Due to the termination of air traffic, and the subsequent closure of the borders of the Russian Federation, many foreign workers are abroad now. At the same time, the employer must pay them salary, as legal liability is provided for the delay in payment of salary:
- the organization is subject to administrative liability in the form of a fine of 30,000 to 50,000 rubles (article 5.27 of the Administrative Code of the Russian Federation);
- for officials (e.g., head of the organization) provides administrative liability in the form of a fine in the amount from 1000 to 5000 rubles (article 5.27 of the Administrative Code of the Russian Federation), as well as criminal liability (article 145.1 of the Criminal Code) and disciplinary (article 192 of the Labour Code).
However, in accordance with the Federal law "About amendments to the Federal law "About the national payment system" of 03.04.2017 № 59-FZ, a ban was introduced on sending transfers to citizens of a country that has introduced restrictive measures against Russian payment systems, except through Russian payment systems. Given the fact that the reason for the ban is precisely the restriction of the activities of such systems, the transfer of money is actually blocked. The question arises as to how to pay the employee's salary due to these restrictions.
The possibility of issuing salaries in cash to foreigners temporarily staying or temporarily residing in the Russian Federation is not directly limited by labor legislation, but in order to avoid disagreements with regulatory authorities, we would recommend that the employer still make these payments by non-cash method.
According to part 1 of article 327.1 of the Labor Code of the Russian Federation, labor relations between an employee who is a foreign citizen or a stateless person and an employer are subject to the rules established by labor legislation and other acts containing labor law norms, except for cases when such relations are regulated by foreign law in accordance with Federal laws or international agreements of the Russian Federation. Accordingly, if an employment contract with a foreigner is concluded under Russian labor law, the procedure for paying salary is regulated by art. 136 of the Labor Code of the Russian Federation, which establishes that salary is paid to an employee, as a rule, at the place where the work is performed, or transferred to a credit organization specified in the employee's application, under the conditions specified in the collective agreement or employment contract.
However, when implementing this rule for foreign employees, it is necessary to take into account the provisions of legislation on currency regulation and currency control and relevant law enforcement practices. According to points 6 and 7 of part 1 of article 1 of the Federal law of 10.12.2003 № 173-FZ, all foreign citizens, except those who permanently residing in the Russian Federation on the basis of a residence permit, are recognized as non-residents for the purposes of applying this law. As follows from clause " b " of clause 9, part 1 of article 1 of the Federal Law № 173-FZ, payment of salary to non-resident employees falls under the definition of a currency transaction. At the same time, according to part 2 of article 14 of the Federal Law №173-FZ, settlements in currency transactions are made by resident legal entities through Bank accounts in authorized banks, the procedure for opening and maintaining is established by the Bank of Russia, as well as by electronic money transfers. This rule contains a list of exceptions, when settlements between resident legal entities and non - resident individuals are possible in cash foreign currency and the currency of the Russian Federation without using Bank accounts in authorized banks. However, payment of salary is not included in these cases. Thus, the Federal Law № 173-FZ, in fact, establishes for employers - legal entities a ban on payment of wages to non-resident employees in cash.
There is the resolution 06.03.2015 № 307-AD15-691 and another 23 ones of the same date where a judge of the Supreme Court called the right conclusion about the presence of an administrative offense under part 1 of article 15.25 of the Administrative Offences Code of the Russian Federation, in actions of a legal entity, which paid its employees-non-residents salary in cash from the cash register. However, all 24 administrative cases resulted in the release of the employer from liability due to the insignificance of the offense.
Most often, arbitration courts recognize that the employer, who couldn't persuade foreign employee to open an account with an authorized bank to receive salary, is guilty of a violation of currency laws, in connection with the insignificance of such violation is declared only verbal warning in accordance with article 2.9 of the Administrative Offences Code of the Russian Federation (the decision of the Fourteenth ACA from 23.05.2016 № 14AP-3633/16, the decision of the Sixth ACA from 09.03.2016 № 06AP-7400/15, the decision of the Eighteenth ACA from 15.12.2015 № 18AP-14096/15, the decision of the Second ACA from 08.12.2015 № 02АP-9609/15). However, there are also precedents with the imposition of administrative penalties for such violations (the decision of the Eastern district AC of 24.05.2018 № F03-1521/18, the decision of the East Siberian district AC of 25.08.2016 № F02-4483/16).
Some arbitration courts still say that the employer is not guilty of violating currency legislation if, based on the provisions of the Labor Code of the Russian Federation, he paid a foreigner, who did not provide Bank account details, salary in the only possible way in such a situation - cash (the decision of the Moscow district AC 31.10.2017 № F05-15389/17, the decision of the Ninth ACA of 27.02.2018 № 09AP-1956/18, of 29.09.2017 № 09AP-41918/17 and of 11.09.2017 № 09AP-33002/17, the decision of the Eighth ACA of 29.05.2015 № 08AP-4019/15, the decision of the Nineteenth ACA of 29.04.2015 № 19AP-1520/15).
