What is the procedure for implementing increased pay for work in harmful and dangerous working conditions? How to determine the time of actual employment in such working conditions in order to calculate the appropriate additional payments? Is it necessary to highlight the premium for “harmfulness” as a separate line on the payslip? What are the nuances of personal income tax assessment of additional compensation for “harmful” work, as well as amounts of compensation for moral damage to employees engaged in work with harmful and dangerous working conditions?

Every employee engaged in work with harmful and dangerous working conditions has the right to guarantees and compensation established in accordance with the Labor Code, collective agreement, agreement, local regulations, employment contract (Article 219 of the Labor Code of the Russian Federation). “Harmfulness” (classes and subclasses of working conditions in the workplace) is established based on the results of a special assessment of working conditions (Part 2, Article 3 of the Federal Law of December 28, 2013 No. 426-FZ “On Special Assessment of Working Conditions” (hereinafter referred to as the Federal Law No. 426-FZ)).

For your information: Harmful working conditions (3rd class) are working conditions under which the levels of exposure to harmful and dangerous production factors exceed the levels established by the standards (hygienic standards) of working conditions (Part 4 of Article 14 of Federal Law No. 426-FZ). Hazardous working conditions (4th class) are recognized as working conditions in which the employee is exposed to harmful and dangerous production factors, the levels of exposure to which during the entire working day (shift) or part of it can create a threat to the life of the employee, and the consequences of exposure which cause a high risk of developing an acute occupational disease during working life (Part 5, Article 14 of Federal Law No. 426-FZ).

The results of the SOUT are reflected in the special assessment card of working conditions. The form of such a map is given in Section. 3 Appendix 3 to Order of the Ministry of Labor of the Russian Federation dated January 24, 2014 No. 33n. Line 040 of this card lists the types of guarantees and compensation that the employer must provide to employees employed in workplaces with hazardous working conditions, including increased wages, additional annual paid leave, reduced working hours, provision of milk or other equivalent food products , provision of therapeutic and preventive nutrition. Explanations on the procedure for filling out the card are given in letters of the Ministry of Labor of the Russian Federation dated December 9, 2016 No. 15-1/ОOG-4349, dated May 25, 2015 No. 15-1/В-1929, dated February 5, 2015 No. 15-1/ОOG-539, dated 09/30/2014 No. 15-1/B-1264.

The amount, procedure and conditions for providing guarantees and compensation to employees engaged in work with harmful and (or) dangerous working conditions are established in the manner prescribed by Art. 92, 117, 147 Labor Code of the Russian Federation.

Increased or additional guarantees and compensation for work in harmful and (or) dangerous working conditions can be enshrined in a collective agreement or local regulation, taking into account the financial and economic situation of the employer.

For your information: The Labor Code does not directly regulate the issue of the procedure for implementing increased pay for work in harmful and dangerous working conditions. Approaches to establishing increased pay for actual work in special working conditions are contained in a number of resolutions, according to which additional payments for hazardous working conditions are established for specific jobs and accrued for the duration of actual employment in these jobs.

According to Art. 147 of the Labor Code of the Russian Federation, remuneration for workers engaged in work with harmful and (or) dangerous working conditions is established at an increased rate. This article establishes the minimum amount of increase in wages for workers engaged in work with harmful and (or) dangerous working conditions.

For your information: the minimum increase in wages for workers engaged in work with harmful and (or) dangerous working conditions is 4% of the tariff rate (salary) established for various types of work with normal working conditions.

The specific amounts of wage increases are established by the employer, taking into account the opinion of the representative body of employees in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations, or collective labor agreements.

If the employer has joined an industry (inter-industry) agreement, the amount of additional payment for “harmfulness” specified in such an agreement should be applied.

