Of this article, but in all cases not earlier than from the day the right to the said pension arises.
2. The day of applying for an insurance pension is considered the day when the body carrying out pension provision receives the corresponding application with all the necessary documents to be submitted by the applicant, taking into account the provisions of Part 7 of Article 21 of this Federal Law. If the specified application is sent by mail or submitted in the form of an electronic document, the procedure for processing which is determined by the Government of the Russian Federation, or is submitted through a multifunctional center for the provision of state and municipal services and at the same time all the necessary documents to be submitted by the applicant are attached to it on the day of applying for an insurance pension the date indicated on the postmark of the federal postal organization at the place of departure of this application is considered, or the date of submission of the application using public information and telecommunication networks, including the Internet, including the Unified portal of state and municipal services, or date of receipt of the application by the multifunctional center for the provision of state and municipal services.
3. In the event that not all the necessary documents to be submitted by the applicant, taking into account the provisions of Part 7 of Article 21 of this Federal Law, are attached to the application for the appointment of an insurance pension, the body carrying out pension provision shall give the person applying for an insurance pension an explanation of which documents he must submit additionally. If such documents are submitted no later than three months from the date of receipt of the corresponding explanation, the day of applying for an insurance pension is considered the day of receipt of an application for the appointment of an insurance pension, or the date indicated on the postmark of the federal postal organization at the place of departure of this application, or the date filing an application using public information and telecommunication networks, including the Internet information and telecommunications network, including the Unified portal of state and municipal services, or the date of receipt of the application by the multifunctional center for the provision of state and municipal services.
4. The body carrying out pension provision, when accepting an application, gives the person applying for an insurance pension an explanation of which documents that are at the disposal of other state bodies, local self-government bodies or organizations subordinate to state bodies or local self-government bodies, he has the right to submit on his own initiative ...
5. An insurance pension shall be assigned earlier than the day of applying for an insurance pension specified in part 2 of this article in the following cases:
1) old-age insurance pension - from the day following the day of dismissal from work, if the application for the said pension followed no later than 30 days from the date of dismissal from work;
2) disability insurance pension - from the date of recognition of the person as disabled, if the application for the said pension was followed no later than 12 months from that day;
3) insurance pension in the event of the loss of the breadwinner - from the date of the death of the breadwinner, if the application for the specified pension followed no later than 12 months from the date of his death, and if this period is exceeded - 12 months earlier than the day when the application for the specified pension followed ...
6. Old-age insurance pension to a person receiving a disability insurance pension who has reached the age for assigning an old-age insurance pension in accordance with Part 1 or 1.1 of Article 8 of this Federal Law, who has at least 15 years of insurance experience and an individual pension coefficient of at least 30 , is appointed from the day he reaches the specified age without demanding from him an application for the appointment of an insurance old-age pension on the basis of data available to the body that carries out the pension provision. The body providing pension provision, within 10 working days from the date of the decision on the appointment of an old-age insurance pension, notifies this person about the appointment of an old-age insurance pension to him.
(see text in previous edition)
7. An application for the appointment of an insurance pension, an application for a transfer to an insurance pension or an application for a transfer from one type of insurance pension to another is considered no later than 10 working days from the date of receipt of this application by the body carrying out pension provision, with all the necessary documents submission by the applicant, taking into account the provisions of Part 7 of Article 21 of this Federal Law, which he has the right to submit on his own initiative, taking into account the provisions of Part 8 of Article 21 of this Federal Law, either from the date of submission of additional documents in accordance with Parts 3 and this Article, or from the date of receipt documents requested by the body carrying out pension provision in other state bodies, local self-government bodies or organizations subordinate to state bodies or local self-government bodies.
8. In the event of an inspection of documents necessary for the establishment of an insurance pension, failure to submit documents by state bodies, local self-government bodies or organizations subordinate to state bodies or local self-government bodies within the prescribed period of time, the body carrying out pension provision has the right to suspend the period for consideration of the application until the completion of the inspection, submission documents requested in the indicated bodies and organizations, but for no more than three months.
9. In case of refusal to satisfy an application for the appointment of an insurance pension, an application for transfer to an insurance pension or an application for a transfer from one type of insurance pension to another, the body carrying out pension provision, no later than five working days after the date of the relevant decision, notifies the applicant, indicating the reasons for the refusal and the procedure for his appeal, and at the same time returns all the documents submitted by him.
Russian pension is far from the idea of a truly well-deserved rest and a dignified old age. We regularly publish materials about the hard life of Russian pensioners, about the meager amount of pensions in the country, about the problems they have to face. And recently, French economists took our country in general. And it would be fine if the matter was only in the low amount of pensions, the dire state of the health care system and low social guarantees. Along with these troubles, old people often have to fight for their own pensions, turning to law enforcement officers and the courts.
If the rest of the problems still find at least some explanation, then how to justify the need to humiliate oneself in the struggle for deserved payments for tens of years of work is a good question. Whatever it was, but the fact remains - the database of judicial acts is daily replenished with decisions in relation to pensioners who are suing the Pension Fund. Old people have to dispute the low amount of insurance payments or even the refusal to assign them, which clearly looks like a flagrant violation of the law. Although the representatives of the FIU can be understood - they are just “cogs of the system”, performing the set in the presence of formal signs.
