On the basis of the presumption of salariedad it is assumed that the whole of the worker's wage is a compensation, unless there is proof to the contrary.

This proof of the contrary is the accreditation of the configuration of the assumptions of exclusion regulated in articles 19° and 20° of the Law of Compensation for Time of Service (CTS) by express remission of article 7° of the Law of Productivity and Competitiveness (LPCL).

As determined by the Supreme Court of Justice by the judgment corresponding to the Cassation N° 2119-2021 Cusco, issued by your Fourth Hall of Constitutional Law and Social Transient, with which declared unfounded the appeal within a regular process of withdrawal of social benefits.

In this way, the highest judicial instance defines the scope of the presumption of salariedad in labour relations.

Foundation

The hall of supreme warns that the article 6 of the LPCL regulates a presumption of salariedad in virtue of which they considered to pay the full amount to which the worker receives for his services, in cash or in kind, in any form, or denomination that you have, provided that it is of his free disposal.

This, to the extent that it provides that constitutes compensation for all legal effect the whole of what the worker receives for his services, in cash or in kind, in any form, or denomination that you have, provided they are freely available, taking into account that the sums of money given to the worker directly in the quality of the main power source, such as breakfast, lunch or snack replacement or dinner, in the nature of remuneration.

That is to say, in virtue of the provisions of article 6 of the LPCL is presumed to pay the full amount to which the worker received for their services, providing it is in its free disposal, being irrelevant in the form of grant and the name of the concept, says the referee supreme.

In this context, the hall of supreme warns that, according to article 7° of the LPCL do not constitute remuneration for any legal effect the concepts referred to in articles 19° and 20° of the Law of CTS that detail the concepts that are not considered remuneration included in the calculation of social benefits.

[Also read:  Uniformity of tax: gambling and bets now have the same treatment, face-to-face and online]

Thus, they are not considered wages accounted for the CTS and, therefore, do not constitute remuneration for any legal effect extraordinary bonuses or other payments that may be perceived by the worker occasionally, by way of donation, from the employer or which have been the subject of collective bargaining, or accepted in the procedures of conciliation or mediation, or established by resolution of the Authority's Administrative Work (AAT), or by arbitral award, including the bonus for closing statement.

Nor any form of participation in the profits of the company; the cost or value of the working conditions; the Christmas basket, or the like; the value of the transport, provided that it is subject to attendance to the workplace and that reasonably cover the respective transfer, including the fixed amount that the employer is given for a covenant of individual or collective agreement, provided that it meets the above requirements.

In the same way, does not constitute remuneration for the assignment or bonus education, provided that it is for a reasonable amount and is properly supported; the allowances or bonuses for a birthday, marriage, birth of children, death and those of a similar nature; as well as the assignments that are paid on the occasion of certain festivals that are a result of a collective bargaining; or property which the company provides its workers, its own production, in the reasonable amount for direct consumption and your family.

Not all those amounts that are awarded to the worker for the proper performance of its work or on the occasion of their functions, such as mobility, travel expenses, entertainment expenses, costumes, and, in general, everything that reasonably fulfills such an object and does not constitute a benefit or financial advantage to the worker; neither the food provided directly by the employer that has the quality of working condition for being essential to the delivery of services, or the maintenance allowances granted under the mode of supply indirect in accordance with its applicable law, or when resulting from a legal mandate.

In addition to this, nor is compensation attributable to the CTS and, therefore, does not constitute remuneration food provided directly by the employer that has the quality of working condition for being essential to the delivery of the services, or when resulting from a legal mandate.

Effective work

The highest court, on the other hand, welcomes the legal position of the labor Martín Valverde, employment Law, 26th edition, Madrid, 2017, page 645, which points out that the legal concept of wages is a global or totalizing in two senses.

Given that considers, on the one hand, that is salary everything that you receive the worker's employer for the performance of its services, regardless of their presentation, or designation-formal (call or not salary), composition (consisting of one or several items) or your procedure or calculation period (at a flat rate, by acts of work, etc.).

Therefore, by another, warns you that you wage both what is perceived by the worker for the effective working time as what you will pay for break times are counted as working: weekly rest, holidays, vacation time, detailing the hall of supreme.