What professions are identical in education. Early retirement: we prove the identity of the profession and the development of the norm of hours

POINT 1 OF ARTICLE 27 OF THE FEDERAL LAW "ON LABOR

PENSIONS IN THE RUSSIAN FEDERATION"

Judicial practice and legislation - Decree of the Ministry of Labor of the Russian Federation of 01.04.2003 N 15 On the establishment of 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

7. Periods of work in the professions of workers, unified during the revision of the releases of the Unified Tariff and Qualification Directory of Works and Professions of Workers (ETKS) in the professions provided for by the lists of jobs, professions, positions, specialties and institutions (organizations), taking into account which a labor pension is assigned ahead of schedule old age in accordance with subparagraphs 1, , and 7 of paragraph 1 of Article 27 federal law, whose identity is established by the Decree of the Ministry of Labor and social development Russian Federation dated April 1, 2003 N 15 "On the establishment of 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" (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. At the same time, the unification of such professions is confirmed by extracts from the ETKS or a relevant act.

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

APPEALS DETERMINATION

Judicial Collegium for Civil Cases of the Tver Regional Court

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

judges Komarova Yew.The. and Gudkova M.V.

when the secretary of the court session Oh.GN Galushkina

heard in open court

according to the report of Judge Tsvetkov The.The.

case on appeal of the State Institution-Department pension fund Russian Federation in the decision of the Rameshkovsky City Court dated DD.MM.YYYY, which decided:

“The claims of FULL NAME1 to the State Institution - the Office of the Pension Fund of the Russian Federation on the appointment of an early retirement old-age pension, partially satisfy.

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

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

Recognize for FULL NAME1 the right to the appointment of 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 Rameshkovsky PMK-25, that is, 6 months of maintenance days,

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

Oblige State Institution - Office of the Pension Fund of the Russian Federation to appoint FULL NAME1 early labor pension on preferential terms with DD.MM.YYYY.

To collect from the State Institution - the Office of the Pension Fund of the Russian Federation in Tverskaya in favor of FULL NAME1 300 rubles in return of the paid state fee, as well as the costs of paying for the services of a representative in the amount of 1000 rubles, and to collect in total from the State Institution - the Office of the Pension Fund of the Russian Federation in favor of FULL NAME1 1 300 rubles".

Judicial board

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, the pension authority) for the 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; recognizing his right to an early retirement pension in connection with work with difficult working conditions from DD.MM.YYYY; assigning the obligation to include the above periods in the special length of service related to difficult working conditions; imposing the obligation to assign him an early labor pension on preferential terms from DD.MM.YYYY; recovery of legal costs legal services and state tax. 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 the List No. , professions, positions and indicators that give the right to preferential pension provision” (hereinafter - List No. 2 of 1991), a gas welder and an electric welder of manual welding are provided. He performed welding work using an electric welding machine, as well as metal cutting work using a machine with gas burner, that is, he was an electric and gas welder. On his appeal from DD.MM.YYYY for the appointment of an early labor old-age pension in accordance with subparagraph 2 of paragraph 1 of Article 27 of the Federal Law of December 17, 2001 No. 173-ФЗ “On labor pensions in the Russian Federation” (hereinafter - the Federal Law “ On labor pensions in the Russian Federation”), the defendant refused, referring to the presence of a special length of service in the amount of 9 years 9 months. 26 days instead of the required 12 years 6 months.

At the hearing the plaintiff FULL NAME1 and his representative FULL NAME7 stated requirements supported.

Representatives of the defendant GU-UPF RF in FULL NAME8, FULL NAME9 at the hearing did not recognize the claim, referring to the fact that preferential pension provision for workers by profession “welder” was not established by List No. 2 of 1991. Since the plaintiff's privileged experience 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. It cannot be concluded from the documents submitted by the plaintiff that he worked full-time. List No. 2 of 1991 and List No. 2, approved by the Decree of the Council of Ministers of the USSR No. 1173 of August 22, 1956 (hereinafter - 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 of 1991), electric and gas welders of their assistants, electric welders and their assistants (List No. 2 of 1956) have the right to an early retirement pension 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 in preferential service on the basis of the Decree of the Government of the Russian Federation dated April 24, 2003 No. 239, subject to documentary confirmation of the performance of the work provided for this profession. S DD.MM.YYYY FULL NAME1 registered in the system of personalized accounting. The employer, the Trudovik collective farm, 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, he did not confirm the special the nature of his work. The submitted documents do not confirm the fact of the plaintiff's full-time work as a manual electric welder, an electric gas welder engaged in cutting and manual welding. The pension authority included in the preferential service according to List No. 2 periods in the position of a gas-electric welder engaged in cutting and manual welding in 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 JSC "Rameshkovsky DRSU" from DD.MM.YYYY to DD.MM. YYYY Mr.

