What funds are used to make compensation payments? Guarantees and compensation for work with harmful or dangerous working conditions

Terms and definitions used in this lecture:

Occupational Safety and Health- a system for preserving the life and health of workers in the course of work, including legal, socio-economic, organizational and technical, sanitary and hygienic, medical and preventive, rehabilitation and other measures (Article 209 of the Labor Code).
Working conditions- a set of factors of the working environment and the labor process that affect the performance and health of the employee (Article 209 of the Labor Code).
Harmful production factor- a production factor, the impact of which on an employee can lead to his illness (Article 209 of the Labor Code).
Hazardous production factor- a production factor, the impact of which on an employee can lead to his injury (Article 209 of the Labor Code).
Safe working conditions- working conditions under which the impact on workers of harmful and (or) hazardous production factors is excluded or the levels of their impact do not exceed the established standards (Article 209 of the Labor Code).
Harmful working conditions- working conditions characterized by the presence of harmful production factors that exceed hygienic standards and have an adverse effect on the body of the worker and (or) his offspring (Procedure for certification of workplaces for working conditions. Order of the Ministry of Health and Social Development of the Russian Federation of August 31, 2007 N 569).
Hazardous working conditions- working conditions characterized by such levels of production factors, the impact of which during the work shift (or part of it) poses a threat to life, a high risk of severe forms of acute occupational injuries (Procedure for certification of workplaces for working conditions ...).
The severity of labor- characteristics of the labor process, reflecting the predominant load on the musculoskeletal system and functional systems of the body (cardiovascular, respiratory, etc.) that ensure its activity (Guideline R 2.2.755-99. “Hygienic criteria for assessing and classifying working conditions .. .”).
Guarantees- means, methods and conditions by which the implementation of the rights granted to employees in the field of social and labor relations is ensured (Article 164 of the Labor Code).
Compensation - cash payments, established for the purpose of reimbursement to employees of costs associated with the performance by them of labor or other duties provided for by federal law (Article 164 of the Labor Code).

Types of compensation provided for by Russian legislation to employees engaged in work with harmful and (or) hazardous conditions labor:

1. Reduced working hours established for workers employed in work with harmful and (or) dangerous working conditions (Articles 92, 94 of the Labor Code).
2. Annual additional holidays, which are established for employees employed in work with harmful and (or) dangerous working conditions (Article 117 of the Labor Code).
3. Remuneration of workers in an increased amount, employed in hard work, work with harmful and (or) dangerous and other special working conditions (Article 147 of the Labor Code).
4. Milk or other equivalent food products issued to workers employed in work with harmful and (or) dangerous working conditions free of charge according to established standards (Article 222 of the Labor Code).
5. Therapeutic and preventive nutrition for workers employed in work with harmful and (or) dangerous working conditions free of charge according to established standards (Article 222 of the Labor Code).
6. Early appointment of a labor pension for employees employed in work with harmful and (or) dangerous working conditions, in work in special working conditions (Articles 27 and 28 of the Federal Law “On labor pensions in Russian Federation”).

Reduced hours of work for employees working in hazardous or hazardous working conditions

According to Art. 92 of the Labor Code, the normal working hours are reduced by 4 hours a week or more for workers employed in work with harmful and (or) dangerous working conditions, in the manner established by the Government of the Russian Federation.
The Government Decree has not yet been adopted and the List of industries, workshops, 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 USSR State Committee for Labor and the All-Union Central Council of Trade Unions of October 25, 1974 No. 298 / P-22.
Art. 94 of the Labor Code establishes that the maximum duration of daily work (shift) cannot exceed for workers employed in work with harmful and (or) dangerous working conditions, where reduced working hours are established:
- with a 36-hour work week - 8 hours;
- with a 30-hour work week and less than -6 hours.
Working hours are reduced on those days when workers are actually employed in harmful working conditions for this production, shop, profession or position.
In cases where employees were employed during the working day various works with harmful working conditions, where a reduced work time of varying length, their working day should not exceed six hours.
For employees whose professions and positions are not included in the List, but who perform work on certain days in industries, workshops, professions and positions with harmful working conditions provided for in the List, a reduced working day is set on these days of the same duration as for employees who are constantly employed on these jobs.
The right to reduced working hours due to harmful working conditions is reserved for employees when they combine professions (positions), regardless of whether reduced working hours are established for combined professions (positions), if they perform their main work in full.

Provision of additional annual leave for employees working in harmful and dangerous conditions, and its duration

