Courts with a pension fund for preferential pensions. Early retirement: the nuances of judicial practice. The procedure for resolving disputes on pension issues
28.01.2016 11:29:00
We bring to your attention an example of a court decision on the inclusion of periods of work in a special length of service and the appointment of an early retirement pension to an employee employed in the performance of work with a general class of working conditions at the workplace of 3.2 and under acceptable working conditions for a chemical factor
An analysis of the statistical data provided by the courts for the consideration of civil cases in disputes on the appointment of an early labor old-age pension for the period from 2010 to 2014 allows us to conclude that citizens have increasingly resorted to judicial protection of violated preferential pension rights. It is not uncommon for courts of various instances to consider civil lawsuits on the inclusion of periods of work in harmful and difficult working conditions in a special length of service that gives the right to an early pension, when admissible working conditions are established based on the results of attestation of workplaces.
CIRCUMSTANCES OF THE CASE
Ivanova I.I. (hereinafter - the plaintiff) was hired by the Closed Joint Stock Company "Scientific and Production Enterprise" as a cutter. Subsequently, the position of the plaintiff was renamed, and the worker herself was transferred to a new position. The above circumstances are confirmed by entries in the work book of Ivanova I.I. and certificate of CJSC NPP. However, the employment contract states that the plaintiff was hired by CJSC NPP as a stacker-packer on a full-time basis.
Ivanova I.I. appealed to the Office of the Pension Fund of the Russian Federation (hereinafter referred to as the defendant) with a statement on the appointment of an early retirement old-age pension due to the presence of a special work experience in harmful conditions. At the time of the appeal to the defendant, the plaintiff's special experience totaled 10 years, 3 months and 29 days.
In response, the plaintiff received the defendant's decision to refuse to establish an early pension, since the disputed period was not included in the special length of service. The reason for the decision was information from CJSC NPP, which indicated that the positions in which Ivanova I.I. CJSC "NPP" does not receive preferential pensions.
THE OPINION OF THE COMPANY
According to the plaintiff, the decision to refuse to establish an early retirement pension is illegal and must be canceled due to the following.
In accordance with subparagraph "a" of paragraph 1 of the Government Russian Federation dated July 18, 2002 No. 537 “On the lists of jobs, industries, professions, positions, specialties and institutions (organizations), taking into account which the old-age insurance pension is early assigned, and the rules for calculating periods of work (activity), giving the right to early retirement benefits” in case of early appointment of an old-age labor pension in accordance with Article 27 federal law dated December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation”, the Lists of industries, jobs, professions and positions are applied, namely in connection with especially difficult and especially harmful working conditions - List No. 1, approved by the Decree of the Cabinet of Ministers of the USSR dated January 26 .1991 No. 10.
Position 1080B000-17541 of Section VIII of List No. 1 refers to professions and positions with difficult working conditions as workers employed full-time in the technological process of production of plastics (including polyurethanes, including by spraying) in the presence of harmful substances in the air of the working area 1 or 2 hazard classes, as well as carcinogens.
In the Unified State Register legal entities as species entrepreneurial activity CJSC "NPP" registered the following codes in accordance with OKVED (OK 029-2001 "All-Russian classifier of types of economic activity", approved by the Decree of the State Standard of Russia dated 06.11.2001 No. 454-st):
- main - 25.24.2 (manufacture of other plastic products not included in other groups);
- additional - 50.30 (trade in car parts, assemblies and accessories).
In paragraph 1.2. employment contract and in the certificate CJSC «NPP» indicated that Ivanova AND.AND. engaged in the production of molded polyurethane foam and plastics. In addition, the work instructions on labor protection of NPP CJSC state that employees must be provided with personal protective equipment during the performance of their duties.
Separately, in paragraph 3.3.2. The work instructions on labor protection for workers engaged in the production of polyurethane foam and plastic products state that workers are employed in production using polyisocyanate - a substance of hazard class 2.
Also in paragraph 3.1.11. Work instructions on labor protection for the stacker-packer, cutter, in paragraph 3.1.6. Work instructions on labor protection during the operation of electric-pneumatic tools and in paragraph 3.1.7. The working instruction on labor protection for the stacker-packer clarified that as dangerous and harmful production factors during the performance of work are, among other things:
- flying particles of the treated surface; dustiness by cut particles of polyurethane foam; gas contamination with polyurethane foam fumes, glue and "anti-creak";
- elevated level noise.
Also, during the certification of the workplace in terms of working conditions at NPP CJSC, the certification commission in the workplace certification card, based on the totality of assessments of working conditions, assigned hazard class 3.2, of which:
- class of working conditions for noise - Z.1;
- class of working conditions according to the severity of labor - 3.2.
Also, the attestation commission recorded a non-compliance of the workplace with the requirements for the provision of workers with personal protective equipment.
Thus, the technological process at NPP CJSC and the plaintiff's work are directly related to the production of goods from materials belonging to hazard class 2, that is, in any case, they are especially harmful to human health. Consequently, the defendant's refusal to include a period of work in harmful working conditions in the special experience of the plaintiff deprived Ivanova AND.AND. the right to early appointment of a preferential old-age labor pension, guaranteed by paragraph 1 of article 27 of the Federal Law of December 17, 2001 No. 173-ФЗ “On labor pensions in the Russian Federation”.
POSITION OF THE COURT
Having heard the position of the parties and having studied the materials of the case, the court came to the conclusion that the Office of the Pension Fund of the Russian Federation made a reasoned decision, since there were no legal grounds for the appointment of an early retirement old-age pension.
RATIONALE FOR THE COURT'S FINDINGS
According to subparagraph 1 of paragraph 1 of Article 27 of the Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation”, an old-age labor pension is assigned to women upon reaching the age of 45 if they have worked for at least 7 years 6 months in underground work, at work with harmful working conditions and in hot shops and have insurance experience of at least 15 years.
If these persons have worked at the listed jobs for at least half of the established period and have the required duration insurance experience, a labor pension is assigned with a decrease in age, by one year for each full year of such work.
At the same time, only periods of work in positions and institutions indicated in the list of positions and institutions, work in which is counted in the length of service, giving the right to early appointment of an old-age labor pension, are counted in the relevant length of service. When calculating the periods of work that give the right to early appointment of an old-age labor pension, certain rules apply. The specified Lists and Rules are approved by the Decree of the Government of the Russian Federation.
Lists of relevant jobs, industries, professions, positions, taking into account which a labor pension is assigned, provided for in subparagraphs 1 and 2 of Article 27 of the Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation”, approved by the Decree of the Government of the Russian Federation of July 18 .2002 No. 537. According to subparagraph “a” of paragraph 1 of the government decree dated 18.07.2002 “537, in case of early assignment of an old-age labor pension to workers employed in underground work, in work with harmful working conditions and in hot shops, List No. 1 of production is applied , jobs, professions, positions and indicators in underground work, in work with especially harmful and especially difficult working conditions, approved by the Decree of the Cabinet of Ministers of the USSR dated January 26, 1991 No. 10.
Section VIII of List No. 1, to which the plaintiff refers, works with especially harmful and especially difficult working conditions, employment in which gives the right to preferential pension provision, are differentiated depending on the industry:
- in subsection "A" the professions and positions of employees of enterprises in the chemical and petrochemical industries are named;
- in subsection "B" - professions and positions of employees of enterprises of other industries and the national economy, employed in the technological process of production of the products specified in this subsection (inorganic chemistry, fertilizers, polymers, plastics, etc.) in the presence of a working area in the air a certain level of harmful substances of the 1st and 2nd hazard class, as well as carcinogens.
Paragraph 5 of the clarifications of the Ministry of Labor of Russia dated 05.22.1996 No. 5 “On the procedure for applying lists of industries, jobs, professions, positions and indicators giving, in accordance with Articles 12, 78 and 78.1 of the RSFSR Law “On State Pensions in the RSFSR”, the right to an old-age pension in connection with special working conditions and a pension for long service” it was stipulated that the right to a pension in connection with special working conditions have employees permanently engaged in the performance of work provided for by Lists No. 1 and 2 during the full working day.
A full working day is understood as the performance of work in the working conditions provided for by Lists No. 1 and 2, at least 80 percent of the working time. At the same time, the specified time includes the time for performing preparatory and auxiliary work, and for workers performing work with the help of machines and mechanisms, also the time for performing repair work of a current nature and work on the technical operation of the equipment. The specified time may include the time of performing work performed outside the workplace in order to ensure basic labor functions.
In accordance with subparagraph 2, paragraph 1 of Article 27 of the Federal Law of December 17, 2001 No. 173-FZ “On Labor Pensions in the Russian Federation”, an old-age labor pension is assigned before reaching the age established by Article 7 of this Federal Law: for women, upon reaching the age of 50 years, if they have worked in jobs with difficult working conditions for at least 10 years and have an insurance record of at least 20 years.
If these persons have worked at such jobs for at least half of the established period and have the required length of insurance experience, they are assigned a labor pension with a decrease in age by one year for every 2 years of such work.
On the basis of the legislation of the Russian Federation to establish the right to a pension in accordance with Section VIII of the List No. 1 of industries, jobs, professions, positions and indicators in underground work, in work with especially harmful and especially difficult working conditions, approved by Decree of the Cabinet of Ministers of the USSR of 01/26/1991 No. 10, should install:
- in the case of a pension under subsection 1080A000-17541 A - work in the specified positions in the chemical industry;
- in case of appointment under subsection 1080B000-17541 B. - a combination of 2 conditions: full-time employment, as well as the presence of hazardous substances of 1, 2 hazard classes or carcinogens in the air of the working area.
On the basis of paragraph 25 of the clarifications of the Ministry of Labor of Russia dated May 22, 1996 No. 5 “On the procedure for applying lists of industries, jobs, professions, positions and indicators giving, in accordance with Articles 12, 78 and 78.1 of the RSFSR Law “On State Pensions in the RSFSR”, the right to a pension in old age due to special working conditions and pension for long service” enterprises are assigned to the chemical and petrochemical industries in accordance with the All-Union Classifier of Industries of the National Economy and the All-Russian Classifier of Economic Activities, Products and Services by the nature of their main type of activity, outside departmental affiliation.
As follows from the response of ZAO NPP, according to the All-Russian classifier of types of economic activity, the code 25.24.2 - Manufacture of other plastic products was assigned, this code refers to section "D - Manufacturing".
According to the results of certification of the workplace in terms of working conditions, the certification commission assigned a workplace hazard class of 3.2, which indicates the presence of harmful working conditions in terms of noise (class of working conditions - 3.1.) And the severity of labor (class of working conditions 3.2.), but does not indicate the fulfillment the plaintiff of work under the influence of a chemically harmful factor.
In accordance with line 060 of the workplace attestation card for working conditions, as well as the protocol for measuring and evaluating labor under the influence of a chemical factor, exceeding the MPC, MPS for the chemical factor (amines, toluene diisocyanates, methylenediphenyl diisocyanates) were not established, the impact of the chemical factor was not detected, the class of working conditions by chemical factor - 2.0. (permissible class of working conditions).
It follows from the protocol of sanitary and chemical studies that the results of measuring the concentrations of harmful substances in the air at the workplaces of CJSC NPP showed that the concentration of amines in the air of the working area at the workplace of the operator for preparing chemical solutions (when draining amines) exceeded the permissible level of 2, 01 times, at other studied workplaces, the concentration of harmful substances in the air of the working area did not exceed the permissible levels, therefore, according to R 2.2.2006-05 “Guidelines for the hygienic assessment of factors in the working environment and the labor process. Criteria and classification of working conditions”, approved by the Chief State Sanitary Doctor of the Russian Federation on July 29, 2005, the working conditions for them can be attributed to an acceptable class (class 2).
The documents submitted by the plaintiff to the case file, in particular: Charter of NPP CJSC, license to operate chemically hazardous production facilities, work instructions, health certificate, pay slip, work day photo card, operation description sheet, safety standard, pay slip leaflet does not confirm the fact of the work of Ivanova I.I. with harmful working conditions in conditions of full-time employment, and cannot be considered as evidence that the plaintiff has the right to an early retirement retirement pension.
THE COURT'S DECISION
The court finds that the plaintiff has not proved the fact of work in harmful conditions, giving the right to the appointment of an early retirement pension for old age, and decides to satisfy the claims of Ivanova AND.AND. to the Office of the Pension Fund of the Russian Federation on the recognition of the decision as illegal, the inclusion of periods of work in the special experience - to refuse.
PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION
RESOLUTION
ON SOME QUESTIONS ARISING FROM THE COURTS
WHEN CONSIDERING CASES RELATED TO THE IMPLEMENTATION
CITIZENS RIGHT TO LABOR PENSIONS
In connection with the questions that arose from the courts when applying the Federal Law of December 17, 2001 N 173-FZ "On labor pensions in the Russian Federation", which entered into force on January 1, 2002 and established the grounds for the emergence and procedure for exercising the right of citizens of the Russian Federation to labor pensions, the Plenum of the Supreme Court of the Russian Federation in order to ensure correct application of the provisions of the said Law, when resolving disputes related to the exercise by citizens of the right to labor pensions, decides to give the courts the following explanations:
1. By virtue of paragraph 1 of part 1 of Article 22 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation) and paragraph 7 of Article 18 of the Federal Law "On Labor Pensions in the Russian Federation" (hereinafter referred to as Federal Law N 173-FZ), cases of disputes between citizens and the body providing pensions, on the establishment or refusal to establish a labor pension, on the payment of this pension, on deductions from this pension and on the recovery of overpaid amounts of such a pension, as well as on other disputes related to the appointment and payment of labor pensions, under the jurisdiction of the courts of general jurisdiction.
At the same time, in case of disagreement with the decision of the pension body, a citizen has the right to appeal it to a higher pension body (in relation to the body that made the relevant decision) and (or) challenge it in court (paragraph 7 of Article 18 of Federal Law N 173-FZ).
2. Considering that the Code of Civil Procedure of the Russian Federation does not contain a provision on determining the ancestral jurisdiction of cases in disputes arising from pension legal relations, when resolving the issue of the jurisdiction of a dispute related to the exercise by a citizen of the right to a labor pension, one should be guided by the general rules established by Articles 23 - 24 of the Code of Civil Procedure RF:
a) cases of property disputes with the value of the claim not exceeding five hundred minimum wages established by federal law on the day of filing the application (for example, in the event of a claim for the recovery of an assigned but unpaid labor pension, for the recovery of overpaid pension amounts), in accordance with clause 5 of part 1 of article 23 of the Code of Civil Procedure of the Russian Federation are within the jurisdiction of a justice of the peace;
b) cases on claims that are not subject to assessment (for example, cases on disputes arising in connection with the refusal to establish a labor pension), by virtue of Article 24 of the Code of Civil Procedure of the Russian Federation, are within the jurisdiction of a district court;
c) in the case of a combination of related requirements that are not subject to assessment, and requirements property nature subject to assessment (for example, claims for recognition of the right to a pension before reaching the retirement age (60 years for men or 55 years for women) and for the recovery of a pension not received due to an unreasonable refusal to assign it), the case is within the jurisdiction of the district court.