The Court upheld the above decision.

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

With regard to the appeal, the plaintiff FULL NAME1 and his representative FULL NAME7 filed objections, according to which they ask to leave the complaint without satisfaction, and the court's decision - unchanged.

Having studied the materials of the civil case, discussed the arguments of the appeal and objections to it, after hearing 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 panel of judges comes to the following conclusions.

The decision is justified when the facts relevant to the case are confirmed by evidence examined by the court that meets the requirements of the law on their relevance and admissibility, or by circumstances that do not need 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 requirements of the law.

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 evidence in their totality.

It follows from the case file that by the decision of the defendant dated DD.MM.YYYY No. the plaintiff, on 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 insufficient 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 dated DD.MM.YYYY No. in the special length of service FULL NAME1, among others, the periods from DD.MM.YYYY to DD.MM.YYYY and from DD.MM.YYYY were not included according to DD.MM.YYYY as a welder of the Trudovik collective farm, from DD.MM.YYYY according to DD.MM.YYYY as a welder of PMK No. 25.

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

Subparagraph 2 of paragraph 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 according to reaching the age of 55 and women upon reaching the age of 50, 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.

If these persons have worked at the listed jobs for at least half due date and have the required length of insurance experience, a labor pension is assigned to them with a decrease in the age provided for in Article 7 of the said law by one year for every 2 years and 6 months of such work for men and for every 2 years of such work for women.

According to paragraph 2 of Article 27 of the Federal Law “On labor pensions in the Russian Federation”, lists of relevant jobs, 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, the rules for calculating periods work (activities) and the appointment of the specified 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 of July 18, 2002 No. 537 “On the lists of industries, works, professions and positions, taking into account which an old-age labor pension is early assigned in accordance with Article 27 of the Federal Law “On labor pensions in the Russian Federation”, it is stipulated that in case of early assignment of an old-age labor pension to employees employed in work with difficult working conditions, List No. 2 of 1991 is applied.

At the same time, the time of work performed before January 1, 1992, provided for by List No. 2 of 1956, is counted in the length of service that gives the right to early appointment of an old-age labor pension, along with the work provided for by List No. 2 of 1991.

Section 32 " General Professions» List No. 2 of 1956 provides for the right to preferential pensions for gas cutters and their henchmen; gas welders and their henchmen; welders of argon and atomic hydrogen welding; electric welders and their henchmen.

Section 33 "General Professions" of Schedule No. 2 of 1991, establishes that gas welders (item 23200000-11620) enjoy the right to early retirement benefits; 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 hazard class 3 (item 23200000-19756); electric welders on automatic and semi-automatic machines, engaged in welding in a carbon dioxide environment, at work using fluxes containing harmful substances of at least hazard class 3, as well as on semi-automatic machines (positions 23200000-19905); manual welding electric welders (item 23200000-19906).

In paragraph 2 of the clarifications of the Ministry of Labor and Employment of the RSFSR and the Ministry social protection 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 RSFSR population dated January 8, 1992 No. 235, it was indicated that employees who are permanently employed performance of works provided for by Lists No. 1 and No. 2 within a full working day.

A full working day is understood as the performance of work in the conditions provided for by the Lists, at least 80% of the working time. At the same time, at the specified time, the performance of preparatory, auxiliary, current repair work, as well as work outside their workplace in order to ensure the performance of their labor functions, is included.

Previously, the current pension legislation did not contain these requirements, therefore, confirmation of permanent employment by performing the work provided for by the Lists during the full working day until 01/01/1992 was not required.

Satisfying the plaintiff's claim for recognition of work with DD.MM.YYYY according 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 Rameshkovskaya PMK-25 by working as an electric welder, the court did not take into account that the profession "welder" as an independent one by the Unified Tariff and Qualification Reference Books of Works and Professions of Workers of the Edition 1969-1974, 1985. was not provided.

