Dear readers of the legal portal “site”, we are glad to welcome you. You have found yourself on the page of our portal, where you will find information about whether compensation is due for work in harmful, and even worse, dangerous working conditions. Let's talk about the circumstances under which compensation is assigned, what it includes, and how it is processed in 2019.
The article will be useful to all current, former and future employees of hazardous industries. Knowing the list of benefits and compensations that are guaranteed to an employee for working in hazardous processes, you will be able to minimize negative risks and also gain opportunities for recovery.
Attention! If the employer does not guarantee the employee compensation in the form of additional leave for harmful working conditions, then he can be held liable on the basis of Art. 5.27 Code of Administrative Offences.
General provisions or what are harmful conditions
Special assessment of working conditions (SOUT) - determination of the degree of danger and harmfulness of the work process. If, as a result of such an examination, factors are identified that determine the risk for the employee, then he will be assigned some kind of compensation.
Article 14 of Federal Law No. 426 “Special assessment of working conditions”, we consider the wording, which dated 05/01/2016 provides a classification of labor processes by degree of danger.
When determining the danger of labor processes, the following groups of factors are taken into account:
- chemical effects (presence of enzymes, hormonal substances, reagents);
- biological hazard (presence of microorganisms, pathogens in the work process)
- bacterial formations);
- background radiation;
- physical measures, including temperature and noise, humidity and vibration effects, electromagnetic radiation;
- risk of injury;
- other.
Attention! In order for employees to be eligible for workers' compensation benefits, the working conditions must fall into the "Hazardous" category. Initially, the collective agreement specifies the forms and types of compensation for dangerous, harmful labor processes.
How are hazardous conditions determined at an enterprise?
Compensation for harmful processes will be provided only if working conditions are recognized as unfavorable for the health of employees. Possibilities for the provision of compensation by the employer must be initially provided for in the cooperation agreement.
The employer is responsible for compliance with labor law standards. He must organize the work process and minimize risks to the health of personnel. And to prevent negative consequences, he is obliged to classify the degree of risk of workplaces. Distribution into classes is made taking into account the danger that accompanies the employee at the stage of performing work duties.
To determine the harmfulness of the entire production and individual workplace, a special commission is involved. At the special request of the employer, SOUT is carried out. Procedure:
- Submitting an application for examination of the SOUT.
- Collection of necessary documentation.
- Submitting a package of papers to a government agency.
- Development of an order in accordance with which a special evaluation commission is created.
- Issue of a special conclusion by the commission. The document takes into account the following points:
- seat class;
- list of measures to reduce harm.
- Implementation of inspection results into the production process.
On a note! The assignment of compensation for harmful working conditions and the determination of its amount are based on the provisions of the Labor Code, the collective agreement (other internal documents).
Under what conditions is compensation awarded for unfavorable working conditions in 2019?
A specific workplace may be assigned a different hazard class. But regardless of the degree of danger, they all have a certain negative effect on the body. Supplements to wages and non-financial types of compensation are prescribed under the following conditions:
- The level of negative impact received during one work shift does not allow the employee to recover before the next return to work.
- There is a risk in the work process:
- achieving functional changes in the body;
- receiving occupational diseases;
- loss of ability to work.
On a note! Each of the identified unfavorable conditions must be included in the SOUT report and in the employment contract.
Hazardous areas of production
Work in the field of geodesy, geological exploration, and microbiology poses a danger to the human body. Earthenware and glass production, industrial production of thermometers and hydrometers are considered harmful. Jobs in electrical, electronics and electronics manufacturing are also classified as having a negative impact.
Areas of activity in which work requires compensation are specified in the wording of Government Decree No. 188, dated March 29, 2002. The normative act specifies “dangerous” areas of activity and specialties.
Types of compensation in 2019
Legislation guarantees certain compensation measures for harmful working conditions. One of them is the free provision of milk, guaranteed by Art. 222 TK. It must be provided by the employer to the employee for harm.
Types of compensation measures for hazardous production processes:
- Extending rest time. Additional paid days, at least seven days, are guaranteed to employees and are added to the main leave.
- Reducing the working period by reducing the duration of the shift, work shifts. The maximum weekly workload cannot exceed 36 hours.
- Financial surcharges for harmfulness. In this case, the salary is increased by at least 4%.
- Preferential pension. Employees of dangerous organizations have the right to retire early.
- The right to free health improvement and treatment.
- Free security tools for a safe workflow. This includes special clothing and disinfectants. The employer is responsible for purchasing such tools.
Attention! The amounts of compensation payments are subject to taxation in 2019.
Features of payment of compensation amounts
For hazardous working conditions, payment, which is assigned on the basis of a special assessment of the labor safety standard, is provided in kind or in financial equivalent. Workers who are exposed to negative chemical and biological effects during working hours are entitled to enhanced nutrition (milk and other products that neutralize the negative risks of radiation).
In 2019, the employer himself has the right to establish the type and amount of compensation measures, taking into account the provisions of the Labor Code. An increase in the amount can be initiated by him. All financial types of compensation are paid from the employer’s insurance contributions, taking into account the tariffs of insurance organizations.
