home Calculators Establish the legal fact of the identity of the professions of positions. Theory of everything

Establish the legal fact of the identity of the professions of positions. Theory of everything

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.

When working in special conditions

It is more difficult to solve the issue of confirming the length of service and the nature of work in special working conditions, giving the right to early pension provision(specialist).

Lists of relevant jobs, professions, positions, specialties and institutions (organizations) and the rules for calculating periods of work (activity) and the appointment of the specified pension are approved by the Government 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 Article 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 insufficient information on the periods contained in the work book of the employee. 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 account.

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.

ü 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 we are talking about the 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 special experience is not required.

Sometimes confirmation is required not only of the profession or position, but also of indicators of working conditions. The peculiarity of the list of professions (positions) of Lists No. 1 and 2 is that their full value 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 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 official duties professions of workers from the Unified Tariff and Qualification Directory of Works and Occupations of Workers).

Basic documents for clarifying information are:

Orders on assigning 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), job and work instructions , technological regulations, an inventory list of the main equipment, a safety briefing book, task logs, a technical passport for equipment and other documents of the enterprise confirming the fact of working 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 bodies for the examination of working conditions can be used ( workplace attestation cards for working conditions). So, according to paragraph 22 Clarifications 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 in connection with 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 positions, 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 retire due to special working conditions, 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 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 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 a production, employment in which gives the right to pension benefits, can be considered in accordance with All-Russian classifier economic activity, entered into force on January 1, 2003, and for the period before that date - in accordance with the All-Russian Classifier of Economic Activities, Products and Services and the All-Union Classifier of Industries 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 was established that these documents were destroyed due to the expiration of the storage period, therefore, this circumstance, as being independent of the plaintiff, does not deprive her of the right to assign a preferential pension by court decision.

In accordance with the previous procedure for confirming work experience (valid until 01.01.2010, the version of paragraph 9 of Article 30 of the Law on Labor Pensions allows the application of the previously existing procedure for confirming the length of service) and the current Rules for calculating and confirming the length of service for establishing labor pensions dated July 24, 2002 No. 555 and Order of the Ministry of Health and Social Development of Russia dated March 31, 2011 No. 258n, special experience (nature of work) cannot be confirmed by direct contact of the employee with the Pension Fund witness testimony(except in cases of loss of documents as a result of emergency situations ).

However, before January 1, 2010, when considering this category of cases in the courts, the 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 in 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, 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 pointed out: “... after January 1, 2010, when considering a dispute on recognizing the right to an early appointment of a labor 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. thirteen 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 is not entitled to accept the testimony of witnesses as admissible evidence of the nature of the work. Later, the Supreme Court consolidated its position in the Decree of the Plenum of December 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 witness testimony 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 opinion expressed by the Supreme Court about the impossibility of using the testimony of witnesses 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 to the territorial bodies of the Pension Fund the documents necessary for maintaining individual (personalized) records, as well as for assigning and paying pensions (in particular, information indicating the periods of activity, included in the specialty). 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 Required documents, references and information on issues arising during inspections; demand from managers and others officials audited organizations to eliminate 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 resolution of the Plenum 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 credited to the special length of service, it must be taken into account that the question of the form (type) institutions (organizations), the identity of the functions, conditions and nature of the activity performed by the plaintiff 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, performed by him functional duties by positions 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 Labor Code RF. 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 execution time repair work current nature and work on technical operation 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, giving the right to a pension due to special working conditions, then the special seniority, which gives the right 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 accordance with the “Methodological recommendations for conducting documentary (on-site) verifications of the reliability of information about periods of work giving the right to early retirement benefits under Lists No. region on April 20, 2006: “if an organization or its specific subdivision (shop, site, etc.) worked stably, without downtime, then there is no need to check the permanent employment of workers hired for permanent work (practically for the period before 1992, the stability of work in the industry , construction and transport was observed)”.

ü 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 hot metal heat treatment, production of calibrated metal.

In this case, the employee needs to confirm: 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 Schedule 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 provision 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 information that manufacturing process was subsequently changed, the court was not presented.

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 the following options 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 those 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 - see in 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 reflected these periods as a total length of service (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 insured persons, taking into account the codes of privileged professions.

This option allows you to solve the problem of non-accounting for periods of "grace" work outside of individually, and for all workers employed in a similar profession, in a similar production, etc.

Example 3An illustration to the third option for solving the problem of non-crediting in the length of service, which gives the right to an early appointment of a pension (when the employer judicial order disputes the actions of the pension authority to refuse to accept information about the “harmfulness” of the length of service of employees), the decision of the Arbitration Court serves 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 privileged professions, was satisfied by the court, since, without accepting information on privileged professions, the pension authority fund hinders individuals who have worked in production with harmful conditions employment, be eligible for early retirement).

