home Business blog Establish the legal fact of identity of professions and positions. Is it possible to prove in court that the positions of head of a music group and music director are identical?

Establish the legal fact of identity of professions and positions. Is it possible to prove in court that the positions of head of a music group and music director are identical?

If a citizen goes to court to confirm his work experience (it does not matter whether it took place before or after registration in the persuchet system), he has the right to present any evidence confirming his work experience, including the testimony of witnesses.

When working in special conditions

It is more difficult to resolve the issue of confirming the length of service and the nature of work in special working conditions that give the right to early pension provision(special experience).

Lists of relevant jobs, professions, positions, specialties and institutions (organizations) and the rules for calculating periods of work (activity) and assigning the said pension are approved by the Government Russian Federation.

The Ministry of Health and Social Development of Russia, in turn, has been granted the right upon the proposal of federal executive authorities and in agreement with Pension Fund RF install identity of profession names 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 workers for whom the old-age labor pension is established early in accordance with Articles 27 and 28 of the Law on Labor Pensions (not to be confused with the identity of the actual work performed, which is established in each specific case individually). The basis for establishing identity may be documents submitted by federal executive authorities and information on the individual (personalized) registration of the insured person, from which it should be clear that the nature of the work in the profession (position) is similar to the nature of the work in the profession (position) provided for in Article 27 and 28 of the Law or 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 provisions contained in the work book employee information about periods labor activity and the impossibility of confirming them with other documents; discrepancies between the name of the position (profession) in the employee’s work book and the name of the position (profession) giving the right to such a pension; lack of necessary certificates clarifying working conditions and the nature of the work performed (including from successor organizations and archival institutions); lack of necessary information on the insured person in the individual personalized accounting data.

In accordance with the List of documents approved by the Resolution of the Ministry of Labor of Russia and the Pension Fund of 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 that give the right to early assignment of an old-age labor pension.

ü The procedure for confirming periods of work giving the right to early assignment 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 we're talking about about the period before registration 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 special experience is not required.

Sometimes confirmation of not only the profession or position, but also indicators of working conditions is required. The peculiarity of the list of professions (positions) of Lists No. 1 and 2 is that their full meaning in some cases 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 departments provided for in the Lists. Often, an employee’s profession is determined not only by its name, but also by indicating the name of the machines, mechanisms, and units operated or maintained 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 unit of work, characterizing the conditions of the production 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 assignment of a pension, the employer issues the employee a clarifying certificate about the nature of the work he performs, which indicates on the basis of which documents it is issued. The certificate must confirm identity of the work performed the one provided for in the Lists (in this case, data on the job responsibilities of workers’ professions from the Unified Tariff and Qualification Directory of Work and Professions of Workers can be used).

The main documents for clarifying information are:

Orders to assign an employee to certain workshops, areas, equipment, staffing table, workplace certification cards for working conditions, records of actual employment in jobs that give the right to early retirement (where this is necessary for specialized repair services and workshops), job and work instructions, technological regulations, inventory list of main equipment, safety instruction book , task logs, technical data sheets of equipment and other documents of the enterprise confirming the fact of work in hazardous conditions;

When the enterprise has not preserved the necessary documents, but over the course of a number of years the production technology and equipment have not changed, the nature of work and working conditions of workers have not changed, documents valid at the enterprise at a given period of time can be used to confirm special experience (however, in this case the immutability of equipment, technology, etc. requires additional confirmation);

To confirm indicators of working conditions, the conclusions of labor examination bodies can be used ( workplace certification cards for working conditions). So, according to paragraph 22 Explanations of the Ministry of Labor of Russia dated May 22, 1996 No. 5“On the procedure for applying the Lists of production, work, professions, positions and indicators that give the right to an old-age pension in connection with special working conditions and to 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 in the air of the working area of harmful substances of certain hazard classes, then when establishing the right of an employee to a pension in connection with special working conditions, if necessary, conclusions are given by the State Expertise of Working Conditions;

The basis for assignment to a specific production provided for by the Lists may be constituent documents, licenses to carry out certain types of activities, certificates of work (services), a certificate of registration in the state register of hazardous production facilities, technological regulations, an OKVED code assigned to the enterprise, documents of planned and production departments, characterizing a structural unit according to 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 divisions (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 All-Russian classifier economic activity, put into effect on January 1, 2003, and for the period before this date - in accordance with the All-Russian Classifier of Types of Economic Activities, Products and Services and the All-Union Classifier of Sectors of the National Economy. Production means the manufacture of products specified in the Lists, regardless of whether the organization (enterprise) as a whole is engaged in the manufacture of these products or only a workshop, site, department, etc.

Often, courts hearing cases related to confirmation of an employee’s employment under certain conditions reject the Pension Fund’s arguments that the nature of the work must be confirmed by certain documents. For example, the Supreme Court of the Russian Federation in its Ruling dated March 10, 2006 in case No. 46-B06-3 indicated: “The defendant’s argument in the complaint that the documents examined by the court are not enough to grant the plaintiff an early retirement pension, since work in the field in the above period is not confirmed by the relevant orders of the organization, in this case cannot be taken into account, since it has been established that these documents were destroyed due to the expiration of the storage period, therefore, this circumstance, as being beyond the control of the plaintiff, does not deprive her of the right to receive a preferential pension by a court decision.”

In accordance with the previously existing procedure for confirming work experience (the version of clause 9 of Article 30 of the Law on Labor Pensions, which was in force until 01/01/2010, allows the use of the previously existing procedure for confirming work experience) and the currently valid Rules for calculating and confirming insurance experience for establishing 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 when an employee directly applies to the Pension Fund testimony(except for cases of loss of documents as a result of emergency situations ).

However, until January 1, 2010, when considering this category of cases in courts, judges proceeded from the following position: “the nature of the work can be confirmed by 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 evidence provided for by the Code of Civil Procedure of the Russian Federation, including the testimony of witnesses.”

On January 1, 2010, amendments made by Federal Law dated July 24, 2009 No. 213-FZ to the Law on Labor Pensions came into force. Clause 3 of Article 13 was supplemented with a provision on the inadmissibility of confirming the nature of work with 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 indicated: “... after January 1, 2010, when considering a dispute about recognizing the right to early assignment of a retirement pension and determining the range of acceptable means of proof to determine the nature of work, the court should be guided by the provisions contained in paragraph 3 of Art. 13 Federal Law dated December 17, 2001 No. 173-FZ “On Labor Pensions in the Russian Federation” (as amended by Federal Law dated July 24, 2009 No. 213-FZ) ... the court does not have the right to accept the testimony of witnesses as admissible evidence of the nature of the work.” Later, the Supreme Court consolidated its position in Resolution of the Plenum of December 11, 2012 No. 30 “On the practice of courts considering cases related to the implementation of citizens’ rights to labor pensions.”

It remains unclear how in this case the phrase from paragraph. 4 clause 12 art. 30 of the Law on Labor Pensions (“... the procedure for confirming length of service, including length of service in relevant types of work..., which was established and was in force before the entry into force of this Federal Law,” is applied), taking into account that it was in force until 01.01.2002. 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 the work (experience in the relevant types of work). Is it possible, referring to para. 4 clause 12 art. 30, resort to the testimony of witnesses when proving in court “preferential” pension experience earned before January 1, 2002?