According to Art. 117 of the Labor Code, annual additional paid leave is granted to employees employed in work with harmful and (or) dangerous working conditions (in underground mining and open pit mining, in open pits and quarries, in radioactive contamination zones, in other jobs) associated with an unavoidable adverse impact on human health of harmful physical, chemical, biological and other factors. Lists of industries, jobs, professions and positions, work in which gives the right to additional paid leave for work with harmful and (or) dangerous working conditions, as well as the minimum duration of this leave and the conditions for its provision are approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission on the regulation of social and labor relations.
At present, there is no government decree yet and there are Lists of industries, workshops, 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 USSR State Committee for Labor and the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 No. 298 / P-22. The procedure for applying the List is regulated by the Instruction approved by the USSR State Labor Committee and the Presidium of the All-Union Central Council of Trade Unions dated November 21, 1975 N 273 / P-20.
By the decision of the Supreme Court of the Russian Federation of April 15, 2004, GKPI2004-481, amendments were made to the Instruction: paragraph 3 of clause 8 of Article 121 of the Labor Code of the Russian Federation was canceled. Therefore, periods of temporary disability are not included in the length of service that gives the right to additional annual paid leave for work with harmful and (or) dangerous working conditions.
Where workers have worked in different industries, shops, professions, positions for work in which leave of unequal duration is granted, the calculation of the time worked in hazardous working conditions is carried out separately for each job.
Employees whose professions and positions are not included in the List, but who perform work in certain periods of time in industries, workshops, professions and positions with harmful working conditions provided for in the List, are granted additional leave on the same grounds as employees, professions and whose positions are provided for in the List.
Additional leave is granted simultaneously with the annual basic leave in excess of it. The duration of additional leave for various occupations with harmful working conditions is set differentially in the List.
According to Article 120 of the Labor Code, the duration of the annual basic and additional paid holidays of employees is calculated in calendar days and maximum limit is not limited. When calculating the total duration of annual paid leave, additional paid leaves are added to the annual basic paid leave.
Based on Art. 121 of the Labor Code, the length of service giving the right to additional annual paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions.
The Labor Code provided for certain guarantees when using additional leave. Yes, Art. 125 of the Labor Code does not allow the recall from vacation of employees employed in work with harmful and (or) dangerous working conditions; Art. 126 of the Labor Code does not allow the replacement of vacation with monetary compensation to employees engaged in hard work and work with harmful and (or) dangerous working conditions.

Remuneration of labor of employees engaged in heavy work, work with harmful and (or) dangerous and other special working conditions

According to Art. 147 of the Labor Code, the remuneration of labor for workers engaged in heavy work, work with harmful and (or) dangerous and other special working conditions is set at an increased rate compared to the tariff rates (salaries) that are established for various kinds work under normal working conditions. The increased amount is established not lower than the sizes established by laws and other regulatory legal acts.
Art. 147 of the Labor Code provides that the list of hard work, work with harmful and (or) dangerous and other special working conditions is determined by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.
On November 20, 2008, the Government of the Russian Federation adopted Decree N 870 "On the establishment of reduced working hours, annual additional paid leave, increased wages for workers engaged in heavy work, work with harmful and (or) dangerous and other special working conditions."
The ruling notes:
1. Establish for employees engaged in heavy work, work with harmful and (or) dangerous and other special working conditions, based on the results of attestation of workplaces, the following compensations:
- reduced working hours - no more than 36 hours per week in accordance with Article 92 of the Labor Code of the Russian Federation;
- annual additional paid leave - at least 7 calendar days;
- salary increase - not less than 4 percent tariff rate(salary) established for various types of work with normal working conditions.
2. The Ministry of Health and Social Development of the Russian Federation, within 6 months after the entry into force of this resolution, to establish, depending on the class of working conditions and taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations, workers engaged in heavy work, work with hazardous and (or) dangerous and other special working conditions, reduced working hours, the minimum duration of the annual additional paid leave, the minimum wage increase, as well as the conditions for providing these compensations.

Milk or other equivalent food products issued to employees employed in work with harmful and (or) dangerous working conditions free of charge according to established standards

According to Article 222 of the Labor Code, in jobs with harmful working conditions, employees are given milk or other equivalent food products free of charge according to established standards. The norms and conditions for the free distribution of milk or other equivalent food products are approved in the manner established by the Government of the Russian Federation.
Currently, there is an order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 N 45n "On approval of the norms and conditions for the free distribution of milk or other equivalent food products to workers employed in work with harmful working conditions, the Procedure for the implementation of compensation payments in the amount of equivalent to the cost of milk or other equivalent food products, and the List of harmful production factors, under the influence of which, for preventive purposes, the use of milk or other equivalent food products is recommended"
Free distribution of milk or other equivalent food products is made to employees on the days of actual employment at work related to the excess of harmful production factors at the workplace.
The list of harmful production factors, under the influence of which it is recommended to use milk or other equivalent food products for preventive purposes, includes chemical, biological and physical factors of the production environment.
When providing safe conditions labor and on the basis of the results of certification of workplaces, the employer decides to stop dispensing milk.

Provision of free therapeutic and preventive nutrition to employees

According to Article 222 of the Labor Code, at work with especially harmful working conditions, therapeutic and preventive nutrition is provided free of charge according to established standards. The norms and conditions for the provision of therapeutic and preventive nutrition are approved in the manner established by the Government of the Russian Federation.
At present, the List of industries, professions and positions has been adopted, work in which gives the right to free receipt therapeutic and preventive nutrition in connection with especially harmful working conditions, rations for therapeutic and preventive nutrition, norms for the free distribution of vitamin preparations and the Rules for the free distribution of therapeutic and preventive nutrition, approved by order of the Ministry of Health and Social Development of the Russian Federation of February 16, 2009 N 46n.
The right to receive therapeutic and preventive nutrition is enjoyed by employees whose professions and positions are provided for in the relevant industries of the list, regardless of the sector of the economy in which these industries are located, and also regardless of the organizational and legal forms and forms of ownership of employers.
Therapeutic and preventive nutrition is issued to employees on the days of their actual performance of work in the industries, professions and positions provided for by the list, provided that they are employed at the specified job for at least half of the working day, as well as on sick days with temporary disability, if the disease by its nature is professional and the patient was not hospitalized.
Therapeutic and preventive nutrition is also issued:
a) employees of other industries of organizations and workers employed in construction, construction and installation, repair and construction and commissioning works, working full-time in existing industries with especially harmful working conditions, in which both the main workers and the repair personnel are provided issuance of medical and preventive nutrition;
b) workers cleaning and preparing equipment for repair or conservation in the workshop (on the site) of the organization, for workers of which the issuance of therapeutic and preventive nutrition is provided;
c) persons with disabilities due to an occupational disease who used therapeutic and preventive nutrition immediately before the onset of disability due to the nature of their work - until the termination of disability, but not more than one year from the date of establishment of disability;
d) employees who have the right to receive free medical and preventive nutrition and are temporarily transferred to another job due to the initial symptoms of an occupational disease due to the nature of their work - for a period not exceeding one year;
e) women employed before the onset of maternity leave in industries, professions and positions that give the right to receive free medical and preventive nutrition - for the entire period of maternity leave.