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 JSC MRU, taking into account the codes of privileged 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 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.

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.

Approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of September 15, 2010.

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 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) .

referee Telenina Oh.A.

Speaker Shalagina O.V.

Judicial Collegium for Civil Cases of the Kemerovo Regional Court consisting of:

presiding Shalagina O.V.,

judges Piskunova Yu.A., Vorozhtsova L.K.,

under Secretary K.S.,

examined in open court on the report of the judge Shalagina Oh.The. civil case on appeal K.E. against the decision of the Ordzhonikidzevsky District Court of the city of Novokuznetsk, Kemerovo Region, dated January 11, 2012, in the case on the claim of K.E. to the State Institution - the Office of the Pension Fund of the Russian Federation in the Ordzhonikidzevsky district of the city of Novokuznetsk on the restoration of pension rights,

installed:

K.E. filed a lawsuit against the Office of the Pension Fund of the Russian Federation (state institution) in the Ordzhonikidzevsky district of Novokuznetsk to declare illegal the refusal to grant an early retirement pension for old age, to include periods of work from 01/04/1998 to 03/01/2001 in office c, from 03/01/2001 to the present, in a position of experience giving the right to early appointment of an old-age labor pension, recognition of the identity of the positions of a senior educator and; the obligation of the defendant to appoint an early labor old-age pension from September 23, 2001.

The requirements are motivated by the fact that on September 23, 2011, she applied to the Office of the Pension Fund of the Russian Federation in the Ordzhonikidzevsky district of Novokuznetsk for the appointment of an early retirement old-age pension in accordance with paragraphs. 19 p. 1 art. 27 of the Federal Law “On Labor Pensions in the Russian Federation”, since by the time of applying she had the required teaching experience of at least 25 years.

By the decision of the PFR Management Commission N 330701 dated 04.10.2011, she was denied an early retirement pension due to the lack of the required special experience, since her teaching experience as of 04.10.2011 is 11 years 5 months 26 days, and the above periods of work were not included in the special length of service, giving the right to early appointment of an old-age labor pension.

Considers the commission's decision illegal.

During the consideration of the case, the plaintiff K.E. waived claims regarding the inclusion in the special length of service period from 04.01.1998 to 01.03.2001 in the position, since the defendant fulfilled these requirements in full.

By a court ruling of December 22, 2011, the proceedings in the case in the specified part were terminated (case files 26-28).

The representative of the GU - Office of the Pension Fund in the Russian Federation for the Ordzhonikidzevsky district of the city of Novokuznetsk N. did not recognize the claims.

By the decision of the Ordzhonikidzevsky District Court of Novokuznetsk dated January 11, 2012, in satisfaction of the claims of K.E. denied.

In the appeal K.E. asks the court decision to cancel, indicating that the court must proceed from 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 his position and profession, the workload, taking into account the goals and objectives, and also areas of activity of institutions, organizations in which he worked, etc.).

Refers to pp. b p. 8 of the Rules for calculating periods of work, giving the right to early appointment of an old-age labor pension in accordance with Art. 27 and 28 of the Federal Law of the Russian Federation "On labor pensions in the Russian Federation", approved. Decree of the Government of the Russian Federation of July 11, 2002 N 516, according to which the length of service taken into account in the early appointment of a labor pension includes the time of work in the position of deputy head for educational and other work directly related to educational process. He considers that she carried out such activities during the disputed period, which is confirmed by the mode of her work, job description and the testimony of her and the witnesses, which was also not disputed by the defendant. However, these facts and evidence were assessed by the court and were not taken into account.

Head UPF RF (GU) in the Ordzhonikidzevsky district of Novokuznetsk FULL NAME6 filed objections to the appeal.

At the hearing of the court of appeal, the representative of the UPF RF (GU) in the Ordzhonikidzevsky district of Novokuznetsk, duly notified of the consideration of the case, did not appear. The Judicial Board considers it possible to consider the case in his absence.

Having studied the case file, having discussed the arguments of the appeal and objections to the complaint, after hearing K.E., who supported the arguments of the complaint, having considered the case in accordance with Part. 1 Article. 327.1 Code of Civil Procedure of the Russian Federation within the arguments set forth in the appeal, the panel of judges sees no reason to cancel the decision of the court.

According to paragraph 1 of Art. 7 of the Federal Law of December 17, 2001 N 173-FZ “On labor pensions in the Russian Federation”, men who have reached the age of 60 and women who have reached the age of 55 have the right to an old-age pension.