Attention! An employee can increase the amount of additional payments by refusing in-kind forms of compensation.
If negative production factors are eliminated, the employer has the right to cancel additional payments. He can take such a step only after carrying out the next SOUT check. The commission must confirm the absence of hazardous factors in specific workplaces.
Subtleties of purpose
In practice, there are situations where danger is not associated with the entire work cycle, but only with individual work tasks. In general, work in a workshop can be safe, but some part of the work, for example, loading consumables, can negatively affect health. Then compensation will be assigned only for the period of performing harmful actions.
In this case, the enterprise administration can choose one of the existing schemes:
- Determining the bonus for each individual employee, taking into account the actual time spent performing dangerous sections of work.
- Establishment of a single additional payment for all employees not lower than the rate prescribed by law.
On a note! In practice, the employer more often uses the second option, when an increase in income, taking into account harmful working conditions, is carried out immediately for all employees. A special single code is used.
Additional measures to encourage work in hazardous conditions in 2019
An amount calculated at 4% of the salary is a mandatory compensation measure. It is prescribed at all enterprises where working conditions are recognized as harmful as a result of an inspection of the environmental safety standards. Additional incentive measures, including surcharges, may be used.
The surcharge is an incentive measure that is taxed. It is paid only if the clause on the possibility of its use at the enterprise is stated in the collective agreement.
Results
If the work process involves a negative impact on the employee’s body, he is entitled to compensation. An assessment of the hazards of each workplace is required. The results of the inspection are recorded in the conclusion of the SOUT. All compensation and incentive measures, including financial assignments, must be spelled out in the collective agreement. The compensation is not taxed and can be increased by the employer.
Current questions and answers
- Question: Is compensation due when the negative conditions are eliminated? There are still additional payments, will they be taxed?
Answer: Personal income tax and other taxes are no longer levied on compensation, but on additional payments made by individuals after neutralizing negative factors.
- Question: What is an additional payment for unfavorable natural conditions?
Answer: In areas with difficult climatic and other natural conditions, additional compensation surcharges are provided. For example, the Ural coefficient ranges from 1.15-1.20, it depends on the city. The additional payment is guaranteed by local decree 403/20-155.
- Question: What to do if the conditions are dangerous, but the employer does not pay compensation?
Answer: An employee can initiate an inspection by contacting Rostrud or the State Labor Inspectorate with an application and work record book.
The development of technology, unfortunately, does not yet protect workers from working conditions that are called harmful. They have a serious impact on people's health.
The law obliges the employer to compensate employees for damages. For this purpose, special payments for hazardous working conditions are being introduced. In recent years, there have been changes in the legislation regulating this process.
Let's figure out who is entitled to a salary supplement in 2019 and under what conditions.
Harmful working conditions
How is “harmfulness” determined?
From the point of view of legislation, the production process includes two parties: the employee and the employer. Determining the harmfulness of the situation at the enterprise affects the content of the employment contract between them. That is, if conditions are harmful to health, then this should be stated in the agreement when applying for a job.
The employer is obliged to monitor compliance with the law, which means it is his responsibility to ensure that the contract is drawn up correctly.
But he must refer to the document that established the class of the workplace. According to this law, the harmfulness of production or an individual workplace is determined by a special commission.
The employer's action algorithm is as follows:
- The establishment by the employer of a commission for carrying out SOUT, its composition and procedure of activity are approved by the employer on the basis of an order. A civil law contract is concluded between the organization conducting the assessment and the employer.
- Preparatory work of the commission (appointment of responsible persons, collection of initial data, approval of the schedule, etc.).
- Conducting an assessment of the SOUT.
- Creation of a report on the implementation of SOUT. It states:
- Information about the organization conducting the inspection;
- List of workplaces where the inspection was carried out;
- SOUT maps;
- Research and measurement protocols;
- Protocol for assessing the effectiveness of personal protective equipment used;
- Consolidated statement;
- a list of measures to improve the working conditions and safety of workers;
- expert opinions
- Familiarization of employees with the report and implementation of recommendations into production practice.
Working conditions according to the degree of harmfulness and danger are divided into four classes - optimal, acceptable, harmful and dangerous working conditions.
Compensatory measures
Thus, additional payments must be made if in the process of work a person is exposed to:
- exposure to harmful and dangerous production factors exceeding the levels established by standards, namely if the functional state of the employee’s body is restored, as a rule, longer than before the start of the next working day;
- or if harmful factors are capable of causing persistent functional changes in the employee’s body, leading to the emergence and development of initial forms of occupational diseases or occupational diseases of mild severity;
- or if harmful factors lead to persistent functional changes in the employee’s body, leading to the emergence and development of occupational diseases of mild to moderate severity.
- exposure to harmful factors during the working day can create a threat to the life of an employee, and the consequences of exposure to these factors cause a high risk of developing an acute occupational disease
If all documents are drawn up correctly, then the employee is entitled to a whole range of compensatory measures. These include:
- annual additional paid leave;
- reduction of work shift duration;
- increase in pay (at least 4% of salary);
- preferential retirement;
- provision of protective equipment at the expense of the employer.