For example, the Federal Industry Agreement on the Coal Industry for 2019–2021 (approved by the Russian Independent Trade Union of Coal Industry Workers, the All-Russian Industry Association of Coal Industry Employers on January 18, 2019) stipulates that for workers engaged in work with particularly difficult, dangerous and particularly harmful conditions labor according to the lists given in Appendix 3 to the agreement, tariff rates are increased by 10 - 20%. This agreement also determines that for workers engaged in work with difficult, harmful and dangerous working conditions, the minimum monthly wage can be established taking into account increased pay and, accordingly, does not provide for additional payment for these working conditions (clauses 3.2.1, 3.2 .2 section “Payment and motivation”).

Depending on the subclass of “harmfulness” established by the results of the assessment assessment in organizations subordinate to the Federal Medical and Biological Agency, an additional payment is made in the amount of 8 to 20% (clause 2.2.5 of the Industry Agreement for organizations and medical institutions under the jurisdiction of the Federal Medical Biological Agency). biological agency, for 2017 – 2020).

For your information: You can find out whether the employer is covered by an industry (inter-industry) agreement on the website of the Ministry of Labor (https://rosmintrud.ru/) or the State Tax Inspectorate of the subject of the Russian Federation in which the organization is located.

The Labor Code does not establish a special procedure for remuneration for work in harmful or dangerous working conditions for piece workers, therefore the bonus for work in such conditions can be calculated based on 4% of piecework earnings.

If it is impossible to determine how many units of product were produced when working in hazardous conditions, the additional payment to the piece worker can be calculated using the formula:

How to determine the time of actual employment in harmful and dangerous working conditions in order to calculate appropriate additional payments?

In practice, there are different approaches to determining the time of actual employment in such working conditions:

option 1 – the time of actual employment in harmful and dangerous working conditions includes the period of time when the employee directly performed his job duties;

option 2 – the time of actual employment in harmful and dangerous working conditions includes the entire duration of the working day (shift), regardless of the duration of work in this shift with harmful or dangerous factors.

Additional payments should be accrued for the time of employment at workplaces in which the employee directly performs his job duties. This follows from the norm of paragraph 17 of the Model Regulations on the assessment of working conditions in workplaces and the procedure for applying sectoral lists of work, for which additional payments to workers for working conditions can be established, approved by the Resolution of the State Committee of Labor of the USSR, All-Union Central Council of Trade Unions dated 03.10.1986 No. 387/22-78: additional payments are established for specific jobs and are accrued only for the period of actual employment at these jobs.

For your information: as already noted, the issues of establishing the procedure for providing and determining the amount of guarantees (compensations) for work in hazardous working conditions from January 1, 2014 are regulated by Art. 92, 117 and 147 of the Labor Code of the Russian Federation. At the same time, according to Art. 423 of the Labor Code of the Russian Federation, regulatory legal acts of the former USSR, operating on the territory of the Russian Federation within the limits and in the manner provided for by the Constitution of the Russian Federation, Resolution of the Supreme Court of the RSFSR dated December 12, 1991 No. 2014-1 “On the ratification of the Agreement on the creation of the Commonwealth of Independent States”, are applied insofar as they do not contradict the Labor Code of the Russian Federation.

Is it necessary to highlight the premium for “harmfulness” as a separate line on the payslip?

According to Art. 136 of the Labor Code of the Russian Federation, when paying wages, the employer is obliged to notify each employee in writing, including the components of the wages due to him for the corresponding period. Consequently, the bonus for work in hazardous working conditions must be paid in addition to the payment directly for the work (above remuneration for labor) and must be highlighted as a separate line on the payslip.

Taxation of additional payment for “harmfulness”

Remuneration for workers engaged in work with harmful and dangerous working conditions is set at an increased rate (Articles 146, 147 of the Labor Code of the Russian Federation). Since the Labor Code does not consider remuneration in terms of excess tariff rates (salaries) as a compensation payment, it is subject to personal income tax in the prescribed manner (Letter of the Ministry of Finance of the Russian Federation dated 02.02.2018 No. 03-04-05/6142).

The Federal Tax Service, in its recent Letter No. BS-3-11/3053@ dated 04/02/2019, also clarified that the provisions of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation and such additional payments are subject to personal income tax.