In accordance with paragraphs. 19 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 persons who have been teaching in institutions for children for at least 25 years, regardless of their age.

According to paragraph 2 of Art. 27 of the named Federal Law, 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 1 of this article, the rules for calculating periods of work (activity) and the appointment of this pension, if necessary approved by the Government of the Russian Federation.

The court found that by the decision of the Commission of the Main Directorate - the Office of the Pension Fund of the Russian Federation in the Ordzhonikidzevsky district of Novokuznetsk N 330701 dated 04.10.2011 K.E. was denied the appointment of an early labor old-age pension due to the lack of the required special length of service for the implementation of pedagogical activities (case sheet 10).

From the minutes of the meeting of the Commission of the Pension Fund of the Russian Federation in the Ordzhonikidzevsky district of Novokuznetsk N 463 dated 04.10.2011 (case sheets 6 - 9), it follows that the statement of K.E. on the appointment of an early retirement old-age pension was adopted on September 23, 2011, the special length of service of her work was 11 years 5 months 26 days at the time of application. The special length of service does not include, in particular, the periods of work of the plaintiff in from 01/14/1998 to 02/28/2001 in the position from 03/01/2001 to 03/31/2011 in the position, according to the information of the individual (personalized) accounting these periods are presented by the insured on a general basis.

Taking into account the refusal of the plaintiff from part of the claims and the termination of the proceedings in connection with this, the controversial period is the period of work of the plaintiff from March 01, 2001 to September 23, 2011 in office.

The fact that the plaintiff worked in the specified position during the disputed period is confirmed by the information of her work book (case sheet 15-17).

Resolving the stated claims, the court came to the conclusion about the refusal to satisfy them in full.

This conclusion is essentially legitimate and justified.

Thus, the List of positions and institutions, work in which is counted in the length of service, giving the right to early assignment of an old-age labor pension to persons who have been teaching in institutions for children, in accordance with subparagraph 19 of paragraph 1 of Article 27 of the Federal Law "On labor pensions in of the Russian Federation”, approved by Decree of the Government of the Russian Federation of October 29, 2002 N 781, the column “position title” provides for the position of deputy director (head, head), whose activities are related to the educational (educational) process; in the column "name of the institution" in clause 1.8 preschool institutions are included.

When resolving the dispute, the court concluded that the position of K.E. does not correspond to the title of the position provided for by List N 781.

The Judicial Collegium believes that this judgment cannot be recognized as correct, since the position of the plaintiff in its name - the deputy head of the preschool institution for educational and methodological work - corresponds to the name of the position provided for by List N 781; the connection of her activities with the educational (upbringing) process is not disputed by the respondent and is confirmed by the job description, the duties and functions of which include, in particular, attending classes in groups, monitoring the implementation of regime processes, studying the work of circles and studios, analyzing the diagnosis of children's development, their knowledge, skills, work organization creative groups, monitoring and ensuring the quality of the educational process, etc.; mode of work, which provides for part of the working time, the occupation directly educational activities with kids; testimonies of the plaintiff and the witnesses interrogated by the court.

At the same time, the above conclusion of the court does not testify to the illegality of the court decision on the merits.

Refusing to satisfy the claims, the court rightly referred to the provision of subparagraph "c" of paragraph 8 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 pedagogical activities in institutions for children, in accordance with subparagraph 19 of paragraph 1 of Article 27 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, according to which work as a director (head, head), deputy director (head, head) of institutions, specified in paragraphs 1.8, 1.12 and 2 of the section "Name of institutions" of the list for the period up to November 1, 1999.

Taking into account the said provision of substantive law, in fact, the court correctly proceeded from the fact that, since the disputed period of work of the plaintiff in (i.e., in the institution specified in paragraph 1.8 of the List) took place after November 1, 1999, then this period of work cannot be included in the seniority, giving the right to early appointment of an old-age labor pension in connection with pedagogical activity.

This conclusion of the court is in line with the explanations contained in paragraph 12 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 20, 2005 N 25 “On some issues that arose with the courts when considering cases related to the exercise by citizens of the right to labor pensions”, according to which, by virtue of subparagraph “ c" of paragraph 8 of the Rules of October 29, 2002 N 781 work as a director (head, head), deputy director (head, head) of the institutions specified in paragraphs 1.8, 1.12 and 2 of the section "Names of institutions" of the List of positions and institutions, work in which N 781 dated October 29, 2002 is counted in the length of service, giving the right to early assignment of an old-age labor pension to persons who carried out pedagogical activities in institutions for children, 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.