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Additional payment nuances
The legislation allows it to be carried out both in monetary terms. So, if people are exposed to chemicals, biological substances, radiation, then they are entitled to enhanced nutrition and milk.
The employee has the right to refuse products in order to increase cash payments. The administration is obliged to provide him with compensation in a convenient way.
Compensation amounts are not subject to taxation.
If factors that negatively affect health are eliminated, and additional payments continue, they are no longer considered compensatory. Therefore, taxes are levied on these amounts.
If harmful conditions are eliminated, the employer may stop paying workers extra. This happens only after the next SOUT. The employee is required to change the terms of the contract.
Subtleties of production organization
The entire cycle in which people work is not always harmful. It happens that only a certain area affects health, but in general the workshop is safe. Then compensation is accrued only for the time during which specific actions are performed. That is, its size decreases.
In such cases, the administration has two options:
- calculate a percentage bonus for each worker, taking into account the time of his contact with harmful factors;
- everyone should be paid a certain amount, not less than what is required by law.
As a rule, the second option is preferred. Each person gets some amount added to their salary.
Additional compensation
The above salary supplement (at least 4%) is mandatory. That is, if there is an appropriate SOUT, the employer cannot but accrue it. But the incentive doesn't stop there.
The collective agreement may establish additional pay for special working conditions. It is established in addition to that determined by law.
The surcharge is not compensation. This is an incentive payment. Taxes are taken from it without fail.
Let's sum it up
- Workers in industries that have a negative impact on health receive additional payments and compensation.
- Each place is subject to a special assessment in order to determine its harmfulness.
- Management is obliged to organize its implementation.
- and additional payment are prescribed in the collective and labor agreement. Compliance with their conditions is mandatory for the employer who accrues and pays funds for labor.
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According to the law, persons employed in jobs with difficult working conditions are entitled to a set of guarantees and benefits. Let's take a closer look at exactly what benefits are provided to such employees.
Harmful working conditions in an employment contract
Article 57 of the Labor Code of the Russian Federation regulates the process of drawing up an employment contract in the event that the work is associated with harmful working conditions.
From this article it follows that in addition to the standard requirements, this agreement must include the following information:
Labor function indicating job responsibilities, qualifications, work schedule, type of work performed;
Duration of working hours in accordance with the staffing schedule (if it differs from the general procedure established by the employer);
Remuneration (amount of rate, salary, additional payment, allowance, bonuses, incentive payments, etc.);
Compensation for work with harmful working conditions;
In addition, employment contracts must indicate the full name of the position in which work is recognized as harmful.
Shortened work schedule
Reduced working hours are mandatory types of benefits provided to persons employed under difficult working conditions.
In Russia, normal working hours are 40 working hours per week. But the addition to Article 92 of the Labor Code of the Russian Federation states that if an employee is employed in hazardous (heavy, dangerous) production, the employer must provide him with a reduced work schedule, which is no more than 36 hours a week.
The maximum permissible working time applies not only to the weekly, but also to the daily plan (shift). Article 94 of the Labor Code of the Russian Federation determines that with a 36-hour working week, the length of the working day cannot exceed 8 hours. If an employee works 30 working hours a week, the duration of one work shift should be no more than 6 hours.
However, the legislation reserves the right for the employer to increase the duration of the work shift, subject to compliance with the standard weekly working hours. Any changes to the staffing schedule must be reflected in the enterprise’s collective agreement.
Providing additional leave
According to Article 117 of the Labor Code of the Russian Federation, additional is provided to persons engaged in the following types of activities:
Underground and open-pit mining in quarries and open pits;
Work in a radioactive contamination zone;
Other types of work associated with harmful effects on human health (physical, biological, chemical and other factors).
The minimum period of additional leave assigned for the above reasons is 7 calendar days. The exact duration of the vacation period depends on the class and type of working conditions.
Full additional leave is provided to employees provided that during the working year they have worked in hazardous conditions for at least 11 months. If the employee has worked less than the specified period, then additional vacation days are assigned to him in proportion to the time worked.
In addition, in order to be granted additional leave, the employee must have a certain amount of work experience in difficult working conditions. The duration of the work experience depends on the type of activity (Article 121 of the Labor Code of the Russian Federation).
Additional leave for work in hazardous conditions cannot be replaced by monetary compensation. The exception applies only to cases when an employee quits without having time to use his vacation days.
If an employee is constantly employed in harmful and dangerous working conditions, additional leave can be assigned in full before the expiration of 11 months, but provided that the main leave is provided to the employee in advance. In this case, the length of service, which gives the right to a new leave for the next year, is calculated separately for both additional and main leave.
Payment for work in hazardous working conditions
According to the general rules, which are specified in Article 146 of the Labor Code of the Russian Federation, payment for hard work is made at an increased rate. The minimum amount of this increase is 4% of the tariff salary provided for work with normal working conditions. The specific amount of the premium for hazardous working conditions is determined by the employer and included in the employment contract.