According to the explanations contained in paragraph 16 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated December 11, 2012 No. 30 “On the practice of court consideration of cases related to the realization of the rights of citizens to labor pensions”, if a citizen disagrees with the refusal of the body providing pensions, include in the length of service giving the right to early appointment of an old-age labor pension (paragraph 1 of Article 27 of Federal Law No. 173-FZ), the period of work subject, in the opinion of the citizen, to be credited to this length of service, it must be taken into account that the question of the identity of the work performed by the plaintiff, the position held, the existing profession, those jobs, positions, professions that give the right to early appointment of an old-age labor pension, is decided by the court based on the specific circumstances of each case established at the court session (the nature and specifics, conditions of the work carried out by the plaintiff, performed by him functional duties according to the positions held and available professions, workload, taking into account the goals and objectives, as well as the activities of the institutions, organizations in which he worked, etc.). At the same time, the establishment of the identity of various names of jobs, professions, positions is not allowed.

The courts are not entitled to establish the identity of professions, positions, however, the courts are given the opportunity to establish the identity of the functions, conditions, nature of activity performed by the plaintiff with those jobs that give the right to early appointment of an old-age labor pension. At the same time, this issue of identity for offsetting disputed periods of work in special experience can be resolved by the court only if the employer incorrectly names the position of the plaintiff.

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 the welder of Rameshkovskaya PMK-25 by working as an electric welder, which actually establishes the identity of the profession "welder" of 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 dismiss the claim.

When deciding on imposing on the pension authority the obligation to set off 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 according to DD.MM.YYYY as a welder of 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 Labor Committee dated 20.04.1967 No. 653-IG, according to which the profession "welder" is the same as the professions "gas welder" and "electric welder" in terms of the nature of the work performed and working conditions, therefore the right of welders to a preferential pension is determined under the same conditions as electric welders.

However, by virtue of clause 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 clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 11.12.2012 No. 30 "On the practice of consideration by the courts of cases related to the implementation of the rights of citizens to labor pensions."

Since the only evidence available in the case file confirming the possibility of carrying out FULL NAME1 electric welding work in disputed periods, in particular in the period from DD.MM.YYYY to DD.MM.YYYY, is the act drawn up by the defendant dated DD.MM.YYYY no. primary documents collective farm "Trudovik", according to which the presence of annual reports of the collective farm for 1987-1994, containing information about the existing welding machine brand SVA-380 V, then the court decision regarding the inclusion in the special experience of the plaintiff of periods of work from DD.MM.YYYY to DD.MM.YYYY as a welder of the Trudovik collective farm and from DD.MM.YYYY to DD.MM.YYYY as a welder of Rameshkovskaya PMK-25 cannot be recognized as justified and legal, and therefore it is subject to cancellation in this part with the adoption of a new decision to refuse to meet these requirements.

Taking into account undeniably credited by the pension authority to the claimant’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”, periods of work lasting 9 years 9 months. 26 days and the period subject to offset in accordance with the decision of the court of first instance in the present case - from DD.MM.YYYY to DD.MM.YYYY for a duration of 4 years 1 month. 16 days, the total duration of the claimant's special experience 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 fact that the plaintiff has an insurance period of more than 36 years with the required 25 years, which was not disputed by the defendant, the plaintiff FULL NAME1 at the time of applying to the pension authority DD.MM.YYYY for the appointment of a pension had the right to pension provision in accordance with subparagraph 2 of paragraph 1 of Article 27 of the Federal Law "On labor pensions in the Russian Federation", in connection with which, contrary to the arguments of the appeal of the pension authority, the defendant did not have legal grounds to deny the plaintiff the exercise of this right.

Guided by Articles, Judicial Board

determined:

the 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 at the Trudovik collective farm, from DD.MM.YYYY to DD.MM. YYYY in Rameshkovsky PMK-25, from DD.MM.YYYY to DD.MM.YYYY in the collective farm "Trudovik" (OKP of the collective farm "Trudovik"), 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 obligation to include in special work experience FULL NAME1 periods of work from DD.MM.YYYY to DD.MM.YYYY in the collective farm "Trudovik", from DD.MM.YYYY to DD.MM.YYYY in Rameshkovskaya PMK-25 cancel.

Accept the case in this part of the new decision to refuse FULL NAME1 to satisfy the claim.