According to the general rules, additional payments for “harmfulness” are charged for the amount (clause 1, clause 1, article 420 of the Tax Code of the Russian Federation).

The surcharge for “harmfulness” is taken into account when calculating income tax. In Letter No. 03-03-07/3884 dated January 24, 2019, the Ministry of Finance considered the issue of accounting for income tax purposes for incentive and (or) compensation payments made to employees. Officials clarified that:

to the expenses listed in Art. 255 of the Tax Code of the Russian Federation, for the purpose of taxing the profits of organizations, include, in particular, accruals of an incentive and (or) compensatory nature related to work hours and working conditions, including allowances for tariff rates and salaries for work at night, work in a multi-shift mode , combination of professions, expansion of service areas, work in difficult, harmful, especially hazardous working conditions, overtime work and work on weekends and holidays, carried out in accordance with the legislation of the Russian Federation;

The taxpayer's expenses incurred in favor of the employee on the basis of an employment contract and in accordance with the requirements of the labor legislation of the Russian Federation are taken into account for the purposes of taxing the profits of organizations as part of labor costs if these expenses comply with the provisions of Art. 252 of the Tax Code of the Russian Federation and provided that such expenses are not specified in Art. 270 Tax Code of the Russian Federation.

Nuances of personal income tax assessment of additional compensation for work in hazardous working conditions

The Tax Department in Letter No. BS-3-11/3053@ dated 04/02/2019 expressed the following opinion: if the employer, in accordance with Art. 219 of the Labor Code of the Russian Federation, by a collective agreement, a local regulatory act, taking into account the financial and economic situation, established additional compensation for employees for working in harmful and (or) dangerous working conditions, in order to exempt such compensation from personal income tax on the basis of clause 3 of Art. 217 of the Tax Code of the Russian Federation requires documentary evidence of the compensatory nature of expenses. In the absence of such documentary evidence, these compensations are subject to personal income tax.

In Letter No. 03-04-06/52245 dated July 25, 2018, the Ministry of Finance drew attention to the fact that when developing and establishing in a collective agreement the types and amounts of additional compensation for “harmfulness,” the organization must take into account the assessment of the corresponding costs, as well as the availability of other guarantees and compensation for such employees (for example, increased wages).

For your information: norms of labor and tax legislation assume that the actions of a tax agent, the result of which is the receipt of a tax benefit, are economically justified, and the information contained in tax and accounting reports is reliable. In another situation, the tax authorities may question the validity of receiving a tax benefit.

The Federal Tax Service also noted that clause 1 of Art. 54.1 of the Tax Code of the Russian Federation establishes a ban on a tax agent reducing the tax base and the amount of tax payable as a result of distortion of information about the facts of economic life (the totality of such facts), objects of taxation that are subject to reflection in tax and (or) accounting or tax reporting. This norm actually defines the conditions that prevent the creation of tax schemes aimed at illegally reducing tax liabilities, in particular, in the form of unlawful exemption from personal income tax for disputed payments for the purpose of tax evasion.

For your information: If it is revealed that employers are making payments for wages under the guise of compensation payments and thereby distorting the real facts of business activities, such employers may be brought to tax liability, in particular, under Art. 123 Tax Code of the Russian Federation.

Nuances of personal income tax taxation of amounts of compensation for moral damage to workers engaged in work with harmful and dangerous working conditions

Harmful and dangerous working conditions in themselves are not a reason for paying employees engaged in “harmful” work monetary compensation for moral damage.

The Federal Tax Service, in Letter No. GD-4-11/4238@ dated 03/05/2018, recalled that on the basis of paragraph. 2 p. 3 art. 217 of the Tax Code of the Russian Federation are not subject to personal income tax on all types of compensation payments established by the legislation of the Russian Federation (within the limits of the norms provided for in accordance with the legislation of the Russian Federation) related to compensation for harm caused by injury or other damage to health. If a citizen is caused moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on intangible benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation to pay monetary compensation for the specified damage (Article 151 Civil Code of the Russian Federation).