List of other guarantees and benefits for persons working in hazardous working conditions
1. Regular medical examinations.
If the enterprise’s activities are associated with dangerous or harmful working conditions, then new employees are hired only after a full medical examination. In addition, the employer is obliged to provide employees working under special working conditions with regular medical examinations and examinations, the results of which are necessary to determine their suitability for performing assigned tasks, and also help prevent occupational diseases.
On November 30, 2011, the government adopted Federal Law No. 353, which amended the Labor Code of the Russian Federation. As a result of these changes, from April 2012 to the present, the employer is required to conduct not only preliminary and regular medical examinations, but also daily ones, for employees who work underground. Daily inspections are carried out at the beginning of the work shift and at its end.
In addition, for some types of activities (work near sources of increased danger, work with harmful substances, etc.) regular psychiatric examinations are provided.
2. Restriction of women's work in hazardous conditions.
Article 253 of the Labor Code of the Russian Federation stipulates a number of restrictions regarding the work of women in work with hazardous conditions, as well as in underground work. According to this article, women may be allowed to work underground only in the following cases:
After completing specialized training with internship in the underground areas of the enterprise;
For periodic employment to perform work in underground parts;
To perform non-physical work or household and sanitation work.
Before involving women in performing these works, the safety of working conditions must be confirmed by the conclusion of the territorial bodies of Rospotrebnadzor.
If the work is carried out on a rotational basis, then pregnant women, regardless of the stage of pregnancy, as well as women with children under 3 years of age, cannot be hired. In addition, persons cannot participate in rotational work if they have medical contraindications to such types of work.
3. Labor of minors in hazardous conditions.
Article 265 of the Labor Code of the Russian Federation prohibits the use of minors in the following types of activities:
Working with harmful and dangerous working conditions;
Underground works;
Work that may cause physical or moral harm to the health of minors (gambling business, work in night establishments, work with alcoholic beverages, tobacco, narcotic and toxic substances).
4. Personal protective equipment (PPE).
Workers associated with harmful or dangerous working conditions must be provided with a set of personal and collective protective equipment, paid for by the employer. PPE must be certified in accordance with labor protection standards.
PPE includes:
Isolation suits;
Workwear;
Dermatological protective products;
Protective equipment for legs, arms, head, respiratory organs, etc.
5. Washing and neutralizing agents.
If in the process of work a person is faced with severe contamination or the influence of physiological (bacteriological) factors, the employer’s responsibility is to provide workers with the necessary flushing and neutralizing agents.
These funds are issued once a month, in quantities corresponding to the type of work performed and the characteristics of production factors.
6. Distribution of milk and therapeutic and preventive nutrition.
Article 22 of the Labor Code of the Russian Federation obliges the employer to provide employees working in difficult working conditions with milk or other fermented milk products (kefir, cottage cheese, yogurt, etc.). Free milk is provided on days of actual employment at work with harmful factors. The norm for issuing fermented milk products is 0.5 liters for each shift, regardless of its duration. At the request of the employee, the provision of milk, as well as other equivalent products, can be replaced by a cash payment.
If the specific nature of work involves particularly harmful conditions, the employer must provide employees with free therapeutic and preventive meals. This food is distributed on actual busy days. In this case, the duration of employment in difficult conditions must be at least 50% of the full working day. Meals can be provided both in the form of hot breakfasts before a work shift, and in the form of specialized shift rations if the enterprise does not have a canteen. By agreement with the medical and sanitary department or territorial bodies of Rospotrebnadzor, the time for issuing therapeutic and preventive food may be during the lunch break.
Therapeutic and preventive nutrition cannot be compensated by monetary payment.
7. Preferential pension.
In Russia, men aged 60 years and women aged 55 have the right to work. In this case, persons retiring from labor pension must be at least 5 years old.
However, Article 27 of Federal Law No. 173 defines the conditions under which a labor pension can be assigned earlier than the specified ages. These conditions include:
1) Work underground.
In this case, a man can retire at 50 years old, and women at 45 years old, provided that their experience in underground work is at least 10 and 7 years, respectively.
2) Labor in hot shops.
Retirement for men is possible at 50 years old, and for women at 45 years old, provided that the insurance period in the workshops is at least 20 and 15 years, respectively.
3) Working under difficult working conditions.
For persons engaged in hazardous work, the following retirement age has been determined: men - 55 years, women - 50 years. At the same time, men must work in difficult conditions for at least 12 years and 6 months and have at least 25 years of insurance experience. For women, the following norm has been determined: work in difficult conditions - at least 10 years, insurance experience - at least 20 years.
If the above-mentioned persons have worked in special working conditions for at least half of the established period and at the same time have the required length of insurance service, when assigning a labor pension, a reduction in the base age is used for them. In the first two cases, the base age is reduced by one year for each full year of work. In the third case, the base age is reduced by one year for every one and a half years of work for men, and by one year for every two years of work for women.
In addition, early retirement is available to persons employed full-time in the following types of work:
Work in underground and open-pit mining operations for the extraction of minerals (minimum experience - 25 years);
Work on the construction of mines and mines (minimum experience - 25 years);
Workers of leading professions - jackhammer operators, mining machine operators, tunnelers, longwall miners (minimum experience - 20 years).