Foreign employees who have a residence permit in the Russian Federation can be paid through the cashier without restrictions.
You can use one of the following methods to pay salary by bank transfer:
1. Making a bank transfer using the SWIFT system.
SWIFT international interbank communication system is perfect not only for exchanging financial information, but also for making non-commercial money transfers. Since it is a cooperative that includes both Ukrainian and Russian banks, the accepted restrictions do not apply to SWIFT.
You must contact the bank division where the company's account is opened. You will need to specify the SWIFT code of the bank division where the money will be sent (it is impossible to perform the operation without specifying this code). You can find out the bank division's code on the website. In addition, you must specify your bank account details and the recipient's details, the amount and currency of the transfer. After performing the operation, you will be given a receipt that you need to save in case an error is detected. The request is processed quickly: the recipient will be able to collect the money the next day (it takes from two hours to two days to complete the transaction, but most often it takes about 6 hours). The commission for the conduct of this operation is determined by the bank.
2. Salary's transfer to the bank card.
Please note that the card must be issued in an international payment system (Mastercard, Visa, etc.). MIR payment system cards are only served on the territory of the Russian Federation. You can use the card on the territory of another country when making purchases without restrictions, but keep in mind that Russian rubles on the account will automatically be converted into the national currency. The exchange rate differs from the Central Bank's rate, which is not always profitable for the cardholder. Also, in the case of cash withdrawal from the card, the bank's commission is provided.
If funds are paid to an employee in cash, the funds can be received by the representative and then transferred directly to the foreign employee.
To issue a salary by power of attorney, you must check the compliance:
- last name, first name, patronymic of the recipient in the account cash warrant, last name, first name, patronymic of the principal specified in the power of attorney;
- the full name and patronymic of the authorized person specified in the power of attorney and the account cash warrant, as well as the data of the document submitted by them;
- the data of the recipient's identity document specified in the account cash warrant, as well as the data of the document presented by the recipient.
The power of attorney for receiving money must be attached to the account cash warrant. If the power of attorney is issued for several payments to receive money from different organizations (entrepreneurs), then you should attach a copy of it to the account cash warrant. A copy of the power of attorney must be certified in accordance with the procedure established by the Head of the organization (entrepreneur). The original power of attorney (if available) is kept by the cashier and is attached to the account cash warrant at the last cash withdrawal. In the cash register before the signature of the recipient of money, the cashier must write: "received by power of attorney". These rules are established by point 6.1 of the Bank of Russia's instruction № 3210-U of March 11, 2014.
Money can also be sent via Russian Post. You can transfer up to $3,000 to Ukraine. Please note that you can only send Russian rubles for the equivalent amount not exceeding $3,000, and not the currency itself. At the same time, the recipient will receive money that is pre-converted into Ukrainian grivna. Basic commission is up to 290 rubles + 1.5% - 5% of the transfer amount. Money is delivered to one of the branches of Ukrainian Post. To receive cash, the host party will need to present aт identity document. According to the Russian Post, the terms of international money transfers do not exceed 2 days.
Article 236 of the Labor Code of the Russian Federation establishes financial liability of the organization in the form of compensation for delayed salary. The organization is obliged to pay this compensation to employees even if the salary delay occurred for reasons beyond its control. The amount of compensation for delayed payment of salary should be reflected in the payment list (article 136 of the Labor Code of the Russian Federation).If the organization does not pay compensation voluntarily, the court can force it (p. 55 of the decision of the Plenum of the Supreme court of the Russian Federation of March 17, 2004 № 2).
To determine whether an organization paid its employees salary, vacation pay, etc. on time, you need to compare:
- dates of actual salary payment with the days set for its payment;
- the date of payment of vacation pay with the date on which the employee's vacation begins;
- the date of the employee's dismissal with the date of payment of the amounts related to the dismissal.
If the deadlines were violated, the employer must pay compensation to employees. This accrual is reflected in the payment list.
During the inventory, it is also recommended to check whether such compensation was accrued. If compensation for delayed payment of salary was not accrued, it must be calculated and reflected in the inventory statement of the amount owed.
Note that according to the article 5.27 Of the code of Administrative Offences of the Russian Federation, violation of the labor and labor protection legislation entails the imposition of an administrative fine on officials in the amount of five to fifty minimum wages.
For more information, please contact the consultants of the Confidence Group company.
The texts of the newsletters are intellectual property of Confidence Group, protected by the copyright laws of Russia. The information may not be reproduced in any form whatsoever without linking to this web site or to pages of this website.