3. By virtue of Article 28 of the Code of Civil Procedure of the Russian Federation, a citizen's application in a dispute related to the exercise of his right to a labor pension is filed with the court at the location of the relevant pension authority (which refused to grant a pension or pays a pension).
Plaintiffs in cases on the protection of the rights and legitimate interests of the child, in accordance with subparagraph 15 of paragraph 1 of Article 333.36 of part two of the Tax Code of the Russian Federation, are exempt from paying state fees.
In accordance with subparagraphs 2 and 5 of paragraph 2 of article 333.36 of part two of the Tax Code of the Russian Federation, plaintiffs who are disabled persons of groups I and II are also exempted from paying the state fee in cases heard in courts of general jurisdiction and justices of the peace, taking into account the provisions of paragraph 3 of this article, and for claims of a property nature against the Pension Fund of the Russian Federation, non-state pension funds or against federal executive bodies providing pensions for persons who have served in the military - pensioner claimants receiving pensions assigned in the manner established by the pension legislation of the Russian Federation.
Taking this into account, applications of citizens who are not recipients of pensions (with the exception of claimants with disabilities of groups I and II and claimants applying to protect the rights and legitimate interests of the child), in cases of disputes between them and the body providing pensions, are subject to payment of the state fee in the amount and in the manner prescribed by Articles 333.19 and 333.20 of the second part of the Tax Code of the Russian Federation.
By virtue of paragraph 2 of Article 333.20 of the second part of the Tax Code of the Russian Federation, a court or justice of the peace, taking into account the property status of a citizen, has the right to reduce the amount of the state duty payable, or to defer (spread out) its payment in the manner prescribed by Article 333.41 of this Code, but is not entitled to release him from paying this fee.
If the citizen's claims are satisfied, the court costs incurred by him in the case (including the state fee paid) are subject to reimbursement by the defendant in accordance with the rules provided for by Articles 98 and 100 of the Code of Civil Procedure of the Russian Federation.
If the plaintiff was exempted from paying the state fee, it is recovered from the defendant to the federal budget in proportion to the satisfied part of the claims, based on the amount that the plaintiff had to pay if he had not been exempted from paying the state fee (Part 1 of Article 103 of the Code of Civil Procedure of the Russian Federation, subparagraph 8 of paragraph 1 of article 333.20 of part two of the Tax Code of the Russian Federation).
4. Given that the Pension Fund of the Russian Federation is a state institution (Article 5 of the Federal Law of December 15, 2001 N 167-FZ "On Compulsory Pension Insurance in the Russian Federation"), in connection with which it does not fall under the list of persons specified in subparagraph 19 of paragraph 1 of article 333.36 of part two of the Tax Code of the Russian Federation, which, in the event of going to court in defense of state and public interests, are exempt from paying the state fee, statements of claim of the territorial bodies of the Pension Fund of the Russian Federation (for example, on the recovery of overpaid pension amounts) are payable state duty on a general basis in the amount and in the manner prescribed by Articles 333.19 and 333.20 of the second part of the Tax Code of the Russian Federation.
5. In accordance with paragraph 1 of Article 15 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation", insured persons have the right to freely receive information from the employer on the calculation of insurance premiums and exercise control over their transfer to the budget of the Pension Fund of the Russian Federation.
With this in mind, if the insured fails to fulfill the obligation stipulated by paragraph 2 of Article 14 of the said Federal Law, to pay insurance premiums to the budget of the Pension Fund of the Russian Federation on time and in full, the insured person is not deprived of the opportunity to file a lawsuit with a court to recover insurance premiums from the insured for previous period.
By virtue of Article 43 of the Code of Civil Procedure of the Russian Federation, the bodies of the Pension Fund of the Russian Federation must be involved by the court in such cases as third parties that do not file independent claims regarding the subject of the dispute, on the side of the plaintiff.
If the plaintiff's claim is satisfied, the recovered amounts shall be credited to his individual personal account with the Pension Fund of the Russian Federation.
6. Taking into account the social significance of cases of this category, draw the attention of judges to the need to comply with the time limits established by Part 1 of Article 154 of the Code of Civil Procedure of the Russian Federation for the consideration of these cases.
To this end, the judge needs to carefully prepare these cases for litigation(Chapter 14 of the Code of Civil Procedure of the Russian Federation), including, if necessary, holding a preliminary hearing (Article 152 of the Code of Civil Procedure of the Russian Federation).
7. Since, in accordance with Article 5 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation", the Pension Fund of the Russian Federation is a state institution and, therefore, does not apply to those entities whose decisions, actions (inaction) a citizen has the right to challenge in court in the manner , established by Chapter 25 of the Code of Civil Procedure of the Russian Federation ("Proceedings on challenging decisions, actions (inaction) of state authorities, local governments, officials, state and municipal employees"), cases on disputes between citizens and the Pension Fund of the Russian Federation related to appointment and payment of labor pensions, cannot be considered in the procedure for proceedings in cases arising from public legal relations, according to the rules provided for by Chapter 25 of the Code of Civil Procedure of the Russian Federation, but are subject to consideration in the procedure for action proceedings.
8. When resolving disputes related to the recovery of the accrued amounts of the labor pension due to the pensioner in the current month (including for the past time) and remaining not received due to his death, it is necessary to be guided by the provisions enshrined in paragraph 3 of Article 23 of the Federal Law "On labor pensions in the Russian Federation", since the said Law is special and was adopted State Duma of the Federal Assembly of the Russian Federation on November 30, 2001, i.e. later than part three of the Civil Code of the Russian Federation, which was adopted on November 1, 2001 (Article 2 of the Federal Constitutional Law of June 14, 1994 N 5-FZ "On the Procedure for Publication and Entry into Force of Federal Constitutional Laws, Federal Laws, Acts of the Chambers of the Federal meetings").
In the absence of persons listed in paragraph 3 of Article 23 of the Federal Law "On Labor Pensions in the Russian Federation", the right to receive the above amounts of labor pensions may be recognized for other persons specified in Article 1183 of the Civil Code of the Russian Federation.
9. If a citizen disagrees with the refusal of the pension authority to include in the special length of service, taking into account which an old-age labor pension may be assigned before reaching the age established by Article 7 of the Federal Law "On Labor Pensions in the Russian Federation" (paragraph 1 of Article 27 and subparagraphs 7 - 13 of paragraph 1 of Article 28 of the said Law), the period of his work, which, according to the plaintiff, is subject to crediting in the special length of service, it must be taken into account that the question of the type (type) of the institution (organization), the identity of the functions performed by the plaintiff, conditions and nature activities to those jobs (positions, professions) that give the right to early appointment of an old-age labor pension, should be decided by the court based on the specific circumstances of each case established in the court session (the nature and specifics, the conditions of the work carried out by the plaintiff, the functional duties performed by him for the employment positions and professions, workload, taking into account the goals and objectives, as well as manifestations of the activities of institutions, organizations in which he worked, etc.).
10. When resolving disputes that have arisen between pension authorities and citizens regarding the inclusion in the special experience (the experience of teaching, medical and other activities for the protection of public health, as well as creative activity) periods of work in institutions that were not state or municipal (subparagraphs 10 - 12 of paragraph 1 of Article 28 of the Federal Law "On labor pensions in the Russian Federation"), it should be borne in mind that the previously effective Law of the Russian Federation of November 29, 1990 N 340-I "On state pensions in the Russian Federation" did not contain a requirement that so that pedagogical, medical, creative activities are carried out only in state or municipal institutions, the appointment of such a pension is guaranteed on an equal footing to employees employed in healthcare institutions (organizations), general education schools and other institutions for children, on stage in theaters and theater and entertainment organizations and groups, regardless of their departmental subordination and form of ownership. Within the meaning of Articles 8 (Part 2), 19 (Parts 1 and 2), 35 (Part 1), 37 (Parts 1 and 3), 39 (Parts 1 and 2) and 55 (Part 3) of the Constitution of the Russian Federation, the form of ownership, as such, cannot serve as a sufficient basis for differentiating the conditions for assigning old-age labor pensions to persons working in institutions for children, health care institutions, theaters or theater and entertainment organizations in the same positions in terms of their functional duties and in the same professions .
In addition, the financing of early labor pensions for old age, appointed in accordance with subparagraphs 10 - 12 of paragraph 1 of Article 28 of the Federal Law "On labor pensions in the Russian Federation", is carried out on a general basis. According to the Federal Law "On Compulsory Pension Insurance in the Russian Federation" (clause 3 of article 9 and clause 2 of article 10), the payment of the basic part of the labor pension is financed at the expense of the unified social tax (contribution) credited to the federal budget, and the financing of insurance and funded parts of the labor pension - at the expense of the budget of the Pension Fund of the Russian Federation (insurance contributions for compulsory pension insurance, which are collected in accordance with the named Federal Law and credited directly to the budget of the Pension Fund of the Russian Federation). At the same time, the current legislation does not provide for any differences in the rates of insurance premiums for employers - institutions for children, health care institutions, theaters, theater and entertainment organizations, depending on whether they are state, municipal, or private.
With this in mind, and also taking into account that, while maintaining favorable conditions for the appointment of an old-age labor pension for persons who carried out pedagogical, medical, creative activities on stage in state or municipal institutions, the legislator did not provide for an appropriate legal mechanism that guarantees citizens employed in such according to their conditions and nature of professional activity, but in non-state institutions for children, health care institutions, theaters and theatrical and entertainment organizations, protection from the risk of loss of professional ability to work before reaching the general retirement age in a similar way or using other legal means adequate to early retirement , until the establishment of an appropriate legal mechanism, pedagogical, medical and creative activities are subject to inclusion in the special length of service, giving the right to early appointment of an old-age pension on the basis of subparagraphs 10 - 12 of paragraph 1 of Article 28 of the Federal of the Federal Law "On Labor Pensions in the Russian Federation", regardless of who was in charge of the institutions where the plaintiff worked, and who owned the property assigned to them - the state, municipality, joint-stock company, etc., since this in itself is not predetermines differences in conditions and character professional activity named workers and does not indicate the existence of such differences. Addressing this issue in any other way could create such an inequality in the field of pensions that would lead to a disproportionate restriction of the constitutional right of these individuals to social security and thereby violate the provisions of articles 19 (parts 1 and 2), 39 (parts 1 and 2) and 55 ( parts 2 and 3) of the Constitution of the Russian Federation.
11. When determining the right to a pension for medical workers, the courts must take into account that in accordance with subparagraph 11 of paragraph 1 of Article 28 of Federal Law N 173-FZ, persons who carried out medical and other activities to protect public health in rural areas and urban-type settlements acquire the right retired if they have at least 25 years of experience in the relevant types of work, and persons who have carried out such activities in cities, rural areas and urban-type settlements - if they have at least 30 years of experience.
At the same time, in accordance with subparagraph "a" of paragraph 5 of the Rules for calculating periods of work, giving the right to early appointment of an old-age labor pension to persons who carried out medical and other activities to protect public health in state and municipal health care institutions, in accordance with subparagraph 11 of paragraph 1 article 28 of the Federal Law "On labor pensions in the Russian Federation", approved by Decree of the Government of the Russian Federation of October 29, 2002 N 781, if the work was carried out in the city, in the countryside and in an urban-type settlement (working settlement), the period of work in the countryside calculated on a preferential basis (1 year of work for 1 year and 3 months). If the work was carried out only in rural areas and in an urban-type settlement, then the above Rules do not provide for the right to a preferential procedure for calculating such periods of work.
Meanwhile, according to the will and in the interests of the insured person applying for the establishment of an early labor old-age pension in accordance with the norms of Federal Law N 173-FZ, periods of work before January 1, 2002 can be calculated on the basis of previously existing regulatory legal acts.
As of December 31, 2001, the provision of pensions for medical workers was regulated, in particular, by Decree of the Government of the Russian Federation of September 22, 1999 N 1066 "On approval of the List of positions in which work is counted as length of service, giving the right to a pension for length of service in connection with medical and other work to protect the health of the population, and the Rules for calculating the terms of service for the appointment of a pension for years of service in connection with medical and other work to protect the health of the population "(hereinafter - Resolution N 1066).
Clause 1 of Decree N 1066, which entered into force on November 1, 1999, approved the List of positions in which work is counted as length of service, giving the right to a pension for length of service in connection with medical and other work to protect the health of the population, and the Rules for calculating terms length of service for the appointment of a pension for the length of service in connection with medical and other work to protect the health of the population.
In accordance with paragraph 3 of Decree N 1066 to the length of service, which gives the right to a pension for the length of service in connection with medical and other work to protect the health of the population, periods of work before November 1, 1999 were counted in accordance with the List of professions and positions of health workers and sanitary epidemiological institutions whose medical and other work for the protection of public health gives the right to a pension for long service, approved by the Decree of the Council of Ministers of the RSFSR of September 6, 1991 N 464.
Given that paragraph 2 of the Decree of the Council of Ministers of the RSFSR of September 6, 1991 N 464, 1 year of work in a rural area or an urban-type settlement (working settlement) was counted as work experience on a preferential basis (for 1 year and 3 months), regardless of whether whether the work is only in the countryside or also in the city, the length of service in the countryside before November 1, 1999 can be calculated in the specified preferential order.
12. When considering disputes that have arisen in connection with the refusal to assign an old-age labor pension on the basis of subparagraph 10 of paragraph 1 of Article 28 of the Federal Law "On labor pensions in the Russian Federation", it must be borne in mind that, by virtue of subparagraph "c" of paragraph 8 Rules for calculating the periods of work, giving the right to early appointment of an old-age labor pension to persons who carried out pedagogical activities in institutions for children, in accordance with subparagraph 10 of paragraph 1 of Article 28 of the Federal Law "On labor pensions in the Russian Federation", approved by the Decree of the Government of the Russian Federation dated October 29, 2002 N 781, work as a director (head, head), deputy director (head, head) of the institutions specified in clauses 1.8, 1.12 and 2 of the "Name of institutions" section of the list of positions and institutions in which work is counted in the length of service work, giving the right to early appointment of an old-age labor pension to persons who pedagogical activity in institutions for children, in accordance with subparagraph 10 of paragraph 1 of Article 28 of the Federal Law "On labor pensions in the Russian Federation", approved by Decree of the Government of the Russian Federation of October 29, 2002 N 781 (hereinafter referred to as the list of positions and institutions, the list), is counted in the length of service only for the period up to November 1, 1999. Work in these positions in the institutions specified in paragraphs 1.8, 1.12 and 2 of the section "Names of institutions" of the above list of positions and institutions, which took place after November 1, 1999, is not subject to offset in the teaching experience, giving the right to early appointment of a labor pension according to old age.