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

Chairman V.V. Tsvetkov

Judges of the regional court Yu.V.Komarova

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 that give the right to early retirement benefits (special length of service).

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

The Ministry of Health and Social Development of Russia, in turn, was granted the right to submit federal bodies executive power and, in agreement with the Pension Fund of the Russian Federation, 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 the federal executive authorities, and information from the individual (personalized) record of the insured person, from which it should be clear that the nature of work by profession (position) is similar to the nature of work by profession (position) provided for in Articles 27 and 28 of the Law or the Lists of relevant types of work.

In practice, situations often arise when the Pension Fund authorities refuse to grant an early old-age pension for work in special working conditions due to 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 record.

In accordance with the List of Documents approved by the Decree of the Ministry of Labor of Russia and the Pension Fund of the Russian Federation dated February 27, 2002 No. 16 / 19pa, to the application of a citizen who applied for an old-age labor pension in accordance with Articles 27 and 28 of the Law on Labor Pensions, if necessary, documents must be attached confirming the nature of the work performed or working conditions, giving the right to early appointment of an old-age labor pension.

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 it comes to period before registration the insured in the accounting system if there are no requirements for indicators of the nature of work and working conditions in the Lists, and the work book contains sufficient information about the production, profession (position) of the employee, then additional documents confirming the special experience are not required.

Sometimes confirmation is required not only of the profession or position, but also of indicators of working conditions. A feature of the list of professions (positions) of Lists No. 1 and 2 is that they full value in some cases it is determined not only by the name of the profession (position), but also by the exact indication of the labor function, production operation. Sometimes the labor function depends on the direct employment of the employee in the technological units provided for by the Lists. Often the profession of an employee is determined not only by its name, but also by an indication of the name of the machines, mechanisms, units operated or serviced by the employee, as well as the nature of the work performed on them. Important are the requirements for those professions and positions that are determined by the place (object), structural subdivision of work, characterizing the conditions of the working environment.

In cases where the work book does not contain all the necessary information or if the legislation provides for additional factors (except for the names of professions and positions) for the early appointment of a pension, the employer issues the employee a clarifying certificate on the nature of the work performed by him, which indicates on the basis of which documents she issued. The certificate must confirm the identity of the work performed the one provided for in the Lists (in this case, data on the job responsibilities of the professions of workers from the Unified Tariff and Qualification Directory of Works and Professions of Employees can be used).

Basic documents for clarifying information are:

Orders 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 of the 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 attributing to a specific production, provided for by the Lists, may be founding documents, licenses to exercise certain types activities, certificates of works (services), certificate of registration in the state register of hazardous production facilities, technological regulations, the 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 entitles 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 the specified date - in accordance with the All-Russian Classifier of Economic Activities, Products and Services and All-Union classifier 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 retirement 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, this circumstance, being independent of the plaintiff, does not deprive her of the right to receive a preferential pension by a court decision.

In accordance with the previous procedure for confirming work experience (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 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 length of service (nature of work) cannot be confirmed when the employee directly applies to the Pension Fund witness testimony(except in cases of loss of documents as a result of emergencies ).

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 witness 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. 13 of the Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation” (as amended by the Federal Law of July 24, 2009 No. 213-FZ) ... the court is not entitled to accept the testimony of witnesses as admissible evidence of character work". Later, the Supreme Court also consolidated its position in the Decree of the Plenum dated 12/11/2012 No. 30 “On the practice of court consideration of cases related to the realization of citizens' rights to labor pensions”.

It remains unclear how, in this case, the phrase from par. 4 p. 12 Art. 30 of the Law on Labor Pensions (“... the procedure for confirming the length of service, including the 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 Supreme Court's opinion that it is impossible to use witnesses' testimonies does not seem to be entirely convincing.

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

The absence of such information should not be a reason for refusing to count certain periods of work into the “preferential” pension experience, since the correctness, completeness and timeliness of reflecting information for employees in the personalized accounting system is a joint task of the insurer (pension authority) and the insured (employer), and not an employee.

