Russian legislation seeks to ensure the safety of workers, however, not all types of activities can be unconditionally harmless to workers - in such cases, the legislation provides for additional guarantees, including a mandatory additional payment for harmful conditions labor. At the same time, the legal regulation of this issue is provided by a significant number of regulations, and the direct amount of additional payment for harmful working conditions depends on their specific class. An additional payment for harmful working conditions is carried out on the basis of a special assessment.
Surcharge for harmful working conditions - what is it
Since employees who have to deal with factors that have a negative impact on their health in their work duties are protected labor law, their employers have an obligation to provide certain social guarantees due to the increased danger or harmfulness of the respective activities. One of the types of such guarantees is an additional payment for.
Such an additional payment is charged in addition to the salary or tariff rate in the form of strictly fixed percentages. At the same time, the employer is obliged to provide such payments, and for violation of the standards can be held liable. If the non-payment of the allowance for harmful conditions takes place, then the employer may be held administratively liable. And in case of malicious non-payment for mercenary purposes - and to criminal. Regardless of the reasons why the employee in question was not accrued the additional payment in question, the employer bears full financial responsibility - both in the form of an obligation to pay all the debt that has formed, and regarding the payment of additional compensation. They are charged in accordance with a certain percentage of the key refinancing rate of the Central Bank of the Russian Federation on the amount of debt every day.
From the point of view of taxation, the additional payment for harmful working conditions, although declared as compensation, relates to the cost of remuneration of the employee. Accordingly, personal income tax is levied from it, as well as from the basic salary. The employer, in turn, may attribute these compensation payments to labor costs, which will reduce the taxable base if he is a payer of income tax. Also, it should be remembered that this surcharge is fully taken into account when determining the average earnings of a worker.
You can read more about what harmful working conditions are, as well as what social guarantees are provided for employees employed in them.
Legal regulation of additional payments for harmful working conditions - Labor Code of the Russian Federation
The main regulatory document, according to which the functioning of the system of additional payments for harmful working conditions, is the Labor Code of the Russian Federation. In particular, specific legal rules dealing with this issue can be found in the provisions of the following articles of this document:
The range of articles of the Labor Code of the Russian Federation regulating activities in hazardous working conditions is much wider. The above are only those standards that directly affect the issues of providing additional payment for harmfulness under working conditions, and not any other social guarantees.
However, in addition to the Labor Code of the Russian Federation, the issue of providing additional payments for harmfulness has separate mechanisms. legal regulation disclosed in other legal acts and documents. These include Federal Law No. 426 of December 28, 2013. This document regulates the maintenance special evaluation, within the framework of which the actual assignment of certain classes of danger or harmfulness to certain working conditions takes place.
The amount of additional payment for harmful working conditions by hazard class
As mentioned earlier, the specific amount of additional payment for harmful working conditions directly depends on the specific hazard subclass established during the special assessment. The surcharge is carried out with a minimum step of 4% for various working conditions. That is, it looks like this:
- 1 class of hazard - 4%
- 2 – 8%
- 3 – 12%
- 4 – 16%.
It should be noted that the provision of health care products to employees, as well as milk and dairy products, does not apply to salary costs.
An additional payment is charged, as noted earlier, for all categories of payments directly related to wages. That is - for salary, tariff rate, percentage of output, bonuses and other types of payments. But these additional payments do not apply to material assistance from the employer or also to other payments of a compensatory nature.
Special assessment as a basis for additional payment for harmful working conditions
Additional payments are made for harmful working conditions based on the results of a special assessment carried out at the workplace by specialists from accredited centers for conducting special assessments. This procedure should be repeated on the premises of the enterprise regularly, and employees should be notified after each assessment about their specific hazard class.
If the special assessment determines working conditions as acceptable, but not optimal (hazard class 2), then no additional payments will be due to such an employee, since, according to research, all potential damage to health should be leveled during the worker's rest period.
A special assessment of new jobs should be carried out within a year from the moment they appear. And for old and already verified places, the frequency of verification is five years. You can read more about the special assessment procedure and its main features.
Harmful working conditions should be understood as the presence in the workplace of such factors that are detrimental to the health of workers. That is, certain hygiene requirements are not met at workplaces, which can have a negative impact on the capacity of employees, as well as on the health of their possible children.
A harmful factor can be the environment in which a person works, as well as working conditions. Health damage can be caused by:
- physical parameters of labor (air humidity, temperature regime, electromagnetic radiation, exposure to constant vibration, etc.),
- chemical provocateurs (hormonal and enzymatic substances, exposure to reagents, etc.),
- biological hazards (pathogenic bacteria and microorganisms, etc.),
- labor features (working mode, mental and sensitive loads, probability).
Categories of industries with harmful working conditions
Compensation for harmful working conditions
Compensation for harmful working conditions and its size are established on the basis of the articles of the Labor Code, the collective agreement or other internal documents of the enterprise.