A similar rule applies to cases of work in the specified positions in the institutions listed in paragraphs 1.8, 1.12 and 2 of the section "Name of institutions", which are structural divisions of the organization.
When applying paragraph 12 of the above Rules, according to which work in the positions indicated in paragraph 2 of the "Names of positions" section of the list, in the institutions specified in paragraph 2 of the "Names of institutions" section of the list, for periods starting from January 1, 2001 is counted as work experience in the presence of the conditions listed in this paragraph, the courts should take into account the restrictions established by subparagraph "c" of paragraph 8 of the Rules.
13. When verifying the correctness of the assessment by pension authorities of citizens' pension rights as of January 1, 2002 by converting (converting) them into estimated pension capital, it is necessary to be guided by the rules set forth in Article 30 of the Federal Law "On Labor Pensions in the Russian Federation", having at the same time in mind the following:
a) the assessment of the pension rights of insured persons as of January 1, 2002 is carried out by the bodies providing pensions, simultaneously with the assignment of a labor pension to them in accordance with the said Federal Law, but no later than January 1, 2013;
b) estimated pension capital, i.е. taken into account in the manner determined by the Government of the Russian Federation, the total amount of insurance premiums and other receipts to the Pension Fund of the Russian Federation for the insured person and pension rights in monetary terms, acquired before the entry into force of the said Federal Law, is the basis for determining the amount of the insurance part of the labor pension ( paragraph four of Article 2 of the Federal Law "On labor pensions in the Russian Federation"). The estimated pension capital for the purpose of assessing the pension rights of insured persons as of January 1, 2002 is determined by the formula specified in paragraph 1 of Article 30 of Federal Law No. 173-FZ.
At the same time, the expected period for the payment of an old-age labor pension, provided for in paragraph 5 of Article 14 of Federal Law N 173-FZ, starting from January 1, 2002, is set for a duration of 12 years (144 months) and is subject to an annual increase of 6 months (from January 1 of the corresponding year) until reaching 16 years (192 months), and then annually increases by one year (from January 1 of the corresponding year) until reaching 19 years (228 months) (paragraph 1 of Article 32 of Federal Law No. 173-FZ).
In the same manner, by virtue of paragraph 2 of Article 32 of Federal Law N 173-FZ, the expected period for the payment of an old-age labor pension to persons specified in paragraph 1 of Article 27 and paragraph 1 of Article 28 of this Federal Law is determined. Starting from January 1, 2013, this period annually (from January 1 of the corresponding year) increases by one year, while the total number of years of such an increase cannot exceed the number of years missing in the early assignment of a labor pension to the retirement age established by Article 7 Federal Law N 173-FZ (for men and women, respectively) (paragraph three of paragraph 5 of Article 30, paragraph 2 of Article 32 of Federal Law N 173-FZ);
c) the ratio of the average monthly earnings of the insured person to the average monthly salary in the Russian Federation (ZR / ZP) is taken into account in the amount of not more than 1.2 for all persons, with the exception of persons living in the Far North and areas equivalent to them, and persons who have worked for at least 15 calendar years in the regions of the Far North or at least 20 calendar years in areas equivalent to them (paragraph 2 of Article 30 of Federal Law N 173-FZ);
d) since the assessment of the pension rights of citizens on the basis of Article 30 of Federal Law N 173-FZ is carried out as of January 1, 2002, based on the meaning of paragraph 2 of Article 30 of Federal Law N 173-FZ, the ratio of earnings in an increased amount (not more than 1.4 ; 1.7; 1.9) can be taken into account:
persons residing as of January 1, 2002 in the regions of the Far North and in areas equivalent to them. At the same time, in this case, the Law does not make the possibility of recording earnings in an increased amount dependent on whether they acquired the right to a labor pension on that date or not, and whether they left the indicated areas after January 1, 2002 or remained there to live;
men and women if, as of January 1, 2002, they have worked for at least 15 calendar years in the regions of the Far North or at least 20 calendar years in areas equivalent to them and have, as of January 1, 2002, an insurance record of at least 25 and 20 years, respectively (regardless of from the date of reaching the required retirement age).
When determining the ratio of the average monthly earnings of the insured person to the average monthly salary in the Russian Federation, it should be borne in mind that the average monthly earnings of the insured person is calculated taking into account the actually accrued wages, i.e. including taking into account the district coefficient established on the basis of the regulatory legal act of the constituent entity of the Russian Federation, and the increased ratio of earnings (ZR / ZP - not more than 1.4; 1.7; 1.9) - taking into account the district coefficient to wages established in a centralized manner (by state authorities of the USSR, federal authorities government), since by virtue of paragraph 3 of Article 9 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation", the financing of the payment of the insurance part of the labor pension is carried out at the expense of the budget of the Pension Fund of the Russian Federation, the funds of which, by virtue of paragraph 1 of Article 16 of the same Federal Law are federal property, are not included in other budgets and are not subject to withdrawal. According to Article 71 of the Constitution of the Russian Federation, federal state property and its management are in the exclusive jurisdiction of the Russian Federation;
e) if persons before January 1, 2002 worked on the construction of objects of great national economic importance, and the state authorities of the USSR for the period of construction established a regional coefficient for wages and extended the benefits established for persons working in the regions of the Far North and areas equated to them, then, since the establishment of such a coefficient was of a temporary nature (it was established only for a certain period, taking into account the important national economic significance of the facility and the complexity of the production conditions for its construction, and was used to increase wages in order to ensure the construction of the facility), it cannot be attributed to those regional coefficients that are established in a centralized manner (by state authorities of the USSR, federal state authorities) to the wages of persons working in the regions of the Far North and areas equated to them, in order to compensate for additional material ny and physiological costs to citizens, i.e. take into account the peculiarities of natural and climatic conditions and the higher cost of living in these areas. Based on the foregoing, the ratio of the average monthly earnings of the insured person to the average monthly salary in the Russian Federation (ZR / ZP) should be taken into account for the persons who took part in the construction of these facilities. general rule: in size not more than 1.2 or in size not more than 1.4; 1.7; 1.9 (increased ratio of earnings) if there are grounds for this (paragraph 2 of Article 28, paragraph 2 of Article 30 of Federal Law N 173-FZ);
f) by virtue of paragraph 4 of Article 30 of Federal Law N 173-FZ, in order to assess the pension rights of insured persons, the total length of service is understood to be the total duration of labor and other socially useful activities until January 1, 2002.
At the same time, it should be borne in mind that the duration of labor and other socially useful activities is calculated on a calendar basis, regardless of the fact that the previous legislation for similar periods counted in the general seniority, a preferential calculation was provided (for example, periods of work in the regions of the Far North and in areas equated to regions of the Far North were calculated at one and a half times) and only those periods that are listed in the above paragraph are included in it.
However, this rule does not prevent the assessment of the pension rights of citizens (at their request) as of January 1, 2002, regardless of whether they have worked out a general or special length of service as of January 1, 2002 in whole or in part, based on the amount of the pension calculated according to the conditions and the norms of the Law of the Russian Federation "On State Pensions in the Russian Federation", which follows from paragraphs 6 and 9 of Article 30 of Federal Law N 173-FZ, which provide for the possibility of assessing pension rights based on the estimated amount of the pension calculated in accordance with the norms of the Law of the Russian Federation "On State pensions in the Russian Federation" (paragraph 6), and also provides that when assessing the pension rights of insured persons, the procedure for calculating and confirming the length of service, including length of service in the relevant types of work (and, if necessary, the earnings of the insured person), which was established for the appointment and recalculation of state pensions and was valid until d the entry into force of Federal Law N 173-FZ (paragraph 9). At the same time, it must be borne in mind that if the amount of the pension calculated on the basis of the Law of the Russian Federation "On State Pensions in the Russian Federation" is taken as the estimated amount of the labor pension without taking into account the individual coefficient of the pensioner, then when calculating the length of service, not only the norms of this of the Law regulating the procedure and conditions for including periods of work (service), other periods in the length of service, as well as the possibility of including a number of periods on a preferential basis, but also the provisions of Articles 16 and 17, as well as Article 18 of this Law, which establishes a limit on the maximum amount of a pension three (or three and a half) minimum dimensions pensions. The amount of the pension calculated in this manner is used for the subsequent determination of the calculated pension capital pensioner (PC).
14. Based on the provisions of Article 10 of the Law of the RSFSR "On the Rehabilitation of Repressed Peoples", the time spent in special settlements (places of exile) of citizens from among the repressed peoples and subsequently rehabilitated is to be included in the total length of service. At the same time, it should be borne in mind that, since, by virtue of paragraph 4 of Article 30 of Federal Law N 173-FZ, in order to assess the rights of insured persons, the total length of service is understood as the total duration of only labor and other socially useful activities, taken into account in a calendar order, the time spent these persons in special settlements (places of exile) are subject to registration in calendar order from the day they reach the age of sixteen, since according to the earlier labor legislation, it was from this age that such persons could be recruited. If evidence is presented that a person was involved in labor in more than early age, the entire period of work is subject to inclusion in the total length of service, regardless of the age of this person.
At the request of the person, the amount of the pension calculated in accordance with the norms of the Law of the Russian Federation "On State Pensions in the Russian Federation" without applying the individual coefficient of the pensioner can be accepted as the estimated amount of the labor pension. In this case, based on the provisions of Article 10 of the Law of the RSFSR "On the Rehabilitation of Repressed Peoples", the time spent by persons in special settlements (places of exile) is counted in the length of service in a triple amount, regardless of the age of these persons. However, when calculating a pension in the indicated manner, the rules established by Articles 16-18 of the Law of the Russian Federation "On State Pensions in the Russian Federation" shall be applied.
15. When resolving disputes that have arisen in connection with the non-inclusion of women in the length of service in the specialty of the period of being on parental leave in case of early appointment of an old-age pension (Articles 27 and 28 of the Federal Law "On labor pensions in the Russian Federation"), one should proceed from the fact that if the specified period took place before October 6, 1992 (the time of entry into force of the Law of the Russian Federation of September 25, 1992 N 3543-I "On Amendments and Additions to the Code of Labor Laws of the Russian Federation", with the adoption of which the named period ceased to be included in the special length of service in the case of granting a pension on preferential terms), then it is subject to inclusion in the length of service in the specialty, regardless of the time the woman applied for a pension and the time of the emergence of the right to early appointment of an old-age pension.
16. Courts should keep in mind that, since, by virtue of paragraph 3 of Article 31 of the Federal Law "On Labor Pensions in the Russian Federation", the conditions and norms for establishing pensions for civil aviation flight test personnel, which were in force until the day this Federal Law came into force, are preserved, provided for normative legal acts adopted prior to the entry into force of the said Federal Law, to employees of the flight test staff directly involved in flight tests (research) of experimental and serial aviation, aerospace, aeronautical and paratrooper equipment, regardless of the departmental affiliation of enterprises, organizations and institutions where they work, a superannuation pension may be granted on the basis of the Regulations on the procedure for assigning and paying superannuation pensions to employees of flight test personnel, approved by Decree of the Council of Ministers of the RSFSR of July 5, 1991 N 384 as amended by the Decree of the Government of Ross of the Yi Federation of August 12, 1992 N 577 (hereinafter - the Regulation).
When applying the above Regulation, it must be borne in mind that the length of service that gives the right to a pension (at least 25 years for men and at least 20 years for women, and when leaving work for health reasons - at least 20 and 15 years, respectively), calculated on the condition of working in the positions listed in paragraph 3 of the Regulations, and in the manner prescribed by paragraph 4 of the Regulations.
When applying the second paragraph of clause 5 of the Regulations, according to which the length of service for employees of the flight test personnel includes the time of service in the positions of the flight personnel of the Armed Forces of the USSR and work in the positions of civil aviation flight personnel in the manner established for the assignment of pensions, respectively, to military personnel and civil aviation flight personnel , it should be borne in mind that, based on the rules provided for in paragraphs 1, 3 and 4 of the Regulations, the specified time is subject to offset not in the length of service that gives the right to a pension for long service, but in another length of service, which is included in the length of service in excess of 25 (20) years flight test work and affects the size of the assigned pension.
In the same manner, periods of service in the positions of flight test staff in the Armed Forces of the Russian Federation (Armed Forces of the USSR) are subject to offset in length of service (over 25 (20) years of flight test work), since the Regulation does not provide for the possibility of including these periods in length of service. giving the right to a pension on the basis of this Regulation.
If the entire length of service consists of service in the Armed Forces of the Russian Federation (Armed Forces of the USSR), including in the positions of flight test personnel of the Armed Forces of the Russian Federation, and also if persons, being military personnel, entered into civil law contracts or employment contracts with civil aviation organizations to perform flight test work, such persons cannot be granted a pension on the basis of the Regulations on the procedure for assigning and paying pensions for long service to flight test personnel, since it applies to civil aviation test pilots, and not to military personnel (Clause 1 of the Regulations, Clause 3 of Article 31 of the Federal Law "On Labor Pensions in the Russian Federation").
Considering that, by virtue of paragraph 3 of Article 31 of the Federal Law "On Labor Pensions in the Russian Federation", civil aviation flight test personnel are subject to the Regulations on the procedure for assigning and paying pensions for long service to employees of flight test personnel without any exceptions, and also taking into account that this type of pension is not classified by this Law as an old-age labor pension assigned earlier than reaching the age established by Article 7 of this Law (Articles 27 and 28 of Federal Law N 173-FZ), the payment of which, including to working pensioners, is made in the prescribed amount without any restrictions (clause 4 of article 18 of Federal Law N 173-FZ), persons who are assigned a pension for long service on the basis of the said Regulations are subject to the restriction established by clause 8 of this Regulation, according to which such a pension can be paid to them on the condition that they continue to work in positions that do not entitle them to this pension. At the same time, the current pension legislation does not exclude the rights of these persons in the presence of necessary conditions apply for a labor pension on the basis of paragraph 13 of Article 27 of the Federal Law "On labor pensions in the Russian Federation" (a pension assigned to civil aviation pilots) and receive it in full, continuing to work in positions that give the right to a pension on the basis of the Regulations on the Procedure appointment and payment of pensions for the length of service to employees of the flight test staff.
17. Based on the content of paragraph 3 of Article 31 of Federal Law N 173-FZ, the conditions and norms for establishing pensions for civil aviation flight test personnel, provided for by the Regulation on the procedure for assigning and paying pensions for long service to flight test personnel, are also applied when assessing pension rights these persons. Since the assessment of pension rights is carried out in accordance with the norms of Federal Law N 173-FZ (paragraph 3 of Article 31 of this Law) for test pilots who had a pension as of December 31, 2001, when assessing their pension rights as of January 1, 2002 the rules provided for by paragraph 6 of Article 30 of this Law apply. Taking this into account, at the choice of the named persons, the assessment of their pension rights can be made on a general basis, i.e. according to the rules established by paragraphs 1 - 5 of article 30 of the Federal Law N 173-FZ (including the rule on accounting for the ratio of the average earnings of a person to the average monthly salary in the Russian Federation not more than 1.2), or according to the rules established by paragraph one of paragraph 6 of the article 30 of this Law, according to which the amount of the established pension, taking into account the corresponding increases and compensations, can be taken as the estimated amount of the pension.