It's all the fault of the HR departments and the FIU
The elderly have enough reasons for such humiliation: some have made mistakes in their documents, others have not made additional insurance payments, while others fail to prove that they have several years of experience, which give them the right to a pension and increased payments. An illustrative example is the example of Marina Kuznetsova from the Sverdlovsk Region, which was described in "Arguments and Facts". A woman who had worked in an official job all her life was not counted for about 10 years of experience, which became the reason for a multiple decrease in her pension. In the Pension Fund, this decision was argued by violations when filling out the work book: illegible entries, the absence of some seals and signatures, and voila - 10 years of official work "down the drain." The woman spent about six months in order to prove her innocence in the courts, citing the guilt of personnel officers, but in the end she achieved her goal. But decisiveness is not enough for everyone.
According to trade union representatives, among all the refusals in the appointment of a pension, early retirement appears most often... Many categories of workers apply for it: doctors and teachers, military and civil aviation pilots, mothers with many children, miners, metallurgists and representatives of other professions associated with hard and harmful work. But if those who worked for the state prove their right to benefits without problems, then representatives of harmful professions often experience problems. It even happens that the enterprise has long been liquidated, the archives have been lost, and the PFR refuses to take into account the preferential length of service. As a result, they may “cut off” several thousand rubles of a pension or even refuse to grant it early, as was the case with some employees of the Taganrog Metallurgical Plant. Here, for sure, one cannot do without ships.
Often the reason for such refusals on the part of the FIU is neglect by the employer of the obligation to pay insurance premiums... And when it comes to harmful working conditions, the employer is obliged to make additional contributions, which in practice is ignored. The absence of such often becomes the reason for the refusal to assign an insurance pension upon reaching the age of 55. But according to the law, this is not a reason for refusing to assign an early pension - this is not the employee's fault, which is confirmed by the resolution of the Constitutional Court of the Russian Federation No. 9-P of 10.07.07.
A similar situation is with refresher courses for doctors and teachers - their Pension Fund refuses to include them in the length of service. In controversial situations, this can also deprive pensioners of their well-deserved early rest, which happened to one of the teachers in Beloretsk. And there are many such examples. But regardless of the reasons, you have to defend your rights in the courts.
Eligibility for retirement
True, not everyone is able to defend their rights. And it's not even a matter of decisiveness, but of the banal lack of funds to protect their own interests - the services of lawyers are too expensive, especially when old people are left alone and there is nowhere to wait for help. Although, the Russian justice does not always stand for the protection of pensioners. The most striking example can be considered the case of fifty pensioners from the village of Bozhonka, Novgorod Region, who have been trying to get a well-deserved pension for more than 4 years. Having worked at a local poultry farm for a full-fledged work experience of 30-40 years, many of them were surprised to learn that the archive of their enterprise had burned down and, as it were, they had no more work experience ... pensions, which often fall short of even up to 8 thousand rubles. The locals even got to the Kremlin, but there is no sense so far, although the regional prosecutor's office has already paid attention to the case. True, the intervention of law enforcement officers is a very positive signal.
So, the same prosecutor's office has repeatedly helped pensioners. For example, one of the Tver doctors who have reached retirement age and have an insurance record was denied a pension due to insufficient insurance record, which did not include refresher courses. For 30 years of continuous work, the compulsory courses amounted to 2 years. The prosecutor's office did not like this "formal reply", and after the prosecutor's check, the officials of the Foundation changed their position, having appointed, albeit a modest, but a pension. The prosecutor's office also helped one of the Yakut pensioners, who for 2 years was also denied a pension. After conducting a check, prosecutors not only proved the existence of circumstances for early retirement, but also insisted on the payment of arrears for the past periods in the amount of 230 thousand rubles.
In a separate category of prosecutorial inspections, cases on the restoration of the rights of Russians engaged in labor activities during the Second World War should be brought out. Let us recall that according to the legislation they are equated with veterans of the Great Patriotic War. Based on this, as reported by the Prosecutor General's Office, law enforcement officers managed to achieve a recalculation of pensions for hundreds of pensioners in Moscow, Kaluga, Bryansk and other large cities. However, in each of the cases, the key role is played by the pensioner himself, who is ready to fight for his rights - without their appeal, the prosecutor's office is powerless.
How to protect yourself
The modern reality is that the existence of seniority often has to be proven even to those who have worked all their lives at the same enterprise. What about those who, by virtue of their profession, had to change jobs often? The confidence that all income and seniority will be taken into account can only be due to official information, which is not so difficult to obtain today. If earlier, in order to obtain such data, it was necessary to visit the regional branch of the Pension Fund of the Russian Federation, stand in line, write a statement and wait for an answer, today it is enough to have access to the Internet. Through the portal for the provision of public services, you can go to your "personal account", which electronically stores all information regarding the pension points collected over a lifetime (in any case, those about which the FIU has information), about paid insurance payments, about places employment, etc. The system generates all this information on the basis of data received from employers, so if there are inconsistencies, you should not wait for the onset of retirement - start "looking for ends" today.