The law provides that people working in dangerous conditions can receive such guarantees and compensations:
- reduction in the number of working hours (36 hours per week or less),
- paid leave, which is additional and provided every year (at least 7 calendar days),
- there is an increase in wages (at least 4% of salary),
- pension benefits,
- free treatment and rehabilitation,
- issuance of consumables - overalls, disinfectants.
The employer today has the right to independently determine the type and amount of compensation for harmful working conditions based on the Labor Code. He can also initiate an increase in the amount. All compensations are paid from employers at rates established by insurance organizations.
In addition, in a number of regions a special tariff has been set for adverse environmental conditions. For example, on the basis of Decree N 403/20-155 of July 2, 1987, the payments of the Ural coefficient range from 1.15 to 1.20, depending on the city.
The employee has the right to refuse in writing certain compensations, receiving their reimbursement in monetary form– For example, the monetization of such benefits is common when workers are provided with milk or when working hours are reduced during the week.
Compensation for additional leave for harmful working conditions for an employee is provided only for those days that the employer gives in excess of the minimum value (more than 7).
All types of compensation are tax-free. At the same time, if at a given level of technological development it is possible to eliminate harmful production factors, then the payment of monetary compensation is no longer considered as such. Therefore, if the payment continues, then it is subject to personal income tax on a general basis. Also, insurance premiums are not withheld.
In addition to compensation, there is such a thing as an additional payment for harmful working conditions, which can also be established by the employer. Arbitrage practice indicates that the so-called compensation for moral damage employees working in hazardous conditions.
The difference between additional payments and compensations is that they are not fixed in a collective agreement and are subject to personal income tax.
How to receive compensation
The procedure for receiving compensation depends on economic situation enterprises and is fixed in a collective agreement or with the help of a local regulatory act.
By law, the implementation of the compensation mechanism does not depend on the size of the enterprise and its economic orientation. The main thing here is the conclusions drawn after a special assessment of working conditions. The latter is a mandatory requirement to confirm the presence of harmful or dangerous working conditions at the enterprise and includes an assessment of compliance with hygiene standards, as well as the danger of getting work injury At work. Based on the results of certification, the commission assigns a certain level of harmfulness and safety to each workplace, which affects the calculation of compensation. At the same time, it is determined what kind of monetary compensation is due to employees who are negatively affected. harmful factors. Information about harmful working conditions, hazardous workplaces, types and amounts of compensation is recorded in the collective agreement or other internal document of the organization.
Where are the payments for harmful working conditions included? According to the remuneration of workers employed in work with harmful, dangerous working conditions, is set at an increased rate in comparison with tariff rates or salaries for similar work with normal conditions. The amount of additional payments must be specified in the employment contract. In other words, bonuses are included in wages.
Harmful working conditions are understood as a set of factors that manifest themselves in production activities that can have a negative impact on the health of personnel. In order to determine the presence of harmfulness, as well as its degree, attestation (assessment) of workplaces is carried out. The main method for certification (assessment) are measurements.
Availability on manufacturing plant harmful working conditions implies the emergence of the employer's obligation to compensate employees for work in such conditions. Compensation is provided through the provision of benefits (for example, in the form of a reduced working day, additional leave, special meals, protective equipment, vouchers to a sanatorium) and cash compensation payments. Their provision is the obligation, not the right of the employer.
It should be remembered that the presence of harmful working conditions limits the possibility of hiring women for certain positions (Article 253 of the Labor Code of the Russian Federation). By virtue of Article 265 of the Labor Code of the Russian Federation, it is prohibited to use the labor of persons under 18 years of age in work with harmful conditions. Lists of works that involve the presence of harmful factors are approved in the mode determined by the Government of the Russian Federation.
What kind of work is considered harmful
Among the factors that determine the presence of a negative impact on the health of employees, it should be noted that the standards are exceeded in relation to:
- the severity of labor, which implies increased physical stress on the human body;
- labor intensity, which implies an increased load on the sensory organs and the central nervous system;
- external factors affecting the worker's body (temperature environment, wind speed, air humidity);
- sound, ultrasonic and vibration impact;
- infrared and ultraviolet radiation;
- radioactive contamination;
- x-ray radiation;
- exposure to electric and magnetic fields;
- illumination level;
- the level of concentration of chemicals, bacteria, microorganisms.
According to the whole complex of signs that negatively affect employees, working conditions are usually divided into 4 groups by law. Based on this, they can be:
- optimal;
- admissible;
- harmful;
- dangerous.
The degree of impact on workers of harmful factors can be different. In cases where it exceeds certain values, the existing working conditions are recognized as harmful. It is believed that when performing labor functions in such conditions, the risk of getting ailments of a professional nature increases significantly.
Harmful conditions must be distinguished by drawing a boundary from dangerous conditions. It is customary to talk about hazardous conditions when personnel are exposed to factors that directly have a negative impact on their health. An example in this case is the work of painters in paint shops. If such employees have the necessary protective kit, the conditions in which they work are recognized as harmful. Working without a protective kit implies hazardous working conditions.