Early appointment of labor pension

Early appointment of a labor pension is provided for by Art. 27 and 28 of the Federal Law “On labor pensions in the Russian Federation”.
According to Art. 27. “Retention of the right to early appointment labor pension” old-age labor pension is assigned before the age of 60 years for men and 55 years for women for certain categories of persons.
Right to a pension preferential terms have employees permanently engaged in the performance of work provided for by the lists specified in Decree of the Government of the Russian Federation of July 18, 2002 No. 537 "On the lists of industries, works, professions and positions, taking into account which an old-age labor pension is early assigned in accordance with Article 27 of the Federal Law " On labor pensions in the Russian Federation" and the lists provided for by Decree of the Government of the Russian Federation of April 24, 2003 No. 239 "On Amendments to Clause 1 of Decree of the Government of the Russian Federation of July 18, 2002 No. 537".
On the basis of these acts, employees who work in the listed jobs full-time have the right to a pension. The duration of a full working day is determined on the basis of normal or reduced working hours in accordance with the Labor Code of the Russian Federation. The concept of full working time is given in the clarifications of the Ministry of Labor of the Russian Federation dated May 22, 1996 No. 5, according to which full working time is understood as the performance of work in the working conditions provided for by the relevant lists, for at least 80 percent of working time. At the same time, the implementation of preparatory, auxiliary and repair work does not deprive the employee of the right to preferential pension provision.
Employees of specialized enterprises (for example, repair and construction), employed full-time directly in production shops, at sites and at work, in professions and positions provided for by the Lists for this production, preferential pensions are assigned in the same way as employees working in these shops and areas based on actual hours worked.
The Federal Law “On labor pensions in the Russian Federation” (Article 28 “Retention of the right to early assignment of a labor pension to certain categories of citizens”) provides for the early appointment of an old-age pension to persons who have been engaged in pedagogical activities in state and municipal institutions for children; persons who carried out medical and other activities to protect the health of the population in state and municipal health care institutions, persons who carried out creative activities on stage in state and municipal theaters or theatrical and entertainment organizations (depending on the nature of such activities) and other categories of workers.
Lists of positions and institutions, work in which is counted in the length of service, giving the right to early appointment of an old-age labor pension to the above persons, was introduced by Decree of the Government of the Russian Federation of October 29, 2002 No. 781 “On the lists of jobs, professions, positions, specialties and institutions, taking into account which an old-age labor pension is early assigned in accordance with Article 28 of the Federal Law “On labor pensions in the Russian Federation” and on the approval of the Rules for calculating periods of work, giving the right to early appointment of an old-age labor pension in accordance with Article 28 of the Federal Law “On labor pensions In Russian federation".
Decree Constitutional Court The Russian Federation recognized the normative provisions of subparagraphs 10, 11, 12 of paragraph 1 of Article 28 of the Federal Law “On labor pensions in the Russian Federation” as inconsistent with the Constitution of the Russian Federation.
The rules for calculating periods of work that give the right to early appointment of an old-age labor pension in accordance with Articles 27 and 28 of the Federal Law “On labor pensions in the Russian Federation” were approved by Decree of the Government of the Russian Federation of July 11, 2002 No. 516 and Decree of the Government of the Russian Federation of July 24 2002 N 555.

Guarantees established for certain categories of employees

According to Art. 213 “Medical examinations of certain categories of workers” of the Labor Code workers engaged in hard work and work with harmful and (or) dangerous working conditions (including underground works), as well as at work related to the movement of transport, undergo obligatory preliminary (upon employment) and periodic (for persons under the age of 21 - annual) medical examinations (examinations) at the expense of the employer to determine the suitability of these workers to perform assigned work and prevention of occupational diseases. In accordance with medical recommendations, these employees undergo extraordinary medical examinations (examinations).
According to Art. 282" General provisions on part-time work” of the Labor Code, part-time work is not allowed if the main job is associated with the same conditions, as well as in other cases established by federal laws:
- persons under the age of eighteen;
- persons employed in heavy work;
- persons employed in work with harmful and (or) dangerous working conditions.

Restrictions on the employment of women

According to Art. 253 of the Labor Code restricts the use of women's labor in heavy work and work with harmful and (or) dangerous working conditions, as well as in underground work, with the exception of non-physical work or work on sanitary and domestic services.
It is forbidden to use the labor of women in work related to the lifting and manual movement of weights that exceed the maximum allowable norms for them.
Lists of industries, jobs, professions and positions with harmful and (or) dangerous working conditions, in which the use of women's labor is limited, and allowable norms loads for women when lifting and moving weights manually are approved in the manner established by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.
The Decree of the Government of the Russian Federation “On approval of the List of heavy work and work with harmful or dangerous working conditions, in the performance of which the use of women’s labor is prohibited” dated February 25, 2000 No. 162, was left in effect.
The norms for carrying heavy loads by hand are indicated in the Decree of the Government of the Russian Federation of February 6, 1993 No. 105 "On the new norms of maximum allowable loads for women when lifting and moving heavy objects by hand".