The amount of compensation for moral damage is determined by the court depending on the nature of the physical and moral suffering caused to the victim, as well as the degree of guilt of the harm-doer in the case where guilt is the basis for compensation for harm (clause 2 of Article 1101 of the Civil Code of the Russian Federation). When determining the amount of compensation for harm, the requirements of reasonableness and fairness must be taken into account.

Taking into account the norms of the current legislation, the Federal Tax Service has come to the conclusion that in the absence of facts of harm to employees by the actions of the tortfeasor, any payments in favor of such employees cannot be considered as monetary compensation for moral damage. Accordingly, the provisions of paragraph. 2 p. 3 art. 217 Tax Code of the Russian Federation.

Earlier, in Letter No. 03-04-06/39267 dated 07/05/2016, the Ministry of Finance also expressed the opinion that amounts of compensation for moral damages made not on the basis of a court decision, but in accordance with a collective agreement, are subject to personal income tax in the prescribed manner.

For your information: some arbitrators recognize that compensation for moral damage paid to an injured employee by agreement of the parties is not subject to personal income tax (clause 7 of the Review of the practice of courts considering cases related to the application of Chapter 23 of the Tax Code of the Russian Federation, approved by the Presidium of the Supreme Court of the Russian Federation on October 21, 2015).

Labor legislation, among guarantees and compensation for specialists operating in industries with unfavorable working conditions, provides a guarantee of increased pay. This issue is regulated by a whole range of regulatory documents, including:

• Labor Code of the Russian Federation;
• Law “On Special Assessment...” dated December 28, 2013 No. 426-FZ;
• letter of the Ministry of Labor of Russia dated May 20, 2014 No. 15-1/OOG-486 on the issue of providing compensation for professional activities conducted in unfavorable conditions;
• Resolution of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated October 3, 1986 No. 387/22-78 (in the part that does not diverge from the norms of current legislation);
• Resolution of the Central Committee of the CPSU, Council of Ministers of the USSR, All-Union Central Council of Trade Unions dated September 17, 1986 No. 1115 (in the part corresponding to the norms of current legislation).

It is necessary to keep in mind that the Government Decree “On establishing a shortened duration...” dated November 20, 2008 No. 870, which previously regulated additional issues. payment for unfavorable working conditions, has lost its force since 01/01/2014, so it cannot be relied upon from now on.

How is the degree of harmfulness of work activity determined?

The decision on the hazard class of working conditions at a particular workplace is made by experts, based on the methodology proposed in the order of the Ministry of Labor of Russia “On approval of the methodology...” dated January 24, 2014 No. 33n. In this case, the order contains 4 annexes:

1. Methodology for special assessment of working conditions.
2. Classifier of unfavorable factors.
3. Form of a report on the special assessment.
4. Recommendations for filling out the report.

Unfavorable ones include:

• production factors, including negative physical, chemical or biological effects on the employee;
• factors of the labor process, which are measured by the severity and intensity of work activity.

The technique assumes:

• identification of potentially negative factors accompanying production;
• research and measurement of the actual values ​​of identified unfavorable factors at a specific place of work;
• assignment of working conditions in accordance with the degree of negativity to the classes listed above based on the results of the research.

Since Law No. 426-FZ came into force on January 1, 2014, the previously conducted certification of employees’ jobs according to the rules of the legislation in force before 2014 is recognized as valid for 5 years when resolving issues of providing labor guarantees to employees, including additional remuneration for unfavorable working conditions (Part 4, Article 27 of Law No. 426-FZ).

Note: a special assessment of working conditions is not carried out in relation to homeworkers, remote employees and those working for citizens who are not individual entrepreneurs.

Increased payment for harmfulness - additional. tariff, 4 percent or something else?

The rate of additional payment for harmfulness is established only in the Labor Code of the Russian Federation. In Part 2 of Art. 147 of this normative act determines the minimum amount of compensation for negative working conditions, which is equal to 4% of the salary for the position held. Moreover, further, in Part 3 of the same article, it is clarified that the specific amount of the additional payment is established by the employer, taking into account the opinion of the trade union in accordance with the procedure defined by Art. 372 Labor Code of the Russian Federation.