It is also not clear how legitimate it is to extend the controversial norm from paragraph 3 of Article 13 (in its interpretation given by the Supreme Court of the Russian Federation), regulating the interaction of a citizen with the Pension Fund, to the judicial process, and whether this does not violate the constitutional rights of citizens to judicial protection. And if the rule banning the use of testimony should also be applied if it is necessary to confirm the nature of the work that took place before the introduction of this ban (i.e. before 01/01/2010), then does this not contradict the principle of legal certainty in pension legislation, which is the Constitutional Court of the Russian Federation constantly referring?

Without answers to the above questions, the opinion expressed by the Supreme Court about the impossibility of using witness testimony does not seem entirely convincing.

As well as when confirming general experience, periods of work under special conditions after registration citizen in the individual (personalized) accounting system confirmed on the basis individual (personalized) accounting information.

The absence of such information should not be a reason for refusal to count certain periods of work into the “preferential” pension service, since the correctness, completeness and timeliness of reflecting information for employees in the personalized accounting system is a joint task of the insurer (pension body) and the policyholder (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 the Federal Law of April 1, 1996 No. 27-FZ “On individual (personalized) registration in the compulsory pension insurance system" (Article 11), the employer is obliged to submit to the territorial bodies of the Pension Fund the documents necessary for maintaining individual (personalized) records, as well as for assigning and paying a pension (in particular, information indicating periods of activity, included in special training). The bodies of the Pension Fund, in turn, are empowered to conduct inspections of employers' documents related to the assignment and payment of pensions, the provision of individual (personalized) accounting information for persons working for them; demand and receive from employers the necessary documents, certificates and information on issues arising during inspections; demand from managers and others officials inspected organizations to eliminate identified violations; adjust (correct) the accounting information based on the results of the audit.

In the light of the Resolution of the Constitutional Court of the Russian Federation of July 10, 2007 No. 9-P, one can talk about the inadmissibility of imposing liability on workers (in the form of deprivation or reduction of labor pension (including early) for failure to fulfill their duties by other subjects of the compulsory pension system insurance (by the employer - for the timely provision of information necessary for the early assignment of a pension; by the Pension Fund body - for monitoring the correctness and timeliness of the employer providing information for employees).

Therefore, when going to court, an 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 individual (personalized) accounting system.

According to the resolution of the Plenum Supreme Court of the Russian Federation of December 11, 2012 No. 30 “in the event of a citizen’s disagreement with the refusal of the pension authority to include in the special work experience a period of work that, in the plaintiff’s opinion, is subject to inclusion in the special work experience, it is necessary to take into account that the question of the type (type) institutions (organizations), identity of the functions performed by the plaintiff, conditions and nature of the activity those jobs (positions, professions) that give the right to early assignment of an old-age labor pension must be decided by the court based on the specific circumstances of each case established at the court hearing (the nature and specificity, conditions of the work performed by the plaintiff, performed by him functional responsibilities according to positions and professions held, workload, taking into account the goals and objectives, as well as the areas of activity of the institutions, organizations in which he worked, etc.).”

In some cases you need to confirm permanent employment on relevant types of work (for example, in accordance with clause 4 of the Rules of July 11, 2002 No. 516, periods of work performed continuously during a full working day are counted as special length of service, unless otherwise provided by these Rules or other regulatory legal acts) .

The duration of a full working day (shift) is determined based on normal or reduced working hours in accordance with Labor Code RF. 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 resolution 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 the working time. In this case, the specified time includes the time for performing preparatory and auxiliary works, and for workers performing work using machines and mechanisms - also the execution time repair work current nature and work on technical operation equipment. The specified time may include the time of 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 gave them the right to a pension due to special working conditions, then a special length of service giving them the right to a pension due to special working conditions , is calculated by him according to the time actually worked.

To confirm permanent full-time employment, logs and time sheets, personal accounts, etc. can be used.

At the same time, in accordance with the “Methodological recommendations for conducting documentary (on-site) checks of the reliability of information about periods of work giving the right to early pension provision according to Lists No. 1 and 2”, approved by the Deputy Manager of the State Institution - PFR Branch for Moscow and Moscow Region region on April 20, 2006: “if an organization or its specific division (workshop, site, etc.) worked stably, without downtime, then there is no need to check the permanent employment of workers hired for permanent job(practically for the period before 1992, stability of work in industry, construction and transport was observed).”

ü As an example of judicial practice on the question of whether confirmation of permanent employment is necessary during periods of work before 1992, the conclusion made by the Supreme Court of the Russian Federation in Ruling No. 81-B11-9 of January 20, 2012 is not without interest.

Example 1. In the employee’s work book there is an entry that he worked as a tinker, but in fact he performed the work of a hot tinker.

Section III “Metallurgical production” of List No. 1 provides for the profession of “hot tinkers”, while the condition for assigning a preferential pension is their employment in rolling, wheel rolling, bandage rolling, fork rolling, sheet metal, tinning, galvanizing and lead production, production of rail fastenings, cutting and stripping hot metal, heat treatment, production of calibrated metal.

In this case, the employee must confirm: compliance with the duties performed job responsibilities contained in the List of the profession of hot tinker (they can be found in the Unified Tariff and Qualification Directory of Work and Professions of Workers, Issue 2, approved by Resolution of the Ministry of Labor of Russia dated November 15, 1999 No. 45); performing the work specified in the List continuously for a full working day (time log); affiliation of the production in which he was employed as indicated above (using, for example, the work certificates available to the enterprise, the OKVED code assigned to the enterprise).

Example 2. The pension fund refused to count the time spent working as a foreman at the main production site at an enrichment plant into the special length of service that gives the right to early pension provision. The peculiarity of the production was working with substances characterized by high radioactivity. Workers employed in it must be pensioned 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 constantly engaged in work with radioactive substances activity in the workplace exceeding 10 millicuries of radium-226 or an amount of radioactive substances equivalent in radiotoxicity and during equipment repair under these conditions.”

In this case, the employee was required to confirm indicators of working conditions at the workplace (radioactivity over 10 millicuries of radium-226 or an equivalent radiotoxicity amount of radioactive substances).

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 submitted to the archive, and some were completely missing.

To confirm the working conditions at the workplace, the employee presented to the court the sanitary and hygienic characteristics of the working conditions of another employee 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 court did not consider the fact that the sanitary and hygienic characteristics of working conditions and the certification card were drawn up later than the period of work not included in the special period of work as a basis for rejecting these documents as evidence, since information that manufacturing process was subsequently changed and was not presented to the court.