18. In accordance with paragraph 2 of Article 28.1 of Federal Law N 173-FZ, persons who have worked for at least 15 calendar years in the regions of the Far North or at least 20 calendar years in areas equivalent to them and who have the old-age labor pension required for early assignment of an old-age pension provided for subparagraphs 1 - 10 of paragraph 1 of Article 27 and subparagraphs 7 - 9 of paragraph 1 of Article 28 of this Federal Law, the insurance period and length of service in the relevant types of work, the age established for early assignment of the specified pension is reduced by five years.
Considering that the above-mentioned norm does not provide for the possibility of reducing the age in case of early assignment of a pension to employees of engineering and technical staff employed in the direct maintenance of civil aviation aircraft and carrying out this activity in the regions of the Far North and equivalent areas, such a pension can be assigned to men upon reaching the age of 55 and for women upon reaching the age of 50, if they have worked in the engineering and technical staff for the direct maintenance of civil aviation aircraft for at least 20 and 15 years, respectively (regardless of the locality in which this work was carried out) and have insurance experience in civil aviation, respectively, of at least 25 and 20 years (subparagraph 15 of paragraph 1 of Article 27 of Federal Law N 173-FZ). This rule also applies to cases where such work took place before January 1, 2005 (the time when Federal Law No. 122-FZ of August 22, 2004 came into force, which supplemented the Federal Law "On Labor Pensions in the Russian Federation" with Article 28.1), since and according to the previous legislation (Law of the Russian Federation of November 20, 1990 N 340-I "On State Pensions in the Russian Federation"), engineering and technical staff employed in work on the direct maintenance of civil aviation aircraft were not entitled to a reduction of 5 years of age established for early retirement if they have worked for at least 15 calendar years in the regions of the Far North or at least 20 calendar years in areas equivalent to them. Such a right, in accordance with Article 29 of the Law of the Russian Federation of February 19, 1993 "On State Guarantees and Compensations for Persons Working and Living in the Far North and Equivalent Areas", extended only to persons to whom a pension was assigned in connection with special conditions labor (Article 12 of the Law of the Russian Federation "On State Pensions in the Russian Federation"). Employees of the engineering and technical staff employed in the direct maintenance of civil aviation aircraft were granted pensions earlier than the retirement age (if there were grounds for this) in accordance with Article 79 of the Law of the Russian Federation "On State Pensions in the Russian Federation", i.e. . for years of service.
19. When deciding on the right of a person to an early appointment of an old-age labor pension on the basis of subparagraphs 2 and 6 of paragraph 1 of Article 28 of the Federal Law "On labor pensions in the Russian Federation", it should be borne in mind that in accordance with paragraph 1 of Article 28.1 of Federal Law No. 173-FZ, when determining the length of service in the regions of the Far North and areas equated to them for the early assignment of an old-age labor pension in connection with work in the said regions and localities, the work giving the right to early assignment of an old-age labor pension is equated to the specified work in accordance with subparagraphs 1 - 10 of paragraph 1 of Article 27 and subparagraphs 7 - 9 of paragraph 1 of Article 28 of this Federal Law, in the manner determined by the Government of the Russian Federation. At the same time, the period of passage military service, as well as other service equated to it, is not subject to credit for work experience in the regions of the Far North and areas equated to them, which gives the right to early appointment of an old-age labor pension, since the current legislation does not provide for such a possibility.
20. In accordance with subparagraph 5 of paragraph 1 of Article 27 of the Federal Law "On Labor Pensions in the Russian Federation", an old-age labor pension is assigned to men upon reaching the age of 55, and to women - upon reaching the age of 50, if they have worked, respectively, for at least 12 years 6 months and 10 years as working locomotive crews and employees of certain categories who directly organize transportation and ensure traffic safety in railway transport and the subway, as well as drivers of trucks directly in the technological process in mines, cuts, mines or ore quarries in the export of coal, shale, ore, rocks and have an insurance record of at least 25 and 20 years, respectively.
In case of early appointment of an old-age labor pension to employees employed as workers of locomotive crews, and employees of certain categories who directly organize transportation and ensure traffic safety on railway transport and the subway, the List of professions of workers of locomotive crews, as well as professions and positions of workers of certain categories , directly carrying out the organization of transportation and ensuring traffic safety in railway transport and the subway, approved by the Decree of the Government of the Russian Federation of April 24, 1992 N 272 (subparagraph "d" of paragraph 1 of the Decree of the Government of the Russian Federation of July 18, 2002 N 537 "On the lists of industries, works, professions and positions, taking into account which an old-age labor pension is assigned ahead of schedule in accordance with Article 27 of the Federal Law "On labor pensions in the Russian Federation", and on the approval of the Rules for calculating periods of work You, giving the right to early assignment of an old-age labor pension to civil aviation flight personnel in accordance with Article 27 of the Federal Law "On Labor Pensions in the Russian Federation").
When resolving the issue of early assignment of an old-age labor pension to employees employed as workers of locomotive crews, and employees of certain categories who directly organize transportation and ensure traffic safety in railway transport and the subway, the courts need, in particular, to bear in mind whether the plaintiff has reached of the age established by subparagraph 5 of paragraph 1 of Article 27 of the Federal Law N 173-FZ, whether he has the necessary insurance experience, as well as experience in the relevant types of work (special experience). When calculating the special length of service, it should be taken into account whether the plaintiff worked in the profession (occupied the position) indicated (indicated) in the above List, and also whether the work performed by him was associated with adverse effects of various kinds of factors indicated in this List (for example, employment on sections of highways railways with heavy train traffic for track fitters, foremen).
21. Since violations of pension rights affect the property rights of citizens, the court, based on the provisions of paragraph 2 of Article 1099 of the Civil Code of the Russian Federation, refuses to satisfy the citizen's claim for compensation for moral damage, since a special law that allows in this case the possibility of bringing pension bodies to such responsibility, not available.
22. Given that the right to social security by age is one of the fundamental rights of a person and a citizen guaranteed by the Constitution of the Russian Federation (part 1 of Article 39), and the main purpose of pension provision is to provide a person with a means of subsistence, draw the attention of the courts to the provision granted to them by Article 226 of the Code of Civil Procedure of the Russian Federation, the right to make private rulings when cases of violations of the law in the appointment and payment of labor pensions to citizens are revealed during the consideration of pension cases.
23. Draw the attention of the courts to the need for a clear and concise statement of the operative part of the decision so that it does not raise questions during its execution. For this purpose, the operative part of the decision, by which the claims of the plaintiff are satisfied, must, in particular, indicate which requirements are to be satisfied and what obligation is imposed on the defendant in order to restore the violated right of the plaintiff (for example, imposing the obligation on the defendant to include a certain period of work of the plaintiff to a special period of service, giving the right to early appointment of an old-age pension to the plaintiff, to recover the underpaid amount of the pension from the defendant), and it is also indicated from what time the defendant is obliged to grant the plaintiff a pension if the court concludes that the pension authority unreasonably refused to appoint the plaintiff pensions.
At the same time, it must be borne in mind that if the plaintiff, in accordance with the procedure established by law, applied to the pension authority for the appointment of a pension, but this was unreasonably denied to him, the court has the right to oblige the pension authority to award the plaintiff a pension from the date of filing an application with the pension authority or more early term, if it is established by the Federal Law "On labor pensions in the Russian Federation" (Article 19 of the Federal Law N 173-FZ).
24. Since, in accordance with Article 1109 of the Civil Code of the Russian Federation, overpaid pension amounts are not subject to return as unjust enrichment, except in cases of bad faith on the part of a citizen and a counting error, when a court decision in a case on the recovery of a labor pension is canceled in a court of appeal, cassation or supervisory instance reversal of the execution of the court decision in the absence of these circumstances is not allowed.
For administrative matters
The cost of a lawyer's services is determined in each case individually, depending on the complexity of the case, the place of proceedings, the qualifications of the lawyer, and may differ from the declared one either up or down.
List N 2 of industries, jobs, professions, positions and indicators with harmful and difficult working conditions, employment in which gives the right to an old-age pension (old age) on preferential terms, approved by Resolution of the Cabinet of Ministers of the USSR of January 26, 1991 N 10,
Installed:
Decree of the Cabinet of Ministers of the USSR of January 26, 1991 N 10 approved lists of industries, jobs, professions, positions and indicators giving the right to preferential pension provision, including List N 2 of industries, jobs, professions, positions and indicators with harmful and severe working conditions, employment in which gives the right to an old-age pension on preferential terms (hereinafter - List No. 2). The text of the resolution was published in the "Collection of normative acts on pension provision", 1992.
Paragraph 3 of section XXVIII ("Transport") of List N 2 in the category of industries, jobs, professions, positions and indicators with harmful and difficult working conditions, employment in which gives the right to an old-age pension on preferential terms, includes a floating composition sea and river fleet (position 23003010): engine crew of service and auxiliary fleet vessels and port fleet vessels permanently operating in the port water area (except for service and traveling, suburban and intracity traffic).
Z. applied to the Supreme Court of the Russian Federation with an application to invalidate paragraph 3 of section XXVIII of List No. 2 regarding the words "auxiliary fleet and ships of the port fleet permanently operating in the port waters", referring to the fact that granting the right to a pension under age (old age) on preferential terms exclusively to the engine crew of the service-auxiliary fleet vessels and the port fleet vessels permanently operating in the port waters, violates his right to receive an early retirement old-age pension, assigned before reaching the retirement age on the basis of subparagraph 2 of paragraph 1 of the article 27 of the Federal Law of December 17, 2001 N 173-FZ "On labor pensions in the Russian Federation" (hereinafter - Federal Law N 173-FZ). According to the Applicant, for 7 years 8 months and 3 days he performed work as part of the engine crew of the transport fleet ships, which was characterized by more harmful and difficult working conditions than the work of the engine crew specified in the contested norm, therefore the restriction imposed on the types of ships is illegal and inconsistent with subparagraphs 2 and 9 of paragraph 1 of Article 27 of the Federal Law N 173-FZ, as well as paragraphs 2 and 9 of part 1 of Article 30 of the Federal Law of December 28, 2013 N 400-FZ "On insurance pensions" (hereinafter - the Federal Law N 400-FZ).
At the hearing Z. and his representative M. supported the claim.
Representative of the Ministry of Labor and Social Protection of the Russian Federation, representing the interests of the Government of the Russian Federation on the basis of the order dated June 15, 2015 OG-P12-3890, S.M. objected to the satisfaction of the application, explaining that the challenged normative provision does not contradict the legislation of the Russian Federation and does not violate the applicant's rights and freedoms.
Having listened to the explanations of the applicant and his representative, the objections of the representative of the interested person, having checked the contested normative provision for compliance with normative legal acts of greater legal force, having heard the conclusion of the prosecutor of the Prosecutor General's Office of the Russian Federation, Stepanova L.E., who considered it necessary to refuse to satisfy the application, the Supreme Court of the Russian Federation believes that there are no grounds for satisfying the stated requirement.
Pursuant to the Decree of the Supreme Council of the RSFSR dated November 20, 1990 "On Certain Issues Related to the Enactment of the Law of the RSFSR "On State Pensions in the RSFSR", the Council of Ministers of the RSFSR, from January 1, 1992, extended the effect on the territory of the RSFSR approved by a decree of the Cabinet of Ministers USSR dated January 26, 1991 N 10 lists of industries, jobs, professions, positions and indicators that give the right to preferential pension provision, with additions and changes made by resolutions of the Cabinet of Ministers of the USSR dated July 23, 1991 N 497 and August 9, 1991 Mr. N 591.
Subsequently, their action was confirmed by Decree of the Government of the Russian Federation of July 18, 2002 N 537 "On the lists of industries, jobs, professions and positions, taking into account which an old-age labor pension is early assigned in accordance with Article 27 of the Federal Law "On labor pensions in the Russian Federation", and on the approval of the Rules for calculating the periods of work, giving the right to early assignment of an old-age labor pension to civil aviation flight personnel in accordance with Article 27 of the Federal Law "On Labor Pensions in the Russian Federation".
From January 1, 2015, the grounds for the emergence and the procedure for exercising the right of citizens of the Russian Federation to insurance pensions are regulated by Federal Law N 400-FZ, in part 1 of Article 8 of which it is stipulated that men who have reached the age of 60 have the right to an old-age insurance pension, and women over the age of 55.
In accordance with Part 3 of Article 36 of the said federal law, Federal Law No. 173-FZ shall not apply from the indicated date, with the exception of the rules governing the calculation of the amount of labor pensions and subject to application in order to determine the amount of insurance pensions in accordance with this federal law in part, not contrary to him.
Part 2 of Article 30 of Federal Law N 400-FZ, which establishes the grounds for maintaining the right to early appointment of an insurance pension, provides that lists of relevant jobs, industries, professions, positions, specialties and institutions (organizations), taking into account which an old-age insurance pension is assigned in in accordance with part 1 of this article, the rules for calculating the periods of work (activity) and the appointment of the specified pension, if necessary, are approved by the Government of the Russian Federation.
In order to implement the provisions of Articles 30 and Federal Law N 400-FZ, the Government of the Russian Federation adopted Resolution N 665 dated July 16, 2014 "On the lists of jobs, industries, professions, positions, specialties and institutions (organizations), taking into account which an insurance policy is appointed ahead of schedule old-age pension, and the rules for calculating periods of work (activity), giving the right to early retirement provision" (hereinafter referred to as the Resolution), which, among other things, approved the procedure for applying List No. 2 when determining the length of service in the relevant types of work for the purpose of early retirement provision in accordance with article 30 of the mentioned federal law.
The Resolution was published on July 24, 2014 on the "Official Internet Portal of Legal Information" http://www.pravo.gov.ru, July 28, 2014 in the Collection of Legislation of the Russian Federation, No. 30 (Part II), Art. 4306.
Thus, List No. 2 has been approved and put into effect by the Government of the Russian Federation in accordance with the procedure established by law and within the powers granted to it.
By virtue of clause 2 of part 1 of article 30 of Federal Law N 400-FZ, an old-age insurance pension is assigned before reaching the age established by article 8 of this federal law, if there is an individual pension coefficient of at least 30, for men upon reaching the age of 55 years and for women upon reaching the age of 50 years, if they have worked in jobs with difficult working conditions for at least 12 years, 6 months and 10 years, respectively, and have an insurance record of at least 25 years and 20 years, respectively. If these persons have worked at the listed jobs for at least half of the established period and have the required length of insurance experience, the insurance pension is assigned to them with a decrease in the age provided for in Article 8 of the federal law by one year for every 2 years and 6 months of such work for men and for every 2 years of such work for women.