With such data, the conclusion of the court to refuse to satisfy the claims for inclusion in the special teaching experience of the period of work of the plaintiff from March 01, 2001 to September 23, 2011 in office corresponds to the law and the circumstances of the case. The arguments of the plaintiff in the appeal that her activities were related to the educational process do not affect the legality this conclusion court and have no legal significance, since regardless of this, the work of the plaintiff in the specified position is not subject to inclusion in the special teaching experience.

The court of first instance also denied satisfaction of the claims for recognition of the identity of the positions of senior educator and.

This denial is considered by the Tribunal to be justified.

In accordance with paragraph 2 of Decree of the Government of the Russian Federation of July 11, 2002 N 516, the right to establish the identity of professions, positions and organizations provided for in Art. Art. 27 and 28 of the Federal Law "On labor pensions in the Russian Federation", as well as the Lists of jobs, professions and positions, specialties and institutions, taking into account which an old-age labor pension is early assigned, is provided only to the Ministry of Labor and social development the Russian Federation on the proposal of the federal executive authorities and in agreement with the Pension Fund of the Russian Federation.

According to paragraph 9 of the above-mentioned Decree of the Plenum of the Supreme Court of the Russian Federation of December 20, 2005 N 25, in case of disagreement of a citizen with the refusal of the pension body to include in the special length of service, taking into account which an old-age labor pension can 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, subject, in the opinion of the plaintiff, to be credited to the special length of service, it must be taken into account that the question of the form (type) institutions (organizations), the identity of the functions performed by the plaintiff, the conditions and nature of the activity 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, conditions of work carried out by the plaintiff, functional duties performed by him by positions and professions, workload, taking into account the goals and objectives, as well as the activities of the institutions, organizations in which he worked, etc.).

Based on the above, the courts are not entitled to establish the identity of professions, positions and organizations, however, the courts are given the opportunity to establish the identity of the functions performed by the plaintiff, the conditions and nature of the activity to those jobs (positions, professions) that give the right to early appointment of an old-age labor pension.

At the same time, the issue of the identity of the functions performed, the conditions and nature of the activity to those positions that give the right to early appointment of an old-age labor pension, to resolve the issue of offsetting these periods in the special length of service, can be decided by the court only if the employer incorrectly names the position of the plaintiff, which is not included in the regulations.

Since the plaintiff made demands for the recognition of the identity of the positions (and not functions) of the senior educator and the deputy head of educational and methodological work, the resolution of which is not within the competence of the court, but at the same time the court correctly pointed out that both positions (deputy head of a preschool institution and senior educator) are provided for by List N 781, i.e. the position of the plaintiff (deputy head for educational and methodological work) was named correctly by the employer (this name is provided for by the “Tariff and qualification characteristics for the positions of employees of educational institutions and organizations”, approved by the Decree of the Ministry of Labor of Russia of November 11, 1992 N 33, “Standards for determining the number personnel engaged in servicing preschool institutions (nursery, nursery-gardens, kindergartens)”, approved by Decree of the Ministry of Labor of the Russian Federation of 04.21.1993 N 88), then the court’s conclusion to refuse to satisfy the plaintiff’s requirements in this part corresponds to the law and the circumstances of the case.

For the above reasons, the panel of judges cannot take into account the arguments of the appeal, which do not refute the conclusions made by the court of first instance, are not based on the law and do not have legal significance for resolving this dispute.

Thus, when resolving the dispute by the court, the circumstances relevant to the case were correctly identified and established, the norms of substantive and procedural law were correctly applied, the evidence presented was given a proper assessment in accordance with the requirements of Article 67 of the Code of Civil Procedure of the Russian Federation, the conclusions of the court correspond to the circumstances of the case and the law.

With such data, the panel of judges concludes that the court's decision is lawful and justified, and there are no grounds for its cancellation on the grounds of the appeal.

However, the Judicial Board draws attention to the following.

According to the operative part of the court decision, the plaintiff was denied satisfaction of the requirement to oblige government agency— Office of the Pension Fund of the Russian Federation in the Ordzhonikidzevsky district of Novokuznetsk to include in the preferential length of service the period of work from 11/01/1999 to 09/23/2011 as deputy head for educational and methodological work.

Considering that, by a court ruling of December 22, 2011, the proceedings on the case were terminated in terms of requirements for inclusion in the special length of service of the period from 01/04/1998 to 03/01/2001 in office, in connection with which only the period of work of the plaintiff is a controversial period from March 01, 2001 to September 23, 2011 in office, the judicial board considers it necessary to exclude from the operative part of the court decision the judgment on the refusal to satisfy the claims on imposing on the defendant the obligation to include in the preferential length of service the period of work from 01.11.1999 to 01.03 .2001 in office.

