denomination or method of calculation, provided that it can be evaluated in legal tender, which corresponds to the worker for the provision of his or her service and, among others , includes commissions, bonuses, gratuities, participation in profits or profits, bonuses, vacation bonuses, as well as surcharges for holidays, overtime or night work, food and housing.
For the purposes of this Law, normal salary is understood to be the remuneration earned by the worker on a regular and permanent basis for the provision of his or her service. Therefore, accidental perceptions, those derived from social benefits and those that this Law considers to be non-salary in nature are excluded from it. For the estimation of the normal salary, none of the concepts that make it up will produce effects on themselves.”
On the basis of this norm, and in order to specify which are the perceptions that are or are not of a salary nature, the Supreme Court of Justice of Venezuela has established that bonuses that do not have a salary nature are those whose payments are not connected in any way. directly and immediately with the individual provision of services, therefore, it suffers from the remunerative intention of the work; That is, it was not a payment given to the worker for the compensation of the individual service, but rather a subsidy or advantage granted to the worker as a company policy.
Additionally, it has established certain exceptions to the salary nature of the subsidies, when they are not aimed at directly and immediately rewarding the benefit, but rather are aimed at meeting some needs of the worker and his family.
Now, the burden of proof falls on the employer, who must demonstrate whether or not the benefit is salary; That is, not only allege it but also prove that the bonuses and subsidies granted to the worker lack a remunerative nature, through all the means of proof at their disposal.
The Social Cassation Chamber of our highest Court has admitted the possibility that the salary may be paid in foreign currency, establishing:
“(…) in light of the new exchange regime that allows payment in foreign currency in order to defend purchasing power and re-boost all economic sectors, especially when we are dealing with social law and where article 17, letter a) of the Regulation of The Organic Labor Law establishes, as the duty of the employer, to pay the salary in the terms and conditions prevailing in the company, establishment, exploitation or work (…)”.
Salary concepts and characteristics
For a concept to be considered an integral part of the salary, it must be understood as those payments, salary-related assignments that enter the worker’s assets, which he can freely dispose of, paid by the employer on a regular and permanent basis.
According to jurisprudence, the salary has the following characteristics:
“(…) 1) it is an economic consideration received in exchange for services provided under a regime of third party and dependency;
2) It must be cash evaluable; It must be susceptible to quantification in monetary terms and produce an increase in the worker’s assets;
3) It must create an enrichment in whoever receives it;
4) These must be amounts of money or innate benefits owed by the employer to the worker as consideration for the fulfillment of the agreed service or for simply making themselves available to perform it. So that the salary has a remunerative value, note that it is essential to differentiate it from other economic benefits that do not have that nature and are therefore extra-salary (…).”