Contact the employer whose information is missing in the system. Within three days from the date of contact, if you, of course, worked there officially, you are required to provide all information about your work activities, including the salary received, the amount of deductions, orders, length of service, etc. If such information is not available, testimony, copies of employment contracts, extracts from a work record book, etc. will do. By the way, everything that can prove your work activity... With this evidence, you should contact the FIU to revise the data, and if you refuse to carry it out, the prosecutor's office. Those whose pension is still ahead should take care of protecting their pension rights in advance, therefore:
- keep employment contracts at all times until it is confirmed that the details of a particular job are available from the Pension Fund;
- never throw away payslips and other documents confirming the amount of your salary;
- seek to obtain certificates confirming work in difficult, harmful or dangerous conditions, if such work has taken place;
- check the accuracy of the records of work books after dismissal - personnel officers are required to enter all periods of work in production;
- keep the contacts of colleagues in case you need to confirm the experience.
And the last thing - try not to agree to work without registration, since you allow your employer not only to save money on you - you are depriving yourself of a future pension.
These are lists of professions, positions, industries with harmful and difficult (list No. 2), especially harmful and especially difficult (list No. 1) working conditions. An employee, having completed the length of service established by law in such a production, has the right to reduce the retirement age:
- for 5 years according to the list No. 2
- for 10 years according to the list No. 1
It would seem that everything is clear: you have completed your work experience and at the age of 55 you carry documents to the Pension Fund of the Russian Federation. but nuances when registering a preferential pension there are a huge number. On their basis, the PFR may not count the preferential (special) length of service in the length of service, respectively, the employee is no longer entitled to a preferential pension according to list 1 or 2. Moreover, cases of suspension of the payment of a pension already assigned in connection with it, as the pension fund specifies, have become more frequent. with newly discovered circumstances. In this case, the pensioner has to send an appeal to the court, and the pension is restored, only on the basis of a court decision. The most common reason for the refusal of the FIU is the inconsistency of the position, profession, specialty named in lists No. 1 and 2. In the overwhelming majority, the refusal to accept special length of service for registration concerns the period of the nineties.
The impression is created that the PFR branches have an intention to issue pensions on preferential grounds as little as possible, thereby saving budgetary funds. Maybe this is so: someone will not go to court, and someone will lose the court. Here comes the savings. In addition, as mentioned above, even if the court is won by the employee, the pension will still be assigned to him not on preferential grounds, but by a court decision. Apparently this is important for the FIU statistics.
For more information about the length of service for assigning a pension, its significance in determining the size of the pension and the age of retirement, see the book “A pension for the smart. How to get yours? " lawyer and expert in this matter M. Medvedeva.
In the case of refusals to grant a preferential pension, I am not inclined to the version of a conspiracy against the “beneficiaries”. In my opinion, the reason is more prosaic. To analyze the situation, let's remember the beginning of the 90s. When enterprises were closed, new forms of production were created, entrepreneurs and businessmen appeared. At that time, very few people understood what normative acts to be based on in the management of an enterprise, because the Soviet Union no longer exists, it seems that its norms do not work, and there are no new norms yet. So everyone did their best. And at new enterprises they did not give a damn about all these lists, harmfulness, ETKS, etc. If you want to receive money, work; if you do not want it, goodbye. Therefore, in many cases, there are no records at all that the employee worked in hazardous work. But most often, the refusal of the FIU to accept a special experience is associated with, in their opinion, incorrect formulations. Therefore, even if an employee honestly worked in hazardous work in the nineties, this does not mean that he will retire earlier than his peers.
One such example is the paramilitary mine rescue platoon of the Kolyma hydroelectric power station in the Magadan region. The Kolymskaya HPP is a unique structure, the main equipment of which is located in underground mines. During the construction process, hundreds of people were employed in underground work. This work continues now - after all, the equipment needs to be operated, reconstructed, repaired, maintained, etc. Therefore, the functioning of this structure is impossible without mine rescue services.
During the period of active construction, mine rescue services were carried out by a militarized mine rescue unit, which was liquidated in the 90th year. Naturally, the enterprise immediately received an order from Gostekhnadzor on the need to organize mine rescue services, otherwise the operation of the hydroelectric power station would be impossible. The shutdown of the KGES, which produces 95% of the electricity in the Magadan region, would mean a catastrophe of a regional scale. Therefore, it was decided to organize a mine rescue platoon as part of the KGES.
In accordance with the normative documents of the USSR of that time, workers of mine rescue units enjoyed benefits, including early retirement according to list 1, on the basis that their work is associated with especially harmful and especially difficult working conditions: in an underground complex, a gas-polluted atmosphere , with the use of self-contained breathing apparatus. And in general, it is difficult to imagine the work of a mine rescuer in isolation from especially harmful and especially difficult working conditions. Subsequently, after the Ministry of Emergency Situations was organized, the relevant regulations were issued, a gradual transition of mine rescue units to the Ministry of Emergency Situations began. By the way, it continues to this day. The employees of the Ministry of Emergency Situations are subject to other norms of pension legislation, we do not consider this issue here.