Prohibition on employment of persons under eighteen years of age

According to Art. 265 of the Labor Code, it is prohibited to use the labor of persons under the age of eighteen in work with harmful and (or) dangerous working conditions, in underground work, as well as in work, the performance of which may harm their health and moral development (gambling business, work in night cabarets and clubs, production, transportation and trade in alcoholic beverages, tobacco products, narcotic and toxic drugs).
Carrying and movement by workers under the age of eighteen years of weights exceeding the maximum norms established for them is prohibited.
The list of jobs where it is prohibited to use the labor of workers under the age of eighteen, as well as the maximum norms of gravity, are approved in the manner established by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.
The Decree of the Government of the Russian Federation “On Approval of the List of Heavy Works and Works with Harmful or Dangerous Working Conditions, in the Performance of which the Use of Labor of Persons Under Eighteen Years of Age” dated February 25, 2000 No. 163, was left in effect.
The norms for carrying weights manually are specified in the Decree of the Ministry of Labor of the Russian Federation dated April 7, 1999 No. 7 “Norms of maximum permissible loads for persons under eighteen years of age when lifting and moving weights manually.”

E. P. Nikodimova
BG expert

Since 2014, the rules for providing guarantees and compensations to employees employed in work with harmful and (or) dangerous working conditions have been significantly changed. The relevant amendments were adopted by Federal Law No. 421-FZ dated December 28, 2013 “On Amendments to Certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law "On the Special Assessment of Working Conditions".

The adopted changes are primarily related to the introduction of a procedure for a special assessment of working conditions. However, the changes are whole line and other new rules that are not directly linked to the results of a special assessment (attestation of jobs).

Most of the changes have been made to the Labor Code of the Russian Federation, which additionally characterizes their significance.

Clarifications regarding the list of guarantees and compensations
The version of the Labor Code of the Russian Federation, effective from January 1, 2014, determines that workers employed in work with harmful and (or) dangerous working conditions are entitled to guarantees and compensation. Until recently, it was only about compensation and taxation of the amounts paid.

Corresponding changes have been made to numerous articles of the Labor Code of the Russian Federation, including Art. 219 of the Labor Code of the Russian Federation. According to the new version of the first part of the specified article of the Labor Code, a list of guarantees and compensations is defined that must be provided to the category of workers in question.

Starting from 2014, employees employed in jobs with harmful and (or) dangerous working conditions are provided with the following guarantees and compensations:
- reduced working hours with the possibility of paying monetary compensation for work within the generally established 40-hour working week (Article 92 of the Labor Code of the Russian Federation);
- annual additional paid leave for employees employed in work with harmful and (or) dangerous working conditions with the possibility of paying compensation for a part of such leave that exceeds the minimum duration (Article 117 of the Labor Code of the Russian Federation);
- increased wages for employees (Article 147 of the Labor Code of the Russian Federation).

Since 2014, the Labor Code of the Russian Federation has no provisions on compensation provided for workers engaged in hard work, work with harmful and (or) dangerous working conditions, the previous version of Art. 219 of the Labor Code of the Russian Federation, which could be established by a collective agreement, an agreement, a local regulatory act in force in the organization and (or) an employment contract directly concluded with an employee.

As a rule, such compensation was established by the collective agreement in force in the organization in case it was impossible to reduce the impact of harmful factors at the workplace against legally established restrictions. At the same time, compensation was considered as additional to the above.

Since 2014, each of the existing compensations has been revised. In this regard, it is important to understand how new order will affect those employees who were compensated in accordance with the previous version of the Labor Code of the Russian Federation.

How to apply accepted changes over time
The procedure for applying the adopted changes in time is regulated in accordance with paragraph 3 of Art. 15 of Federal Law No. 421-FZ. In particular, when implementing in accordance with the provisions of the Labor Code of the Russian Federation (as amended on January 1, 2014) in relation to workers employed in work with harmful and (or) dangerous working conditions, compensatory measures aimed at mitigating the negative impact on their health of harmful and (or) hazardous factors of the working environment and the labor process, the procedure and conditions for the implementation of such measures cannot be worsened, and the amounts are reduced in comparison with the procedure, conditions and amounts of compensatory measures actually implemented in relation to these workers, which were applied as of January 1 2014

Thus, for employees who received appropriate guarantees and compensations before January 1, 2014, employers are obliged to keep them at a level not lower than previously established. There is only one condition for this - the preservation of appropriate working conditions at the workplace, which were the basis for the appointment of guarantees and compensations.

This rule concerns guarantees and compensations in the form of reduced working hours and the establishment of additional leave, as well as increased wages. Compensation provided for by the previous version of Art. 219 of the Labor Code of the Russian Federation, the rule in question does not apply, in connection with which it can be canceled. At the same time, it is necessary to comply mandatory procedure- warn the employee no later than 2 calendar months, etc. This is explained by the provisions of Art. 74 of the Labor Code of the Russian Federation, according to which the employer is obliged to notify employees of upcoming changes determined by the parties to the terms of the employment contract within the indicated 2-month period. The written notice must also state the reason for the relevant changes, which this case are the provisions of the new edition of Art. 219 of the Labor Code of the Russian Federation.