Paragraph 9 of the above norm in the same manner provides for the appointment of an insurance pension ahead of schedule for men upon reaching the age of 55 years and for women upon reaching the age of 50 years, if they have worked, respectively, for at least 12 years 6 months and 10 years as seafarers on ships of the sea, river fleet and navy fishing industry (with the exception of port ships permanently operating in the port waters, auxiliary and crew vessels, suburban and intracity ships) and have an insurance record of at least 25 years and 20 years, respectively.
In case of early appointment of an old-age insurance pension to persons who worked in jobs with difficult working conditions, List No. 2 is applied, as well as List No. 2 of industries, workshops, professions and positions with difficult working conditions, work in which gives the right to a state pension on preferential terms and in preferential amounts, approved by Decree of the Council of Ministers of the USSR of August 22, 1956 N 1173, to take into account the periods of performance of the relevant work that took place before January 1, 1992 (subparagraph "b" of paragraph 1 of the Resolution).
The insufficiency of the special length of service for assigning an insurance pension to the applicant ahead of schedule on the grounds provided for in clause 9 of part 1 of Article 30 of Federal Law N 400-FZ, and before January 1, 2015 - in subparagraph 9 of clause 1 of Article 27 of Federal Law N 173-FZ, does not indicate non-compliance of the disputed normative provision of List No. 2 with the requirements of acts of federal legislation of greater legal force.
A statement of claim for compensation for non-pecuniary damage caused as a result of a fall from the stairs of a shopping complex, the owners of which do not comply with the rules for improvement - they do not clean the steps from ice and snow, flight of stairs not properly equipped with railings
A statement of claim for the recovery of damages from the perpetrator of the accident (the perpetrator of the accident did not insure his liability under the OSAGO law)
Statement of claim for compensation for harm to health, recovery of compensation for moral damage caused as a result of an accident (the victim was crossing the road)
Claim for compensation for property damage caused as a result of an accident (the direct causer does not dispute the fault, but the insurance company refuses to pay insurance under OSAGO)
Statement of claim for compensation for damage caused by flooding of the apartment (we collect the cost of restoring the apartment, court costs - state duty, costs of legal assistance, costs of paying for the services of a damage assessor)
Claim for compensation for damage caused by the bay of the apartment (the cost of restoring the apartment, the cost of damage assessment services, interest, and other expenses)
Statement of claim for compensation for damage caused by the Office of the Federal Bailiff Service (at the expense of the treasury of the Russian Federation)
All documents to court(procedural documents):
Russian legislation provides for special preferential pensions for medical workers. This is not about additional payments, but about reducing the total length of service.
With normal output, citizens are charged a year for one year, healthcare workers are additionally added from three to nine months. A preferential pension allows people who have accumulated such length of service to receive payments for the length of service.
The principle of preferential pension provision implies a reduction in the period of time after which you can apply for funds.
The main criterion for physicians is the accumulated work experience.
If problems arise with the appointment and calculation of a preferential pension, it is important not only to have all the necessary certificates on hand, but also to have a theoretical basis.
The following legal acts will help in this matter:
The provisions of these documents can be found here:
The list of medical workers who can qualify for early retirement is established by Government Decree No. 781 of October 29, 2002.
Positions and employees of institutions covered by preferential pension provision:
- for doctors and nurses working in villages - 25 years;
- for employees of city medical institutions - 30 years.
One year worked is considered a year, but some categories of health workers are entitled to additional “bonuses”:
- for doctors who have worked in the countryside or in the city, one year of experience is counted for 15 months (a year and three months);
- a year and a half is applied to such specialties as a surgeon, an anesthesiologist-resuscitator, a forensic expert, a pathologist;
- if the specialists listed above have worked in rural areas, a year of experience is equal to one year and nine months.
- temporary disability of an employee;
- going on maternity leave before childbirth;
- business trips;
- employer-paid training, advanced training courses.
Early retirement due to harmful working conditions is due to medical workers who have worked in their specialty for 25 to 30 years.
This applies to those who worked in both urban and rural areas. The age of the citizen does not play a role.
The conditions for early retirement of health workers are determined by Decree No. 781. This question also regulated by the Law on Insurance Pension No. 400.
- positions and specialties of medical workers, in respect of which there is a preferential provision;
- all health facilities, work in which is counted for the calculation of experience.
The same document establishes the rules for calculating special experience.
So, for example, part-time work until November 1999 is recorded in the seniority, and after this year - no longer.
The Resolution contains many nuances that relate to the status of medical institutions, the specialization of physicians and periods of employment.
It is necessary to pay attention to the fact that twenty-five years of experience is the basis for the early appointment of payments only if the person has worked in the countryside all these years.
If during this time he also worked in an urban area, the experience in the city will be taken into account in the usual way, and in the village - as a year for 15 months.
- the name of a medical organization must contain such terms as “hospital”, “medical unit”, “children's home”, “hospital”, etc.;
- the organizational and legal form of the healthcare facility is precisely the “institution”, i.e. a legal entity;
- if a health worker worked not in a separate healthcare organization, but in a medical structural unit of an institution, such activities are also counted in the length of service (for example, health centers in educational institutions, medical unit, laboratory in a military unit, etc. - a complete list is given in Decree No. 781);
- the position occupied by a specific medical employee should be included in the list No. 781 (all categories of doctors and nursing staff);
- heads (for example, a department in a polyclinic) can also count on early exit, but only if they have not stopped medical practice during all this time.
The age of a person who has reached the required experience does not play a role. To assign early security, it is necessary that the employer transfer contributions to the Pension Fund for the entire period of employment.
To do this, you need to gain a certain experience:
- in a village and an urban-type settlement - 25 years;
- in the city, village and urban-type settlement, or only in the city - from 30 years.
When determining the date of early withdrawal, it is necessary to take into account the features of the updated pension legislation:
- the minimum insurance period last year was five years, every year another year is added to this figure (for 2025 this figure will be fifteen years);
- a citizen must accumulate 30 pension points.
The listed circumstances apply to everyone whose work is not associated with harmful conditions and who is not among the "beneficiaries". Health workers fall into the latter category.
Early retirement of employees of public health facilities is carried out in accordance with the general procedure in accordance with Decree No. 781 and Law No. 400.
Work experience includes work with normal and reduced working hours.
The length of service for employees of state medical institutions in villages and urban-type settlements is accrued in the proportion of one year to 15 months.
The “one and a half year” rule applies to the following categories of employees of state institutions:
- operating doctors working in surgical departments;
- anesthesiologists-resuscitators who have worked in intensive care units;
- pathologists working in the relevant departments at health care facilities;
- medical experts who worked in the bureau of forensic examination.
If the listed specialists have worked in health care facilities in the countryside, one year is equivalent to 21 months of experience.
Paid medicine is actively developing in Russia. In this regard, employees of private medical institutions often receive refusals from the Pension Fund of the Russian Federation in the appointment of a preferential pension.
In accordance with the Decree of the Constitutional Court of the Russian Federation dated 03.06.2004 No. 11 / P, all health workers should be placed in an equal position, regardless of the form of ownership of the health facility.
The Constitutional Court guaranteed early retirement for all health workers. Subject to all the conditions established by law, employees of the private health sector are fully entitled to preferential pension provision.
At the same time, an employee of a commercial medical organization must check his position with the established nomenclature. Another prerequisite for the appointment of an early pension is the transfer by the employer of contributions to the Pension Fund.
Russian legislation provides for early retirement of medical workers who have served in rural areas. In this case, the multiplying factor “a year for 15 months” will be applied.
There is one restriction here: according to Decree No. 781, the above rule applies only to citizens who have worked both in the city and in the countryside.
If the experience was available only in rural areas, the calculation is carried out according to the general scheme.
Early retirement usually does not cause any difficulties for health workers. To apply for it, you need to contact the Pension Fund with all the necessary information.
The procedure for applying for a pension for medical personnel does not differ from the generally accepted procedure. A citizen must apply to the FIU at the place of registration. Before that, you need to get all the necessary papers at work.
- application to the FIU for the appointment of preferential security;
- the passport;
- work book, which indicates the total length of service.
- certificate of average salary for 60 days of continuous work until 2002;
- certificate of change of residence;
- certificate of change of surname;
- documentary evidence of disability, etc.
The application is considered within ten days after submission. Calculation of payments is made from the date of application by the applicant. The retirement pension is granted indefinitely.
The work experience of health workers includes:
- time spent on sick leave;
- annual paid holidays;
- maternity leave;
- period of training or advanced training.
The allowance is calculated on the basis of the experience gained by the physician and his income, which he received at the health facility for the specified period.
In general, a standard calculation scheme is applied, which provides for:
- calculation of work experience;
- accounting for various benefits and allowances;
- calculation of the individual coefficient;
- calculation of the amount of the pension.
In accordance with Article 256 of the Labor Code, seniority does not include parental leave. However, women who are on maternity leave (maternity leave) receive additional seniority for this period. All benefits associated with the specified circumstance will be taken into account in the calculation of the pension.
The pension provision of physicians in each region is calculated taking into account regional coefficients. Payments are accrued depending on wages and average 40%.
The surgeon worked for fifteen years in the countryside in the Department of Surgery, then he was appointed deputy chief physician in the city. The seniority at the last place was six years.
Length of service calculation: 6 years in the city + 15 years in the countryside as a surgeon + 10.5 years of privilege for practice in surgery + 3.5 years for work in the countryside, for a total of 35 years of work experience.
Recently, judicial precedents regarding preferential pension provision for health workers have rarely arisen. This is due to the fact that the legislation clearly regulates this procedure.
Difficulties are usually faced by citizens whose positions are spelled incorrectly. In such cases, the principle of identity, established by federal law, is provided.
Previously, difficulties arose with doctors working in private clinics. Now they rarely go to court on this matter, since extensive judicial practice says one thing: no doubt, the health worker is right.
The health worker has the right to apply for a superannuation pension in court. Each case is considered on an individual basis, therefore, it is necessary to prove that the employee performed functions that allow him to be included in the list of Resolution No. 781.
The statement of claim is drawn up according to the general model:
- first, the name and address of the judicial authority to which the claim is filed are indicated;
- then all information about the applicant is prescribed (full name, date of birth, passport details, address by registration);
- then you need to state the essence of the claim, indicate the grounds for filing and requirements.
Is child support withheld from a disability pension? See here.
Based latest news, we can conclude that significant changes are not expected in the near future. Health workers are still entitled to early retirement and preferential accrual of seniority.
In 2017, there will be no changes regarding the registration of a preferential pension, but already now there are discussions in the Ministry of Labor about adjusting the length of service for medical workers in the future.
In 2018-2019, the required seniority may increase by three months for each year. And in the next 2020-2022 - already for six months annually.
The abolition of preferential pensions for health workers is not included in the plans of the Ministry of Labor. Doctors and nurses will continue to retire upon reaching the required length of service. The question is how much the criteria and conditions for such an exit will change.
Indexation of pensions for medical workers is carried out on a par with benefits for other categories of pensioners.
Recalculation this year is scheduled for February, after which payments will increase by a little more than 5%. At the end of the year, indexation will be 5.8%.
Continuing the topic of early pensions, in this article we will consider the features of early pensions for medical workers.
firstly, medical workers belong to the category of citizens whom the state provides with such a type of pension as labor pension;
secondly, under certain conditions, medical workers can count on an early old-age retirement pension.
For your retirement planning it is important to know which of the medical workers has the right to an early (preferential) old-age labor pension, how to timely and correctly draw up and calculate the length of service that gives the right to an early pension?
Knowing the answers to these questions will allow you to avoid many problems in the future when applying for an early retirement old-age pension.
In addition, which is also important for retirement planning, there are different points of view about further fate early retirement benefits for privileged categories of employees. They need to be known and taken into account.
The issue of assigning early labor old-age pensions to medical workers, even at present, is not a simple one.
This is primarily due to the fact that the pension legislation has changed significantly in the period from 1990 to 2002, and secondly, the administrations of medical institutions for their own purposes often renamed these institutions and positions, introduced their own, not approved by regulatory documents.
All this complicates the appointment of early labor old-age pensions for medical workers.
Let's consider what first of all it is worth paying attention to medical workers in the process of retirement planning of their work activity.
The main document currently assigning labor old-age pensions to medical workers, including early labor old-age pensions, is Federal Law No. 173-FZ of December 17, 2001 “On labor pensions in the Russian Federation”.
Article 27 of this Law establishes: “persons who carry out medical and other health care activities in health care institutions for at least 25 years in rural areas and urban-type settlements and at least 30 years in cities, regardless of the age of the person, are assigned early retirement pension ».
At first glance, everything seems clear, but in practice there are a lot of problems here.
For example, Now in our country the system of private health care is actively developing. In this regard, there have been and are refusals of the Pension Fund of the Russian Federation to assign pensions to medical workers from private medical clinics and centers.
The Constitutional Court of the Russian Federation, by its Resolution No. 11-P of June 3, 2004, clarified that healthcare workers should not be placed in an unequal position depending on the type of ownership they work in.
The Constitutional Court guaranteed all medical workers the right to an early retirement retirement pension. Courts at various levels have made many positive decisions on this issue..
Subject to all requirements established by the state, medical personnel private system health care is also entitled to an early retirement old-age pension. These court decisions are a consequence of the imperfection of our legislation, in which there are no additional explanations about the form of ownership.
Another feature that is very important for pension planning is that the names of the positions of medical workers for applying for an early labor old-age pension can only be as established by the state with special qualification requirements.
In a word, it is impossible to name the positions of a health worker arbitrarily.
For example, any medical organization can name their positions whatever they like, but if it receives a license for medical activities and employs medical personnel, then the name of their positions, qualification characteristics for this medical personnel, can be strictly according to the requirements established by the state.
This, in particular, ensures the early right to pensions for medical workers.
If the position of a medical worker was named differently and the qualification characteristics were different, then he will not receive the right to early retirement for old age and, moreover, may lose the status of a medical worker altogether!
Qualification characteristics of medical workers established by order of the Ministry of Health and Social Development No. 869 dated November 6, 2009, with subsequent amendments and additions.
There is a special section there - "qualification characteristics of positions of workers in the healthcare sector."
For each official, his job responsibilities are prescribed, it is indicated that he needs to know, there are qualification requirements, that is, who can become one.
Herself nomenclature of positions , that is, the names of positions, are determined by order of the Ministry of Health and Social Development No. 210 - N of April 23, 2009 and qualification requirements to this nomenclature are established by order of the Ministry of Health and Social Development No. 415 - N of July 7, 2009.
Unfortunately, in last years the nomenclature and qualification requirements changed very often. Therefore, if you do not want problems in the future, when applying for an early retirement old-age pension, take the entries in the work book seriously.
Here, for example, is a fairly common situation that even the Supreme Court had to consider: whether to include the period of training of a medical worker in clinical residency.