Now, almost a quarter of a century after the organization of the mine rescue service at the Kolymskaya hydroelectric power station, the time has come to issue a preferential pension for workers of the militarized mine rescue department, the main period of preferential service of which falls on the nineties. However, in the offices of the PFR they are rejected. The reason is the inconsistency of the position in which the mine rescuer worked, named in list 1. Namely: the position of the rescuer at the KGES “respirator of the mine rescue platoon”, in list 1 - “respirator of the mine rescue unit”. The fact that further, in the same list, the structure of mine rescue units is indicated, which include platoons, including the fact that the creation of separate platoons is allowed, for some reason does not apply to the FIU. In addition, the working conditions for the mine rescuer of the platoon are no different from the mine rescuer of the unit - the job duties are identical, the Combat Regulations are the same for all.
So the mine rescuers have to go to court. It must be said that all the claims of the VGSV employees are satisfied by the courts and the FIU, on the basis of a court decision, appoints a pension, but this situation has already worn many nerves. And many have yet to.
Having personal experience of litigation with the FIU on the issue of preferential service, I advise you not to be afraid to file a claim in court. In this particular case, the employee is right and this is confirmed by judicial practice. For my part, I am ready to help anyone with advice or documents.
The attitude of PFR specialists to their work deserves a separate discussion. In my particular case, it was obvious that they were not even trying to grasp the essence of the matter. Sometimes ridiculous statements were made in the decision to refuse the appointment of a pension, in the responses to the courts, the reasons were called, which could not be called anything other than “taken from the ceiling” or “far-fetched”. The FIU lawyers often operated with normative acts that had nothing to do with the case under consideration, which were in force outside the period under review, and unsupported speculations were cited as evidence.
I will give a couple of examples as an illustration. One of the reasons why I was denied a preferential pension, which the lawyers set out in court (!) Was that the Kolymskaya HPP has been producing electricity since the eighties, which means that it is operational and there is no need for mine rescue service (!!!). Naturally, the court accepted my objections that the State Commission accepted the KGES into operation in 2007, and, most importantly, that the need for mine rescue services is determined by the regulatory authorities, in particular - by Gostekhnadzor. The FIU is probably not one of such bodies. Otherwise, the PFR lawyers will start asking questions of the order: "Why does your enterprise need a welder, screw it up with a wire and it will work like that!"
The second example is the provision on preventive work of the VGSV KGES, on the basis of which the FIU lawyers considered that the employees of the VGSV were engaged only in prevention and there was nothing to assign them a preferential pension for. However, not only was this regulation issued after I resigned from the VGSV, but, most importantly, it does not abolish any responsibilities of the mine rescue unit for rescuing people and eliminating accidents, but on the contrary, increases the amount of work by preventive measures that are carried out , for the most part, in the underground complex, i.e. in the same especially harmful and especially dangerous conditions.
Another thing I would like to draw your attention to is the attitude of specialists and managers of the KGES and Kolymaenergo, which includes the KGES, to their former employees, in particular, when applying for a preferential pension according to List 1. For example, I was not provided with any assistance - not advice, no documents, in a word - no. With the exception of the provision of some documents from the Deputy Chief Engineer and Director of the Kolymskaya HPP, as well as the commander of a platoon of the GSV KGPP, and that is solely due to friendly relations. I think that it is unlikely that any help will be provided from this side to the former employees of the VGSV, who are now trying to apply for a pension according to list 1.
Moreover, this organization declares that works according to list 1 have not been carried out at the Kolymskaya HPP since the year 2000. However, if this information is correct, then how should I relate to the certificate at the disposal of the pension fund in my personal file, clarifying the special nature of work with especially harmful and especially dangerous working conditions during the period, including in 2000 and 2001- m year. This certificate was issued to me by the personnel department of the Kolymskaya HPP upon dismissal. And what are the benefits in the pension plan for the mine rescuers of the VGSV KGES now in this case? It turns out - no.
To all colleagues who intend to go to court to apply for a preferential pension, I am ready to help - with advice or documents. I post some of them here.
Withholding from pensions is one of the government's methods to return overpaid funds to the treasury. Since a non-working or working pensioner usually does not want to refund the overpayment voluntarily, various money return methods:
- performance list;
- the court's decision;
- decision of the bodies of the Pension Fund.
Of course, it is possible to avoid a deduction from the pension, but only adhering to all payment deadlines the required amounts.
Can money be deducted from my pension?
Today there are several reasons to make a pension deduction. The main reason is the unwillingness of the citizen to make a refund on a voluntary basis. Often, withholding is made from citizens, in a timely manner did not provide information, affecting the size of pension payments or the fact of its receipt (i.e. when citizens were overpaid pension).