In accordance with the adopted changes, certain categories of employees will lose additional leave and (or) reduced working hours. In this regard, it is important to understand that if an employee had such a guarantee as of January 1, 2014, it is quite difficult to deprive him of the opportunity to receive it in the new year, since it is necessary to organize another certification of the workplace (according to the new rules, a special assessment working conditions). But this is not enough to deprive the employee of one or another guarantee (compensation). It is also necessary to confirm the change in working conditions compared to those that served as the basis for establishing guarantees and compensations in previous years.

Example 1
Suppose that, according to the certification of workplaces carried out in the organization at the beginning of 2013, a class of working conditions of 3.1 was established at the workplace of an employee. (harmful conditions, working conditions subclass 3.1).

Taking into account the provisions of the legislation in force in 2013, the following compensations were established for the employee:
– reduced working hours – 36 hours;
– additional paid leave of 7 calendar days;
– increased wages – 4% of the official salary .

In accordance with new edition Labor Code of the Russian Federation this employee has the right to rely only on increased wages, and loses the right to a shorter working week and additional paid leave.

By virtue of the provisions of paragraph 3 of Art. 15 of Federal Law No. 421-FZ, the organization is obliged to keep the previously established guarantees and compensations for the specified employee, including without reducing their value (respectively - work per week no more than 36 hours, at least 7 calendar days additional leave and at least 4% of official additional salary).

In order to cancel individual guarantees and (or) reduce them, the employer must:
1) to conduct, in accordance with the provisions of the current legislation, a special assessment of working conditions at the workplaces of employees (if necessary, an extraordinary one);
2) comply with the requirements of the legislation on the possibility of canceling guarantees and compensations only if the working conditions change, which were previously the basis for their establishment (in relation to the conditions this example cancellation and (or) reduction of guarantees and compensations can be carried out if, based on the results of an assessment of working conditions at the workplace of this employee, working conditions are recognized as optimal or acceptable).

New requirements for the terms of employment contracts
In accordance with the new wording of the second part of Art. 57 of the Labor Code of the Russian Federation, working conditions at the workplace are included in the mandatory conditions of an employment contract. In addition, the requirement to reflect in the employment contract guarantees and compensations (until 2014 - compensations) for work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, has been retained.

In pursuance of the requirements of the current legislation, it is necessary to sign additional agreements with all employees of the organization in 2014 to the previously concluded labor contracts, where to provide for the condition of such an agreement on the actual working conditions at the workplace of each individual person.

In this case, it must be taken into account that, by virtue of the provisions of the current legislation, working conditions are divided into four classes - optimal, permissible, harmful and dangerous working conditions. In turn, harmful working conditions are additionally divided into 4 subclasses (respectively, harmful working conditions are 1, 2, 3 and 4 classes). These are the provisions of Art. 14 of the Federal Law of December 28, 2013 No. 426-FZ "On a special assessment of working conditions", which entered into force on January 1, 2014

If the organization has valid results of the previously conducted certification of workplaces (this is how such a procedure was called in accordance with the provisions of the previously applied legislation), the organization has the right to determine working conditions based on the results of these previously conducted activities. These are, among other things, the provisions of paragraph 5 of Art. 15 of Federal Law No. 421-FZ. In particular, the results of certification of workplaces in terms of working conditions, carried out in accordance with the legislation in force before January 1, 2014, are recognized as valid until the end of their validity period, but no later than December 31, 2018 inclusive. Recall that, both under the previous rules and under the new requirements, this kind of procedure (previously - attestation of workplaces, from now on - a special assessment of working conditions) should be carried out at least once every 5 years.

In the absence of valid results of certification of workplaces, as well as in the event of its failure, it is unlawful to conclude an additional agreement with each of the employees reflecting working conditions at the workplace. For this reason, on this problem the organization must now pay special attention.

New rules for reducing working hours
In accordance with the new edition of Art. 92 of the Labor Code of the Russian Federation since 2014, reduced working hours are established only for those workers whose working conditions at their workplaces, according to the results of a special assessment of working conditions, are classified as harmful working conditions of class 3 or 4 or dangerous working conditions. Working hours, as before, cannot exceed 36 hours per week. Thus, from now on, the right to work below the generally established 40-hour working week has been lost to persons at whose workplaces the working conditions are classified as harmful 1 or 2 classes (3.1 and 3.2 subclass of working conditions).

For the information of readers, in accordance with the provisions of Art. 14 of the Federal Law "On a special assessment of working conditions" the working conditions 3.1 and 3.2 of the subclass include:
- subclass 3.1 (harmful working conditions of the 1st degree) - working conditions under which the employee is exposed to harmful and (or) dangerous production factors, after exposure to which the altered functional state of the employee's body is restored, as a rule, with a longer period than before the start of the next work day (shift), cessation of exposure to these factors, and the risk of damage to health increases;
- subclass 3.2 (harmful working conditions of the 2nd degree) - working conditions under which the employee is exposed to harmful and (or) dangerous production factors, the levels of exposure to which can cause 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 (without loss of professional ability to work) arising after prolonged exposure (15 years or more).

The changes introduced from January 1, 2014 will not affect those employees who had a shortened working week before the specified date for the reason that, according to the previous certification, their workplaces were assigned a class of working conditions of 3.1 or 3.2. If an employee is hired by the organization from this year and at his workplace the class of working conditions is 3.1 or 3.2, he does not have the right to a reduced working week.

Current legislation still stipulates only the maximum possible working hours for the persons concerned – 36 hours per week. At the same time, until 2014, the specific duration, based on working conditions, had to be determined in accordance with the documents of the Ministry of Labor of Russia, which were never adopted.