The court also rejected the arguments of the pension authority that the documents presented by the employee were not enough, pointing out that “the lack of documents directly indicating the nature of the work performed and the conditions under which it was carried out, such as: instructions (responsibilities), a sanitary passport for the right work with sources of ionizing radiation, orders for permission to work with radioactive substances, a sanitary and epidemiological log of recording (transfer) of radioactive substances in the workplace cannot be grounds for refusal of a claim, since the responsibility for their publication and storage was not the responsibility of the plaintiff "

Current legislation also suggests the following options solving the problem of failure to count towards work experience, which gives the right to early assignment of an old-age pension, which is relevant in those cases when the employee has not yet reached retirement age:

An employee’s appeal directly to the pension authority with an application for clarification (correction) of information about the length of service before 01/01/2002 contained in his individual personal account (grounds - clauses 4 and 8 of the Procedure for adjusting information on individual (personalized) accounting and clarification of individual personal accounts of insured persons in terms of labor (insurance) experience acquired before January 1, 2002, approved by Resolution of the Board of the Pension Fund of December 14, 2005 No. 246p).

!!! What is it - see the section “Explaining to citizens their pension rights. Preventive measures to eliminate violations of pension rights.”

An employee’s appeal to the Pension Fund body or to the court with a request to correct personalized accounting information in terms of assigning a preferential profession code to disputed periods of work (based on Article 14 of the Federal Law of April 1996 No. 27-FZ “On individual (personalized) accounting in the mandatory system 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 Resolution of the Board of the Pension Fund of the Russian Federation dated July 31, 2006 No. 192p “On the forms of documents for individual (personalized) accounting in the compulsory pension insurance system,” periods of work under special working conditions that give the right to early assignment of a pension are assigned the so-called. “preferential” code (when reflected in the accounting system). Accordingly, if the Pension Fund reflected these periods as total length of service (not giving the right to early retirement), they do not have a benefit code.

An employer's appeal to the court with a demand to declare illegal the refusal of the Pension Fund body to accept individual information about insured persons, taking into account the codes of preferential professions.

This option allows us to solve the problem of non-crediting of periods of “preferential” work not in individually, and for all workers employed in a similar profession, in similar production, etc.

Example 3.An illustration of the third option for solving the problem of failure to count towards work experience, which gives the right to early assignment of a pension (when the employer judicial procedure challenges the actions of the pension authority in refusing to accept information about the “harmful” experience of employees), the decision of the Arbitration Court serves Sverdlovsk region dated May 14, 2008 in case No. A60-7105/2008-C9 (the court satisfied the application to recognize illegal actions to refuse to accept individual information about insured persons taking into account the codes of preferential professions, since, by not accepting information on preferential professions, the pension authority fund prevents individuals, who worked in production since harmful conditions labor, obtain the right to receive an early pension).

OJSC "Malyshevskoye Mining Management" appealed 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 Directorate, which resulted in the refusal to accept individual information about the insured persons of MRU OJSC, taking into account the codes of preferential professions according to List No. 1 of Section XXIV “Enrichment of beryllium raw materials; production of beryllium and its compounds” and in the proposal to make appropriate changes to the information, to exclude from it data on preferential professions.

The employer (JSC MRU) in a lawsuit justified the employment of its employees in jobs with hazardous working conditions, which give the right to early assignment of a labor pension.

The court declared the actions of the pension authority illegal and ordered it to eliminate the violations by accepting personalized accounting information indicating preferential professions according to List No. 1 of Section XXIV.

See Resolution of the Council of Ministers of the USSR dated August 24, 1990 No. 848 “On the procedure for confirming length of service for assigning pensions”; Regulations on the procedure for confirming length of service for the purpose of pensions, approved. Decree of the USSR State Committee for Labor of September 12, 1990 No. 369/16-52; Regulations on the procedure for confirming length of service for assigning a pension in the RSFSR, approved. By Order of the Ministry of Social Security of the RSFSR of October 4, 1991 No. 190.

See also Resolution of the Ministry of Labor of the Russian Federation dated June 24, 1994 No. 50 “On approval of the procedure for establishing work experience in the event 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-B05-5, of January 14, 2005 No. 9-G04-35 and from March 10, 2006 No. 46-B06-3.

Approved by a resolution of the Presidium of the Supreme Court of the Russian Federation dated September 15, 2010.

Decrees of November 5, 2002 No. 320-O and of October 3, 2006 No. 471-O, resolutions of January 29, 2004 No. 2-P and of 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 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) .

PARAGRAPH 1 ARTICLE 27 OF THE FEDERAL LABOR LAW

PENSIONS IN THE RUSSIAN FEDERATION"

Judicial practice and legislation - Resolution of the Ministry of Labor of the Russian Federation dated April 1, 2003 N 15 On establishing the identity of workers’ professions, work in which gives the right to early assignment of an old-age labor pension in accordance with subparagraphs 1, 2, 4, 5 and 7 of paragraph 1 of Article 27 of the Federal Law "On Labor Pensions in the Russian Federation

7. Periods of work in the professions of workers, unified during the revision of the releases of the Unified Tariff and Qualification Directory of Work and Professions of Workers (UTKS) in the professions provided for by the lists of works, professions, positions, specialties and institutions (organizations), taking into account which a labor pension is assigned early old age in accordance with subparagraphs 1, ,, and 7 of paragraph 1 of Article 27 of the Federal Law, the identity of which is established by the Decree of the Ministry of Labor and social development of the Russian Federation of April 1, 2003 N 15 "On establishing the identity of workers' professions, work in which gives the right to early assignment of an old-age labor pension in accordance with subparagraphs 1, 2, 4, 5 and 7 of paragraph 1 of Article 27 of the Federal Law "On labor pensions in the Russian Federation" (registered by the Ministry of Justice of Russia on April 18, 2003 N 4431) are confirmed by documents of employers or relevant state (municipal) bodies. Moreover, the unification of such professions is confirmed by extracts from the ETKS or the corresponding act.

COURT DOCUMENTS

Court decision dated 06.10.09 on establishing the identity of professions, including the period of work in the length of service, giving the right to early assignment of a pension.

2-751

SOLUTION

In the name of the Russian Federation

Kushvinsky City Court of the Sverdlovsk Region composed of:

presiding judge Romanova N.N.,

under secretary E.D. Siter,

Having considered in the premises of the Kushvinsky City Court in open court a civil case on the claim of S. against the Fund to establish the identity of professions, to include the period of work in the length of service, which gives the right to early assignment of an old-age pension,

INSTALLED:

On April 22, 2009, S. applied to the Fund for early granting of an old-age pension in connection with working in difficult working conditions for at least 12 years 6 months and having an insurance record of at least 25 years in accordance with paragraphs. 2 p. 1 art. 27 Federal Law “On Labor Pensions in the Russian Federation” dated December 17, 2001 No. 173-FZ, since from February 1, 1988 to December 31, 1991, he worked as a boilermaker in the boiler-welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration.

By decision of the Fund dated June 26, 2009 No. 490/15240 S., the early assignment of an old-age pension under paragraphs. 2 p. 1 art. 27 Federal Law “On labor pensions dated December 17, 2001 No. 173-FZ on the basis of lack of required experience in the relevant types of work - at least 12 years 6 months, since the work period from February 1, 1988 to December 31, 1991 is not accepted for credit Boilermaker of the boiler-welding section of the mechanical repair shop of the Goroblagodat Mining Administration (03 years 11 months).

S. filed a lawsuit against the Fund to establish the identity of professions, to include the period of work in the length of service, which gives the right to early assignment of an old-age pension.