On this occasion, the Supreme Court clarified that this period cannot be included in the length of service for early retirement pension.
Also, quite often, problems with preferential pension provision arise for chief doctors and heads of departments. The fact is that an early retirement old-age pension can only be granted if, within his working hours, the head of a medical institution also works directly as a doctor up to 25 percent of his official salary.
Decree of the Government of the Russian Federation of October 29, 2002 No. 781 approved List of positions and medical institutions , work in which entitles medical workers to an early retirement retirement pension, as well as Rules for calculating special experience .
At the same time, the periods of work of medical workers only in those positions and institutions that are provided for in the List are counted in the length of service giving the right to early retirement. In addition, work periods from November 1, 1999 are counted as special experience for the appointment of early labor old-age pensions for medical workers, provided that it is carried out in the regime of normal or reduced working hours provided for by labor legislation for the relevant positions.
The periods of work in health care institutions are calculated on a calendar basis. At the same time, the current legislation provides for a preferential procedure for calculating special experience for the appointment of early labor old-age pensions in the following cases:
- in the presence of a "mixed" experience, i.e. work experience in health care facilities located in both urban and rural areas. In this case, the periods of work of medical workers in rural areas and urban-type settlements are calculated on a preferential basis: 1 year of work is counted for 1 year and 3 months;
- operating medical specialists and operating room nurses who worked in structural subdivisions of the surgical profile (the List of such subdivisions was approved on October 29, 2002): 1 year of work in these subdivisions is counted as 1 year and 6 months. These units include: operating room, surgical, traumatology, ophthalmology departments, i.e. departments in which operations are carried out;
- anesthesiologists-resuscitators, nurses - anesthetists who worked in departments (groups, wards) of anesthesiology-resuscitation, resuscitation and intensive care: 1 year of work is counted for 1 year and 6 months.
Preferential calculation of length of service for the appointment of an early retirement old-age pension in accordance with the Rules of October 29, 2002 No. 781 is also carried out in relation to some other categories of medical personnel.
In addition, for persons who performed work in surgical departments in healthcare institutions located in rural areas and urban-type settlements, with a “mixed” experience, the current legislation provides the right to the simultaneous application two benefits according to the calculation of special experience, i.e. benefit for work in the surgical department (1 year of work for 1 year and 6 months) and benefit for work in rural areas (1 year of work for 1 year and 3 months). Thus, 1 year of work in the appointment of an early retirement old-age pension will be taken into account for 1 year and 9 months.
In connection with the adoption Resolutions of the Constitutional Court of the Russian Federation dated January 29, 2004 No. 2-P when calculating the special experience of medical activity for the appointment of an early labor old-age pension, the norms of the previous legislation are applied.
Future retired health workers should keep in mind that the legal regulation in force on 01.01.2002 had some differences in positions and institutions, work in which was counted for the appointment of an early retirement old-age pension, there were differences in the procedure for calculating the length of service.
To a greater extent, the differences concerned the names of the positions of medical workers. For example, work as doctors and paramedical personnel without listing specific positions was counted as a special length of service for the appointment of an early labor old-age pension.
The current legislation provides for specific job titles for the appointment of early pensions that do not allow inaccuracies.
To apply the preferential procedure for calculating special length of service, persons who worked in surgical departments (1 year of work for 1 year and 6 months) did not require documentary evidence of participation in operations.
Special work experience in health care institutions located in rural areas was calculated on a preferential basis (1 year of work for 1 year and 3 months), regardless of the presence of a “mixed” experience, i.e. This exemption was applied only when working in rural areas.
The specified procedure for applying the legislation on early pensions is limited by the time frame of the relevant regulations:
- until 01.11.1999, the resolution of the Council of Ministers of the RSFSR dated 06.09.1991 No. 464 is applied,
- from 11/01/1999 to 11/12/2002 - Decree of the Government of the Russian Federation dated 09/22/1999 No. 1066,
- from 11/12/2002 - Decree of the Government of the Russian Federation dated 10/29/2002 No. 781.
Further, in accordance with the current legislation, it is not provided for the possibility of crediting to a special length of service for the appointment of an early labor old-age pension during the periods of a woman's stay. on parental leave until they are 3 years old. Maternity leave is not excluded from the duration of the special experience of medical activity.
The issue of crediting to the special experience of medical activity for the appointment of an early labor pension for the periods of a woman's stay on maternity leave can be considered within the framework of the application of the decision of the Constitutional Court of the Russian Federation of 29.01.2004 No. 2-P, i.e. taking into account the previous legislation, in accordance with which the periods of a woman's stay on parental leave, provided in the period up to 10/06/1992, until the child is 1.5 years old, are counted in the special experience of medical activity.
Leaves to care for a child from 1.5 years to 3 years are not included in the special experience of medical activity.
Important. Given the complexity and inconsistency of pension legislation, as well as the presence of a huge number of various by-laws, when planning pensions, medical workers should proceed from the fact that the choice of the most advantageous option for assessing pension rights can be made individually when applying to your territorial branch of the PFR for the appointment of an early retirement pension .
Also, in accordance with subparagraph 2 of paragraph 1 of article 27 of Law N 173-FZ, men are entitled to a preferential pension upon reaching the age of 55 and women upon reaching the age of 50 if they have worked in jobs with difficult working conditions at least 12 years, 6 months and 10 years, respectively, and have an insurance record of at least 25 and 20 years, respectively.
Lists of relevant jobs, industries, professions, positions and specialties and institutions, taking into account which a labor pension is assigned, provided for in paragraph 1 of Article 27 of Law N 173-FZ, the rules for calculating periods of work and assigning labor pensions, if necessary, are approved by the Government of the Russian Federation (paragraph 2 of Article 27 of Law N 173-FZ).
By virtue of subparagraph “a” of paragraph 1 of Decree of the Government of the Russian Federation of July 18, 2002 N 537, in case of early assignment of an old-age labor pension to employees employed in work with difficult working conditions, List N 2 industries, jobs, professions, positions and indicators with harmful and difficult working conditions, approved by the Decree of the Cabinet of Ministers of the USSR of 01/26/1991 N 10.
According to section XXIV "Health and social security institutions" of List No. 2, medical workers employed in anti-plague institutions, workers directly serving patients in tuberculosis and infectious diseases institutions, departments, offices (junior and middle medical personnel) and others are recognized medical workers with harmful and difficult working conditions .
In order to clarify this section, the Ministry of Health of the Russian Federation issued a Letter dated 08.23.1993 N 05-16 / 30-16 “On the procedure for applying section XXIV of List N 2 of industries, jobs, professions, positions and indicators giving the right to preferential pension provision”, according to which “the direct service of patients is the work, the performance of which is carried out in conditions of contact between a medical worker and a patient.
The implementation of a number of diagnostic and therapeutic procedures, measures for the care of patients, the creation of an appropriate medical and protective regimen require direct contact between staff and patients.
For example, massage, injections, procedures, manipulations, and so on.”
It follows from Rules No. 781 that from 01.11.1999 work must be counted in the special length of service for the appointment of an early labor old-age pension only when the employee worked full time.
Starting from this date, the rule applies to all medical staff. The exception is the head nurse, she must confirm the full time for the entire period of her activity.
A full-time workday is determined on the basis of a normal or shortened working week.
A reduced work week has been established for medical workers. She, according to article 350 of the Labor Code of the Russian Federation, cannot exceed 39 hours a week.
In addition, some healthcare workers may work less than 39 hours a week. Lists of positions and (or) specialties of medical workers, organizations, as well as departments, chambers, offices, working conditions in which work gives the right to a shortened working week are given in Decree of the Government of the Russian Federation of February 14, 2003 N 101 “On the duration of the working time of medical workers depending on the position held and (or) specialty” (hereinafter - Decree N 101).
These Lists establish that, depending on the position and (or) specialty, nature and working conditions, working hours can be 36, 33 and 30 hours per week.
So, for example, medical workers, who are listed in Appendix No. 1 of Decree No. 101, can only work 36 hours a week. Medical workers whose position is listed in Appendix No. 2 of Resolution No. 101 are required to work a maximum of 33 hours a week.
But medical workers who are included in Appendix N 3 of Resolution N 101 work only 30 hours a week. Least of all, only 24 hours a week, can work medical staff who deal with gamma drugs in radio manipulation rooms and laboratories.
For various reasons, medical workers simultaneously have to work in several positions in one or more medical organizations.
In the case when the work was carried out in several positions (institutions) indicated in the List N 781 during part-time work, the period of its performance is counted in the special length of service for the appointment of an early retirement old-age pension, if as a result of summing up employment (volume of work) in these positions (institutions) worked out normal or reduced working hours in the amount of the full rate for one of the positions.
The time of study in clinical residency cannot be included in the special experience for the appointment of an early retirement old-age pension.
Regulations on clinical residency (clause 6) dated February 17, 1993 N 23 states that studies in residency are separated from the main place of work and after a medical specialist enters clinical residency, he must quit his main place of work.
Obviously, the Rules do not say anything about the inclusion of periods of parental leave in the special length of service.
Therefore, it applies general rule established by the Constitutional Court - the special experience is assessed in the manner prescribed by law during the period of acquiring this experience.
The Code of Labor Laws of the RSFSR (Labor Code), as amended until October 6, 1992, provided for the inclusion in the special length of service of periods of parental leave until the age of one and a half years.
Therefore, vacation periods of up to one and a half years that took place before this date are included in the special length of service. More difficult is the issue of vacations up to three years. The Labor Code did not provide for the inclusion of such holidays in the special experience. But on August 22, 1989, the Decree of the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions No. 677 was issued, increasing from December 1, 1989 the duration of additional parental leave to three years.
The same Decree provided that additional leave is counted in the general and continuous experience, as well as in the length of service in the specialty.
It would seem that the same Resolution of the Constitutional Court should apply here, and a vacation period of up to three years should be counted as a special length of service. But in practice, the position of the Pension Fund of the Russian Federation is that “experience in the specialty” and “special experience” are different concepts, therefore vacation periods of up to three years should not be counted as special seniority.
The existing judicial practice shows that in such matters the courts take the side of pensioners and oblige the Pension Fund of the Russian Federation to count periods of childcare leave of up to three years, which took place from December 1, 1989 to October 6, 1992, as special experience. For example, rulings of the Supreme Court of the Russian Federation of March 5, 2009 in case No. 19-B09-2, of July 2, 2009 in a similar case No. 11-B09-7.
If some names do not currently correspond, but actually take place medical work, you should contact the administration of the medical institution to make the appropriate changes.
If the discrepancy took place in the previous time, it is necessary to collect material in advance for going to court.
These are renaming orders, charters of institutions, job descriptions according to the positions in which the work took place. If at the time of receipt of the refusal of the PFR to offset any period in the special length of service for the appointment of an early labor old-age pension, all the materials necessary for the court are collected, then an application to the court can be submitted immediately, which will speed up the appointment of an early labor old-age pension.
Another important step, which is recommended to be taken not only by medical workers, but also by everyone who is going to a labor pension - in advance, it is better a few months before the appointment of a labor pension, request an extract from your personal account from the territorial body of the PFR.
To do this, you need to contact the territorial body of the PFR (department of personalized accounting) at the place of residence with a passport and an insurance certificate of compulsory pension insurance.
In the extract received, it is necessary to check whether all periods of work are reflected there, so that in the absence of any records, there is time to contact employers and restore the missing data.
Medical workers, as well as other citizens working in special conditions, especially carefully need to check records of special experience.
In the rows of the table corresponding to the periods of medical experience, certain benefit codes must be indicated. Since 1997 (the year the personalized accounting system was introduced in most regions of Russia) to the present, they have changed several times, but the absence of a benefit code clearly indicates future problems in the appointment of an early retirement old-age pension.
You can find out about the meaning of the codes that are available from the employees of the personalized accounting department, or the department for assigning a pension, or the department for assessing pension rights of the PFR.
The fact is that, according to the norms of the current legislation, the periods of work after the registration of a citizen in the personalized accounting system are taken into account on the basis of personalized accounting data.
Even if the work book and documents of the organization are in order, but no special experience is noted in the personalized accounting data, the PFR body will refuse to set it off or, at least, will conduct a documentary check, which will delay the appointment of an early retirement old-age pension.
Important. Are you unhappy with your future or present life in retirement? Then something must be done!
- Firstly, Decide on the lifestyle you would like to lead in retirement.
- Secondly, pay off all your debts and loans. Without this, talking about LIFE in retirement is pointless. If you have the psychology of an eternal debtor, you are addicted to loans, then you will not have any LIFE in retirement.
How to pay off debts and loans read in my book " How to get rid of debts? The whole truth about loans ... ".
Otherwise, you will be forced to WORK for someone at retirement age. While health allows, and then SURVIVAL, poverty ...
PS. Attention. Before it's too late (the time factor plays against you), regardless of age, start building your pension savings that are not dependent on the state.
You can learn how to do this in the sections “How to save and increase money” and “Financial life planning”, as well as learn from my books.
If you have any questions ask, I'll try to answer them.
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. What is individual (personalized) accounting and when employees were registered in it as insured - see the section “Explanation to citizens of their pension rights. Preventive measures to eliminate violations of pension rights”.
When calculating the length of service, the periods of work or other activities that are included in it that took place before registration citizen as an insured person in accordance with the Federal Law of April 1, 1996 "On Individual (personalized) registration in the mandatory pension insurance system” are confirmed by documents issued in the prescribed manner by employers or the relevant state (municipal) bodies.
The main document confirming the periods of work under an employment contract is a work book. In its absence, as well as in the case when it contains incorrect and inaccurate information or there are no records of individual periods of work, written labor contracts, certificates issued by employers or relevant state (municipal) bodies, extracts from orders, personal accounts and statements for the issuance of wages.
The periods of work under a civil law contract, the subject of which is the performance of work or the provision of services, are confirmed by the specified contract. At the same time, the duration of the period of work included in the insurance period is determined according to the term of the contract, and if it is not established, then based on the period of payment of mandatory payments for the employee.
The periods of work on the territory of Russia before the registration of a citizen in the personalized accounting system may be established by the pension authority based on the testimony of two or more witnesses who know the citizen through joint work with one employer, if the work documents are lost due to a natural disaster (earthquake, flood, hurricane, fire, etc.) and cannot be restored. In some cases, it is allowed to establish the length of service on the basis of the testimony of two or more witnesses in case of loss of documents and for other reasons (due to their careless storage, deliberate destruction, and similar reasons) through no fault of the employee.
The rules for calculating and confirming the length of service are set out in detail in Decree of the Government of the Russian Federation of July 24, 2002 No. 555. They, in particular, found that:
- the duration of the length of service established according to testimonies cannot exceed half of the length of service required for the appointment of a labor pension (this is 5 years for the appointment of an old-age labor pension on a general basis and the length of service for early assignment of an old-age labor pension, specified in the relevant subparagraphs of paragraph 1 of Art. .Articles 27 and 28 of the Law on Labor Pensions);
- when establishing the period of work according to testimonies, it is taken into account, starting from the employee reaching the age from which it is allowed to conclude an employment contract in accordance with the labor legislation in force on the day the employment relationship arises;
- testimonies are taken into account only for the period of joint work when the witness has reached the age from which it is allowed to conclude an employment contract in accordance with the labor legislation in force on the day the relevant labor relations arise.