According to the Federal Law of December 28, 2013 N 400-FZ "On insurance pensions" The main criteria for deduction from insurance retirement benefits are:
- decision of the FIU carrying out pension provision, on the collection of amounts, payments fixed to them,;
- court decision on the recovery of the amounts of insurance pensions and fixed payments due to abuse by a person, established in court;
- executive documents.
Withholding by decision of the bodies of the Pension Fund
Withholding from pension by decision of the Pension Fund (PFR) is carried out, as a rule, in cases where a citizen overpaid pension.
This moment does not apply to withholding for alimony, because the payment of alimony is parental responsibility for child care.
Deduction from pension
Can be withheld no more than 50 percent of the pension, and in some cases no more than 70 percent of the insurance pension or a fixed payment to it. Deductions on the basis of decisions of the PFR bodies are made in an amount not exceeding 20 percent of the insurance pension payment or not more than 20 percent of a fixed payment.
Unfortunately, there are malicious defaulters of alimony who, in addition to debts in the form of alimony, also have overdue loans. And in practice, it happens that after collecting alimony and amounts on outstanding loans, the pensioner does not have money to recover the recovered amounts.
Application for a reduction in the amount of withholding
In cases where a pensioner has a difficult life situation, for example, there is no other source of livelihood (except for a pension), the amount of the deduction can be reduced.
In each case, the application is submitted to different authorities.
- If the pension is withheld according to a writ of execution, then an application for reducing the amount of deduction must be written to the bailiff service.
- In the event that deductions are made from the pension provision by the decision of the Pension Fund, then the application must be submitted exactly to the Pension Fund.
The purpose of these organizations is to claim funds. In our country, there are a lot of recipients of low-size pensions, and, as a rule, these are citizens - people from the countryside who have worked all their lives on a collective farm where there was low wages. Accordingly, the amount of pension provision is set at a low level. It is in such situations to issue an appropriate application in order to reduce the size of deductions from pension payments.
Can a deduction from my pension be avoided?
In order to avoid a situation of deduction from the amount of pension provision, you must first of all be a law-abiding citizen, fulfilling all credit and tax obligations, timely paying utility bills, payments for gas supply, energy supply, etc.
Important when submitting documents to the Pension Fund communicate reliable information and in the event of the occurrence of circumstances leading to a reduction in pension, report them to the FIU at the place of receipt of the pension.
- For example, when applying for a loan, you need to monitor the timely payment of the principal and interest on the loan. Then there will be no delay in payment, and the bank will not have to go to court to recover unpaid amounts on the loan.
- Another example, when there was a mess on utility bills, better all questions decide right away and not to bring to court proceedings and to deduction from pension.
Conclusion
Withholding from a pension can be made according to a writ of execution, by a decision of the Pension Fund of the Russian Federation, by a court decision.
- Withholding from retirement on the writ of execution produced in the presence of debts:
- on loans;
- on taxes;
- in case of non-payment of payments for utilities, gas and energy supply;
- for non-payment of alimony.
Withhold on the basis of this document (with the exception of alimony). Consequently, when applying to the Pension Fund authorities for a certificate for obtaining a loan, the PFR authorities can quite reasonably refuse to issue a certificate for these purposes.
- By the decision of the FIU bodies withholding may be due to an overpayment of a pension, in connection with the provision of inaccurate information by a citizen when it was assigned, when it was recalculated, if information was not provided about the circumstances leading to a decrease in the amount or termination of payment.
- Retention By the tribunal's decision may be in those cases when there is an overpayment of the pension, and its payment is stopped.
The amount of deduction under a writ of execution, as well as by a court decision, can be no more than 50% of the amount of the pension, and with a large number of debts - not more than 70% on the size of the pension. The amount of the deduction by the decision of the Pension Fund of the Russian Federation can be no more than 20% of the amount of the pension.
In accordance with paragraph 1 of Art. 27 of the Federal Law of 17.12.2001 N 173-FZ (as amended on 03.12.2011) "On labor pensions in the Russian Federation" (hereinafter referred to as the Law on Pensions), more than 20 categories of citizens have the right to an early labor pension. They can be conventionally grouped into the following main groups:
those who have worked for the required period at work with harmful and difficult working conditions;
carried out teaching activities in state and municipal institutions for children;
carried out medical and other activities to protect the health of the population in state and municipal health care institutions;
some other persons.
It is often unlawful to exclude certain periods from special work experience. The refusal of the bodies of the Pension Fund of the Russian Federation (hereinafter - the PF of the Russian Federation) in the appointment of an early retirement pension is not final and can be appealed in court. Consider the judicial practice in this category of cases.
The grounds for refusal by the PFR authorities to assign an early retirement pension are, as a rule, the following:
1. Exclusion of certain periods from the length of service in the specialty.
2. Inconsistency of the work performed, position, profession or the name of the institution in the documents on labor activity with the list provided by law, which gives the right to early assignment of a pension.