At the court hearing, plaintiff S. supported his demands and explained in support of them that he did not agree with the fund’s decision, since he worked as a boilermaker in the boiler-welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration until 1992. In accordance with List No. 2, section XV, subsection 1 a, approved by Resolution of the Council of Ministers of the USSR No. 1173 of August 22, 1956, boilermakers in mechanical workshops of mining enterprises had the right to preferential pensions. Subsequently, by letter of the State Committee for Labor No. 19-3869 dated February 25, 1970, boilermakers in mechanical workshops of mining enterprises were equated with mechanics for repairing equipment, mechanisms, water and air lines employed in mines, in open-pit mines and quarries, since the same nature of work was established. Indeed, his labor duties as a boilermaker in the boiler-welding section of the mechanical repair shop coincided with the duties of a mechanic in repairing equipment, mechanisms, water and air lines employed in mines, open-pit mines and quarries. On the specified position he worked for 03 years 11 months. It was this period of work that the Fund did not count towards his preferential length of service. In this case, the credited experience was 09 years 07 months 22 days. Accordingly, if the above period of work as a boilermaker is taken into account, then his work experience under difficult working conditions will be more than 12 years 06 months. His total insurance experience is 32 years 04 months 23 days. He believes that his work experience as a boilermaker in the boiler-welding section of a mechanical repair shop should be included in special experience, since he did not know before and could not know that this position by title does not correspond to the List of positions entitling him to early preferential appointment old age pensions. In connection with this, he asks the court to establish the identity of the profession “boilermaker of mechanical workshops of mining enterprises” with the name “fitter for repair of equipment, mechanisms, water and air lines employed in mines” and include it in the length of service, which gives the right to early assignment of a labor pension according to old age, the period of his work from February 1, 1988 to December 31, 1991 as a boilermaker in the boiler-welding section of the repair and mechanical shop of the Goroblagodatsky Mining Administration, and also oblige the Fund to assign him an early old-age pension from April 22, 2009, that is, from the moment he applied to the fund .

The representative of the defendant, K., acting on the basis of power of attorney No. 59 dated December 16, 2008, did not recognize the plaintiff’s claims, and explained the following in support of her objections.

On April 22, 2009, S. submitted documents to the fund to assign him an old-age labor pension according to paragraphs. 2 p. 1 art. 27 Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation.”

In accordance with paragraphs. 2 p. 1 art. 27 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 men upon reaching the age of 55 years and 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 and 20 years, respectively.

Having examined S.’s documents submitted for the assignment of an early retirement pension, the fund commission made decision No. 490/15240 dated June 26, 2009 on the refusal to assign an early retirement pension due to the lack of special experience in the amount of 12 years 6 months. At the same time, the period of his work from February 1, 1988 to December 31, 1991 as a boilermaker of the boiler-welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration is not subject to counting towards the special length of service that gives the right to early assignment of a labor pension and is disputed by the plaintiff.

The fund’s refusal to grant an early retirement pension is motivated by the fact that the plaintiff’s employment in boiler houses, shipbuilding, ship repair, ship hull work, provided for in List No. 2, section XV, subsection 3 a, approved by Resolution of the Council of Ministers of the USSR No. 1173 of August 22, 1956, and the List No. 2, section XIV, subsection 3 a - 13144, approved by Resolution of the Cabinet of Ministers of the USSR of January 26, 1991 No. 10. The scale of activity of the boiler operator of the boiler-welding section of the mechanical repair shop and activities in the positions provided for in the above Lists are not comparable in volume, load , intensity.

Art. 11 of the Civil Procedure Code of the Russian Federation provides that the court is obliged to resolve cases on the basis of federal laws and regulatory legal acts of the Government of the Russian Federation. The procedure for establishing the identity of these names is determined by the Government of the Russian Federation. Accordingly, the court does not have the right to arbitrarily broadly interpret the Lists, assessing such factors as the nature and working conditions based on analogy.

Based on the meaning of Art. 27, 28 of Law No. 173-FZ, in conjunction with its other provisions, the right to early assignment of an old-age labor pension is not associated with any work, but only with such work, the implementation of which is associated with increased psychophysiological stress due to the nature of a certain professional activity.

An early pension is not determined by the factors provided for by the Constitution of the Russian Federation; therefore, it is a socially unjustified expansion of the circle of recipients of pensions on preferential terms compared to general rules grounds leads to a violation of the rights of other persons in the field of social security due to the fact that as a result of the diversion of insurance contributions of other interested parties in favor of persons not provided for by regulatory legal acts, the pensions of low-income pensioners are increased in a smaller amount.

The lists of positions established by the Government of the Russian Federation are not subject to broad interpretation. And the competence of the foundation does not include the right to establish the identity of professions. Accordingly, the plaintiff did not submit documents confirming the fact that the position he held at that time was identical to the positions included in the Lists. Asks to refuse to satisfy the stated demands.

The plaintiff’s demands for the appointment of an early retirement pension from the moment of applying to the Office of the Pension Fund of the Russian Federation are also considered unfounded, since in accordance with paragraph 2 of Art. 19 of Law No. 173-FZ, the day of applying for a labor pension is the day the body providing pension provision receives the corresponding application with all necessary documents. On the day of S.’s application on April 22, 2009 to the fund’s body for the appointment of an early retirement pension, there were no grounds for including controversial periods of work in the above positions and institutions. Accordingly, there are no grounds for assigning an early retirement pension from the moment the plaintiff applied.

In connection with this, the fund asks the court to refuse S.’s claims in full.

Witness B. explained to the court that she worked at the Goroblagodatsky Mining Administration as a rater for the foundry department. Since 1982, she also worked as head of the labor department. She knew that at that time, boilermakers were on list No. 2, and in accordance with the letter of the State Labor Committee No. 19-3869 dated February 25, 1970, boilermakers in mechanical workshops of mining enterprises were equated to mechanics for repairing equipment, mechanisms, water and air lines, employed in mines, open pits and quarries, since the same nature of work was established. The work was carried out to maintain all workshops, routine repairs of mining equipment, factories, quarries and mines. That is, boilermakers performed plumbing work.

The court, having listened to the plaintiff, the defendant's representative, questioned the witness, studied the case materials and assessed them, comes to the following conclusions.

On April 22, 2009, S. applied to the fund with an application to grant an early old-age pension in accordance with paragraphs. 2 p. 1 art. 27 Federal Law “On Labor Pensions in the Russian Federation” and presented the relevant documents.

By collective decision No. 490/15240 of June 26, 2009 (case sheet 5-6), S. was denied an early retirement pension due to the lack of the required special experience - 12 years 6 months. At the same time, 9 years 7 months 22 days were counted into the special length of service, which gives the right to early assignment of a labor pension, and it was indicated that the period of work of the plaintiff from February 1, 1988 to December 31, 1991 as a boilermaker in the boiler-welding repair section is not subject to counting in the special length of service. - mechanical shop of the Goroblagodatsky Mining Administration (03 years 11 months), since the plaintiff’s employment in boiler houses, shipbuilding, ship repair, ship hull work provided for in List No. 2, section XV, subsection 3 a, approved by Resolution of the Council of Ministers of the USSR No. 1173 of August 22, 1956, has not been confirmed, and list No. 2, section XIV, subsection 3 a - 13144, approved by Resolution of the Cabinet of Ministers of the USSR of January 26, 1991 No. 10.