In order to establish whether the working conditions at a particular workplace are dangerous or harmful, activities are carried out for attestation of workplaces. Within their framework, environmental parameters are measured, as well as a comparison of the results obtained with the standards. The list of harmful professions is set out in Decree No. 10 of January 26, 1991 of the Cabinet of Ministers of the USSR.
It should be borne in mind that the title of the positions of specialists performing work in hazardous conditions must exactly correspond to their designation in qualification guides. These directories comply with Decree No. 10 of January 26, 1991 and, in turn, are subject to approval by the Government of the Russian Federation. If the names of the positions of specialists do not correspond to the information set out in the reference books mentioned, these specialists may lose allowances, preferential length of service, as well as other preferences that are due to these categories of employees.
Features of wages in hazardous and hazardous industries
The regulation of work processes, payments and the provision of additional benefits to workers employed in hazardous industries is carried out by articles 219, 92, 117, 147 of the Labor Code of the Russian Federation. In particular, in accordance with the requirements set forth in Article 147 of the Labor Code of the Russian Federation, in 2018 employees have the right to receive additional payments for work in hazardous conditions. It should be noted that, by virtue of Art. 219 of the Labor Code of the Russian Federation, the establishment of allowances is guaranteed only to persons directly performing work with a negative impact production factors. Thus, persons exposed to the negative impact of negative factors can expect to receive higher wages.
Each worker performing his labor functions in the event of a negative impact of production factors, they are entitled to receive these payments, which are a bonus to wages, if it was established based on the results of certification activities before the beginning of 2014. This threshold was set due to the fact that until 2014 there were rules requiring mandatory certification of workplaces in order to determine the presence of harmful and dangerous factors.
Federal Law No. 426-FZ dated December 28, 2013 replaced attestation with an assessment of the working conditions of personnel. At the same time, by virtue of Part 4 of Art. 27 of the said normative act, employers have the right not to inspect those places of work of personnel that were assessed less than 5 years ago. The law contains an exception to this rule: earlier than 5 years, only those jobs are assessed where an additional unscheduled analysis of the existing state of working conditions is necessary.
Refusal to provide employees performing their labor functions in harmful conditions with the required additional payment is recognized as a legislative violation and is the basis for bringing employers to legal liability.
How to calculate the amount of the surcharge
In Russia, the size of the minimum payments to employees who carry out their labor functions under the influence of harmful factors is legally fixed. So, the amount of additional payment in this case cannot be less than 4% of the salary, which is established for specific types of work performed under normal conditions.
As a basis for calculating the additional payment for harmfulness, it is customary to use the Model Regulations on the Assessment of Working Conditions, introduced on 03.10.1986. In accordance with it, the following calculation algorithm is used:
- Identification of the hazard class by comparing the established maximum permissible indicators with the hazard parameters that actually exist in a particular production.
- Recalculation of the hazard classes of production (established in the reporting documents for certification or assessment of working conditions) into points based on the following table:
- Establishment of the period of influence of negative factors. The amount of the additional payment is formed taking into account the period of actual stay in the zone of influence of the negative factor.
- Determination of the amount of additional payment for harmfulness to a particular employee. When setting the interest rate, the totality of all negative factors is taken into account. In this case, the data of the following table should be used as a guideline in the calculation:
|
Class 3.1 |
Class 3.2 |
Class 3.3 |
Class 3.4 |
|
Working conditions |
The totality of points according to the level of harmfulness |
The amount of additional payment in % of salary |
|
heavy, harmful |
||
|
Particularly severe, especially harmful |
||
The right of the employer is to increase the percentage of the additional payment specified in the law, taking into account the severity and harmfulness of the conditions in which the employee performs his labor functions. The specification of the size of such allowances is subject to fixing in special documents, such as:
- individual labor contracts;
- collective agreements;
- local regulations.
The formation of these documents in terms of establishing increased allowances for work in harmful conditions should be carried out taking into account the financial and economic situation of the organization.
In addition to cash payments, specialists performing labor functions under the influence of harmful factors have the right to demand:
- reduction of the working week to 36 hours;
- provision of additional annual leave for a period of 7 days or more.
In addition to the mentioned types of compensation, the legislation (Article 222 of the Labor Code of the Russian Federation) provides for the issuance of special food products to employees exposed to negative factors during work. In particular, it is the responsibility of the employer to provide milk or equivalent food products workers in hazardous industries.
Representatives of:
- state examination of working conditions (according to part 2 of article 216.1 of the Labor Code of the Russian Federation);
- tax service in cooperation with SZN specialists (letter of the Ministry of Finance of the Russian Federation No. 03-05-02-04 / 36 of 04/07/2006).