Thus, in accordance with the Federal Law of December 15, 2001 No. 167-FZ “On Compulsory Pension Insurance in the Russian Federation” (Article 14) and Federal Law of April 1, 1996 No. 27-FZ “On Individual (Personalized) accounting in the system of compulsory pension insurance” (Article 11), the employer is obliged to submit 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; 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 decision of the Plenum of the Supreme Court of the Russian Federation dated December 11, 2012 No. 30, “in case of disagreement of a citizen with the refusal of the pension authority to include in the special length of service, the period of work subject, in the opinion of the plaintiff, to be included in the special length of service, it must be taken into account that the issue on the type (type) of the institution (organization), the identity of the functions performed by the claimant, the conditions and nature of the activity those jobs (positions, professions) that give the right to early appointment of an old-age labor pension should be decided by the court based on the specific circumstances of each case established at the court session (the nature and specifics, the conditions of the work carried out by the plaintiff, the functional duties performed by him in the positions held and professions, workload, taking into account the goals and objectives, as well as the activities of the institutions, organizations in which he worked, etc.)”.

In some cases, confirmation is required permanent employment on the relevant types of work (for example, in accordance with paragraph 4 of the Rules of July 11, 2002 No. 516, periods of work performed constantly during the full working day are counted in the special experience, unless otherwise provided by these Rules or other regulatory legal acts).

The duration of a full working day (shift) is determined based on the normal or reduced working hours in accordance with 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 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 working week, but performed full-time work, giving the right to a pension in connection with special working conditions, then the special length of service, giving the right to a pension in connection with special working conditions, is calculated by him according to the time actually worked.

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

At the same time, in line with methodological recommendations on conducting documentary (on-site) verifications of the accuracy of information about the periods of work giving the right to early retirement benefits under Lists No. 1 and 2, approved by the Deputy Governor of the State Institution - Department of the FIU in Moscow and the Moscow Region on April 20, 2006: “if an organization or its specific subdivision (workshop, site, etc.) worked stably, without downtime, then there is no need to check the permanent employment of employees hired for permanent job(practically for the period up to 1992, the stability of work in 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 of 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 rail fastenings, punching and cleaning of hot metal, heat treatment, production of calibrated metal.

In this case, the employee needs to confirm: the compliance of the duties performed with the duties of the hot tinker profession contained in the List (they can be found in the Unified Tariff and Qualification Reference Book of Works and Professions of Workers, Issue 2, approved by Decree of the Ministry of Labor of Russia dated November 15, 1999 No. 45 ); performance of the work indicated in the List constantly for a full working day (time log); the affiliation of the production in which he was employed as indicated above (using, for example, the certificates of work that the enterprise has, the OKVED code assigned to the enterprise).

Example 2 . The Pension Fund refused to count in the special experience, giving the right to early retirement, the time of work as a foreman of the main production area at the processing plant. The peculiarity of the production was to work with substances characterized by high radioactivity. Employees employed in it must be retired according to List No. 1, section XXII - “Work with radioactive substances, sources of ionizing radiation, beryllium and rare earth elements”, position code 12201000-17546 - “Workers, managers and specialists permanently employed in work with radioactive substances activity in the workplace of more than 10 millicuries of radium-226 or an equivalent amount of radioactive substances in terms of radiotoxicity and on the repair of equipment under these conditions.

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

It turned out to be difficult for the employee to collect all the documents requested by the pension 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 offers the following options for solving the problem of non-crediting in the length of service, which gives the right to early appointment of an old-age labor pension, which are relevant in cases when the employee has not yet reached retirement age:

1. 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 dated 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”.

1. An employee’s application 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 (the basis is Article 14 of the Federal Law of April 1996 No. 27-FZ “On individual (personalized) accounting in the system of 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.

1. The employer's appeal to the court with a demand to recognize as illegal the refusal of the Pension Fund body to accept individual information about the insured persons, taking into account the codes of privileged professions.