Based collegial decision Fund No. 490/15240 dated June 26, 2009, it was established that the above-mentioned period of work in the position of “boiler operator of the boiler-welding section of the mechanical repair shop” is not counted towards the preferential length of service required for early receipt of an old-age pension S. The inclusion of this working period in the special seniority can be obtained on the basis of a court decision.

According to the copy of S.’s work book (ld) available in the case, in the period from February 1, 1988 to December 31, 1991, he worked as a boilermaker in the boiler-welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration.

By virtue of clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 2005 No. 25 “On some issues that arose in the courts when considering cases related to the exercise by citizens of the right to labor pensions,” questions about the type of institution, the identity of the functions performed by the plaintiff, conditions and The nature of the activities of those positions that give the right to early assignment of an old-age labor pension must be decided by the court, based on the specific circumstances of each case, established in the court hearing.

By virtue of paragraphs. 2 p. 1 art. 27 of the Federal Law “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, to men upon reaching the age of 55 years, if they have worked in jobs with difficult working conditions for at least 12 years 6 months and have insurance experience of at least 25 years.

The right of citizens to early retirement pension in connection with the specified activities is determined in accordance with List No. 2 of industries, workshops of professions and positions, work in which gives the right to a state pension on preferential terms and in preferential amounts, approved by Resolution of the Council of Ministers of the USSR No. 1173 dated August 22, 1956 and applied on the basis of Decree of the Government of the Russian Federation No. 239 dated April 24, 2003, and List No. 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 ( for old age) on preferential terms, approved by Resolution of the Cabinet of Ministers of the USSR No. 10 of January 26, 1991 and applied on the basis of Resolution of the Government of the Russian Federation No. 537 of July 18, 2002. However, these Lists do not provide for the position of “boilermaker in mechanical workshops of mining enterprises.” This position was not provided for by the regulations in force before January 1, 2002, which were adopted in accordance with the Law of the Russian Federation of November 20, 1990 “On State Pensions in the Russian Federation.”

In accordance with clarifying certificate No. 291 dated April 1, 2004 (case sheet 7), S. worked in the mechanical repair shop of OJSC Goroblagodatskoe Mining Administration from February 1, 1988 to December 31, 1991 as a boiler operator in the boiler-welding section.

By letter of the State Labor Committee No. 19-3869 dated February 25, 1970, boilermakers in mechanical workshops of mining enterprises were equated with mechanics for repairing equipment, mechanisms, water and air lines employed in mines, open-pit mines and quarries.

Accordingly, List No. 2 of industries, workshops of professions and positions, work in which gives the right to a state pension on preferential terms and in preferential amounts, approved by Resolution of the Council of Ministers of the USSR No. 1173 of August 22, 1956 and applied on the basis of Resolution of the Government of the Russian Federation No. 239 of 24 April 2003, it is stipulated that mechanics who repair equipment, mechanisms, water and air lines employed in mines, open-pit mines and quarries have the right to early assignment of an old-age pension.

Part 2 art. 6, part 4 art. 15, part 1 art. 17, art. 18, 19, part 1 art. 51 of the Constitution of the Russian Federation, by their meaning, imply legal certainty and the associated predictability of legislative policy in the field of pension provision, necessary so that participants in relevant legal relations can reasonably foresee the consequences of their behavior and be confident that they have acquired on the basis of current legislation the right will be respected by the authorities and will be implemented. However, the legislator did not take measures to create legal certainty, so workers in certain professions could not foresee in the future the non-inclusion of the position of “boilermaker in mechanical workshops of mining enterprises” in the length of service giving the right to early assignment of an old-age pension.

Considering the above legal provisions, the court considers it possible to satisfy S.’s demands to establish the identity of the profession “boilermaker of mechanical workshops of mining enterprises” with the name “fitter for repairing equipment, mechanisms, water and air lines employed in mines” and to include in the preferential length of service the period of his work from February 1, 1988 years to December 31, 1991, boilermaker of the boiler-welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration (03 years 11 months).

When added to the length of service credited to the plaintiff by decision of the Fund No. 490/15240 dated June 26, 2009, the preferential length of service is 13 years 06 months 22 days.

As for the claim of plaintiff S. about the obligation of the fund to assign him an early labor pension from April 22, 2009, the court considers it necessary to satisfy this requirement, since the plaintiff has a special experience of 12 years 06 months, necessary for the early assignment of a labor pension old age in accordance with paragraphs. 2 p. 1 art. 27 Federal Law “On Labor Pensions in the Russian Federation”. His insurance experience is also more than 25 years. These facts were established by the court through a detailed analysis of the collegial decision of the fund commission No. 490/15240 of June 26, 2009 and the relevant legislation.

According to Art. 19 Federal Law “On Labor Pensions in the Russian Federation”, a labor pension (part of a labor pension) is assigned from the date of application for the specified pension (for the specified part of a labor pension).

S.’s right to apply to the court to establish the identity of professions and recognize the right to a long-service pension is of a declarative nature. The plaintiff applied to the Fund Management with an application to grant him an early retirement pension on April 22, 2009.

Accordingly, the right to assign an early retirement pension in old age arose for S. in accordance with Art. 19 Federal Law “On Labor Pensions in the Russian Federation” since April 22, 2009.

Based on Art. 333.36 of the Tax Code of the Russian Federation, the defendant is not exempt from paying state duty; accordingly, the court considers it necessary to collect state duty from the defendant.

Guided by Art. Art. 194 – 198, 199 Code of Civil Procedure of the Russian Federation, court

DECIDED:

S.'s claim against the Fund for establishing the identity of professions, including the period of work in the length of service, giving the right to early assignment of an old-age pension, is satisfied.

Establish the identity of the names of professions:

- “boilermaker of mechanical workshops of mining enterprises” with the title “fitter for repair of equipment, mechanisms, water and air lines employed in mines.”

Include in the length of service that gives S. the right to early assignment of an old-age labor pension, the period of work from February 1, 1988 to December 31, 1991 as a boilermaker in the boiler-welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration, that is 03 years 11 months.

Recognize S.'s right to receive a pension for long service in connection with working in difficult working conditions for at least 12 years 6 months and having an insurance record of at least 25 years from April 22, 2009.

To collect from the Fund state duties in favor of S. 100 rubles, to the state income 1900 rubles.

The decision can be appealed within 10 days to the judicial panel for civil cases of the Sverdlovsk Regional Court from the date of its production in a motivated form through the office of the Kushvinsky court.

The decision was made in a meeting room using a computer.

Judge Kushvinsky

City Court Romanov N.N.

No. 33-2178 Judge Volkova T.M. 2015

APPEAL DECISION

Judicial Collegium for Civil Cases of the Tver Regional Court

as part of the presiding judge V.V. Tsvetkov,

judges Komarova Yu.V. and Gudkova M.V.

with the secretary of the court session Galushkina O.N.

considered in open court

according to the report of judge V.V. Tsvetkov

case on the appeal of the State Institution-Office of the Pension Fund of the Russian Federation against the decision of the Rameshkovsky City Court dated DD.MM.YYYY, which decided:

“The claims of FULL NAME1 against the State Institution - the Administration of the Pension Fund of the Russian Federation for the appointment of an early labor old-age pension, shall be partially satisfied.