Accounting for additional payment for harmfulness
The considered additional payments of a compensatory nature, provided for by collective agreements, in accounting are to be reflected as part of the costs for the types of activity profiled for the organization. However, they are subject to reflection on the debit account. 20 "Primary production" and credit c. 73 "Settlements with personnel for other operations."
Can the surcharge be cancelled?
Organizations that have implemented measures aimed at reducing the negative impact of production factors on personnel to an acceptable (permissible) level are exempted from the obligation to pay compensation to employees for work in hazardous conditions. Such activities include actions aimed at:
- effective modernization of equipment, premises and means of labor;
- providing specialists with individual protective kits that help reduce the harmful effects of harmful factors.
If, as a result of the measures taken, the impact on people of harmful factors was not completely eliminated, however, the hazard class was lowered, then employers have the right to reduce the percentage of compensation payments. The decision to provide (or refuse to provide) payments of this nature is made by organizations in the process of reviewing reports on the assessment of the working conditions of employees.
Employees have the right to disagree with the decision of the employer to refuse to provide compensation or with the decision to reduce the hazard class. In this case, the employee may submit an appeal to the supervisory authority with a request to revise the results of measures to assess working conditions.
Conclusion
The presence in the organization of harmful working conditions requires the management of the enterprise to take measures aimed at reducing negative impact production factors, as well as to provide compensation to employees working in harmful conditions. Neither employees nor enterprise management bodies have the right to independently determine the presence of harmful factors or the class of harmfulness. This work should be carried out by a special commission within the framework of measures to assess working conditions. The establishment of this fact (harmful working conditions) requires an immediate response from the governing body, namely, ensuring the protection of personnel through the issuance of special protective kits, carrying out modernization measures (creating additional protective screens, ventilation hatches, etc.), establishing compensation.
Workers in Russia can count on full protection of their work. And in this regard, only the Labor Code of Russia does not always work.
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There are other provisions that regulate the features of additional payments for harmful working conditions in 2019. Since in this area a high proportion of support is needed for employees.
Important information
Additional payments for work with harmful conditions are provided in accordance with clear requirements. Not every citizen can count on such allowances.
Certain legislative documents establish:
- a list of professions that can receive allowances and are considered harmful, dangerous;
- the procedure for recognizing a profession and jobs as dangerous for labor or negatively affecting the health of workers.
Based on these indicators, it is possible to carry out the procedure of requirements for the employer to receive allowances. Although this moment provides legislation Russian Federation.
Since the laws clearly state that the implementation of all the norms that the employer must comply with is supervised.
What is the additional payment for harmful working conditions. Each employee can independently determine for himself this list of expenses - from medicines to the organization of treatment and vacation.
Basic concepts
Among the most important terms to know are:
| Working conditions | These are the conditions that the employer provides for combining labor activity within the framework of their position to each employee |
| Surcharge | Cash payment due for certain labor activities. It can be both processing and work in difficult or dangerous conditions. |
| personal income tax | Tax collection, which is established by the state to receive income from the funds that an individual earns |
| Order | A document that is responsible for providing any information for execution |
List of professions in a particularly difficult situation
Such professions are those that are in the following areas:
- metallurgical production;
- production of coke and extraction, processing of coal;
- oil and gas industry;
- chemical production;
- radio electronics, electrical engineering;
- metalworking;
- nuclear power;
- glass production.
These are the main areas that can be considered dangerous and harmful to work. But there is also a division within these professions - into two lists:
Classification of negative impact
There are several classes into which all working conditions are divided:
| First grade | Responsible for optimal conditions. At such a workplace, a citizen receives normal working conditions and the employer makes sure that the person has such conditions in which working capacity increases. |
| Second class | Includes those conditions that are characterized as acceptable. Usually, during the rest from work, all negative effects and manifestations disappear and do not affect working capacity and life activity in the future. |
| Third class | Includes harmful conditions in which a worker can get health problems |
| fourth grade | Provides dangerous conditions. In them, such an impact is possible, as a result of which the employee may receive disability. Frequent and occupational diseases |
As for the degrees of danger, there are also four of them:
Legal grounds under the Labor Code of the Russian Federation
When discussing such a topic, it is necessary to pay attention to legislative framework. If it is necessary to receive an additional payment to the wage rate, it is often necessary to be guided precisely by regulatory legal acts and provisions from them.
The main law in this area will be the Labor Code of the Russian Federation. Article 147 contains the most important information- how is the remuneration for workers in such areas of work.
Payment for harmful working conditions for the hours actually worked also occurs at an increased rate. And allowances are laid even in the case of part-time work.
Article 213 establishes those features in accordance with which medical care is provided to such workers. After all, it is extremely important to monitor their health.
Article 117 refers to additional leave for workers with harmful working conditions. In accordance with the law, it is possible to receive this vacation not in days of rest, but in the form of monetary compensation.
Federal Law No. 426 “On the Special Assessment of Working Conditions” provides information on what factors can be considered harmful. More details are in article 13.