Guided by Art. 328 Code of Civil Procedure of the Russian Federation, Judicial Board

determined:

The decision of the Ordzhonikidzevsky District Court of Novokuznetsk, Kemerovo Region, dated January 11, 2012, is left unchanged, the appeal is dismissed.

From the operative part of the court's decision to exclude the judgment on the refusal to satisfy the claims of K.E. on the obligation of the GU - Office of the Pension Fund of the Russian Federation in the Ordzhonikidzevsky district of Novokuznetsk to include in the preferential length of service the period of work from 01/01/1999 to 03/01/2001 in the position.

presiding
O.V.SHALAGINA

Judges
Yu.A. PISKUNOV
L.K.VOROZHTSOVA

The Ministry of Health and Social Development of Russia has been granted the right (on the proposal of the federal executive authorities) to establish not only the identity of local, previously used (obsolete) names of workers' professions and the names of professions provided for in Lists No. 1 and No. 2, taking into account which an old-age labor pension is early assigned, but identity of positions and organizations (structural divisions).

At the same time, it should be borne in mind that a decision on the identity of the indicated names of professions, positions and organizations can be taken in relation to all categories of workers for whom an old-age labor pension is established ahead of schedule in accordance with Art. 27 and 28 of the Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation” (hereinafter - Law No. 173-FZ).

The basis for establishing identity can only be documents submitted by the federal executive authorities, or information from the individual (personalized) record of the insured person, from which it should be clear that the nature of work in the previously used profession (position) is similar to the nature of the work of the profession (position) provided for Art. 27 and 28 of Law No. 173-FZ or lists of relevant types of work.

The purpose of establishing the identity of professions is as follows:

Maintain the possibility of being included in the length of service, giving the right to early appointment of an old-age labor pension in accordance with Art. 27 and 28 of Law No. 173-FZ, periods of work in those professions, work in which, under previous legislation, gave the right to preferential pension provision and which, without changing the nature of work and working conditions, were unified in the profession with other names provided for in Art. 27 and 28 of Law No. 173-FZ or lists of jobs, professions, positions, specialties and institutions, taking into account which an old-age labor pension is assigned ahead of schedule;

To retain the possibility of including in the length of service, which gives the right to early appointment of an old-age labor pension, periods of work in professions that were local, i.e., not provided for by the sectoral tariff-qualification reference books of works and professions of workers (TKS) that were in force at the time of their establishment, or corresponding editions of the Unified Tariff and Qualification Directory of Works and Professions of Workers (ETKS), but the nature of their work corresponds to the tariff and qualification characteristics of those professions that are provided for in Art. 27 and 28 of Law No. 173-FZ or lists of jobs, professions, positions, specialties and institutions, taking into account which an old-age labor pension is assigned ahead of schedule.

The practice of applying legislation on pension provision shows that professions for which it is necessary to establish identity in the manner prescribed by Decree of the Government of the Russian Federation of July 11, 2002 No. 516 are available in almost all industries and sectors of the economy, and therefore this problem affects the interests of a large number of insured persons .

Lists of relevant types of work, taking into account which an old-age labor pension is assigned ahead of schedule in accordance with subpara. 1, 2, 4, 5, and 7 paragraph 1 of Art. 27 of Law No. 173-FZ, contain many professions of workers who previously had other names. The federal law does not contain norms providing for the possibility to include in the length of service in the relevant types of work, taking into account which an old-age labor pension is early assigned, periods of work in professions that previously had other names.

Therefore, the Ministry of Labor of Russia (in agreement with the Pension Fund of the Russian Federation and on the proposal of a number of federal executive bodies of the Russian Federation) adopted Resolution No. 15 dated April 1, 2003 “On establishing the identity of the professions of workers, work in which gives the right to early appointment 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” (hereinafter referred to as Resolution No. 15).