Admit that FULL NAME1 worked as an electric welder for the following periods:

From DD.MM.YYYY to DD.MM.YYYY in Rameshkovskaya PMK-25, that is, 6 months 10 days,

Recognize for Full Name 1 the right to assign an early retirement pension due to difficult working conditions with DD.MM.YYYY

Oblige Government agency- The Office of the Pension Fund of the Russian Federation in Tverskaya include FULL NAME1 in the special work experience associated with difficult working conditions as an electric welder, the following periods of work:

From DD.MM.YYYY to DD.MM.YYYY on the Trudovik collective farm, that is, 1 year 7 months 17 days,

From DD.MM.YYYY to DD.MM.YYYY in Rameshkovskaya PMK-25, that is, 6 months TO days,

From DD.MM.YYYY to DD.MM.YYYY on the Trudovik collective farm (OKP Trudovik collective farm), that is, 4 years 1 month 16 days.

Oblige the State Institution - the Administration of the Pension Fund of the Russian Federation to assign FULL NAME1 an early retirement pension on preferential terms with DD.MM.YYYY.

To recover from the State Institution - the Office of the Pension Fund of the Russian Federation in Tverskaya in favor of Full Name 1 300 rubles in return for the state duty paid, as well as the costs of paying for the services of a representative in the amount of 1000 rubles, and to recover the total from the State Institution - the Office of the Pension Fund of the Russian Federation in favor of Full Name 1 1 300 rubles".

Judicial panel

installed:

FULL NAME1, DD.MM.YYYY year of birth, filed a lawsuit against the State institution - the Office of the Pension Fund of the Russian Federation in (hereinafter - GU-UPF RF in, pension authority) for recognition of work in the period from DD.MM.YYYY to DD.MM.YYYY, from DD.MM.YYYY to DD.MM.YYYY, from DD.MM.YYYY to DD.MM.YYYY as an electric welder, from DD.MM.YYYY to DD.MM. YYYY, from DD.MM.YYYY to DD.MM.YYYY as a gas-electric welder engaged in cutting and manual welding of metals; recognition of his right to an early retirement pension in connection with work under difficult working conditions from DD.MM.YYYY; imposing the obligation to include the above periods in the special work experience associated with difficult working conditions; imposing the obligation to assign him an early retirement pension on preferential terms with DD.MM.YYYY; recovery of legal costs for payment legal services and state duty. He motivated the requirements by the fact that during the indicated periods his work was named in the work book as a welder, gas-electric welder, electric-gas welder, while in List No. 2, approved by Resolution of the Cabinet of Ministers of the USSR of January 26, 1991 No. 10 “On approval of lists of production, work , professions, positions and indicators that give the right to preferential pension provision" (hereinafter referred to as List No. 2 of 1991), gas welder and electric welder are provided manual welding. He performed welding work using an electric welding machine, as well as work on cutting metals with a device with a gas torch, that is, he was an electric gas welder. To his appeal from DD.MM.YYYY for the appointment of an early retirement pension in accordance with subparagraph 2 of paragraph 1 of Article 27 of the Federal Law of December 17, 2001 No. 173-FZ “On Labor Pensions in the Russian Federation” (hereinafter referred to as the Federal Law “ On labor pensions in the Russian Federation"), the defendant refused, citing the presence of special experience of 9 years 9 months. 26 days instead of the required 12 years 6 months.

At the court hearing, the plaintiff FULL NAME1 and his representative FULL NAME7 supported the stated demands.

Representatives of the defendant GU-UPF RF FULL NAME 8, FULL NAME 9 did not recognize the claim at the court hearing, citing the fact that preferential pension provision for workers in the profession of “welder” was not established by List No. 2 of 1991. Since the plaintiff’s preferential service was 9 years 9 months. 26 days instead of the required 12 years 6 months, he does not have the right to an early retirement pension. From the documents submitted by the plaintiff, it cannot be concluded that he worked full time. List No. 2 of 1991 and List No. 2, approved by Resolution of the Council of Ministers of the USSR dated August 22, 1956 No. 1173 (hereinafter referred to as List No. 2 of 1956), does not provide for the position of “welder”. According to these lists, electric and gas welders engaged in cutting and manual welding, electric welders of manual welding (List No. 2, 1991), electric and gas welders and their assistants, electric welders and their assistants (List No. 2, 1956) have the right to an early retirement pension in old age due to special working conditions. G.). The period of work up to DD.MM.YYYY, when the plaintiff was listed as an “electric welder” or “gas welder,” can be counted toward the preferential length of service on the basis of Decree of the Government of the Russian Federation dated April 24, 2003 No. 239, subject to documentary evidence of the completion of the work provided for this profession. C DD.MM.YYYY FULL NAME1 is registered in the personalized accounting system. The employer - the collective farm "Trudovik" in the periods from DD.MM.YYYY to DD.MM.YYYY and from DD.MM.YYYY to DD.MM.YYYY did not indicate the preferential profession code in the information about the plaintiff's work experience, that is, did not confirm the special the nature of his work. The submitted documents do not confirm the fact that the plaintiff worked full time as an electric welder for manual welding, an electric and gas welder engaged in cutting and manual welding. The pension authority included in the preferential length of service according to List No. 2 periods in the position of a gas-electric welder, engaged in cutting and manual welding, in the Rameshkovsky RAIPO from DD.MM.YYYY to DD.MM.YYYY, in the position of an electric-gas welder, engaged in cutting and manual welding , in CJSC Volgodorstroy Company from DD.MM.YYYY to DD.MM.YYYY, as an electric and gas welder engaged in cutting and manual welding, in OJSC Rameshkovskoye DRSU from DD.MM.YYYY to DD.MM. YYYY

The court made the above decision.

The appeal of the defendant GU-UPF RF in, filed by representative FULL NAME10, raises the issue of canceling the court decision regarding the recognition of the work of FULL NAME1 from DD.MM.YYYY to DD.MM.YYYY, from DD.MM.YYYY to DD.MM .YYYY, from DD.MM.YYYY to DD.MM.YYYY as an electric welder, inclusion of these periods in the plaintiff’s special work experience, recognition of his right to an early pension due to difficult working conditions with DD.MM.YYYY and imposing the obligation on the pension authority to assign him a pension from this date, and on making a new decision in the case in the specified part to refuse the claim. In support of the complaint, it is stated that during the specified periods in the work book the plaintiff’s position was named as a welder, which is not provided for either by List No. 2 of 1956 or by List No. 2 of 1991. The plaintiff did not provide sufficient evidence of work in the position of electric welder.

Regarding the appeal, the plaintiff, FULL NAME1 and his representative, FULL NAME7, filed objections, according to which they ask that the complaint be left unsatisfied, and the court decision - unchanged.