In these cases, early retirement pensions are issued regardless of the age of the employees.
Payment for hazardous working conditionsis compensation provided to an employee for possible harm associated with working in unfavorable working conditions. You will learn about all the significant points regarding such an additional payment from our material.
Legislation on compensation payments for hazardous working conditions
Labor legislation, among guarantees and compensation for specialists operating in industries with unfavorable working conditions, provides a guarantee of increased pay. This issue is regulated by a whole range of regulatory documents, including:
- Labor Code of the Russian Federation;
- Law “On Special Assessment...” dated December 28, 2013 No. 426-FZ;
- letter of the Ministry of Labor of Russia dated May 20, 2014 No. 15-1/OOG-486 on the issue of providing compensation for professional activities conducted in unfavorable conditions;
- Resolution of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated October 3, 1986 No. 387/22-78 (in the part that does not diverge from the norms of current legislation);
- Resolution of the Central Committee of the CPSU, Council of Ministers of the USSR, All-Union Central Council of Trade Unions dated September 17, 1986 No. 1115 (to the extent that it corresponds to the norms of current legislation).
It is necessary to keep in mind that the Government Decree “On establishing a shortened duration...” dated November 20, 2008 No. 870, which previously regulated additional issues. payment for unfavorable working conditions, has lost its force since 01/01/2014, so it cannot be relied upon from now on.
Working conditions and salary supplement
The provisions of the norm of Part 1 of Art. 147 of the Labor Code of the Russian Federation, workers in harmful and dangerous industries are entitled to an additional payment. Negative production conditions are recognized as such a working atmosphere in which the permissible standard for the impact of adverse factors accompanying the work process on the physical condition of a person is exceeded, which can result in temporary health problems, chronic diseases, and occupational diseases.
According to Art. 14 of Law No. 426-FZ, the existing labor conditions at places of work, depending on their inherent unfavorable factors and their impact on the health of employees, are divided into the following classes:
- 1st - optimal;
- 2nd - acceptable;
- 3rd - harmful (includes 4 subclasses);
- 4th - dangerous.
Thus, within the meaning of Art. 147 of the Labor Code of the Russian Federation, compensation for work in hazardous working conditions is due to employees whose assessment of their places of work classified them as belonging to the 3rd and 4th classes.
How is the degree of harmfulness of work activity determined?
The decision on the hazard class of working conditions at a particular workplace is made by experts, based on the methodology proposed in the order of the Ministry of Labor of Russia “On approval of the methodology...” dated January 24, 2014 No. 33n. In this case, the order contains 4 annexes:
- Methodology for special assessment of working conditions.
- Classifier of unfavorable factors.
- Form of a report on the special assessment.
- Recommendations for filling out the report.
Unfavorable ones include:
- production factors, including negative physical, chemical or biological effects on the employee;
- factors of the labor process, which are measured by the severity and intensity of work activity.
The technique assumes:
- identification of potentially negative factors accompanying production;
- research and measurement of the actual values of identified unfavorable factors at a specific place of work;
- assignment of working conditions in accordance with the degree of negativity to the classes listed above based on the results of the research.
Since Law No. 426-FZ came into force on January 1, 2014, the previously conducted certification of employees’ jobs according to the rules of the legislation in force before 2014 is recognized as valid for 5 years when resolving issues of providing labor guarantees to employees, including additional remuneration for unfavorable working conditions (Part 4, Article 27 of Law No. 426-FZ).
Note: a special assessment of working conditions is not carried out in relation to homeworkers, remote employees and those working for citizens who are not individual entrepreneurs.
Increased payment for harmfulness - additional. tariff, 4 percent or something else?
The rate of additional payment for harmfulness is established only in the Labor Code of the Russian Federation. In Part 2 of Art. 147 of this normative act determines the minimum amount of compensation for negative working conditions, which is equal to 4% of the salary for the position held. Moreover, further, in Part 3 of the same article, it is clarified that the specific amount of the additional payment is established by the employer, taking into account the opinion of the trade union in accordance with the procedure defined by Art. 372 Labor Code of the Russian Federation.
When determining the exact amount of payment, it is possible to apply the provisions of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated October 3, 1986 No. 387/22-78, as well as the resolution of the CPSU Central Committee, the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions dated September 17, 1986 No. 1115 (in the part that does not contradict the norms current legislation). The amount of additional payment according to the standards of these documents can reach up to 24% of the salary, depending on the points that assess the harmfulness of work at a particular place of work.
Thus, the amount of compensation for harm must be specified by the employer (at the same time, different payment options may be determined for different “unfavorable” vacancies) and fixed:
- in the specialist’s employment contract;
- local act;
- agreement;
- collective agreement.
How to calculate the amount of additional payment for work in a hazardous environment in 2017-2018?
Due to the fact that modern legislation does not define methods for calculating the exact amounts of compensation for production activities in negative conditions, you can use the provisions of the Resolution of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated October 3, 1986 No. 387/22-78, which proposes linking the amount of additional payment with points, assigned to each class of working conditions. This means that the procedure for calculating the amount of remuneration for activities in unfavorable production conditions assumes:
- Determination of the class of working conditions. As mentioned above, this is done by special assessment specialists.