3. Failure to comply with the norm of working time (teaching load).
Before considering in detail each from the circumstances let us refer to clause 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation (hereinafter - the RF Supreme Court) of December 20, 2005 N 25, which states: “By the will and in the interests of the insured person claiming to establish an early pension according to the provisions of the Federal Law of December 17, 2001 N 173-FZ "On labor pensions in the Russian Federation", the periods of work before 01.01.2002 can be calculated on the basis of previously valid regulatory legal acts. "
The stated legal position of the RF Armed Forces is substantiated by the continuing nature of labor relations and significantly expands the regulatory framework in law enforcement practice of courts.
Exclusion of certain periods from work experience in the specialty
1. Professional development
Professional development of employees is aimed at to improve their professional level and represents an update of theoretical knowledge, their consolidation in practice in production conditions, including those similar to those in which the employee's main labor activity was carried out.
Institutions of the PF RF, in their objections to the claims of citizens, often refer to the fact that the activities of citizens during the period of advanced training courses by their nature (volume, intensity) are not fully identical to work in special conditions, which gives the right to early assignment of a pension. However, within the meaning of Part 1 of Art. 196 of the Labor Code of the Russian Federation of December 30, 2001 N 197-FZ (as amended on April 23, 2012) (hereinafter referred to as the Labor Code of the Russian Federation), the employer independently determines the need for professional training and retraining personnel for their own needs. Moreover, for certain categories of workers, by virtue of special regulations, advanced training was and is a prerequisite for the performance of work.
The inclusion of the period of being on advanced training courses in the length of service is stated in the Review of Judicial Practice of the Armed Forces of the Russian Federation for the I quarter of 2006. By virtue of clause 4 of the Rules for calculating periods of work, which gives the right to the early appointment of an old-age retirement pension in accordance with Art. 27 and 28 of the Federal Law "On Labor Pensions in the Russian Federation" (approved by Decree of the Government of the Russian Federation of 11.07.2002 N 516 (revised from 26.05.2009; hereinafter referred to as the IPR Rules), in the length of service giving the right to early assignment of a labor pension in old age, periods of work performed continuously during a full working day are counted, unless otherwise not provided these or other regulatory legal acts, subject to the payment of insurance premiums to the FIU for these periods.
According to Art. 187 of the Labor Code of the Russian Federation, in the event that an employee is sent for advanced training with a break from work, he retains his place of work (position) and the average wage at the main place of work. Therefore, the period of being on advanced training courses is a period of work with the preservation of the average salary, with which the employer must pay insurance contributions to the Pension Fund of the Russian Federation.
However, there are no special legislative norms regarding the inclusion (non-inclusion) of periods of study leave with the retention of wages in special length of service.
According to clause 5 of the IPR Rules, the periods of receiving benefits for state social insurance during the period of temporary disability, as well as the periods of the annual main and additional paid vacations are included in the special length of service, but the periods of leave in connection with training with the retention of wages are not mentioned in the IPR Rules.
Clause 2 of the Regulation on the procedure for calculating the length of service for the appointment of seniority pensions to educators and health(approved by the Decree of the Council of Ministers of the USSR dated 17.12.1959 N 1397, lost force in connection with the adoption of the Decree of the Government of the Russian Federation of 22.09.1993 N 953), the procedure for crediting periods of study in higher and secondary specialized educational institutions to special work experience was fixed, if they were immediately preceded by and directly they were followed by pedagogical or therapeutic activities. In this regard, the Review of Judicial Practice of the Armed Forces of the Russian Federation for the I quarter of 2006 states: “Taking into account the provisions of Part 2 of Art. 6, part 4 of Art. 15, part 1 of Art. 17, art. 18, 19 and part 1 of Art. 55 of the Constitution of the Russian Federation, periods of study leave must be included in the special length of service, which gives the right to early appointment of an old-age pension, regardless of the time of applying for a pension and the emergence of the right to early appointment of an old-age pension. "
In addition, in accordance with paragraph 21 of the Recommendations of the International Labor Organization of June 24, 1974 N 148, the period of paid educational leave should be equal to the period of actual work in order to establish rights to social benefits and other rights arising from labor relations on the basis of national legislation or collective rules. contracts, arbitral awards or other such provisions that are consistent with national practice. In this case, the courts should be based on the provisions of the Constitution of the Russian Federation that the generally recognized principles and norms of international law are an integral part of the legal system of the Russian Federation (part 4 of article 15 of the Constitution of the Russian Federation).
2. Parental leave
During the Soviet era, general and special work experience included the period of being on maternity leave and parental leave. With the adoption of the IPR Rules, the situation has changed.
Clause 5 of the Rules establishes that the length of service, which gives the right to early assignment of a retirement pension, includes periods of receiving state social insurance benefits during a period of temporary disability, as well as periods of annual basic and additional paid vacations. Parental leave is not specified in the IPR Rules, which has created legal uncertainty in resolving this issue when considering citizens' applications for the appointment of an early retirement pension.