Having studied the materials of the civil case, discussed the arguments of the appeal and objections to it, listened to the representative of the defendant GU-UPFR in FULL NAME8, who supported the arguments of the complaint, the plaintiff FULL NAME1 and his representative FULL NAME7, who objected to its satisfaction, the judicial panel comes to the following conclusions.

A decision is justified when the facts relevant to the case are confirmed by evidence examined by the court, satisfying the requirements of the law on their relevance and admissibility, or by circumstances that do not require proof (articles, -,), and also when it contains exhaustive conclusions of the court, arising from established facts.

The court decision adopted in the case does not fully meet these legal requirements.

In accordance with the article, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law.

According to the article, the court evaluates the relevance, admissibility, reliability of each evidence separately, as well as the sufficiency and interconnection of the evidence in its entirety.

From the case materials it follows that by the decision of the defendant dated DD.MM.YYYY No. the plaintiff, in response to his appeal from DD.MM.YYYY, was denied a pension in accordance with subparagraph 2 of paragraph 1 of Article 27 of the Federal Law “On Labor Pensions in the Russian Federation” due to insufficiency special experience amounting to 9 years 9 months. 26 days.

According to the minutes of the meeting of the commission of the pension body to consider the implementation of pension rights of citizens from DD.MM.YYYY No., the special work experience of Full Name1, among others, did not include the periods from DD.MM.YYYY to DD.MM.YYYY and from DD.MM.YYYY according to DD.MM.YYYY as a welder of the Trudovik collective farm, from DD.MM.YYYY to DD.MM.YYYY as a welder of PMK No. 25.

The basis for refusal to count these periods of work into special experience was the discrepancy between the name of the plaintiff’s position and the positions provided for in List No. 2 of 1956 and List No. 2 of 1991, as well as the lack of documentary evidence of the type of welding and full-time employment of the plaintiff as an electric welder, gas welder or electric gas welder.

Subclause 2 of clause 1 of Article 27 of the Federal Law “On Labor Pensions in the Russian Federation” provides for the possibility of assigning an old-age labor pension before reaching the age established by Article 7 of the same law (for women - 55 years, for men - 60 years), namely, 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 period of at least 25 and 20 years, respectively.

If specified persons have worked in the listed 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 the age provided for in Article 7 of this law, by one year for every 2 years and 6 months of such work for men and for every 2 years of such work women.

According to paragraph 2 of Article 27 of the Federal Law “On Labor Pensions in the Russian Federation”, lists of relevant works, industries, professions, positions, specialties and institutions (organizations), taking into account which an old-age labor pension is assigned in accordance with paragraph 2 of the same article, rules for calculating periods work (activity) and the appointment of the said pension, if necessary, are approved by the Government of the Russian Federation.

In accordance with subparagraph “b” of paragraph 1 of Decree of the Government of the Russian Federation dated July 18, 2002 No. 537 “On the lists of production, work, professions and positions, taking into account which an old-age labor pension is assigned early in accordance with Article 27 of the Federal Law “On Labor pensions in the Russian Federation”, it is stipulated that when early assignment of an old-age labor pension to workers engaged in work with difficult working conditions, List No. 2 of 1991 is applied.

In this case, the time of work performed before January 1, 1992, provided for by List No. 2 of 1956, is counted in the length of service giving the right to early assignment of an old-age pension, along with the work provided for by List No. 2 of 1991.

Section 32 “General Professions” of List No. 2 of 1956 provides for the right to preferential pensions for gas cutters and their assistants; gas welders and their assistants; argon and atomic-hydrogen welders; electric welders and their assistants.

Section 33 “General Professions” of List No. 2 of 1991 establishes that gas welders enjoy the right to early pension provision (position 23200000-11620); electric and gas welders engaged in cutting and manual welding, on semi-automatic machines, as well as on automatic machines using fluxes containing harmful substances of at least 3rd hazard class (item 23200000-19756); electric welders on automatic and semi-automatic machines engaged in welding in an environment carbon dioxide, at work using fluxes containing harmful substances of at least hazard class 3, as well as on semi-automatic machines (items 23200000-19905); electric welders for manual welding (item 23200000-19906).

In paragraph 2 of the explanations of the Ministry of Labor and Employment of the RSFSR and the Ministry of Social Protection of the Population of the RSFSR dated January 8, 1992 No. 1, approved by order of the Ministry of Labor and Employment of the RSFSR No. 3, the Ministry of Social Protection of the Population of the RSFSR dated January 8, 1992 No. 235, it was It is stated that employees who are constantly engaged in performing work provided for in Lists No. 1 and No. 2 during a full working day have the right to a pension on preferential terms.

Full-time work means performing work under the conditions provided for in the Lists for at least 80% of the working time. At the same time, the specified time includes the performance of preparatory, auxiliary, routine repair work, as well as work outside one’s workplace in order to ensure the performance of one’s labor functions.

Previously, the current pension legislation did not contain these requirements; therefore, confirmation of permanent employment by performing work provided for in the Lists for a full working day before January 1, 1992 was not required.

Satisfying the plaintiff's request for recognition of work from DD.MM.YYYY to DD.MM.YYYY and from DD.MM.YYYY to DD.MM.YYYY as a welder on the Trudovik collective farm, from DD.MM.YYYY to DD.MM.YYYY as a welder Rameshkovskaya PMK-25 work as an electric welder, the court did not take into account that the profession “welder” as an independent one was published by the Unified Tariff and Qualification Directories of Work and Professions of Workers, 1969-1974, 1985. was not provided.

According to the explanations contained in paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 11, 2012 No. 30 “On the practice of consideration by courts of cases related to the implementation of the rights of citizens to labor pensions”, in the event of a citizen’s disagreement with the refusal of the body providing pensions, include in the period of work that, in the opinion of the citizen, is subject to inclusion in this length of service, it is necessary to take into account that the question of the identity of the work performed by the plaintiff, position held, existing profession, those jobs, positions, professions that give the right to early assignment of an old-age labor pension are decided by the court based on the specific circumstances of each case established at the court hearing (the nature and specificity, conditions of the work performed by the plaintiff, the functional duties performed by him according to positions held and available professions, workload, taking into account the goals and objectives, as well as the areas of activity of the institutions, organizations in which he worked, etc.). In this case, establishing the identity of different names of jobs, professions, positions is not allowed.

The courts do not have the right to establish the identity of professions and positions, however, the courts are given the opportunity to establish the identity of the functions, conditions, and nature of activities performed by the plaintiff with those jobs that give the right to early assignment of an old-age pension. At the same time, this issue of identity for counting controversial periods of work into special length of service can be resolved by the court only if the employer incorrectly names the plaintiff’s position.

In this situation, the court decision regarding the recognition of work from DD.MM.YYYY to DD.MM.YYYY and from DD.MM.YYYY to DD.MM.YYYY as a welder of the Trudovik collective farm, from DD.MM.YYYY to DD.MM .YYYY welder Rameshkovskaya PMK-25 work in the position of an electric welder, which actually establishes the identity of the profession “welder” with the profession “electric welder”, cannot be recognized as legal and is subject to cancellation with the adoption of a new decision in this part of the case to refuse to satisfy the claim.