This resolution establishes:

The identity of the professions of workers provided for by List No. 1 of industries, jobs, professions, positions and indicators in underground work, in jobs with especially harmful and difficult working conditions, employment in which gives the right to an old-age pension on preferential terms, and the 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 (old age) on preferential terms (approved by Decree of the Cabinet of Ministers of the USSR dated January 26, 1991 No. 10), those professions that previously had other names, which are provided for by Lists No. 1 and No. 2 of industries, workshops, professions and positions that give the right to a state pension on preferential terms and in preferential amounts (approved by Resolution of the Council of Ministers of the USSR dated 22.08.1956 No. 1173), and which, on the basis of resolutions of the USSR State Committee for Labor, in the period up to January 1, 1992, when reviewing the relevant issues of the ETKS, were unified in professions, including listed in Lists No. 1 and No. 2 (approved Decree of the Cabinet of Ministers of the USSR dated January 26, 1991 No. 10);

The identity of the professions of workers provided for by the List of industries and professions of the textile industry, work in which gives the right to an old-age pension upon reaching 50 years of age and with at least 20 years of experience in these industries and professions (approved by Decree of the Government of the Russian Federation of 01.03.1992 No. 130 ), those professions that previously had other names that are provided for by the List of industries and professions, work in which gives women workers of textile industry enterprises the right to receive an old-age pension upon reaching 50 years and with at least 20 years of work experience in these professions (approved by resolution Council of Ministers of the USSR dated November 10, 1967 No. 1021), and which, on the basis of the decisions of the USSR State Committee for Labor, in the period before the entry into force of the Decree of the Government of the Russian Federation dated March 1, 1992 No. 130, when revising the relevant issues of the ETKS, were unified in the professions included in the List, approved. Decree of the Government of the Russian Federation of March 1, 1992 No. 130;

The identity of the professions of workers provided for by the List of professions of workers of locomotive crews, as well as the professions and positions of workers of certain categories directly involved in the organization of transportation and ensuring traffic safety on railway transport and the subway, enjoying the right to pensions in accordance with subpara. "d" art. 12 of the Law of the RSFSR dated November 20, 1990 No. 340-1 “On State Pensions in the RSFSR” (hereinafter referred to as Law No. 340-1), those professions that previously had other names that are provided for by Lists No. 1 and No. 2 of industries, workshops, professions and positions that give 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 08.22.1956 No. 1173), and which, on the basis of decisions of the USSR State Labor Committee, in the period before the entry into force of Decree of the Government of the Russian Federation of 04.24.1992 No. 272 when reviewing the relevant issues of the ETKS, they were unified in the professions included in the List, approved. Decree of the Government of the Russian Federation of April 24, 1992 No. 272;

The identity of the professions of workers provided for by the List of professions and positions of workers and foremen (including seniors) directly employed in logging and timber rafting (including maintenance of mechanisms and equipment) enjoying the right to pensions in accordance with paragraph “g” of Art. 12 of Law No. 340-1 (approved by Decree of the Government of the Russian Federation of April 24, 1992 No. 273), those professions that previously had other names that are provided for by Lists No. 1 and No. 2 of industries, workshops, professions and positions that give the right to a state pension to on preferential terms and in preferential amounts (approved by Decree of the Council of Ministers of the USSR of 08.22.1956 No. 1173), and which, on the basis of the decisions of the USSR State Labor Committee, in the period before the entry into force of Decree of the Government of the Russian Federation of 04.24.1992 No. 273, when revising the relevant issues of ETKS, were unified in the professions included in the List, approved. Decree of the Government of the Russian Federation of April 24, 1992 No. 273.

Decree No. 15 applies only to the professions of workers provided for by Lists No. 1 and No. 2 (approved on 22.08.1956 No. 1173), as well as the List of textile workers (approved on 01.03.1992 No. 130), whose names were changed during the preparation of new issues of ETKS due to their dissonance or unified due to the identity of the nature of work in the profession with other names.

In subsection 5 of section XV “Production of metalworking” of List No. 2 (approved in 1956), a number of occupations for workers (“oxidizer”, “galvanizer”, “nickel maker”, “passivator”, “ chrome maker”, etc.), carrying out the electroplating process. Later, due to the identity of the nature of the work, all these professions were unified into one profession "galvanic", provided for in the ETKS (issue 2) and included in subsection 5 of section XV of List No. 2 (approved in 1991).

Decree No. 15 does not apply to managers and specialists. The issue of the identity of the names of the positions of these employees is resolved in each specific case by the Ministry of Health and Social Development of Russia in agreement with the Pension Fund of the Russian Federation and, at the same time, only in relation to those positions that previously had other names and identical job functions.

It is impossible to establish the identity of those positions that are provided for in the current All-Russian Classifier of Professions of Workers, Positions of Employees and Wage Categories (OK 016-94) and staffing tables approved by organizations, since these workers have different job responsibilities.

Guided by Decree No. 15, the bodies providing pensions can count in the length of service that gives the right to early appointment of an old-age labor pension, the time spent in professions that previously had other names, regardless of the period in which the work in these professions took place. work book.

After registering a citizen in the personalized accounting system, the length of service must be confirmed on the basis of information from the individual (personalized) accounting. 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.