This option allows 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 of the third option for solving the problem of non-crediting in the length of service, giving the right to early appointment of a pension (when the employer disputes in court the actions of the pension authority to refuse to accept information about the "harmfulness" of the length of service of employees), is the decision of the Arbitration Court Sverdlovsk region dated 05/14/2008 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 committed violations 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 office, since the defendant these requirements are met 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 to cancel the decision, 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 the 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, discussing 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-ФЗ “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 labor 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 file 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 file 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 carried out pedagogical activities 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 name” 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 Board believes that this judgment cannot be recognized as correct, since the position of the plaintiff in its name is the deputy head of the preschool institution for educational and methodical work- corresponds to the title of the position provided for by List N 781; the connection of its activities with the educational (educational) process is not disputed by the defendant and is confirmed by the job description, in official duties and whose functions 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 rightfully 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 in the position of 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 clause 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 corresponds to the explanations contained in paragraph 12 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated 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" clause 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 clauses 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 of this conclusion of the court and have no legal significance, since regardless of this, the work of the plaintiff in this 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, provided only to the Ministry of Labor and Social Development of the Russian Federation on the proposal of the federal authorities executive power 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, which, according to the plaintiff, is subject to crediting into a 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 works (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 question 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 to recognize 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 staff, engaged in service preschool institutions(nursery, nursery-kindergartens, 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 claims 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 have no 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 properly assessed 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 demand to oblige the State Institution - the 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 01.11.1999 to 09.23.2011 in the position of deputy head of educational and methodical work.

Considering that, by a court ruling of December 22, 2011, the proceedings on the case were terminated in terms of the requirements for inclusion in the special length of service of the period of work 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 not satisfied.

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 11/01/1999 to 03/01/2001 in the position.

presiding
O.V.SHALAGINA

Judges
Yu.A. PISKUNOV
L.K.VOROZHTSOVA

COURT DOCUMENTS

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

2-751

SOLUTION

In the name of the Russian Federation

Kushvinsky City Court of the Sverdlovsk Region, consisting of:

presiding judge Romanova N.N.,

under the secretary Siter E.D.,

having considered in the premises of the Kushvinsky City Court in open court a civil case on the claim of S. to the Fund on establishing the identity of professions, including the period of work in the length of service, giving the right to early appointment of an old-age pension,

SET UP:

On April 22, 2009, S. applied to the Fund with an application for the appointment of an early old-age pension in connection with work in difficult working conditions for at least 12 years and 6 months and an insurance record of at least 25 years in accordance with paragraphs. 2 p. 1 art. 27 of the Federal Law “On labor pensions in the Russian Federation” dated December 17, 2001 No. 173-FZ, since from February 01, 1988 to December 31, 1991 he worked as a boiler-maker of the boiler-welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration.

By the decision of the Fund dated June 26, 2009 No. 490/15240 C., the early appointment of an old-age pension under paragraphs. 2 p. 1 art. 27 of the Federal Law "On labor pensions of December 17, 2001 No. 173-FZ on the basis of the absence of the required length of service in the relevant types of work - at least 12 years 6 months, since the period of work from February 01, 1988 to December 31, 1991 is not accepted for offset Boiler worker of the boiler-welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration (03 years 11 months).

S. filed a lawsuit against the Fund to establish the identity of professions, the inclusion of the period of work in the length of service, giving the right to early appointment of an old-age pension.

At the court session, the plaintiff S. supported his claims, in their justification he explained that he did not agree with the decision of the fund, since he worked as a boiler-maker of 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 Decree of the Council of Ministers of the USSR No. 1173 of August 22, 1956, boilermakers of mechanical workshops of mining enterprises were entitled to preferential pension provision. Subsequently, by letter of the State Committee for Labor No. 19-3869 dated February 25, 1970, boiler workers of mechanical workshops of mining enterprises were equated with locksmiths for the repair of equipment, mechanisms, water and air lines employed in mines, in cuts and quarries, since the same nature of work was established. Indeed, his labor duties as a boiler-maker of the boiler-welding section of the mechanical-repair shop coincided with the duties of a locksmith for the repair of equipment, mechanisms, water and air lines employed in mines, cuts and quarries. He worked in this position for 03 years 11 months. It was this period of work that the Foundation did not count in his preferential seniority. At the same time, the credited length of service was 09 years 07 months 22 days. Accordingly, if the above period of work as a boilermaker is credited, then his work experience with 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 boiler operator in the boiler-welding section of the mechanical repair shop should be included in the special experience, since he did not know earlier and could not know that this position by name does not correspond to the List of positions giving the right to early preferential appointment old age pensions. In this connection, he asks the court to establish the identity of the profession “boilermaker of mechanical workshops of mining enterprises” with the name “mechanic for the repair of equipment, mechanisms, water and air lines employed in mines” and include it in the length of service, giving the right to early appointment of a labor pension for old age, the period of his work from February 01, 1988 to December 31, 1991 as a boiler worker of the boiler and welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration, and also to oblige the Fund to grant him an early old-age pension from April 22, 2009, that is, from the moment of applying to the fund .