According to the second part of the new edition of Art. 92 of the Labor Code of the Russian Federation, the working hours of each specific employee are established by an employment contract concluded with him on the basis of an industry (inter-sectoral) agreement and a collective agreement, taking into account the results of a special assessment of working conditions.

Thus, in order to determine the duration of working hours for each employee whose workplace has revealed working conditions of classes 3.3, 3.4 (harmful working conditions of subclass 3 or 4) or 4 (dangerous working conditions), it is necessary that:
1) the organization or other employer was a party to the relevant sectoral (intersectoral) agreement;
2) the provisions on reduced working hours were fixed in the collective agreement (namely, in this document, and not in any individual local regulatory act of the organization);
3) taking into account the provisions of the sectoral (intersectoral) agreement and the collective agreement, the specific duration of working hours was fixed in the employment contract concluded with the employee.

It can be assumed that if the organization is not a party to an industry (inter-sectoral) agreement, the reduced working hours for employees with a class of working conditions at the workplace of 3.3, 3.4 or 4 may be 36 hours. Otherwise, if the organization itself determines the duration of time less than 36 hours, the corresponding costs will be unjustified for the purpose of income tax recognition.

It should be noted that, in accordance with Art. 45 of the Labor Code of the Russian Federation, an agreement is understood as a legal act regulating social and labor relations and establishing general principles regulation of economic relations related to them, concluded between the authorized representatives of employees and employers at the federal, interregional, regional, sectoral (intersectoral) and territorial levels of social partnership within their competence.

In turn, an industry (inter-sectoral) agreement is understood as a legal act that establishes General terms remuneration, guarantees, compensations, benefits for employees of the industry (sectors). Draft agreements are developed in the course of collective negotiations of the parties to the social partnership. The concluded sectoral (intersectoral) agreements are registered in accordance with the established procedure by Rostrud.

Cash compensation for increased hours of work
A novelty of the legislation is the possibility of establishing monetary compensation for an increase in the working hours of employees whose working conditions at workplaces are classified as harmful conditions of the 3rd or 4th degree or dangerous working conditions. With the consent of the employee himself, the length of working time may be increased, but not more than 40 hours per week. The relevant norms are enshrined in the third part of Art. 92 of the Labor Code of the Russian Federation Federal Law No. 421-FZ.

The possibility of increasing working hours is directly linked to the payment of monetary compensation. For this reason, the lack of compensation will be considered as a direct violation of the provisions of the current legislation with all the ensuing consequences.

The compensation in question can be established subject to the following conditions:
1) the working conditions at the employee's workplace are assigned to the class of working conditions 3.3, 3.4 or 4;
2) the organization is a party to an industry (inter-sectoral) agreement that provides for an increase in working hours and establishes the procedure, amounts and conditions for payment of compensation;
3) a collective agreement has been concluded in the organization in accordance with the established procedure, providing for an increase in the length of working hours, as well as the procedure, amounts and conditions for paying compensation;
4) there is a written consent of the employee to increase the duration of working hours, issued in the form additional agreement to an employment contract.

Without compliance with these conditions, the payment of compensation will be considered as not provided for by law with all the ensuing consequences. Yes, and employers are not entitled to provide for an increase in working hours without an appropriate industry agreement, a collective agreement and the written consent of the employee. In this case, there will be a fact of violation of labor laws with the possibility of attracting officials organizations to their statutory liability.

By virtue of the provisions of Art. 164 of the Labor Code of the Russian Federation provided for by Art. 92 of the Labor Code of the Russian Federation, monetary compensation is precisely compensation (and not a guarantee). Recall that, according to the second part of Art. 164 of the Labor Code of the Russian Federation, compensations are monetary payments established in order to reimburse employees for the costs associated with the performance of labor or other duties provided for by law.

This conclusion is important for understanding the procedure for taxation of the considered compensation paid for an increase in working hours. Since compensation is provided for by law and should be considered exactly as compensation (and not a guarantee), it should not be subject to personal income tax and insurance premiums. For a different procedure, it is necessary that the relevant regulatory legal acts directly provide for the need to tax the compensation in question. It refers to the provisions of Art. 217 of the Labor Code of the Russian Federation and Art. 9 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund”.

Compensation is designed to compensate for the labor costs of an employee who performs his labor duties in excess of the reduced working hours established by law. In this regard, in this case, it replaces wages. That is, the corresponding hours should be paid in the form of compensation, and not wages. Otherwise, the legislation would contain a provision on increased pay for the relevant hours.

In order to ensure compensation is paid, the organization must ensure that relevant hours worked in excess of the statutory reduced working hours but within the standard 40-hour workweek are separately accounted for.

With all this, it should be borne in mind that the procedure, amounts and conditions for paying compensation for an increase in the length of working hours for employees employed in jobs with harmful or dangerous working conditions are determined primarily by industry (inter-sectoral) agreements. These documents may provide for other rules for the provision of compensation.

Increase in the duration of the work shift with a decrease in the duration of the accounting period
Simultaneously with the possibility of increasing the duration of working hours for employees with harmful working conditions, an increase in the duration of the work shift (daily work) may also be provided.

IN general order according to the second part of Art. 94 of the Labor Code of the Russian Federation for workers employed in work with harmful and (or) dangerous working conditions, where reduced working hours are established, the maximum allowable duration of daily work (shift) cannot exceed the following values:
- with a 36-hour work week - 8 hours;
- with a 30-hour work week - 6 hours.
This norm has not been changed since 2014, and therefore it can still be applied by organizations.