When deciding to impose on the pension authority the obligation to count into the plaintiff’s special experience the periods of work from DD.MM.YYYY to DD.MM.YYYY and from DD.MM.YYYY to DD.MM.YYYY as a welder of the Trudovik collective farm, with DD .MM.YYYY on DD.MM.YYYY as a welder at Rameshkovskaya PMK-25, the district court referred to the testimony of witnesses FULL NAME11, FULL NAME16 and FULL NAME17 who confirmed the plaintiff’s work on the Trudovik collective farm as an electric welder, and a letter from the USSR State Committee for Labor dated 04/20/1967 No. 653-IG, according to which the profession “welder”, in terms of the nature of the work performed and working conditions, is the same as the professions “gas welder” and “electric welder”, therefore the right of welders to a preferential pension is determined under the same conditions as electric welders.

However, by virtue of paragraph 3 of Article 13 of the Federal Law “On Labor Pensions in the Russian Federation”, the nature of the work is not confirmed by the testimony of witnesses, which is also directly indicated in the explanations contained in paragraph 5 of paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 11, 2012 No. 30 “On the practice of courts considering cases related to the implementation of citizens’ rights to labor pensions.”

Since the only evidence available in the case materials confirming the possibility of carrying out FULL NAME1 electric welding works during controversial periods, in particular during the period from DD.MM.YYYY to DD.MM.YYYY, there is an act drawn up by the defendant dated DD.MM.YYYY No. verification of the primary documents of the Trudovik collective farm, according to which the existence of the collective farm’s annual reports for 1987-1994, containing information about the existing welding machine grade SVA-380 V, then the court decision regarding the inclusion in the plaintiff’s special experience of periods of work from DD.MM.YYYY to DD.MM.YYYY as a welder at the Trudovik collective farm and from DD.MM.YYYY to DD.MM.YYYY as a welder, Rameshkovskaya PMK-25 cannot be recognized as justified and legal, and therefore is subject to cancellation in this part with the adoption of a new decision to refuse to satisfy these requirements.

Taking into account the work periods of 9 years and 9 months undoubtedly included by the pension authority in the plaintiff’s special experience, which gives the right to assign an old-age labor pension in accordance with subparagraph 2 of paragraph 1 of Article 27 of the Federal Law “On Labor Pensions in the Russian Federation”. 26 days and the period to be counted in accordance with the decision of the court of first instance in this case - from DD.MM.YYYY to DD.MM.YYYY with a duration of 4 years 1 month. 16 days, the total duration of the plaintiff’s special service at the time of applying for a pension on the specified basis (on DD.MM.YYYY) was 13 years 11 months. 12 days, which exceeds the legal requirement of 12 years 6 months.

Taking into account the plaintiff’s insurance experience of more than 36 years with the required 25, which was not disputed by the defendant, plaintiff FULL NAME1 at the time of applying to the pension authority DD.MM.YYYY for the assignment of a pension had the right to pension provision in accordance with subparagraph 2 of paragraph 1 of the article 27 of the Federal Law “On Labor Pensions in the Russian Federation”, in connection with which, contrary to the arguments of the pension authority’s appeal, the defendant had no legal grounds for refusing the plaintiff the exercise of this right.

Guided by the articles, the judicial panel

determined:

decision of the Rameshkovsky City Court of the Tver Region dated April 1, 2015 regarding the recognition of the work of Full Name1 as an electric welder during the periods from DD.MM.YYYY to DD.MM.YYYY on the Trudovik collective farm, from DD.MM.YYYY to DD.MM. YYYY in Rameshkovskaya PMK-25, from DD.MM.YYYY to DD.MM.YYYY in the Trudovik collective farm (OKP of the Trudovik collective farm), as well as in terms of the assignment to the State Institution - the Office of the Pension Fund of the Russian Federation in the Tver duty to include in special work experience Full name1 periods of work from DD.MM.YYYY to DD.MM.YYYY on the Trudovik collective farm, from DD.MM.YYYY to DD.MM.YYYY in Rameshkovskaya PMK-25 cancel.

Make a new decision in the case in the specified part to refuse FULL NAME1 to satisfy the claim.

The rest of the decision of the Rameshkovsky City Court of the Tver Region dated April 1, 2015 is left unchanged.

Chairman V.V. Tsvetkov

Judges of the regional court Y.V.Komarov

good afternoon - alas, it is difficult to practically prove identity in court - an example of a court decision -

Decree of the Government of the Russian Federation dated October 29, 2002 No. 781 approved the List of positions and institutions, work in which is counted as work experience, giving the right to early assignment of an old-age pension to persons engaged in teaching activities in state and municipal institutions for children.
In the specified List of jobs, professions, positions, specialties and institutions, taking into account which an old-age labor pension is assigned early in accordance with Art. 27 of the Federal Law of the Russian Federation “On Labor Pensions in the Russian Federation”, as well as in the previously valid List of professions and positions of educators whose teaching activities in schools and other institutions for children give the right to a pension for length of service, approved by a resolution of the Council of Ministers of the RSFSR dated September 06, 1991 No. 463, and the List of positions in which work is counted for length of service, giving the right to a pension for length of service in connection with teaching activities in schools and other institutions for children, approved by Decree of the Government of the Russian Federation of September 22, 1999 No. 1067, job title missing " head of the circle."
In the statement of claim, the plaintiff asks to establish the identity of the position “club leader” and the position “teacher” additional education" The court refuses this request for the following reasons.
By order of the Ministry of Education of the Russian Federation dated January 25, 1993 No. 21, the positions of heads of circles, sections, studios and other student associations were renamed to the position of teacher of additional education, which was first included in the Lists approved by Decree of the Government of the Russian Federation dated September 22, 1999 No. 1067, and later – in the Lists approved by Decree of the Government of the Russian Federation of October 29, 2002 No. 781.
In accordance with paragraph 2 of Decree of the Government of the Russian Federation of July 11, 2002 No. 516, the right to establish the identity of professions, positions and organizations (structural divisions) provided for in Art. 27 of the Federal Law “On Labor Pensions in the Russian Federation”, as well as lists of jobs, professions, positions, specialties and institutions, taking into account which an old-age labor pension is assigned early, to the same professions, positions and organizations (structural divisions) that previously had other names, provided to the Ministry of Labor and Social Development of the Russian Federation on the proposal of federal executive authorities and in agreement with the Pension Fund of the Russian Federation.
In this case, there was a centralized renaming of professions, positions and organizations (structural units) contained in previously adopted regulatory legal acts.
The question of the identity of those performed by Dmitrieva L.Ya. functions, conditions and nature of activity for those positions that give the right to early assignment of an old-age labor pension to resolve the issue of counting these periods into special length of service, could be decided by the court in the event of an incorrect title by the employer of the plaintiff’s position, which is not contained in the legal regulations acts.
The all-Russian classifier of worker professions, employee positions and tariff categories, approved by Decree of the State Standard of Russia dated December 26, 1994 No. 367, along with the position of “teacher of additional education” under number 25478, retained the previous title of the position “leader of a circle (interest club, team, amateur associations, sections, studios, tourist groups) by number 26165.
Thus, claims to establish the identity of the position “club leader” and the position “additional education teacher” must be rejected.