China: 劳动法最前线覧从公司人事的角度看劳动法动向 - 第 161 回报销款是否应当算Ë

Last Updated: 19 September 2017
Article by Chen Yifan
Most Read Contributor in China, October 2017

劳动法最前线覧从公司人事的角度看劳动法动向 - 第 161 回报销款是否应当算作工资?

根据《劳动合同法》的相关规定,特定的解除劳动合同的场合应当由用人单位依法 支付经济补偿金,该经济补偿金系根据劳动者在本单位工作的年限和月工资计算金额; 同时,《劳动合同法实施条例》第27 条明确规定,该等经济补偿的月工资按照劳动者应 得工资计算,包括计时工资或者计件工资以及奖金、津贴和补贴等货币性收入。

劳动实践中,用人单位可能会给予劳动者不同性质的报销款项,该等报销款项是否 构成工资,常常是追索劳动报酬、支付经济补偿金这类案件的争议焦点。

常见的报销包括劳动者就其发生的费用凭票向用人单位进行的实报实销,如差旅费、 伙食费、通话费、交通费等。对于这类报销款,法院通常关注劳动者取得该笔报销款是 否需要提供票据、票据金额与实际报销款是否一致、报销发生的频率和金额等,以判断 该等报销款是否属于工资。通常而言,在劳动者因履行工作职责而实际支出,凭实际发 生的合法有效票据向用人单位实报实销、且报销所得款项与票据一致的情况下,法院倾 向于认为该等报销款不构成工资,不能纳入经济补偿金计算基数范畴。

除此之外,还有一些用人单位每月给予劳动者固定金额的报销款,无需劳动者凭票 报销,或虽需要劳动者凭票报销、但报销所得款项金额与票据不符。发生争议时,劳动 者往往主张该等款项是用人单位向其发放的福利款或补贴款,构成工资的一部分,应当 纳入经济补偿金计算基数范畴。

从司法实践来看,由于每个月金额固定,且并不以实际发生的费用为依据和基础, 上述报销的做法很容易被法院认定为该等报销实际上是用人单位变相向劳动者发放的 工资,从而被纳入经济补偿金计算基数范畴。也有少数案例中,法院认为劳动者和用人 单位约定以发票报销等形式领取的费用,系用人单位以利益留住劳动者、且又以规避国 家税收监管为目的,违反了法律的规定,损害了国家利益或者违反公序良俗原则,不应 认定为劳动报酬。

尽管如此,在考虑到以下几个方面的因素时,法院也有可能将该等报销认定为用人 单位对劳动者实际支出的补偿,不将其纳入经济补偿金计算基数范畴:

  1. 劳动者的工作岗位和工作职责。通常而言,法院倾向于认为承担销售、市场 开拓等职责的劳动者,其工作内容不免包含联系、拜访客户,需要发生一定的费用,对 该类劳动者采取固定金额报销的形式符合该等劳动者的工作职责和内容。
  2. 单位规章制度或劳动合同的约定。如果用人单位在其单位规章制度或其与员 工签订的劳动合同中明确规定,对于某特定职位或部门的员工采取月度工作费用等形式, 并明确规定该月度工作费用的发放方式和金额,则被法院认定为不构成工资的可能性较 大。
  3. 是否需要凭实际发生的票据予以支付。如果劳动者每月仍需出示、报销一定 的金额,且报销流程和方式与单位规章制度或劳动合同的规定一致,则即使用人单位并 非全额报销,而是依据该等规章制度或劳动合同在一定限额内予以报销,也有可能被法 院认定为单纯的报销款,不作为工资的一部分。

据此,用人单位在对从事销售、市场开拓类劳动者发放报销款时,务必在单位规章 制度或劳动合同中对报销方式、流程、金额进行明确规定,实际报销过程中严格遵守单 位规章制度或劳动合同中规定的要求,避免报销款被认定为工资的一部分而被纳入经济 补偿金计算基数范畴。

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