After registration citizen in the personalized accounting system the experience must be confirmed on the basis of information from individual (personalized) records. This information for each employee must be provided to the pension authorities by his employer according to the rules and within the time limits established by the Instruction on the procedure for maintaining individual (personalized) records of information about insured persons.
If a citizen goes to court to confirm the length of service (it does not matter whether it took place before or after registration in the accounting system), then he has the right to present any evidence confirming the length of service, including the testimony of witnesses.
It is more difficult to solve the issue of confirming the length of service and the nature of work in special working conditions that give the right to early retirement benefits (special length of service).
Lists of relevant jobs, professions, positions, specialties and institutions (organizations) and the rules for calculating the periods of work (activity) and the appointment of the specified pension are approved by the Government of the Russian Federation.
The Ministry of Health and Social Development of Russia, in turn, was granted the right, upon the proposal of the federal executive authorities and in agreement with the Pension Fund of the Russian Federation, to establish the identity of the names of professions workers and professions, taking into account which the right to preferential pension provision is granted, as well as the identity positions and organizations (structural divisions) in relation to all categories of employees for whom an old-age labor pension is established ahead of schedule in accordance with Articles 27 and 28 of the Law on Labor Pensions (do not confuse with the identity of the actual work performed, which is set on a case-by-case basis). The basis for establishing identity can be documents submitted by federal executive authorities, and information from the individual (personalized) registration of the insured person, from which it should be clear that the nature of work by profession (position) is similar to the nature of work by profession (position) provided for in Articles 27 and 28 of the Law or the Lists of relevant types of work.
In practice, situations often arise when the Pension Fund authorities refuse to grant an early old-age pension for work in special working conditions due to the insufficiency of the information contained in the work book of the employee about the periods of labor activity and the inability to confirm them with other documents; inconsistencies between the name of the position (profession) in the work book of the employee and the name of the position (profession) that gives the right to such a pension; the absence of the necessary certificates clarifying the working conditions and the nature of the work performed (including from successor organizations and archival institutions); the absence of the necessary information on the insured person in the data of an individual personified record.
In accordance with the List of Documents approved by the Decree of the Ministry of Labor of Russia and the Pension Fund of the Russian Federation dated February 27, 2002 No. 16 / 19pa, to the application of a citizen who applied for an old-age labor pension in accordance with Articles 27 and 28 of the Law on Labor Pensions, if necessary, documents must be attached confirming the nature of the work performed or working conditions, giving the right to early appointment of an old-age labor pension.
u The procedure for confirming periods of work giving the right to early appointment of an old-age labor pension was approved by Order of the Ministry of Health and Social Development of Russia dated March 31, 2011 No. 258n.
When it comes to period before registration the insured in the accounting system if there are no requirements for indicators of the nature of work and working conditions in the Lists, and the work book contains sufficient information about the production, profession (position) of the employee, then additional documents confirming the special experience are not required.
Sometimes confirmation is required not only of the profession or position, but also of indicators of working conditions. A feature of the list of professions (positions) of Lists No. 1 and 2 is that they full value in some cases it is determined not only by the name of the profession (position), but also by the exact indication of the labor function, production operation. Sometimes the labor function depends on the direct employment of the employee in the technological units provided for by the Lists. Often the profession of an employee is determined not only by its name, but also by an indication of the name of the machines, mechanisms, units operated or serviced by the employee, as well as the nature of the work performed on them. Important are the requirements for those professions and positions that are determined by the place (object), structural subdivision of work, characterizing the conditions of the working environment.
In cases where the work book does not contain all the necessary information or if the legislation provides for additional factors (except for the names of professions and positions) for the early appointment of a pension, the employer issues the employee a clarifying certificate on the nature of the work performed by him, which indicates on the basis of which documents she issued. The certificate must confirm the identity of the work performed the one provided for in the Lists (in this case, data on the job responsibilities of the professions of workers from the Unified Tariff and Qualification Directory of Works and Professions of Employees can be used).
Basic documents for clarifying information are:
- orders to assign an employee to certain workshops, sections, equipment, staffing, job attestation cards for working conditions, accounting for actual employment in jobs that give the right to early retirement (where necessary for specialized repair services and workshops), officials and workers instructions, technological regulations, inventory list of the main equipment, safety briefing book, job logs, technical certificate equipment and other documents of the enterprise confirming the fact of work in hazardous conditions;
- when the necessary documents have not been preserved at the enterprise, but for a number of years the production technology and equipment have not changed, the nature of work and working conditions of employees have not changed, to confirm the special experience, you can use the documents valid at the enterprise in a given period of time (however, in this case, the immutability of equipment, technology, etc. requires additional confirmation);
- to confirm the indicators of working conditions, the conclusions of the examination bodies of working conditions can be used ( workplace attestation cards for working conditions). So, according to clause 22 of the Clarification of the Ministry of Labor of Russia dated May 22, 1996 No. 5 “On the procedure for applying the Lists of industries, jobs, professions, positions and indicators that give the right to an old-age pension due to special working conditions and a pension for long service » in cases where the “preferential” pension Lists provide not only the names of the profession or position, but also indicators of working conditions, characterized by the presence of harmful substances of certain hazard classes in the air of the working area, then when establishing the right of an employee to retire in connection with special conditions labor, if necessary, conclusions are given by the bodies of the State Expertise of working conditions;
- the basis for referring to a specific production, provided for by the Lists, may be constituent documents, licenses for certain types of activities, certificates of works (services), a certificate of registration in the state register of hazardous production facilities, technological regulations, an OKVED code assigned to the enterprise, documents of planning and production departments, characterizing the structural unit by production characteristics, ETKS, each issue of which represents a list of professions for one or more industries. The nature of production can be judged by the names of structural units (shops, sections, etc.). The issue of classifying a specific production as production, employment in which gives the right to pension benefits, can be considered in accordance with the All-Russian Classifier of Economic Activities, entered into force on 01/01/2003, and for the period before this date - in accordance with the All-Russian Classifier of Economic Activities, products and services and the All-Union classifier of branches of the national economy. Production is understood as the production of products provided for by the Lists, regardless of whether the organization (enterprise) as a whole or only a workshop, section, department, etc., is engaged in the production of these products.
Often, courts considering cases related to the confirmation of the employment of an employee in certain conditions reject the arguments of the Pension Fund that the nature of the work must be confirmed by some specific documents. So, for example, the Supreme Court of the Russian Federation in the Ruling dated March 10, 2006 in case No. 46-В06-3 indicated: “The defendant’s argument in the complaint that the documents examined by the court are not enough to award the plaintiff an early labor pension, since work in the field in the above period is not confirmed by the relevant orders of the organization, in this case it cannot be taken into account, since it has been established that these documents were destroyed due to the expiration of the storage period, therefore, the indicated circumstance, as independent of the plaintiff, does not deprive her of the right to assign a preferential pension By the tribunal's decision".
In accordance with the previously valid procedure for confirming the length of service (the version of paragraph 9 of Article 30 of the Law on Labor Pensions that was in force until 01.01.2010 allows the application of the previously valid procedure for confirming the length of service) and the current Rules for calculating and confirming the length of service to establish of labor pensions dated July 24, 2002 No. 555 and by Order of the Ministry of Health and Social Development of Russia dated March 31, 2011 No. 258n, special length of service (nature of work) cannot be confirmed by the employee’s direct application to the Pension Fund witness testimony(except in cases of loss of documents as a result of emergency situations).
However, until January 1, 2010, when considering this category of cases in courts the judges proceeded from the following position: “the nature of the work can be confirmed by witness testimony, since the pension legislation does not contain any restrictions on the methods of proof and the court has the right to take into account any means of proof provided for by the Code of Civil Procedure of the Russian Federation, including the testimony of witnesses.”
On January 1, 2010, the amendments introduced by Federal Law No. 213-FZ of July 24, 2009 to the Law on Labor Pensions came into force. Paragraph 3 of article 13 was supplemented by a provision on the inadmissibility of confirming the nature of the work by the testimony of witnesses.
The Supreme Court of the Russian Federation was not slow to give its interpretation of this innovation. In the Review of legislation and judicial practice for the second quarter of 2010 (question 4), he stated: “... after January 1, 2010, when considering a dispute on the recognition of the right to early assignment of a labor pension and determining the range of admissible evidence to determine the nature of work, the court should be guided the provisions contained in paragraph 3 of Art. 13 of the Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation” (as amended by the Federal Law of July 24, 2009 No. 213-FZ) ... the court is not entitled to accept the testimony of witnesses as admissible evidence of character work". Later, the Supreme Court also consolidated its position in the Decree of the Plenum dated 12/11/2012 No. 30 “On the practice of court consideration of cases related to the realization of citizens' rights to labor pensions”.
It remains unclear how, in this case, the phrase from par. 4 p. 12 Art. 30 of the Law on Labor Pensions (“... the procedure for confirming the length of service, including length of service in the relevant types of work ..., which was established and valid before the date of entry into force of this Federal Law”, is applied, given that in force before 01/01/2002 The Law of the Russian Federation of November 20, 1990 No. 340-1 “On State Pensions in the Russian Federation” did not prohibit the use of witness testimony to confirm the nature of work (experience in the relevant types of work). Is it possible, referring to par. 4 p. 12 Art. 30, to resort to the testimony of witnesses when proving in court the “preferential” pension experience earned before January 1, 2002?
It is also not clear how legitimately the controversial norm from paragraph 3 of Article 13 (in its interpretation given by the Supreme Court of the Russian Federation), which regulates the interaction of a citizen with the Pension Fund, can be extended to the trial, whether this violates the constitutional rights of citizens to judicial protection. And if the rule on the prohibition of the use of testimonies should also be applied, if necessary, to confirm the nature of the work that took place before the introduction of this ban (that is, before 01/01/2010), then does this not contradict the principle of legal certainty in pension legislation, to which Constantly refers to the Constitutional Court of the Russian Federation?
Without answers to the above questions, the Supreme Court's opinion that it is impossible to use witnesses' testimonies does not seem to be entirely convincing.
As well as when confirming the general experience, periods of work in special conditions after registration citizen in the system of individual (personalized) accounting confirmed on the basis information of individual (personalized) accounting.
The absence of such information should not be a reason for refusing to count certain periods of work into the “preferential” pension experience, since the correctness, completeness and timeliness of reflecting information for employees in the personalized accounting system is a joint task of the insurer (pension authority) and the insured (employer), and not an employee.
Thus, in accordance with the Federal Law of December 15, 2001 No. 167-FZ “On Compulsory Pension Insurance in the Russian Federation” (Article 14) and Federal Law of April 1, 1996 No. 27-FZ “On Individual (Personalized) accounting in the system of compulsory pension insurance” (Article 11), the employer is obliged to submit territorial bodies Pension Fund documents necessary for maintaining individual (personalized) records, as well as for the appointment and payment of pensions (in particular, information indicating the periods of activity included in the special experience). The bodies of the Pension Fund, in turn, are empowered to check employers' documents related to the appointment and payment of pensions, the provision of information on individual (personalized) records for persons working for him; demand and receive from employers the necessary documents, certificates and information on issues arising during inspections; require the heads and other officials of the audited organizations to eliminate the identified violations; correct (correct) the accounting information based on the results of the check.
In the light of the Decree of the Constitutional Court of the Russian Federation of July 10, 2007 No. 9-P, we can talk about the inadmissibility of imposing liability on employees (in the form of deprivation or reduction of labor pension (including early) for failure to fulfill their duties by other subjects of the mandatory pension system insurance (by the employer - for the timely provision of information necessary for the early appointment of a pension; by the Pension Fund body - for monitoring the correctness and timeliness of the employer providing information for employees).
Therefore, when applying to the court, the employee has the right to present any evidence not prohibited by law of the nature of his work, which took place even after registration in the system of individual (personalized) accounting.
According to the decision of the Plenum of the Supreme Court of the Russian Federation dated December 11, 2012 No. 30, “in case of disagreement of a citizen with the refusal of the pension authority to include in the special length of service, the period of work subject, in the opinion of the plaintiff, to be included in the special length of service, it must be taken into account that the issue on the type (type) of the institution (organization), the identity of the functions performed by the claimant, the conditions and nature of the activity those jobs (positions, professions) that give the right to early appointment of an old-age labor pension should be decided by the court based on the specific circumstances of each case established at the court session (the nature and specifics, the conditions of the work carried out by the plaintiff, the functional duties performed by him in the positions held and professions, workload, taking into account the goals and objectives, as well as the activities of the institutions, organizations in which he worked, etc.)”.
In some cases, confirmation is required permanent employment on the relevant types of work (for example, in accordance with paragraph 4 of the Rules of July 11, 2002 No. 516, periods of work performed constantly during the full working day are counted in the special experience, unless otherwise provided by these Rules or other regulatory legal acts) .
The duration of a full working day (shift) is determined based on the normal or reduced working hours in accordance with the Labor Code of the Russian Federation. At the same time, special breaks for heating and rest provided to individual employees, due to technology, production organization or climatic conditions, are included in working hours.
The concept of a full working day is contained in paragraph 5 of the Decree of the Ministry of Labor of Russia dated May 22, 1996 No. 29. It refers to the performance of work in the working conditions provided for by the Lists, at least 80 percent of working time. At the same time, the specified time includes the time for performing preparatory and auxiliary work, and for workers performing work with the help of machines and mechanisms, also the time for performing repair work of a current nature and work on the technical operation of the equipment. The specified time may include the time of performing work performed outside the workplace in order to ensure basic labor functions. If employees, due to a reduction in production volumes, worked part-time, but performed full-time work that entitles them to a pension due to special working conditions, then a special seniority that entitles them to a pension due to special working conditions , is calculated by him on the actual hours worked.
To confirm permanent full-time employment, journals and timesheets, personal accounts, etc. can be used.
At the same time, in line with methodological recommendations on conducting documentary (on-site) verifications of the accuracy of information about the periods of work giving the right to early retirement benefits under Lists No. 1 and 2 "approved by the Deputy Governor of the State Institution - the PFR Department for Moscow and the Moscow Region on April 20, 2006:" if the organization or its specific subdivision (workshop, section, etc.) worked stably, without downtime, then there is no need to check the permanent employment of workers accepted for permanent work (practically for the period up to 1992, the stability of work in industry, construction and transport was observed).
u As an example of judicial practice on the issue of whether it is necessary to confirm permanent employment during periods of work before 1992, the conclusion made by the Supreme Court of the Russian Federation in Ruling No. 81-B11-9 dated January 20, 2012 is not without interest.