- Converting the degree of adverse impact into points. The sum of points is calculated for each of the factors that exceed hygienic standards (clause 1.3 of the regulation, approved by resolution No. 387/22-78). According to Appendix No. 2 to this provision, class 3, 1st degree of harm corresponds to 1 point, 2nd degree - 2 points, etc.
- Establishing the duration of the influence of a negative factor. To assess the interference of a specific unfavorable factor on working conditions, the duration of its impact on the worker during the shift is important.
- Calculation of payment for work in unfavorable conditions. In this case, all unfavorable factors found during the special assessment are taken into account. To calculate the amount of compensation, you can also use the regulations approved. Resolution No. 387/22-78 (clause 1.6) and introduce a gradation of the amount of additional payment from 4 to 24% of the salary, where harm assessed up to 2 points will be compensated in the amount of 4% of the salary, from 2 to 4 points - 8%, etc. d.
When using such a point system for taking into account the harmfulness of working conditions and calculating compensation for them (or another method of determining the amount of additional payment for harmfulness), it is advisable to develop a separate internal document of the enterprise, which will describe in detail the entire system for calculating the amount of compensation for work activities in unfavorable production conditions.
Additional tariff for insurance contributions to the Pension Fund of the Russian Federation
In accordance with the provisions of paragraph 3 of Art. 27 of the Law “On Labor Pensions in the Russian Federation” dated December 17, 2001 No. 173-FZ, periods of work listed in paragraphs. 1-18 p. 1 art. 27, are included in the length of service that gives the right to receive a pension earlier than the generally established period. However, this is only possible if:
- such work took place after 01/01/2013;
- the working conditions for the specified work corresponded to the class of harmful or dangerous;
- the employer made insurance contributions according to the standards determined by the Tax Code of the Russian Federation.
Based on the norms of Art. 428 Tax Code of the Russian Federation, add. tariffs in 2017-2018 are as follows:
- Without conducting a special assessment of the production environment: 7%.
- Based on the results of a special assessment of the labor situation:
Features of taxation of compensation for harmful work
Many questions arise about the taxation procedure for wages increased by additional payment for production activities in unfavorable conditions. In particular, the need to deduct personal income tax from the amount of payments for harm is being discussed. At the same time, taking into account the explanations of the Tax Service and the Supreme Arbitration Court of the Russian Federation, it is necessary to distinguish between additional payments for negative production conditions in accordance with Art. 147 of the Labor Code of the Russian Federation and compensation for the same conditions within the framework of Art. 219 Labor Code of the Russian Federation.
Don't know your rights?
You will learn:
- In what cases and what kind of compensation are provided to employees working in hazardous working conditions?
- How to set higher wages correctly
- How to apply for a shortened working day and leave when working in hazardous working conditions
IN WHAT CASES AND WHAT COMPENSATIONS ARE PROVIDED?
The main result of a special assessment of working conditions (hereinafter referred to as SOUT) is the determination of the class of working conditions in the workplace. If, based on the results of the assessment and labor assessment, it turns out that employees work in harmful and (or) dangerous working conditions, then the employer must provide them with various compensations for work in such conditions. Otherwise, he may be brought to administrative liability under Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.
According to Part 1 of Art. 14 Federal Law No. 426-FZ dated December 28, 2013 “On special assessment of working conditions” ® (as amended on May 1, 2016; hereinafter referred to as Federal Law No. 426-FZ) working conditions are divided into four classes according to the degree of harmfulness and (or) danger - optimal, permissible, harmful and dangerous.
Classifying the working conditions at an employee’s workplace as hazard class 3 or 4 involves providing him with certain compensation depending on the degree of harm. This:
- additional payment to salary;
- additional leave;
- reduced working hours.
Provision (“+”)/non-provision (“-”) of compensation to workers depending on the class (subclass) of harmful working conditions established by the Special Labor Conditions, is reflected in the table:
According to Art. 92, 94, 117, 147 of the Labor Code of the Russian Federation, the employer must provide employees with appropriate compensation. But in practice, questions often arise about how exactly to do this. Let's consider several situations.
If compensation is provided for the first time
In Soviet times, workers working in hazardous working conditions were provided with compensation in accordance with the Resolution of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 No. 298/P-22 “On approval of the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day” (hereinafter referred to as the List). The employer only needed to check whether positions from the staffing table or work actually performed by employees were on the List.
Later, the concept of providing compensation changed: first, the legislation established the priority of certification of workplaces, and then to determine the harmfulness in the workplace - SOUT. Currently, in order to determine the need to establish compensation, the norms of Federal Law No. 426-FZ and the Labor Code of the Russian Federation require carrying out special assessments at workplaces.
If previously the employer did not provide compensation to employees for one reason or another (workplace certification was not carried out, and if it was carried out, it determined working conditions as acceptable or optimal, or the organization did not have workplaces for which compensation was required according to the List) , and now, through the implementation of an assessment and safety assessment, it has been determined that the working conditions of workers are considered harmful, then the employer must establish appropriate compensation for work in such conditions.