When determining the exact amount of payment, it is possible to apply the provisions of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated October 3, 1986 No. 387/22-78, as well as the resolution of the CPSU Central Committee, the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions dated September 17, 1986 No. 1115 (in the part that does not contradict the norms current legislation). The amount of additional payment according to the standards of these documents can reach up to 24% of the salary, depending on the points that assess the harmfulness of work at a particular place of work.

Thus, the amount of compensation for harm must be specified by the employer (at the same time, different payment options may be determined for different “unfavorable” vacancies) and fixed:

• in the specialist’s employment contract;
• local act;
• agreement;
• collective agreement.

How to calculate the amount of additional payment for work in a hazardous environment in 2017-2018?

Due to the fact that modern legislation does not define methods for calculating the exact amounts of compensation for production activities in negative conditions, you can use the provisions of the Resolution of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated October 3, 1986 No. 387/22-78, which proposes linking the amount of additional payment with points, assigned to each class of working conditions. This means that the procedure for calculating the amount of remuneration for activities in unfavorable production conditions assumes:

1. Determination of the class of working conditions. As mentioned above, this is done by special assessment specialists.
2. Converting the degree of adverse impact into points. The sum of points is calculated for each of the factors that exceed hygienic standards (clause 1.3 of the regulation, approved by resolution No. 387/22-78). According to Appendix No. 2 to this provision, class 3, 1st degree of harm corresponds to 1 point, 2nd degree - 2 points, etc.
3. Establishing the duration of the influence of a negative factor. To assess the interference of a specific unfavorable factor on working conditions, the duration of its impact on the worker during the shift is important.
4. Calculation of payment for work in unfavorable conditions. In this case, all unfavorable factors found during the special assessment are taken into account. To calculate the amount of compensation, you can also use the regulations approved. Resolution No. 387/22-78 (clause 1.6) and introduce a gradation of the amount of additional payment from 4 to 24% of the salary, where harm assessed up to 2 points will be compensated in the amount of 4% of the salary, from 2 to 4 points - 8%, etc. d.

When using such a point system for taking into account the harmfulness of working conditions and calculating compensation for them (or another method of determining the amount of additional payment for harmfulness), it is advisable to develop a separate internal document of the enterprise, which will describe in detail the entire system for calculating the amount of compensation for work activities in unfavorable production conditions.

Features of taxation of compensation for harmful work

Many questions arise about the taxation procedure for wages increased by additional payment for production activities in unfavorable conditions. In particular, the need to deduct personal income tax from the amount of payments for harm is being discussed. At the same time, taking into account the explanations of the Tax Service and the Supreme Arbitration Court of the Russian Federation, it is necessary to distinguish between additional payments for negative production conditions in accordance with Art. 147 of the Labor Code of the Russian Federation and compensation for the same conditions within the framework of Art. 219 Labor Code of the Russian Federation.

According to letters of the Ministry of Finance of Russia dated 05/06/2013 No. 03-4-06/15555 and 06/04/2007 No. 03-04-06-01/174, as well as the text of the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 10/17/2006 No. 86/06, payment for work in unfavorable production conditions is a component of the employee’s salary. This means that it is subject to personal income tax.

As for additional payments for activities in unfavorable production conditions, determined in accordance with Art. 219 of the Labor Code of the Russian Federation by collective agreement, then such payments, in accordance with clause 3 of Art. 217 of the Tax Code, personal income tax is not assessed. This explanation was given in letters of the Federal Tax Service of Russia dated 04/21/2005 No. 14-1-04/1345@, the Ministry of Finance of Russia dated 12/10/2009 No. 03-04-06-02/89 and 08/06/2010 No. 03-04-06/6- 165, as well as Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 17, 2006 No. 86/06.

As you can see, the employment contract and other local documentation of the enterprise can determine both additional payments and compensation for activities in unfavorable working conditions. Moreover, the former are subject to personal income tax (as part of the salary), while the latter are not.