The defendant's representative, 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 for the assignment of an old-age labor pension to him under paragraphs. 2 p. 1 art. 27 of the 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 of the Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation”, an old-age labor pension is assigned before reaching the age established by Article 7 of this Federal Law, for men upon reaching the age of 55 years and for women upon reaching the age of 50 years, if they have worked in jobs with difficult working conditions for at least 12 years, 6 months and 10 years, respectively, and have an insurance record of at least 25 and 20 years, respectively.

Having considered S.'s documents submitted for the appointment of an early retirement pension, the fund's commission issued decision No. 490/15240 dated June 26, 2009 to refuse to grant an early retirement pension due to the lack of a special length of service in the amount of 12 years 6 months. At the same time, the period of his work from February 01, 1988 to December 31, 1991 as a boiler worker of the boiler-welding section of the repair and mechanical shop of the Goroblagodatsky Mining Administration is not subject to offset in the special length of service, which gives the right to early appointment of a labor pension and is disputed by the plaintiff.

The Fund's refusal to assign an early retirement pension is motivated by the fact that the plaintiff's employment in boiler houses, shipbuilding, ship repair, ship hull works, provided for by 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 the Decree of the Cabinet of Ministers of the USSR dated January 26, 1991 No. 10. The scale of the boiler worker of the boiler and welding section of the repair and mechanical workshop and the activities in the positions provided for in the above Lists are not comparable in terms of 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, 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, evaluating such factors as the nature and working conditions, based on analogy.

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

An early pension is not due to the factors provided for by the Constitution of the Russian Federation, therefore, the socially unreasonable expansion of the circle of recipients of pensions to preferential ones in comparison with 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 premiums of other interested persons 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 fund 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. He asks to refuse to meet the stated requirements.

The plaintiff's claims for the appointment of an early labor old-age pension from the moment of applying to the Office of the Pension Fund of the Russian Federation also considers unreasonable, since in accordance with paragraph 2 of Art. 19 of Law No. 173-FZ, the day of applying for a labor pension is considered the day the body responsible for providing pensions receives the relevant application with all necessary documents. As of April 22, 2009, S. appealed to the fund's body for the appointment of an early labor pension, there were no grounds for including disputed periods of work in the above positions and institutions. Accordingly, there are no grounds for the appointment of an early labor pension from the moment the plaintiff applied.

In this connection, the fund asks the court to dismiss S.'s claims in full.

Witness B. explained to the court that she worked in the Goroblagodatsky Mining Administration as a rate-setter at a foundry section. Since 1982, she also worked as the head of the labor department. She knew that at that time the boilermakers on the list No. 2, and in accordance with the letter of the State Labor Committee No. 19-3869 dated February 25, 1970, the boiler workers of the mechanical workshops of mining enterprises were equated with mechanics for the repair of equipment, mechanisms, water and air mains, employed in mines, cuts and quarries, since the same nature of work was established. Worked in maintenance of all workshops, current repair mining equipment, factories, quarries and mines. That is, the boilermakers performed locksmith work.

The court, after hearing the plaintiff, the defendant's representative, having interrogated the witness, having studied the case materials and giving them an assessment, comes to the following conclusions.

On April 22, 2009, S. applied to the fund with an application for the appointment of an early old-age pension in accordance with paragraphs. 2 p. 1 art. 27 of the Federal Law "On labor pensions in the Russian Federation" and submitted the relevant documents.

By collegial decision No. 490/15240 dated June 26, 2009 (case file 5-6), S. was denied the appointment of an early retirement old-age pension due to the lack of the required special length of service - 12 years 6 months. At the same time, 9 years 7 months 22 days were included in the special experience, giving the right to early appointment of a labor pension, and indicated that the period of work of the plaintiff from February 01, 1988 to December 31, 1991 as a boiler worker of the boiler-welding section of the repair - the mechanical workshop of the Goroblagodatsky Mining Administration (03 years 11 months), since the employment of the plaintiff in boiler houses, shipbuilding, ship repair, ship hull works, provided for by List No. 2, section XV subsection 3 a, approved by the Decree of the Council of Ministers of the USSR No. 1173 of August 22, 1956, was not confirmed, and list No. 2 section XIV subsection 3 a - 13144, approved by the Decree of the Cabinet of Ministers of the USSR dated January 26, 1991 No. 10.