The Constitutional Court of the Russian Federation in its Determination No. 135-0 dated 02/07/2013 indicated that compensation is provided to all workers engaged in work with harmful and (or) dangerous working conditions, including those whose professions, positions or work performed are not provided for by the List, if their work under conditions of exposure to harmful and (or) dangerous factors in the production environment and the labor process is confirmed by the results of certification of workplaces for working conditions (and now SOUT).
If compensation was previously provided
Workers, in accordance with the List or previously conducted workplace certification, were provided with appropriate compensation. Let’s assume that the organization that provided them carried out a special assessment and assessment after 01/01/2014. Based on the results, the following results are possible:
- The class of harmfulness of working conditions has been confirmed - guarantees and compensation must be provided in the same amounts as before the SOUT.
- According to the results of the assessment, it turned out that compensation should be less than before.
In part 3 of Art. 15 of Federal Law No. 421-FZ of December 28, 2013 “On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law “On Special Assessment of Working Conditions”” (hereinafter referred to as Federal Law No. 421-FZ) states that when providing For employees engaged in work with harmful and (or) dangerous working conditions, compensation measures cannot be worsened, and the amounts cannot be reduced in comparison with the procedure, conditions and amounts of compensation measures actually implemented in relation to employees as of 01.01. .2014, subject to maintaining appropriate working conditions in the workplace.
Thus, the amount of compensation provided to employees in whose workplaces, based on the results of certification or due to other legal grounds (regulatory legal acts of the former USSR), harmful working conditions have been established, at the time of entry into force of Federal Law No. 426-FZ must be maintained until improvement working conditions at these workplaces, which is confirmed by the results of the special assessment and assessment process. This position is also supported by judicial practice.
Courts also hold that an employer's failure to provide benefits in the past does not deprive employees of their current right to receive them.
If the employee’s working conditions have improved, becoming safer (due to the installation of new equipment, reconstruction, etc.), the scope of guarantees and compensation is reduced. Judicial practice confirms that if a harmful factor is excluded, there is no need to provide compensation.
NOTE
When deciding on changes in compensation, the employer must be especially careful, since an unjustified reduction in the level of guarantees may be recognized by the state labor inspectorate as a violation of the law, for which the employer may be held administratively liable (Resolution of the Court of the Jewish Autonomous Region dated June 23, 2015 in case No. 4- A-29/2015).
HOW TO ESTABLISH COMPENSATION FOR WORK IN HARMFUL WORKING CONDITIONS?
Determine the amount of compensation
Please note:
1. Minimum sizes established in the Labor Code of the Russian Federation:
- the amount of increase in wages for employees engaged in work with harmful and (or) dangerous working conditions should not be less than 4% of the tariff rate (salary) established for various types of work with normal working conditions (Article 147 of the Labor Code of the Russian Federation);
- the minimum duration of annual additional paid leave for employees whose working conditions at their workplaces, according to the results of the special labor assessment, are classified as hazardous working conditions of the 2nd, 3rd or 4th degree or hazardous working conditions, is 7 calendar days (Article 117 of the Labor Code of the Russian Federation);
- reduced working hours are set to no more than 36 hours per week and no more than 8 hours per day (Articles 92, 94 of the Labor Code of the Russian Federation).
2. Industry (inter-industry) agreements.
When setting the amount of compensation, you should check whether the organization is subject to industry agreements.
For example r, The Industry Agreement on the coal industry of the Russian Federation for the period from April 1, 2013 to March 31, 2016 dated 04/01/2013 stipulates that for workers engaged in work with particularly difficult, dangerous and particularly harmful working conditions, according to special lists , tariff rates increase by 10% and 20%.
If the organization is subject to industry (inter-industry) agreements, compensation should not be provided in a smaller amount than specified in the agreements.
3 . Union opinion.
If the organization has a trade union, the specific amounts of compensation are established by the employer, taking into account his opinion (in the manner established by Article 372 of the Labor Code of the Russian Federation).
Enshrine the provision of compensation in local regulations
According to Art. 189 of the Labor Code of the Russian Federation, the working hours and rest time of employees (including information about the additional leave provided and a shortened working day) must be reflected in the Internal Labor Regulations (ILR; example 1).
Local standards on increased wages for workers working in hazardous working conditions are, as a rule, reflected in the Regulations on wages (example 2).
Provide a compensation clause in the employment contract
Part 2 of Art. 57 of the Labor Code of the Russian Federation establishes that an employment contract with an employee must specify both working conditions in the workplace, as well as guarantees and compensation provided to the employee.
Increased wages, reduced working hours, additional leave - all these conditions are for the employer necessary reflected in the employment contract with an employee working in hazardous working conditions, immediately when concluding it with a new employee and in an additional agreement to the employment contract for those already working in the organization.
It is unlikely that the employee will object to the establishment of additional compensation, however, in the absence of his consent, such changes are possible if there are reasons and in compliance with the procedure provided for in Art. 74 Labor Code of the Russian Federation.
In example 3, there is a fragment of the terms in the employment contract regarding the provision of additional leave.