According to the third part of Art. 94 of the Labor Code of the Russian Federation, subject to certain conditions, the duration of the work shift (daily work) may be slightly increased. In particular, an industry (inter-sectoral) agreement and a collective agreement, as well as with the written consent of the employee, drawn up by concluding separate agreement to the employment contract, an increase in the maximum allowable duration of daily work (shift) in comparison with the above values ​​may be provided for workers employed in work with harmful and (or) dangerous working conditions up to the following values:
- with a 36-hour working week - up to 12 hours;
- with a 30-hour work week - up to 8 hours.

An additional condition for increasing the length of a shift (working day) is compliance with the norm of working hours for such employees, established in accordance with Art. 92 of the Labor Code of the Russian Federation.

In the case of the written consent of the employee and subject to the previously discussed conditions, the norm of working time, calculated on the basis of a 40-hour working week, must be observed. At the same time, the provisions of Art. 104 of the Labor Code of the Russian Federation on the procedure for establishing an accounting period within the framework of the applied regime of summarized recording of working hours.

The new edition of the first part of the said article of the Labor Code of the Russian Federation specifically notes that the summarized accounting of working time can also be established in relation to workers employed in work with harmful and (or) dangerous working conditions. This rule could have been used before.

The maximum duration of the accounting period established within the framework of the summarized accounting of working hours has been subject to changes. If in general case the accounting period, as before, cannot exceed 1 year, then for accounting for the working time of employees employed in work with harmful and (or) dangerous working conditions, the maximum duration of the accounting period from 2014 is 3 months. This is a significant limitation that must be taken into account by all employers without exception, who use the labor of the relevant categories of workers on the basis of the summarized accounting of working hours.

The adopted changes apply to all employees, without exception, whose working conditions at their workplaces are recognized as harmful (all subclasses without exception - 3.1, 3.2, 3.3 and 3.4) or dangerous.

In connection with the entry into force from January 2014 of the new wording of the first part of Art. 104 of the Labor Code of the Russian Federation, organizations must provide for the introduction of amendments to local acts establishing the application of the regime of summarized recording of working hours. IN without fail the duration of the accounting period for employees employed in harmful and dangerous conditions cannot exceed 3 months. Until 2014, the legislation did not provide for such restrictions, and therefore for such employees the accounting period could be up to 1 calendar year.

The corresponding changes must be linked to the revision of work schedules (shifts) in order to achieve compliance with statutory working hours for employees whose working conditions in the workplace are recognized as harmful or dangerous.

Changes adopted in organizations must be notified to employees themselves. Since the working hours are prerequisite of the employment contract, then, if necessary (for example, if the duration of the accounting period was fixed in the employment contract), the changes should be accompanied by the conclusion of additional agreements. The employees themselves must be notified of the adopted changes no later than 2 months in advance. For this reason, the changes need to be implemented promptly so that in the first quarter of 2014 they are implemented in compliance with the procedure prescribed by law.

If the norm of working hours for the first quarter of 2014 is not observed, it is necessary to determine the number of overtime hours. If, in the above manner, the organization provides for an increase in working hours up to a 40-hour working week, overtime hours will be compensated with monetary compensation provided for by the new version of Art. 92 of the Labor Code of the Russian Federation.

Example 2
Suppose that the organization provides for the use of summarized accounting of working hours with an accounting period of 1 calendar year (12 months).

In accordance with the provisions of the new edition of Art. 104 of the Labor Code of the Russian Federation since 2014, such a length of the accounting period can only be applied to workers employed in workplaces whose working conditions, according to the results of a special assessment of working conditions (previously the procedure was called workplace certification), are recognized as optimal or acceptable.

For workers with harmful and dangerous working conditions, the duration of the accounting period cannot exceed 3 months (quarter). It is this accounting period that has been provided for in the organization since 2014, about which the relevant persons in the prescribed manner were warned.

Let's assume that one of the employees of the organization (class of working conditions at the workplace - 3.2, working hours - 36 hours a week) actually worked 440 hours in the first quarter of 2014.

Based on the results of the first quarter of 2014 (accounting period), the organization must determine the number of overtime hours. According to the conditions of the example, the number of such hours will be 31.6 hours (440 hours actually worked - 408.4 hours, where 408.4 hours - the number of hours according to the norm for the first quarter of 2014 for a 36-hour working week according to the production sheet-calendar) .

Example 3
Suppose that the organization is a party to an industry agreement that provides for the possibility of increasing, with the consent of the employee, the norm of working time to a 40-hour working week with the payment provided for in Art. 92 of the Labor Code of the Russian Federation monetary compensation. The collective agreement of the organization and the supplementary agreement to the employee's employment contract also provide for the payment of this compensation.

For the norm of working time worked out for the first quarter of 2014 at the rate of a 36-hour week, that is, for 408.4 hours actually worked, the employee of the organization received his salary in the prescribed manner.

31.6 hours worked in excess of the established norm of working time are subject to monetary compensation provided for by the collective agreement in force in the organization.

Changes in the rules for granting additional annual leave for work in harmful and dangerous working conditions
In accordance with the new wording of the first part of Art. 117 of the Labor Code of the Russian Federation, annual additional paid leave is granted to employees whose working conditions at their workplaces, according to the results of a special assessment of working conditions, are classified as harmful working conditions of the 2nd, 3rd or 4th degree or dangerous working conditions.