>Rostrud answered questions related to the special assessment of working conditions

Creation of jobs after a special assessment

Is it necessary to conduct a special assessment of working conditions in relation to jobs created after the next special labor assessment, the “validity period” of which has not expired?

In fact, the commissioning of newly organized workplaces is the basis for an unscheduled special assessment. It must be implemented within six months from the date of introduction of the creation of new jobs. But this needs to be done only if the new jobs are not similar to those for which an assessment has already been carried out.
Workplaces that are located in one or more similar production premises equipped with the same (same type) ventilation, heating and lighting systems are recognized as similar. In such places, workers work in the same profession, position, specialty, perform the same labor functions in the same working hours while conducting the same type of technological process.

When similar workplaces are identified, a special assessment is carried out in relation to 20 percent of workplaces from the total number of such workplaces (but not less than two workplaces) and its results are applied to all similar workplaces (Article 16 of the Federal Law of December 28, 2013 No. 426 -FZ).

Accordingly, there is no need to carry out an unscheduled special assessment if two conditions are simultaneously met:

• new jobs are similar to those for which the special assessment has already been carried out;
• the number of jobs assessed is at least 20 percent of the total number of old and new jobs.

With hazard class 3.1, additional leave and reduced working hours are not allowed

In 2013, the company carried out certification of workplaces. Based on its results, the working conditions at the employee’s workplace were recognized as harmful, third class, first degree (3.1). In this regard, the employee was entitled to additional annual paid leave, reduced working hours and increased wages. In 2015, the employer carried out a special assessment, which confirmed the results of workplace certification: working conditions in the workplace were recognized as harmful, third class, first degree (3.1). But as a result of the SOUT, the employee’s reduced working hours and annual additional paid leave were cancelled. Are the employer's actions legal?
Yes, they are legal. From January 1, 2014, certification of workplaces based on working conditions was replaced by a special assessment of working conditions. Based on the results of the SOUT, working conditions are divided into four classes according to the degree of harmfulness and (or) danger: optimal (class 1), acceptable (class 2), harmful (class 3) or dangerous (class 4). In turn, hazardous working conditions are divided into four more subclasses: 3.1 (harmful working conditions of the first degree); 3.2 (harmful working conditions of the second degree); 3.3 (harmful working conditions of the third degree) or 3.4 (harmful working conditions of the fourth degree).
Reduced working hours are provided only to those employees whose working conditions, according to the results of the special labor assessment, were recognized as hazardous working conditions of the 3rd or 4th degree (that is, class 3, subclasses 3.3 or 3.4) or hazardous working conditions (class 4).
Annual additional paid leave is provided only to those employees whose working conditions, according to the results of the special labor assessment, were recognized as harmful working conditions of 2, 3 or 4 degrees (that is, class 3, subclasses 3.2, 3.3 or 3.4.) or hazardous working conditions (class 4). But increased wages are due to all workers employed in work with hazardous working conditions (that is, class 3, regardless of the subclass of hazard) or in work with hazardous working conditions (class 4).

Additional payment for hazardous working conditions in 2018

Harmful working conditions are understood as a set of factors manifested in production activities that can have a negative impact on the health of personnel. In order to determine the presence of harmfulness, as well as its degree, certification (assessment) of workplaces is carried out. The main method for certification (assessment) is measurements.

The presence of harmful working conditions at a production enterprise implies that the employer has an obligation to compensate employees for working in such conditions. Compensation is carried out through the provision of benefits (for example, in the form of shortened working hours, additional leave, special food, protective equipment, vouchers to sanatoriums) and monetary compensation payments. Providing them is an obligation, not a right of the employer.
It should be remembered that the presence of hazardous working conditions limits the possibility of hiring women for certain positions (Article 253 of the Labor Code of the Russian Federation). By virtue of Article 265 of the Labor Code of the Russian Federation, the use of labor by persons under 18 years of age in work with hazardous conditions is prohibited. Lists of works that involve the presence of harmful factors are approved in a manner determined by the Government of the Russian Federation.