Despite the fact that the RF Armed Forces repeatedly (definitions of the RF Armed Forces dated 21.01.2011 N 41-B10-22, dated 10.12.2010 N 39-B10-9, dated 26.12.2005 N 46-B05-48, dated 27.05.2005 N 45-В05-5) explained the legal grounds and conditions for inclusion in the special length of leave to care for a child, if it took place before 06.10.1992 (the time of entry into force of the Law of the Russian Federation of 25.09.1992 N 3543-1 "On amendments and amendments to the Labor Code of the Russian Federation "), there are still cases of refusal to grant an early pension to this category of citizens. And even the letter of the Ministry of Health and Social Development of Russia dated 04.06.2004 N MZ-637, talking about the calculation of experience, including special, according to the norms of the legal regulation in force on 31.12.2001 (independently on the duration seniority on the specified date), did not correct the situation.
Meanwhile, Art. 167 The Code of Labor Laws of the RSFSR, as amended, in effect until 01.10.1992, provided for the inclusion of the specified period in the special length of service, giving the right to early assignment of an old-age pension.
From 1 December 1989, the duration of additional parental leave without pay was increased until the child reached the age of 3 years. This additional leave was to be credited to the general and continuous length of service, as well as to the length of service in the specialty (clause 2 of the Resolution of the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions of 08/22/1989 N 677 "On increasing the duration of vacations for women with young children") ...
According to the explanations of the State Committee for Labor dated November 29, 1989 N 23 / 24-11, when calculating the total and continuous length of service, as well as the length of service in the specialty, the time of partially paid parental leave until the child reaches the age of one and a half years and additional unpaid leave to care for a child until the child reaches the age of 3 years is accounted for in the same manner as work during which the said leave was granted.
Neither the law nor by-laws have established any grounds for limiting the offset of the time a woman is on parental leave. In connection with this circumstance, the time of such leave should be fully taken into account in the seniority for the appointment of a pension, including a preferential one.
Attention is drawn to the legal position of the RF Armed Forces, set forth in the definition of 10.06.2011 N 46-B11-12. The court included in the length of service in the specialty the entire period of parental leave, including that which took place after 06.10.1992.
M. applied to the court with a demand to be included in a special length of service, giving the right to early assignment of an old-age retirement pension, the period of being on parental leave from 06.10.1992 to 10.06.1995 and the appointment of an early retirement pension from the moment of filing the application.
By the decision of the district court in satisfaction the claim was denied. The Judicial Collegium for Civil Cases of the RF Armed Forces pointed out significant violations of substantive law and ruled: “Taking into account that parental leave began on 02.04.1992, taking into account the provisions of Articles 6 (part 2), 15 (part 4 ), 17 (part 1), 18, 19 and 55 (part 1) of the Constitution of the Russian Federation, which presuppose legal certainty and the associated predictability of legislative policy in the field of pension provision, necessary for the participants in the relevant legal relationship to reasonably foresee the consequences of their behavior and to be sure that the right acquired by them on the basis of the current legislation will be respected by the authorities and will be implemented, then the period from 06.10.1992 to 10.06.1995 should be included in M.'s special work experience. "
In a similar case earlier, the RF Armed Forces also ruled in favor of the plaintiff (see the RF Armed Forces ruling of 14.05.2009 N 19-B09-3).
3. Service in the army
In resolving claims for including a period of service in the Armed Forces of the USSR in the special length of service, the courts proceed from the fact that the legislation in force during the period of service did not prohibit including it in the length of service in a specialty for assigning a seniority pension.
Subparagraph "d" of clause 1 of the Regulation on the procedure for calculating the length of service for the appointment of seniority pensions to educators and health(approved by the Decree of the Council of Ministers of the USSR of 17.12.1959 N 1397) provided that education workers and health in the length of service in the specialty, in addition to work in institutions, organizations and positions, work in which gives the right to a seniority pension, service in the Armed Forces of the USSR was counted. At the same time, it was necessary that at least ⅔ of the length of service required for the appointment of a pension in accordance with the Regulations was held in institutions, organizations and positions, work in which gave employees the right to receive a seniority pension (clause 4).
As you can see, the refusal of the bodies of the Pension Fund of the Russian Federation to grant citizens an early retirement pension is often recognized by the courts as unlawful.
Inconsistency of the work performed, position, profession or the name of the institution in the documents on labor activity with the list provided by law, which gives the right to early assignment of a pension
1. Error in the work book
The most common reason for refusing to assign an early pension established for persons employed in jobs with special working conditions is the discrepancy between the work performed, position, profession, or the name of the institution in the documents on labor activity to the list provided by law, which gives the right to early assignment of a pension.
In lists N 1, 2 of industries, jobs, professions, positions and indicators that give the right to preferential pension provision (approved by the Resolution of the Cabinet of Ministers of the USSR on 01/26/1991 N 10 (as amended on 02/10/1991); used for early assignment of retirement pensions according to old age in accordance with Article 27 of the Federal Law of 17.12.2001 N 173-FZ "On labor pensions in the Russian Federation" in the manner established by the Decree of the Government of the Russian Federation of 18.07.2002 N 537), along with the professions, the conditions for providing early retirement benefits are indicated: employment in hot areas of work, at work with substances of a certain hazard class, in certain structural divisions, etc. In this regard, in order to assign an early pension, applicants have to confirm not only their insurance experience and profession, but also the nature of the work performed.