Decree of the State Committee for Labor of the USSR No. 298 / P-22 “On approval of the List of industries, workshops, professions ...” also contains those professions, in accordance with which the mandatory accrual of additional payments to wages is carried out.
How is the additional payment for harmful working conditions based on a special assessment
In order to receive an additional payment, it is necessary to establish what class of difficulty and what degree was assigned to this profession. The legislation of Russia establishes that those professions that are assigned to the 3rd or 4th class / degree are subject to mandatory additional payment.
Photo: the procedure for establishing compensation for work in harmful working conditions
Initially, the company must undergo a special assessment of working conditions. It is on the basis of the conclusion of the SOUT that the class and degree of risks to the health of workers are assigned..
In the future, the employer must enter these indicators into the collective agreement and make appropriate additional payments.
Design mechanism
There are several ways to issue an allowance at the enterprise:
After the enterprise has passed the examination of the SOUT, the employer issues an order. This document should include the following:
- what are the results of the review of working conditions;
- what positions to employed employees fell under the need to make additional payments.
The order itself will look like this:
It can be filled out both for a specific employee, and in general for production positions. It all depends on the size of the organization.
Surcharge amount
The labor legislation of Russia regulates the amount of additional payment that the employer must carry out. The law establishes an indicator as a percentage in relation to the wage rate.
Photo: features of additional payment for harmful working conditions
AND minimum size such a premium should be 4%. However, the employer may set a higher amount of additional payment.
After that, documentation is created to establish these agreements:
In accordance with these documents, the markup indicator is being set. But regardless of the profession and other indicators, the percentage of the allowance will not be lower than 4%. In this regard, the legislation does not plan to change.
Calculation procedure
To begin with, the procedure for certification of working conditions is carried out. Only after this procedure it is possible to carry out calculations.
There are several factors that are taken into account in the calculation. Accountants use a standard document of provisions and accrue wages in accordance with it.
This document assumes the following options for coefficients:
This percentage is applied to wages. And depending on the salary, the size of the allowance and the final salary will be calculated.
Who is responsible for non-payment
There are separate commissions that control payments - these are Rostrud and State Inspectorate labor.
Organizations where employees work in hazardous conditions and where the validity of the results of attestation of workplaces has expired had to conduct a special assessment of working conditions at workplaces. Certain guarantees are established for employees working in such conditions, based on the results of attestation or special assessment. In the article, we will consider what guarantees and to whom they are entitled, how they depend on whether a special assessment or certification of workplaces was carried out, what documents guarantees should be established and what has changed in this area for "harmful people".
Results of the Special Evaluation
Federal Law No. 426-FZ of December 28, 2013 “On the Special Assessment of Working Conditions” (hereinafter referred to as the Law No. 426-FZ) entered into force on January 1, 2014. A special assessment consists in conducting an analysis of the state of working conditions at predetermined workplaces by an independent specialized organization in order to identify harmful and (or) dangerous production factors on them, assess the level of their impact on the employee and determine the degree of deviation of the obtained values from the established standards, as well as evaluate the effectiveness use of means of individual and collective protection of workers (part 1 of article 3 of Law No. 426-FZ).
For your information.
Harmful and dangerous working conditions are recognized as a set of production factors, the impact of which on an employee can lead to illness or injury (Article 209 of the Labor Code of the Russian Federation).
Based on the results of the special assessment, classes (subclasses) of working conditions at workplaces are established (part 2 of article 3 of Law No. 426-FZ). According to the degree of harmfulness and (or) danger, working conditions are divided into four classes: optimal, permissible, harmful, dangerous (part 1 of article 14 of Law No. 426-FZ).
Let's present the classes and subclasses of working conditions and their characteristics in the table.
Subclasses
Description of working conditions
Optimal
(1st grade)
There is no impact of harmful and (or) hazardous production factors or it does not exceed the standards established as safe for humans; prerequisites are created to maintain a high level of human performance
Permissible
(2nd grade)
The impact of harmful and (or) dangerous production factors does not exceed the levels established by the standards; the altered state of the employee's body is restored at the set rest time
(3rd grade)
The impact of harmful and (or) hazardous factors exceeds the levels established by the regulations, including:
- the changed state of the employee's body is restored during rest longer than before the start of the next working day (shift), the risk of damage to health increases;
– levels of exposure to factors can cause occupational diseases of initial forms or mild severity (without loss of professional ability to work) that occur after 15 or more years of exposure;
– levels of exposure to factors can cause occupational diseases of mild and moderate severity (with loss of professional ability to work) during the period of employment;
– levels of exposure to factors can cause severe forms of occupational diseases (with loss of general ability to work) during the period of employment
(4th grade)
Exposure to harmful and (or) dangerous factors that can pose a threat to the life of an employee, there is a high risk of developing an acute occupational disease during the period of employment
The class (subclass) of working conditions at the workplace, in particular, determines what guarantees and compensations should be provided to the employee.