Example 1. In the employee's work book there is a record that he worked in the profession "tinker", in fact, he performed the work of a tinker in a hot way.
Section III "Metallurgical production" of List No. 1 provides for the profession "hot tinkers", while the condition for assigning a preferential pension is their employment in rolling, wheel-rolling, bandage-rolling, fork-rolling, tin-rolling, tinning, galvanizing and lead production, production of rail fasteners, cutting and cleaning of hot metal, heat treatment, production of calibrated metal.
In this case, the employee needs to confirm: the compliance of the duties performed with the duties of the hot tinker profession contained in the List (they can be found in the Unified Tariff and Qualification Reference Book of Works and Professions of Workers, Issue 2, approved by Decree of the Ministry of Labor of Russia dated November 15, 1999 No. 45 ); performance of the work indicated in the List constantly for a full working day (time log); the affiliation of the production in which he was employed as indicated above (using, for example, the certificates of work that the enterprise has, the OKVED code assigned to the enterprise).
Example 2 . The Pension Fund refused to count in the special experience, giving the right to early retirement, the time of work as a foreman of the main production area at the processing plant. The peculiarity of the production was to work with substances characterized by high radioactivity. Employees employed in it must be retired according to List No. 1, section XXII - “Work with radioactive substances, sources of ionizing radiation, beryllium and rare earth elements”, position code 12201000-17546 - “Workers, managers and specialists permanently employed in work with radioactive substances activity in the workplace of more than 10 millicuries of radium-226 or an equivalent amount of radioactive substances in terms of radiotoxicity and on the repair of equipment under these conditions.
In this case, the employee was required to confirm the indicators of working conditions at the workplace (radioactivity over 10 millicuries of radium-226 or an equivalent amount of radioactive substances in terms of radiotoxicity).
It turned out to be difficult for the employee to collect all the documents requested by the pension authority, primarily due to the fact that by the time he reached retirement age, the enterprise had ceased operations, many documents were not archived, and some were completely absent.
To confirm the working conditions at the workplace, the employee submitted to the court the sanitary and hygienic characteristics of the working conditions of another employee that he had at his disposal (it describes the working conditions of all departments of the enterprise), as well as a certification card for his workplace in terms of working conditions.
The fact that the sanitary and hygienic characteristics of working conditions and the attestation card were drawn up later than the period of work not included in the special experience, the court did not consider as grounds for rejecting these documents as evidence, since no information was presented to the court that the production process was subsequently changed.
The court also rejected the arguments of the pension authority that the documents submitted by the employee were not sufficient, pointing out that “the absence of documents directly indicating the nature of the work performed and the conditions under which it was carried out, such as: instructions (duties), a sanitary passport for the right work with sources of ionizing radiation, orders for admission to work with radioactive substances, a sanitary and epidemiological register of accounting (transfer) of radioactive substances at the workplace, cannot be grounds for dismissing the claim, since the plaintiff was not responsible for their publication and storage ".
The current legislation also offers the following options for solving the problem of non-crediting in the length of service, which gives the right to early appointment of an old-age labor pension, which are relevant in cases when the employee has not yet reached retirement age:
- Appeal of the employee directly to the pension authority with an application for clarification (correction) of information on the length of service until 01/01/2002 contained in his individual personal account (reason - paragraphs 4 and 8 of the Procedure for adjusting the information of individual (personalized) accounting and clarification of individual personal accounts of insured persons in terms of work (insurance) length of service acquired before January 1, 2002, approved by Resolution of the Board of the Pension Fund of the Russian Federation of December 14, 2005 No. 246p).
. What is an individual personal account and the procedure for familiarization with the information contained on it - see the section “Explanation to citizens of their pension rights. Preventive measures to eliminate violations of pension rights”.
- An employee’s application to the Pension Fund body or to the court with a request to correct the personalized accounting information in terms of assigning a preferential profession code to the disputed periods of work (the basis is Article 14 of the Federal Law of April 1996 No. 27-FZ “On individual (personalized) accounting in the system of mandatory Pension Insurance", clause 64. Instructions on the procedure for maintaining individual (personalized) records of information about insured persons, approved by Order of the Ministry of Health and Social Development of Russia dated December 14, 2009 No. 987n).
According to the Decree of the Board of the Pension Fund of the Russian Federation of July 31, 2006 No. 192p “On the forms of documents for individual (personalized) accounting in the system of compulsory pension insurance”, periods of work in special working conditions that give the right to early appointment of a pension are assigned the so-called. "preferential" code (when they are reflected in the accounting system). Accordingly, if the Pension Fund these periods were reflected as general experience work (not giving the right to early retirement), they do not have a benefit code.
- The employer's appeal to the court with a demand to recognize as illegal the refusal of the Pension Fund body to accept individual information about the insured persons, taking into account the codes of privileged professions.
This option allows solving the problem of not counting periods of "preferential" work not on an individual basis, but for all employees employed in a similar profession, in a similar production, etc.
Example 3. An illustration of the third option for solving the problem of non-crediting in the length of service, which gives the right to early appointment of a pension (when the employer disputes in court the actions of the pension authority to refuse to accept information about the "harmfulness" of the length of service of employees), is the decision Arbitration Court of the Sverdlovsk Region dated May 14, 2008 in case No. A60-7105 / 2008-C9 (the application for the recognition of illegal actions to refuse to accept individual information about insured persons, taking into account the codes of preferential professions, was satisfied by the court, since, without accepting information on preferential professions, the pension fund body prevents individuals who have worked in a workplace with harmful working conditions, to be entitled to an early pension).
OAO Malyshevskoye Mining Administration applied to the court with a request to declare illegal the actions of the head of the department for assessing the pension rights of insured persons of the Pension Fund Administration, expressed in the refusal to accept individual information about the insured persons of OAO MRU, taking into account the codes of privileged professions under List No. 1 of Section XXIV "Enrichment beryllium raw materials; production of beryllium and its compounds” and in the proposal to make appropriate changes to the information, to exclude from them data on privileged professions.
The employer (JSC MRU) in a lawsuit justified the employment of its employees in jobs with harmful working conditions, giving the right to early appointment of a labor pension.
The court recognized the actions of the pension authority as illegal and ordered it to eliminate the violations committed by accepting information on personalized accounting indicating privileged professions under List No. 1 of Section XXIV.
Paragraph 2 of Art. 13 of the Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation”, Rules for calculating and confirming the length of service for establishing labor pensions (approved by Decree of the Government of the Russian Federation of July 24, 2002 No. 555).
Currently, there is an Instruction approved by the Order of the Ministry of Health and Social Development of Russia dated December 14, 2009 No. 987n.
Lists of industries, jobs, professions, positions and indicators that give the right to preferential pension provision, approved by the Decree of the Cabinet of Ministers of the USSR of January 26, 1991 No. 10.
See Decree of the Council of Ministers of the USSR of August 24, 1990 No. 848 “On the procedure for confirming the length of service for the appointment of pensions”; Regulations on the procedure for confirming seniority for the appointment of pensions, approved. Decree of the USSR State Committee for Labor dated September 12, 1990 No. 369/16-52; Regulations on the procedure for confirming seniority for the appointment of a pension in the RSFSR, approved. Order of the Ministry of Social Security of the RSFSR of October 4, 1991 No. 190.
See also Decree of the Ministry of Labor of the Russian Federation of June 24, 1994 No. 50 "On approval of the procedure for establishing work experience in case of loss of documents as a result of emergency situations."
See also the decision of the Supreme Court of the Russian Federation of November 30, 2001 No. GKPI 2001-1673, the rulings of the Supreme Court of the Russian Federation of June 21, 2005 No. 67-V05-5, of January 14, 2005 No. 9-G04-35 and of March 10, 2006 No. 46-B06-3.
Resolutions of November 5, 2002 No. 320-O and October 3, 2006 No. 471-O, resolutions of January 29, 2004 No. 2-P and June 3, 2004 No. 11-P.
The procedure for interaction between the Pension Fund bodies and employers in order to correctly and timely reflect information about employees in the accounting system - see the Instruction on the procedure for maintaining individual (personalized) records of information about insured persons (approved by Order of the Ministry of Health and Social Development of Russia dated December 14, 2009 No. 987n) .
Monitoring the state of affairs with the preservation of documents confirming the labor and pension rights of citizens in our country, unfortunately, leads only to sad thoughts. Increasingly, citizens are unable to fully verify their length of service and pension, and as a result, they are awarded a significantly more modest pension compared to the one to which they have earned the right to. Even more problems for those who have the right to an early pension - in this case, the lack of archival documents is even more critical.
In November 2011, the Lomonosovsky District Court of St. Petersburg considered civil case No. 2-429/11 on the confirmation of pension rights. In this case, the citizen was lucky - the court, on the basis of documents partially preserved in the archive, confirmed his preferential length of service, which together allowed him to appoint a preferential pension. At the same time, the court of first instance rejected the plaintiff's claims to include periods of work in other organizations in his special length of service on the grounds that employers did not provide certificates and documents confirming the plaintiff's permanent employment for these periods. welding work, as well as clarifying the nature of work and working conditions necessary for the appointment of an early retirement old-age pension.
The essence of the dispute
Citizen A. applied to the Office of the Pension Fund of the Russian Federation (UPF) in the city of Lomonosov and the Lomonosov district of the Leningrad region with a statement on the early appointment of an old-age labor pension in accordance with paragraphs. 2 p. 1 art. 27 of the Federal Law "On labor pensions in the Russian Federation" dated December 17, 2001 No. 173-FZ.
By decision of the UPF A., it was denied the appointment of an early old-age pension due to the lack of the required special experience. The periods of his work in a number of organizations were not included in A.'s preferential service, since for these periods of work no information was provided on full employment, on the method of welding or fluxes used; in other periods, it was refused due to the fact that the primary documents were not submitted by organizations for verification, and the extract from the personal account of the insured person does not contain a code for special working conditions.
Disagreeing with the said decision, A. filed a lawsuit to include the indicated periods in the special length of service and asked for an early old-age retirement pension from the moment of application.
In support of the stated requirements, the plaintiff referred to the fact that the refusal infringes on his pension rights. During controversial periods, he was busy with welding work throughout the working day; had no absenteeism, downtime, vacations without pay. The work was carried out with a welding machine for manual arc welding.
The position of the Lomonosovsky District Court of St. Petersburg
In November 2011, during the consideration of the case in the Lomonosovsky District Court of St. Petersburg, it was established that A. was denied a preferential pension due to the fact that he could not submit to the Pension Fund a clarifying certificate from the employer about the nature and working conditions of the employee, confirming his permanent employment. There was no one to issue such a certificate, since the employer was liquidated, and documents on personnel were transferred to the archive.
From the archival certificate it follows that in the documents of the archive fund of the enterprise, in the books of orders of the director there is information about the provision of A. for the periods of work of annual holidays and additional holidays for harmfulness (annually 2 additional days). The provision to the plaintiff of additional vacations during the indicated periods was also confirmed by the information contained in the personal card.
On the basis of the order of the director of the enterprise, the plant decided to provide gas electric welders with additional hazardous leave from the moment the relevant decision was made by the attestation commission.
According to personal account, A. upon dismissal was paid compensation for unused leave, consisting of annual and additional leave provided on preferential terms.
The court of first instance, based on the explanations of the persons involved in the case and a thorough analysis of the submitted documents, recognized that A. was employed in jobs with harmful and difficult working conditions, employment in which gives the right to an old-age pension on preferential terms, was employed full-time day, a full week, absenteeism, time off, leave without pay.
The court included the periods of his work at the enterprise in the special experience of the plaintiff, since in the books of regulations on the remuneration of workers of the plant there is information that in work with harmful working conditions, according to the list of jobs with difficult and harmful, especially difficult and especially harmful working conditions , based on the maps of working conditions for certain categories of workers - including electric welders - a differentiated surcharge was established.
The court ordered the Office of the Pension Fund in the city of Lomonosov and the Lomonosov district of the Leningrad region to include in A.'s length of service the period of his work at the specified enterprise and to grant him an early retirement pension from the moment of initial application for its appointment.
The position of the Judicial Board on civil affairs St. Petersburg City Court
In March 2012, the Judicial Board considered appeal Office of the Pension Fund, in which it asked to cancel the unreasonable, in the opinion of the fund, court decision.
The Judicial Board, having studied the case materials, after listening to the explanations of the participants in the process, having discussed the arguments of the appeal, did not find grounds for canceling the court decision.
The argument of the Pension Fund that the documents examined by the court are not enough to grant the plaintiff an early labor pension, since his full-time employment is not confirmed by the relevant written documents of the organization, was not taken into account by the court as a basis for canceling the decision of the court of first instance. According to the court, it is clear from the materials of the case that the enterprise was liquidated, the documents were partially archived. In the opinion of the Collegium, this circumstance, as being independent of A, does not deprive him of the right to assign a preferential pension by a court decision made on the basis of a cumulative assessment of all evidence.
The argument of the Pension Fund about the impossibility of confirming the nature of the work by witness testimony was also not accepted by the panel of judges. The court substantiated its position by the fact that, according to paragraph 3 of Art. 13 of the Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation”, in some cases, it is allowed to establish the length of service based on the testimony of two or more witnesses in case of loss of documents and for other reasons (due to their careless storage, deliberate destruction and similar reasons) through no fault of the employee. At the same time, the nature of the work is not confirmed by the testimonies of witnesses. The court clarified that the nature of the work refers to the specifics of the conditions for the implementation of the labor function.
The judicial collegium noted that the court of first instance, when considering the case, did not establish the specifics of the conditions for the performance of the labor function by the plaintiff, but established the correspondence of the work book entries, taking into account the loss of archival documents confirming these entries. In addition, the court made its decision not only on the basis of the testimony of the interrogated witness, but also on the basis of an assessment of other evidence available in the case file, in their entirety. At the same time, the court of first instance considered that the absence of archival documents cannot serve as a basis for depriving a citizen of the right to early appointment of a pension, since the position held by the plaintiff during the disputed period meets the requirements of paragraphs. 2 p. 1 art. 27 of the Federal Law No. 173 “On labor pensions in the Russian Federation” and is confirmed by the case materials.
Under such circumstances, the panel of judges ruled that an early retirement pension should be awarded to A. in accordance with the general procedure established by the said law, namely from the moment of the initial application for its appointment, and upheld the decision of the Lomonosovsky District Court of St. Petersburg, and the appeal complaint - without satisfaction.
My comment: I don’t know when the country’s leadership will realize that the situation with ensuring the safety of archival documents related to labor activity and confirming the pension rights of citizens is becoming critical.
Why don't the Pension Fund and Rosarkhiv raise this issue at the highest level? Or, based on their own selfish interests, is it beneficial for them that these documents are not kept - after all, as a result, the Pension Fund annually saves several billion rubles in pension payments, and the archives have fewer problems with the execution of social and legal requests?