The obligation to prove is distributed by the courts in accordance with Art. 56 of the Civil Procedure Code of the Russian Federation of November 14, 2002 N 138-FZ (as amended on June 14, 2012): the respondent is obliged to prove the absence of grounds for early assignment of a pension, and the plaintiff is obliged to prove the right to a preferential pension.
In the absence of a work book, as well as in cases where it contains inaccurate and incorrect information or there is no information confirming the periods of work, written employment contracts, certificates issued by the employer, extracts from orders, personal accounts and statements on the issuance of wages. In the absence of work documents through no fault of the employee, seniority must be confirmed by the testimony of two or more witnesses who know the employee working together with one employer and have documents about their work for the confirmed time.
Until recently, the proof of the nature and conditions of work by testimony was possible thanks to the position of the RF Armed Forces, which proceeded from the fact that the current pension legislation does not contain any restrictions on the methods of proving the nature of the work performed, the confirmation of which is necessary for the purpose of assigning a pension on preferential terms ( Review of judicial practice of the RF Armed Forces for the IV quarter of 2004).
Unfortunately, the situation has changed dramatically since 01/01/2010. when clause 3 of Art. 13 p. 3 of Art. 13 of the Pension Law, which determined that “it is allowed to establish the length of service on the basis of the testimony of two or more witnesses in case of loss of documents and for other reasons (due to their careless storage, deliberate destruction and similar reasons) through no fault of the employee. The nature of the work by the testimony of witnesses not confirmed. "
This legal norm limited the means of proof in determining the nature of the work (the nature of the work means the features of the conditions for the implementation of the labor function). By virtue of Art. 60 of the Code of Civil Procedure of the Russian Federation after 01.01.2010, such testimony is recognized by the courts as inadmissible evidence.
2. Absence of names of jobs, professions, positions in the lists, giving the right to preferential pension benefits.
Often, the reason for refusing the early appointment of an old-age pension to pedagogical workers is the formal discrepancy between the specified lists of the name of the educational institution containing the proper name (name) or the general name of a preschool educational institution (MDOU, preschool educational institution, preschool educational institution). Recognizing the reasons for the refusal of the territorial bodies of the PF RF to set off the specified periods of work in special seniority as unjustified, the courts are guided by the following.
According to the current pension legislation, for the appointment of an old-age pension, it is necessary to carry out pedagogical activities in institutions for children, therefore, if the constituent documents of an educational institution contain data on the type of institution provided for in the lists, educational, educational activities, the availability of educational programs are confirmed, the courts come to a reasonable the conclusion about the possibility of offsetting the specified period of labor activity into a special length of service, which gives the right to the early appointment of an old-age labor pension in connection with pedagogical activities.
In addition, the legislator does not exclude the possibility of supplementing the names of educational institutions with the indication to the territorial(departmental) affiliation, as well as numbering or original name.
A similar situation occurs when the courts assess the pension rights of citizens who carry out medical and other activities to protect the health of the population. In the opinion of the courts, the clinical profile, departmental or territorial affiliation are not grounds for excluding periods of work in this institution from the length of service, which gives the right to early assignment of an old-age retirement pension.
Failure to comply with the working time norm (teaching load)
For the appointment of an early retirement pension, the requirement for the employee to fulfill the standard of working time (pedagogical or study load) is by no means always a prerequisite.
So, for pedagogical workers, confirmation of the applicant's fulfillment of the working time norm is required to include in the special length of service the periods of work that took place after 09/01/2000 (Decree of the Government of the Russian Federation of October 29, 2002 N 781 "On lists of jobs, professions, positions, specialties and institutions, with taking into account which an old-age labor pension is assigned ahead of schedule in accordance with article 27 of the Federal Law "On labor pensions in the Russian Federation", and on the approval of the Rules for calculating periods of work, which gives the right to early assignment of an old-age labor pension in accordance with article 27 of the Federal Law "On labor pensions in the Russian Federation ").
The requirement of full employment during working hours for an employee engaged in work with harmful and difficult working conditions was introduced by the Decree of the Ministry of Labor of Russia dated 05.22.1996 N 29. According to it, workers performing work have the right to a pension due to special working conditions specified in the lists during at least 80% of the working time.
Prior to the adoption of the said Resolution of the Government of the Russian Federation in regulatory acts not envisaged the need for full employment.
Therefore, we believe that the requirements of the institutions of the PF RF about providing documents confirming full employment for the period of work that took place before 05.22.1996 can be recognized as illegal in a judicial proceeding.
Disputes related to the appointment of a labor pension on preferential terms to citizens still constitute a significant part of the total mass of civil cases considered by courts of general jurisdiction.
This testifies to the lack of efficiency of state activities to protect the rights of citizens to retirement benefits. on the legislative and executive levels.
In conclusion, we note that judicial protection of pension rights is the most important guarantee of the observance of the constitutional rights of citizens. ===== A preliminary administrative procedure for appealing against actions and decisions of pension authorities is not mandatory, which allows the applicant to most fully restore the violated right.
Evgeny Matveev