The results of the special assessment are issued in the form of a report. The employer must familiarize the employees with these results against signature within 30 calendar days from the date of approval of the report. The specified period does not include periods of temporary incapacity for work of the employee, his being on vacation and business trips, rest between shifts.
In addition, summary data on the results of the special assessment within the same period are posted on the official website of the organization on the Internet (if such a website exists).
Note.
Information about working conditions at the workplace by virtue of Art. 57 of the Labor Code of the Russian Federation should also be included in employment contracts with employees. If the contract was concluded before the special assessment, the working conditions are prescribed in an additional agreement to the contract.
From the date of approval of the report, it is necessary to provide employees with guarantees and compensation in accordance with Art. 92, 117, 147 of the Labor Code of the Russian Federation, and they must also be reflected in the employment contract.
If the results of certification of workplaces are valid
According to Art. 8 of Law No. 426-FZ, a special assessment is carried out at least once every 5 years. Such an assessment is carried out in stages until December 31, 2018 (part 6 of article 27 of Law No. 426-FZ).
However, this long term does not apply to jobs:
- employees, professions, positions whose specialties are included in the lists of relevant jobs, industries, professions, positions, specialties and institutions (organizations), taking into account which the early assignment of an old-age insurance pension is carried out;
- in connection with work in which, in accordance with legislative and other regulatory legal acts, guarantees and compensations are provided for work in harmful and (or) dangerous conditions;
- where, based on the results of previous certification of workplaces for working conditions or a special assessment of working conditions, harmful and (or) dangerous working conditions were established (part 6 of article 10 of Law No. 426-FZ).
With regard to these jobs, a special assessment should have been carried out as soon as possible after the adoption of Law No. 426-FZ.
But if workplaces were attested before the entry into force of this law, a special assessment of these places can be carried out no later than 5 years from the date of the last attestation, except in cases where an unscheduled special assessment is required in accordance with Part 1 of Art. 17 of Law No. 426-FZ.
Despite the new rules that came into force on 01/01/2014, at the moment there is still valid (to the extent that it does not contradict the law) the List of industries, workshops, professions and positions with harmful working conditions, work in which gives the right to additional leave and a reduced working day, approved by the Decree of the USSR State Committee for Labor, the Presidium of the All-Union Central Council of Trade Unions of October 25, 1974 No. 298 / P-22 (hereinafter referred to as the List).
The question arises: in what cases, when providing guarantees and compensations to employees, to be guided by the List, and in what cases - Labor Code?
But before understanding this, let us recall what compensations and guarantees are provided by the Labor Code for those working in harmful and (or) dangerous working conditions, established by the results of a special assessment.
Guarantees according to classes and subclasses of working conditions
So, for workers in harmful and (or) dangerous conditions, the employer is obliged to provide:
- reduced working hours - no more than 36 hours per week (Article 92 of the Labor Code of the Russian Federation);
- annual additional paid leave of at least 7 calendar days (Article 117 of the Labor Code of the Russian Federation);
- increase in wages in the amount of at least 4% of salary (Article 147 of the Labor Code of the Russian Federation).
At the same time, not all employees without exception are guaranteed. And above all, they are not received by employees whose jobs have the 1st (optimal) and 2nd (permissible) class of working conditions. But guarantees are not granted to all those working in harmful and dangerous conditions. Let's present the options in the table.
Subclass
Guarantees (compensation)
Shortened work week
Additional leave
Increased pay
For your information.
Order of the Ministry of Health and Social Development of the Russian Federation of February 16, 2009 No. 45n establishes the norms and conditions for the free distribution of milk or other equivalent food products to persons employed in work with harmful working conditions. The issuance of these products is carried out on the days of actual employment at work with harmful working conditions due to the presence in the workplace of harmful production factors (provided for by the list given in Appendix 3 to this order), the levels of which exceed the established standards.
So, guarantees and compensations to employees should be established by the employment contract. In this case, it is necessary to take into account the provisions of industry agreements, collective agreements.
Features of the provision of guarantees
The provision of each of the guarantees has its own characteristics.
abbreviated work time. So, by general rule for persons whose working conditions at their workplaces are classified as harmful 3rd or 4th degree or dangerous, the working time should not exceed 36 hours per week. But this does not mean that the reduced number of hours should be paid in proportion to the hours worked. That is, the employee in any case is paid a full salary or a full tariff rate.
It should be noted that Art. 92 of the Labor Code of the Russian Federation provides for the possibility of increasing the duration of reduced working hours to normal, that is, up to 40 hours a week, with the payment of a separate monetary compensation to the employee. At the same time, the duration of working hours, as well as the amount of compensation and the procedure for its payment must be established by an industry (inter-sectoral) agreement and a collective agreement. The written consent of the employee is also required, drawn up by concluding a separate agreement to the employment contract.
Note.
Rostrud officials emphasized that an increase in weekly working hours only on the basis of the written consent of employees, drawn up in the form of an additional agreement to an employment contract, is not allowed, since it is not provided for by labor legislation.