Provide compensation
Increased wages.
Additional payment (allowance) for work in hazardous working conditions is calculated monthly as a percentage of the salary (tariff rate). It must be reflected in the employee’s pay slip, since it is part of the salary (Part 1 of Article 129 of the Labor Code of the Russian Federation), and according to Part 1 of Art. 136 of the Labor Code of the Russian Federation, the employer is also obliged to notify in writing each employee about the components of the wages due to him for the corresponding period.
Question on topic
In organizationswho have branches in the northern regions, is the regional coefficient calculated only on the amount of the salary or on the amount of the salary increased by the amount of additional payment for hazardous working conditions?
According to the Explanation approved by Resolution of the Ministry of Labor of Russia dated September 11, 1995 No. 49, letter of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 169-13, regional coefficients and percentage bonuses are calculated on the employee’s actual monthly earnings. The employee’s actual monthly earnings, on which regional coefficients and percentage bonuses are calculated, include: wages accrued to the employee at tariff rates (official salaries) for the time worked, allowances and additional payments to tariff rates (official salaries), compensation payments related to the regime work and working conditions, bonuses and rewards provided for by the remuneration systems or bonus regulations of the organization, and other payments established by the remuneration system of the organization. Therefore, the bonus for working in hazardous working conditions should be included in the salary on which the district coefficient is subject to calculation (Appeal rulings of the Supreme Court of the Republic of Karelia dated 04/29/2014 in case No. 33-1671/2014, Omsk Regional Court dated 12/10/2014 in case No. 33-8080/2014). It occurs much less frequently when calculating the regional coefficient. different approach: both the regional coefficient and the additional payment for work in hazardous working conditions are calculated directly from the salary (tariff rate) (Appeal ruling of the Trans-Baikal Regional Court dated November 19, 2013 in case No. 33-4228-2013). To introduce legal certainty, the employer should fix the calculation method in the LNA.
Additional vacation.
The start of additional leave is planned in the vacation schedule, it is granted according to the order in the same way as the next annual leave.
According to paragraphs. 8, 9 Instructions on the procedure for applying the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day, approved by the Resolution of the State Committee of Labor of the USSR, All-Union Central Council of Trade Unions dated November 21, 1975 No. 273/P-20, additional leave, according to the List, is provided to the employee simultaneously with annual leave.
The length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions (Part 3 of Article 121 of the Labor Code of the Russian Federation). Thus, to calculate length of service, the employer must:
Determine the number of full months of work in harmful and (or) dangerous working conditions, for which it is necessary to divide the total number of days of work in appropriate conditions during the year by the average monthly number of working days. If the balance is less than half the average monthly number of working days, it is excluded from the calculation, if half or more, it is rounded up to a full month (Rostrud letter No. 657-6-0 dated March 18, 2008).
Reduced working hours.
By virtue of Art. 91 of the Labor Code of the Russian Federation, the employer keeps records of the time actually worked by each employee, including in the case of work in harmful and (or) dangerous working conditions. The working time sheet must reflect reduced working hours (letter code “LC” (digital - “21”) - reduced working hours versus the normal working hours in cases provided for by law).
Questions on the topic
Is it possible for an employee working in hazardous working conditions to increase their working hours from 36 to 40 hours?
Part 3 of Art. 92 of the Labor Code of the Russian Federation provides for the possibility of increasing working hours from 36 hours to 40 hours, but under the following conditions:
this norm must be enshrined in an industry (inter-industry) agreement and a collective agreement;
there must be a written consent of the employee, formalized by concluding a separate agreement to the employment contract.
The employee agrees to increase working hours must definitely express. Sometimes employers forget about this, and then the court takes the employee’s side (Decision of the Mezhdurechensky City Court of the Kemerovo Region dated April 30, 2014 in case No. 2-867/2014~M-659/2014);
the employee must be paid monetary compensation.
Can an inspector issue an order to pay overtime if employees were assigned 40-hour working hours instead of 36 hours in violation of the law?
Often, employees turn to the labor inspectorate with a complaint that the employer does not provide compensation for work in hazardous working conditions (for example, does not pay overtime). As a result, labor inspectorates often issue orders to make appropriate payments. Employers are challenging such orders as issued by inspectors in excess of their competence. In accordance with the International Labor Organization Convention No. 81 “On Labor Inspection in Industry and Commerce” of 07/11/1947 (adopted in Geneva on 07/11/1947 at the 30th session of the ILO General Conference, ratified by Russia on 04/11/1998), the labor inspector is not provided the right to issue mandatory instructions for the employer in labor disputes. This position is confirmed by judicial practice (Appeal rulings of the Saratov Regional Court dated September 11, 2014 No. 33-5170, Supreme Court of the Komi Republic dated December 12, 2013 in case No. 33-6287/2013).
Appeal rulings of the Moscow City Court dated July 30, 2015 in case No. 33-26906/15, Murmansk Regional Court dated March 4, 2015 No. 33-353/2015, Bryansk Regional Court dated January 14, 2014 in case No. 33-87/14; Decision of the Leningrad Regional Court dated June 3, 2014 No. 7-785/2014.
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