When working in special conditions

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, has been granted the right, on 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 the professions of workers and professions, taking into account which the right to preferential pension provision is granted, as well as the identity of 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 (not to be confused with the identity of the actual work performed, which is established individually in each specific case). 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 Article 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 employee's work book 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 account.

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 the period before the registration of the insured person 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 .

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 by the one provided for in the Lists (in this case, data on the official duties of the professions of workers from the Unified Tariff and Qualification Directory of Works and Professions of Employees can be used).

The main documents for clarifying information are:

To confirm the indicators of working conditions, the conclusions of the bodies for the examination of working conditions (workplace attestation cards for working conditions) can be used. 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 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, planning and production documents 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, the special length of service (nature of work) when the employee directly applies to the Pension Fund cannot be confirmed by witness testimony (except in cases of loss of documents as a result of emergencies).

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 consolidated its position in the Decree of the Plenum of December 11, 2012 No. 30 “On the practice of court consideration of cases related to the realization of citizens' rights to labor pensions”.

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

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

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 to the territorial bodies of the Pension Fund the documents necessary for maintaining individual (personalized) records, as well as for assigning and paying pensions (in particular, information indicating the periods of activity, included in the specialty). 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 audit.

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 plaintiff, the conditions and nature of the activity with 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 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 and professions he holds, the 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, it is required to confirm permanent employment in 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 for a full working day are counted in the special experience, unless otherwise provided by these Rules or other normative 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, giving the right to a pension due to special working conditions, then the special seniority, which gives the right 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 accordance with the “Methodological recommendations for conducting documentary (on-site) verifications of the reliability of information about the periods of work giving the right to early retirement benefits under Lists No. region on April 20, 2006: “if an organization or its specific subdivision (shop, site, etc.) worked stably, without downtime, then there is no need to check the permanent employment of workers hired for permanent work (practically for the period before 1992, the stability of work in the industry , construction and transport was observed)”.

MINISTRY OF HEALTH OF THE RUSSIAN
FEDERATION

On the procedure for submitting documents on the identity of positions, structural divisions, institutions

On the procedure for submitting documents on identity
positions, structural divisions, institutions

The Ministry of Health of the Russian Federation sends a joint letter to the Ministry of Labor and Social Development of the Russian Federation, the Ministry of Education of the Russian Federation, the Ministry of Health of the Russian Federation, the Ministry of Culture of the Russian Federation, the Board of the Pension Fund of the Russian Federation on the procedure for submitting documents on the identity of the names of positions, structural divisions, institutions.

The procedure for assigning an old-age labor pension and the rules for calculating periods of work (length of service) are established by Decrees of the Government of the Russian Federation dated July 11, 2002 N 516 "On approval of the rules for calculating periods of work giving the right to early appointment of an old-age labor pension in accordance with and and dated October 29. 2002 N 781 "On the lists of jobs, professions, positions, specialties and institutions, taking into account which an old-age labor pension is assigned ahead of schedule" .

According to general principles legal regulation the choice of the applicable legislation is determined by the moment the subject of law enters into the relevant legal relationship, i.e. the above procedure for calculating the length of service is applied in case of early appointment of an old-age labor pension (for all periods of work) for medical workers who have purchased given right after the entry into force of the above regulatory legal acts.

Identity is established in relation to the names of institutions, structural divisions, positions, the change of the name of which is due to the publication of new normative documents Ministry of Health of Russia.

The name (rename) of institutions, the creation (rename) of structural units, the introduction of positions of employees should be carried out in strict accordance with the current regulatory documents.

The staffing of the institution should be drawn up in the form approved by the order of the Ministry of Health of Russia dated January 18, 1996 N 16 "On the introduction of staffing forms for health care institutions", when the name of a particular position is indicated in the title structural unit. As practice shows, there is a change in the algorithm of entries in work books, when in the title, position there is an indication of the nature of the work performed - nurse at school (schools), school nurse (nurse), file cabinet nurse, etc. When making an entry in work book it is necessary to indicate the name of the institution, the name of the structural unit, the name of the position held (for example: Children's City Polyclinic N, pediatric department N 1, pediatrician, nurse (paramedic) or district pediatrician, district nurse). In these cases, the identity of the names is not established, and all additions are auxiliary and are of a clarifying nature, without reflecting the narrow specifics of the work.

Positions of doctors - anesthesiologists - resuscitators, nurses- anesthetists can only be introduced into the staff of departments (groups) of anesthesiology - resuscitation. These specialists enrolled in other departments, for example, in the surgical department, do not have the right to preferential calculation of length of service in the appointment of an early retirement pension for old age.