Based on the collegial decision of the Fund No. 490/15240 dated June 26, 2009, it was established that the above period of work as a “boiler operator in the boiler and welding section of the mechanical repair shop” was not counted in the preferential length of service required for early receipt of old-age pension C. The offset of this working period in special experience can be made on the basis of a court decision.

According to the copy of S.'s work book (ld) in the file, from February 01, 1988 to December 31, 1991, he worked as a boiler-maker in the boiler-welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration.

By virtue of paragraph 9 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 20, 2005 No. 25 “On some issues that arose with 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 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.

By virtue of par. 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, for 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 an early retirement pension in connection with the specified activity is determined in accordance with List No. 2 of industries, shops 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 ( old age) on preferential terms, approved by the Decree of the Cabinet of Ministers of the USSR of January 26, 1991 No. 10 and applied on the basis of the Decree of the Government of the Russian Federation No. 537 of July 18, 2002. However, these Lists do not provide for the position of “boilermaker of mechanical workshops of mining enterprises”. Nor was this position envisaged by the regulations in force until 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 the clarifying certificate No. 291 dated April 01, 2004 (case sheet 7), S. worked in the mechanical repair shop of OJSC Goroblagodatskoye Mining Administration from February 01, 1988 to December 31, 1991 as a boiler operator of the boiler and welding section.

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

Accordingly, List No. 2 of industries, shops 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 Decree of the Government of the Russian Federation No. 239 of 24 April 2003, it is stipulated that locksmiths for the repair of equipment, mechanisms, water and air lines employed in mines, in cuts and quarries are entitled to an early appointment of an old-age pension.

Part 2 Art. 6, part 4, art. 15, part 1, art. 17, art. 18, 19, part 1 of Art. 51 of the Constitution of the Russian Federation, in their meaning, imply legal certainty and the predictability of the legislative policy in the field of pension provision, which are necessary for the participants in the relevant legal relations to be able to reasonably foresee the consequences of their behavior and be sure 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 employees of certain professions could not foresee in the future that the position of “boilermaker in mechanical workshops of mining enterprises” would not be included in the length of service, giving the right to early appointment of an old-age pension.

Considering the above legal provisions, the court considers it possible to satisfy the requirements of S. on establishing the identity of the profession “boilermaker of mechanical workshops of mining enterprises” with the name “mechanic for the repair of equipment, mechanisms, water and air lines employed in mines” and the inclusion in the preferential seniority of the period of his work from February 01, 1988 to December 31, 1991 as a boiler worker of the boiler and 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 the 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 the plaintiff S. on the obligation of the fund to grant him an early labor pension from April 22, 2009, the court considers it necessary to satisfy this requirement, since the plaintiff has a special length of service in the amount of 12 years 06 months, necessary for the early assignment of a labor pension for old age in accordance with paragraphs. 2 p. 1 art. 27 of the 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 collegiate decision of the Fund Commission No. 490/15240 dated June 26, 2009 and the relevant legislation.

According to Art. 19 of the 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 the labor pension).

S.'s right to apply to the court for establishing the identity of professions and recognizing the right to a pension for long service is declarative in nature. On April 22, 2009, the plaintiff applied to the Fund Management with an application for the appointment of an early retirement old-age pension.

Accordingly, the right to appoint an early labor old-age pension arose from S. in accordance with Art. 19 of the 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 the state duty; accordingly, the court considers it necessary to recover the state duty from the defendant.

Guided by Article.Article. 194 - 198, 199 Code of Civil Procedure of the Russian Federation, court

DECIDED:

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

Set the identity of the names of professions:

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

To include in the length of service giving S. the right to early appointment of an old-age labor pension, the period of work from February 01, 1988 to December 31, 1991 as a boiler worker of the boiler and welding section of the mechanical repair shop of the Goroblagodatsky Mining Administration, that is 03 years 11 months.

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

To recover from the State Duty Fund in favor of S. 100 rubles, to the state revenue 1900 rubles.

The decision in 10 days can be appealed to the Judicial Collegium for Civil Cases of the Sverdlovsk Regional Court from the date of its preparation in a reasoned form through the office of the Kushvinsky court.

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

Judge Kushvinsky

city ​​court Romanova H.GN