What kind of work is considered harmful?

Among the factors determining the presence of a negative impact on the health of employees, it should be noted that the standards are exceeded in relation to:

• the severity of work, which implies increased physical stress on the human body;
• labor intensity, which implies an increased load on the senses and central nervous system;
• external factors affecting the employee’s body (ambient temperature, wind speed, air humidity);
• sound, ultrasonic and vibration effects;
• infrared and ultraviolet radiation;
• radioactive contamination;
• x-ray radiation;
• exposure to electric and magnetic fields;
• illumination level;
• level of concentration of chemicals, bacteria, microorganisms.

Based on the entire range of signs that negatively affect workers, working conditions are legally divided into 4 groups. Based on this, they could be:

• optimal;
• acceptable;
• harmful;
• dangerous.

The degree of exposure of workers to harmful factors may vary. In cases where it exceeds certain values, the existing working conditions are considered harmful. It is believed that when performing work functions in such conditions, the risk of developing occupational illnesses increases significantly.

Harmful conditions must be distinguished by drawing a line from hazardous conditions. It is customary to speak of hazardous conditions when personnel are exposed to factors that directly have a negative impact on their health. An example in this case is the work of painters in paint shops. If such employees have the necessary protective equipment, the conditions in which they work are considered harmful. Working without protective equipment implies dangerous working conditions.

In order to determine whether working conditions at a particular workplace are dangerous or harmful, measures are taken to certify workplaces. Within their framework, environmental parameters are measured, as well as a comparison of the results obtained with standards. The list of hazardous professions is set out in Resolution No. 10 of January 26, 1991 of the USSR Cabinet of Ministers.
It should be taken into account that the names of the positions of specialists performing work in hazardous conditions must exactly correspond to their designation in qualification reference books. These directories comply with Resolution No. 10 of January 26, 1991 and, in turn, are subject to approval by the Government of the Russian Federation. If the job titles of specialists do not correspond to the information set out in the reference books mentioned, these specialists may lose bonuses, preferential length of service, as well as other preferences due to these categories of employees.

Peculiarities of remuneration in hazardous and hazardous industries

Regulation of work processes, payments and provision of additional benefits to workers employed in hazardous industries is carried out by Articles 219, 92, 117, 147 of the Labor Code of the Russian Federation. In particular, in accordance with the requirements set out in Article 147 of the Labor Code of the Russian Federation, in 2018, employees have the right to receive additional payments for work in hazardous conditions. It should be taken into account that, by virtue of Art. 219 of the Labor Code of the Russian Federation, the establishment of allowances is guaranteed only to persons directly performing work under the negative impact of production factors. Thus, persons exposed to the negative impact of negative factors can expect to receive increased wages.

Each employee who performs his or her job functions under the negative influence of production factors has the right to count on receiving these payments, which represent a salary supplement if it was established based on the results of certification activities before the beginning of 2014. This threshold was established due to the fact that until 2014 there were regulations requiring mandatory certification of workplaces in order to determine the presence of harmful and dangerous factors.

Federal Law No. 426-FZ of December 28, 2013 replaced certification with an assessment of the working conditions of personnel. At the same time, by virtue of Part 4 of Art. 27 of the said normative act, employers have the right not to inspect those places of work of personnel that were assessed less than 5 years ago. The law contains an exception to this rule: before 5 years, only those jobs are assessed where additional unscheduled analysis of the existing state of working conditions is necessary.

Refusal to provide employees performing their work functions in hazardous conditions with the required additional payment is recognized as a legislative violation and is the basis for bringing employers to legal liability.

How to calculate the amount of surcharge

In Russia, the amount of minimum payments to employees performing their labor functions under the influence of harmful factors is legally established. Thus, the amount of additional payment in this case cannot be less than 4% of the salary, which is established for specific types of work performed under normal conditions.