In accordance with paragraph 1.2 of the order of the Ministry of Health of Russia dated 12.10.99 N 371 "On the List of positions in which work is counted in the length of service that gives the right to a pension for the length of service, and the Rules for calculating the length of service for the appointment of a pension for the length of service", the heads of government bodies healthcare of the constituent entities of the Russian Federation, the main sanitary doctors The Central State Sanitary and Epidemiological Service of the constituent entities of the Russian Federation, heads of health care institutions of federal subordination were required to bring the names of health care institutions (structural divisions) and positions of medical workers in accordance with the nomenclature of health care institutions and positions of medical and paramedical personnel, as well as with current staffing standards approved by the Ministry of Health.

Paragraph 3 of the Notes to the order of the Ministry of Health of Russia dated 03.11.99 N 395 provides for the possibility of creating "Centers" on a functional basis as part of an institution. At the same time, the institution retains its name in accordance with the nomenclature of healthcare institutions (for example: City Hospital N, surgical department N (Hand Injury Center), surgeon).

The Ministry of Health of Russia receives numerous appeals not only from the heads of health care institutions on this issue, but also from medical workers of health care institutions.

Based on the clarification of the Ministry of Labor of Russia, the resolution of issues related to the provision of pensions for specific citizens falls exclusively within the competence of the bodies providing pensions on the ground.

In cases where a citizen or organization does not agree with the decisions made by these bodies, then in accordance with the law "On labor pensions in the Russian Federation" they have the right to appeal such decisions to higher authorities providing pensions to the constituent entity of the Russian Federation, and in case of disagreement with its decision - to appeal in the manner prescribed by the legislation on civil proceedings.

We draw your attention to the need for explanatory work in subordinate healthcare institutions.

Letter of the Ministry of Health of Russia dated May 17, 2002 N 2510/4920-02-32 "On Early Labor Pensions" defines the procedure and approximate list of documents submitted by the health management body of a constituent entity of the Russian Federation or the head of an institution of federal subordination.

A.I. Vyalkov

Appendix

Education authorities of subjects
Russian Federation

Health authorities of subjects
Russian Federation

Entity Culture Controls
Russian Federation

Branches of the Pension Fund
Russian Federation

Administration of Baikonur

Office of the Pension Fund of the Russian Federation
in federal districts

Clause 2 of Decree of the Government of the Russian Federation of July 11, 2002 N 516 "On approval of the Rules for calculating periods of work giving the right to early appointment of an old-age labor pension in accordance with and 28 of the Federal Law" On labor pensions in the Russian Federation "determined that the Ministry of Labor and social development of the Russian Federation, on the proposal of the federal executive authorities and in agreement with the Pension Fund of the Russian Federation, the right to establish the identity of professions, positions and organizations (structural divisions) provided for by and 28 of the Federal Law "On labor pensions in the Russian Federation", as well as lists of work , professions, positions, specialties and institutions approved by Decree of the Government of the Russian Federation of October 29, 2003 N 781, taking into account which an old-age labor pension is early assigned, the same professions, positions and organizations (structural divisions) that previously had other names innovations.

In the field of education, healthcare and culture, the federal executive bodies that submit documents to establish the identity of positions, institutions, structural divisions include the Ministry of Education of the Russian Federation, the Ministry of Health of the Russian Federation and the Ministry of Culture of the Russian Federation, respectively.

In practice, this means that an institution (organization) has the right to apply to the executive body of the constituent entity of the Russian Federation empowered in the field of education, health or culture, which prepares documents for submission to the Ministry of Education of the Russian Federation, the Ministry of Health of the Russian Federation or the Ministry of Culture of the Russian Federation, acting the subject of an identity initiative. These ministries must apply to the Ministry of Labor and Social Development of the Russian Federation with the relevant documents confirming the identity of the position, institution, structural unit that previously had names other than those provided for in the relevant lists.

Based on the assessment of the submitted documents, the Ministry of Labor and Social Development of the Russian Federation adopts, in agreement with the Pension Fund of the Russian Federation, an appropriate resolution (subject to registration with the Ministry of Justice of the Russian Federation), and in case of refusal, notifies the interested ministry.

We ask you to carry out the necessary explanatory work with organizations corresponding to the profile of activity: educational, medical profile, theatrical and entertainment - about the procedure for establishing identity.

Minister of Labor and Social Development
Russian Federation
A.P. Pochinok

Minister of education
Russian Federation
V.M.Filippov

Minister of Health
Russian Federation
Yu.L. Shevchenko

Minister of Culture
Russian Federation
M.E. Shvydkoi