In accordance with the provisions of Article 253 of the Substantive Labor Code (CST) regarding the base salary for the settlement of severance pay, the last monthly salary earned by the worker will be taken into account, provided that it has not undergone any variation in the last three months. Otherwise, the average of what has been earned in the last year of service or in the entire time if it is shorter will be taken.
The Ministry of Labor stated that ordinary salary can be fixed or variable, with fixed being that agreed for a period of time (days, weeks, months) and variable being that set according to the result of the activity performed diligently by the worker, whether by task or unit of work.
Therefore, when the worker receives salary and other remuneration for their work or on the occasion of it, such as commissions, premiums, habitual bonuses, overtime pay, extra hours, and percentages on sales, these concepts form an integral part of the salary, in accordance with Article 127 of the CST.
Regarding variable salary, Article 176 of the CST establishes that when we are not dealing with a fixed salary, as occurs when remuneration is by task, piecework, or unit of work, the salary taken into account, for purposes of remunerating Sunday rest, is the average of what the worker earned in the previous week, considering only the days worked.
Therefore, if the parties agree that the remuneration will consist of a fixed salary, but the worker also receives other concepts that constitute a salary factor, such as supplementary work or overtime hours, we will still be talking about a fixed salary even if the worker sees their income increased.
Salary increases imply that the salary is increased by legal provision (in the case of the legal minimum wage) or by the will of the employer, without this being understood as variable salary.