Based on the above provisions, since 2014, the right to leave has been lost by persons at whose workplaces the working conditions are defined as harmful 1st degree (class of working conditions 3.1). At the same time, if an employee at whose workplace the working conditions are defined as harmful 1st degree, such leave was established earlier, the conditions for its provision must be preserved, and even the duration of the leave cannot be reduced.

If an employee with a class of working conditions at the workplace of 3.1 was hired by an organization from January 1, 2014, the employer may no longer establish additional leave.

The minimum duration of annual additional paid leave has not been changed. As before, it is 7 calendar days. Since 2014, it has been enshrined directly in Art. 117 of the Labor Code of the Russian Federation, while before that it was determined in accordance with the Decree of the Government of the Russian Federation of November 20, 2008 No. 870.

In each specific case, the duration of additional annual leave for work in harmful and dangerous working conditions is established by an employment contract on the basis of an industry (inter-sectoral) agreement and a collective agreement, taking into account the results of a special assessment of working conditions. These are the provisions of Part 3 of Art. 117 of the Labor Code of the Russian Federation.

Again, if the organization is not a party to any industry (inter-sectoral) agreement, it has the right, with attribution to income tax costs (institutions - with the recognition of expenses as reasonable), to recognize an additional vacation lasting only 7 calendar days.

At the same time, it should be borne in mind that the current regulatory legal acts provide for the peculiarity of granting additional paid holidays to certain categories of employees, for example, employees of healthcare institutions. With the adoption of amendments to the Labor Code of the Russian Federation, the procedure for granting and the duration of vacations provided are determined exclusively by labor legislation.

For example, Decree of the Government of the Russian Federation of June 6, 2013 No. 482 determined the duration of the annual additional paid leave for work with harmful and (or) dangerous working conditions provided to medical workers involved in the provision of psychiatric care, directly involved in the provision of anti-tuberculosis care, those who diagnose and treat HIV-infected people, as well as persons whose work is related to materials containing the human immunodeficiency virus. In connection with the introduction from January 1, 2014 of the procedure for establishing the duration of additional leave, taking into account a special assessment of working conditions, as well as taking into account the provisions of sectoral (intersectoral) agreements, the provisions provided for by Decree of the Government of the Russian Federation No. 482 should be fully applied.

The innovations introduced since January 1, 2014 are the provisions of the fourth part of Art. 117 of the Labor Code of the Russian Federation, according to which employees acquired the right to monetary compensation for part of the additional paid leave exceeding the minimum duration of 7 calendar days. Corresponding changes have also been made to Art. 126 of the Labor Code of the Russian Federation, which until 2014 stipulated the payment of monetary compensation for unused vacation to employees employed in work with harmful or dangerous working conditions, only upon dismissal from work.

In order to make monetary compensation for part of the additional paid leave, the employer must comply with the following conditions specified in part four of Art. 117 of the Labor Code of the Russian Federation:
1) he is a party to an industry (inter-sectoral) agreement providing for the possibility of paying such compensation;
2) the implementation of compensation is enshrined in the collective agreement of the organization;
3) there is a written agreement of the employee to receive compensation, drawn up by concluding an additional agreement to the employment contract.

The procedure, amounts and conditions for payment of compensation for a part of the additional paid leave provided for work in harmful and (or) dangerous working conditions are established by an industry (inter-sectoral) agreement and a collective agreement of the organization.

The amounts of compensation paid are subject to personal income tax and insurance premiums. This is explained, firstly, by the provisions of the relevant regulatory legal acts, and, secondly, this compensation is essentially a guarantee (and not compensation in the sense of Article 164 of the Labor Code of the Russian Federation).

The right to higher wages is preserved
Since 2014, the guarantees established in Art. 147 of the Labor Code of the Russian Federation in the form of increased wages for workers employed in work with harmful and (or) dangerous working conditions. As before, the remuneration of workers employed in work with harmful and (or) dangerous working conditions is set at an increased rate. It should be noted right away that the right to increased wages is reserved for all employees whose working conditions at their workplaces, according to the results of a special assessment of working conditions (attestation of workplaces), are recognized as harmful (of all classes - 3.1, 3.2, 3.3, 3.4) or dangerous (class working conditions 4). Along with this, there are also changes. In particular, the minimum wage increase for workers employed in work with harmful and (or) dangerous working conditions is fixed directly in Art. 147 of the Labor Code of the Russian Federation. As before, it is set at the level of 4% of the tariff rate (salary) established for various types of work with normal working conditions.

The specific size of the increase in wages is established by the employer, taking into account the opinion of the representative body of employees, or by a collective agreement, an employment contract. Thus, unlike the guarantees and compensations discussed above, the organization has the right to determine the amount of increased wages on its own. And this amount of additional wages may well exceed the minimum level of 4%. It does not matter whether the organization is a party to any sectoral (intersectoral) agreement or not. Expenses for increased wages (including those in the amount of more than 4% of the tariff rate or salary) can be fully recognized for income tax purposes. The payments in question should be considered wage payments (and not compensation) or at least guarantees (in the sense of applying the provisions of Article 219 of the Labor Code of the Russian Federation), and therefore they are fully subject to income tax individuals, as well as the taxation of insurance contributions to state non-budgetary funds.

Also on this topic.

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.

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A harmful factor can be the environment in which a person works, as well as working conditions. Health damage can be caused by:

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• 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,
• extradition Supplies- 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 worker has the right to refuse in writing some compensations, receiving their reimbursement in cash - 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 obtaining compensation depends on the economic situation of the enterprise 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 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 risk of getting an industrial 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 by 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.