Increased wages. In part 2 of Art. 147 of the Labor Code of the Russian Federation specifies the minimum increase in pay for work with harmful and (or) dangerous conditions, which is 4% of the tariff rate (salary). A higher amount of compensation can be established by labor, collective agreements, local normative act organizations, industry agreements.
issuance of milk or other equivalent food products to persons employed in work with harmful working conditions. The issuance of these products is carried out on the days of actual employment at work with harmful working conditions due to the presence in the workplace of harmful production factors (provided for by the list given in Appendix 3 to this order), the levels of which exceed the established standards.
Local act that introduces increased size remuneration, the employer accepts, taking into account the opinion of the representative body of employees in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation.
For example, the Industry Agreement on coal industry of the Russian Federation for the period from 04/01/2013 to 03/31/2016 from 04/01/2013, extended until 12/31/2018, an increase tariff rates from 10 to 20 %.
Additional vacation. As provided in Art. 117 of the Labor Code of the Russian Federation, the minimum duration of the annual additional paid leave for employees whose working conditions are classified as harmful 2nd, 3rd or 4th degree or dangerous is 7 calendar days.
Note.
An employment contract on the basis of a sectoral (intersectoral) agreement and a collective agreement may establish a longer duration of additional leave.
If the period of the relevant leave exceeds the minimum duration, then the part exceeding it may be replaced by monetary compensation. This replacement, as well as the procedure and amount of compensation, must be established by an industry (inter-sectoral) agreement and a collective agreement. Replacing part of the vacation with compensation is allowed with the written consent of the employee, drawn up in the form of an agreement to an employment contract.
Let us pay special attention to the next point. For additional leave for work in harmful and (or) dangerous conditions by virtue of Part 3 of Art. 121 of the Labor Code of the Russian Federation, it is necessary to take into account the actual work experience in such conditions. The calculation of length of service is regulated in more detail in the Instructions on the procedure for applying the List of production shops, professions and positions with harmful working conditions, work in which gives the right to additional leave and a shorter working day, approved by the Decree of the State Committee for Labor of the USSR, All-Union Central Council of Trade Unions of November 21, 1975 No. 273 / P- 20 (hereinafter referred to as the Instruction).
According to par. 1 clause 12 of the Instructions, only those days in which the employee was actually employed in these conditions for at least half of the working day established for this production, workshop, profession or position.
But one of the workers, whose length of service included the period when he worked in harmful conditions at 0.25 of the rate, turned to Supreme Court in order to recognize this provision of the Instruction as invalid (see Decision of the Supreme Court of the Russian Federation dated January 26, 2017 No. AKPI16-1035).
And the court recognized the specified paragraph of clause 12 of the Instruction as invalid, guided by Part 3 of Art. 121 of the Labor Code of the Russian Federation: according to this norm, when granting additional leave, the time actually worked under the relevant conditions is taken into account, regardless of whether the employee is employed full-time or part-time, including if he is employed less than 0.5 of the rate.
Thus, now this provision of the Instruction is recognized as not complying with the provisions of the Labor Code of the Russian Federation, since it introduces restrictions on the duration of the period of work to be taken into account in harmful working conditions in order to provide annual paid additional leave and, accordingly, to receive its payment in the amount established by labor legislation. It can be concluded that the length of service in hazardous conditions must include all the time actually worked in these conditions.
What guarantees and to whom to provide?
The period up to 2018 can be called a transition period for determining working conditions in the workplace, since some organizations still have attestation results, and some special assessments. In addition, along with Art. 92, 117 and 147 of the Labor Code of the Russian Federation, to the extent that it does not contradict the law, the provisions of the List and Instructions are still applied. In this regard, employers have a lot of questions, which we will try to deal with.
bsp; receiving his payment in the amount established by labor legislation. It can be concluded that the length of service in hazardous conditions must include all the time actually worked in these conditions.
Question:
Until 01.01.2014, employees were provided with guarantees and compensations in accordance with the List, including a reduced working week of 36 hours. After a special assessment of working conditions, they were assigned subclass 3.1, in which such a guarantee is not provided. What should employers do in such situations?
By virtue of h. 3 Article. 15 federal law dated December 28, 2013 No. 421-FZ (hereinafter - Law No. 421-FZ), which amended Art. 92, 117 and 147 of the Labor Code of the Russian Federation, when implementing, in accordance with these articles, compensatory measures in relation to persons employed in work with harmful and (or) dangerous working conditions, the procedure and conditions for the implementation of such measures cannot be worsened, and the amounts can be reduced compared to with the procedure, conditions and amounts of compensatory measures implemented until 01.01.2014, subject to the preservation of the previous working conditions at the workplace, which were the basis for the appointment of these measures.
That is, if employees before the entry into force of the new editions of Art. 92, 117 and 147 of the Labor Code of the Russian Federation and Law No. 426-FZ provided guarantees and compensations in accordance with the List or based on the results of attestation of workplaces, the employer cannot reduce the level of guarantees if the working conditions at these workplaces have not changed. And if, in accordance with the List, a shortened working week was established before 01/01/2014, and there were no changes in working conditions, the reduced working week should be retained.
At the same time, if, based on the results of a special assessment of working conditions at the workplace, the fact of their improvement is established, characterized by a decrease in the final class (subclass) of working conditions, further provision of guarantees (compensations) for work in harmful (dangerous) conditions to the employee employed at this workplace is carried out in in the manner prescribed by Art. 92, 117, 147 and 219 of the Labor Code of the Russian Federation.
For your information.
Due to the fact that the decrease in the level of guarantees was noted, in particular, in medical institutions, The Ministry of Labor sent Government telegram No. 15-0/10/P-7498 dated December 19, 2014, in which he drew attention to the need for strict compliance with the requirements of Part 3 of Art. 15 of Law No. 421-FZ regarding the inadmissibility of worsening the conditions for providing and reducing the amount of compensation for work in harmful (dangerous) working conditions that were in force before the entry into force of this law, without confirmation of the improvement in working conditions by the results of a special assessment.
Note that the condition on the inadmissibility of reducing guarantees applies specifically to employees, workers before and after changes in legislation. Employees hired after the special assessment are guaranteed and compensated solely on the basis of its results.
Question:
If an organization has carried out an attestation or special assessment, and the position of the employee is included in the List, according to which he is entitled to additional leave, for example, 10 days, should we apply the List when establishing the duration of additional leave?
The legislator does not give clear explanations.
The answer to this question can be found in the Decision of the Supreme Court of the Russian Federation dated January 14, 2013 No. AKPI12-1570. If the profession or position of an employee who is entitled to compensation is included in the List and the duration of vacation indicated in it is more than 7 calendar days, then the List must be followed when determining the amount of compensation.
However, in this case, certification was carried out in the organization. If the organization conducted a special assessment, then based on Art. 219 of the Labor Code of the Russian Federation, the amount, procedure and conditions for providing guarantees and compensations to persons employed in work with harmful and (or) dangerous working conditions are established in the manner prescribed by Art. 92, 117 and 147 of the Labor Code of the Russian Federation. The minimum duration of the annual additional paid leave for such work is 7 calendar days (part 2 of article 117 of the Labor Code of the Russian Federation).
We believe that everything here depends on whether the employee received an additional vacation of 10 days before the special assessment. If yes, then after the special assessment, the employer should be guided by the List. If not, it is not necessary to apply the List - you must be guided by Art. 117 of the Labor Code of the Russian Federation and a card for a special assessment of working conditions.
Question:
If the employer did not carry out any attestation of workplaces or a special assessment, should he provide guarantees to the employee whose position is included in the List?
First of all, we recall that if the organization has employees included in the List, the employer should have rushed to conduct a special assessment.
In any case, as noted in the same Decision No. AKPI12-1570, if the employer has not yet conducted a special assessment of working conditions, this does not mean that it is not necessary to provide guarantees and compensations to those who work in positions with harmful working conditions, included to the List. Everything will be provided to these workers, subject to the requirements established in the List.
Accordingly, if the organization has not carried out certification of workplaces or a special assessment, and there are no positions and professions included in the List, then the employer has the right to conduct a special assessment before the end of 2018.
Note.
Failure by the employer to conduct a special assessment of working conditions in the workplace entails a warning or the imposition of an administrative fine on officials in the amount of 5,000 to 10,000 rubles, legal entities from 60,000 to 80,000 rubles (Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation).
Question:
If the special assessment has not yet been carried out, and more than 5 years have passed since the certification of workplaces, should the employer continue to provide guarantees to employees?
Yes, the employer is obliged to provide guarantees to employees. And he will be able to cancel them only after taking measures to improve working conditions and conducting a special assessment, according to the results of which the jobs will be recognized as optimal or acceptable.
If the organization has not carried out certification, the name of the position is not in the List, and during the special assessment harmful working conditions are established, then the employer should begin to provide guarantees in accordance with the Labor Code based on the results of the special assessment.
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We have reviewed the most common transitional situations in the part of the special assessment. And in conclusion, we note that if the working conditions at the workplaces of your employees, according to the results of a special assessment, turned out to be changed (no matter in which direction), you must amend the employment contracts with employees. This can be done in accordance with Art. 74 of the Labor Code of the Russian Federation, since there is a change in essential conditions employment contract at the initiative of the employer: the scope of guarantees and compensations for work in harmful and (or) dangerous conditions, if the employee performs duties in appropriate conditions, indicating the characteristics of working conditions at the workplace. The employer is obliged to notify employees in writing of upcoming changes, as well as the reasons that caused them, no later than 2 months in advance. Moreover, during these months, the employee retains the previous guarantees and compensation.
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