As a basis for calculating additional payments for harmfulness, it is customary to use the Standard Regulations on the Assessment of Working Conditions, introduced on October 3, 1986. In accordance with it, the following calculation algorithm is used:

1. Identification of the hazard class by comparing the established maximum permissible indicators with the hazard parameters actually existing in a particular production.
2. Conversion of production hazard classes (established in reporting documents for certification or assessment of working conditions) into points based on the following table:
3. Establishing the period of influence of negative factors. The amount of the surcharge is determined taking into account the period of actual stay in the area affected by the negative factor.
4. Determining the amount of additional payment for harm to a specific employee. When setting the interest rate, the totality of all negative factors is taken into account. In this case, the following table should be used as a guideline when calculating:

The employer has the right to increase the percentage of additional payment specified by law, taking into account the severity and harmfulness of the conditions in which the employee performs his work functions. The specification of the amounts of such allowances must be fixed in special documents such as:

• individual employment contracts;
• collective agreements;
• local regulations.

The formation of these documents regarding the establishment of increased premiums for work in hazardous conditions should be carried out taking into account the financial and economic situation of the organization.

In addition to monetary payments, specialists performing labor functions under the influence of harmful factors have the right to demand:

• reduction of the working week to 36 hours;
• provision of annual additional leave for a period of 7 days.

In addition to the mentioned types of compensation, legislation (Article 222 of the Labor Code of the Russian Federation) provides for the provision of special food products to employees exposed to negative factors during work. In particular, the employer is responsible for providing milk or equivalent food products to specialists engaged in hazardous work.

Representatives of:

• state examination of working conditions (according to Part 2 of Article 216.1 of the Labor Code of the Russian Federation);
• tax service in collaboration with SZN specialists (letter of the Ministry of Finance of the Russian Federation No. 03-05-02-04/36 dated 04/07/2006).

Can the surcharge be waived?

Organizations that have implemented measures aimed at reducing the negative impact of production factors on personnel to an acceptable (permissible) level are exempt from the obligation to pay compensation to employees for working in hazardous conditions. Such activities usually include actions aimed at:

• effective modernization of equipment, premises and means of labor;
• providing specialists with individual protective kits that help reduce the harmful effects of harmful factors.

If, as a result of the measures taken, the impact on people of harmful factors was not completely eliminated, however, the hazard class was lowered, then employers have the right to reduce the percentage of compensation payments. The decision to provide (or refuse to provide) payments of this nature is made by organizations in the process of reviewing reports on assessing the working conditions of employees.

Employees have the right to disagree with the employer’s decision to refuse to provide compensation or with the decision to downgrade the hazard class. In this case, the employee may submit an appeal to the supervisory authority demanding a review of the results of measures to assess working conditions.

The presence of harmful working conditions in an organization requires the management bodies of the enterprise to take measures aimed at reducing the negative impact of production factors, as well as providing compensation to employees employed in hazardous conditions. Neither employees nor the management bodies of the enterprise have the right to independently determine the presence of harmful factors or the class of harmfulness. This work should be carried out by a special commission as part of activities to assess working conditions. Establishing this fact (harmful working conditions) requires an immediate response from the management body, namely ensuring the protection of personnel by issuing special protective kits, carrying out modernization measures (creating additional protective screens, ventilation hatches, etc.), and establishing compensation.

Degree of harmful working conditions

The conditions in which we work can be divided according to the degree of their harmfulness for the worker into optimal, acceptable, harmful and dangerous. What is the difference between them:

What are considered harmful conditions

• Optimal working conditions can be called when the employee is not in danger, or the harm that the employee may receive is minimal. There is also another interpretation of optimality: these are those conditions where the harm caused to an employee is not higher than the level that is safe for the population. In such conditions, the employee is comfortable working, he is productive, all the main environmental parameters (humidity, temperature, etc.) are normal.
• Acceptable conditions are those if after work the employee can recover before starting his shift again. The harm caused to an employee in the workplace should not have a significant impact on his health, nor should it in any way affect the health of his future children.
• Harmful working conditions are no longer safe for a person and even for his future children. Such conditions can be divided into degrees:

1. the employee can recover, however, he needs much more time than under acceptable working conditions
2. working conditions lead to mild occupational diseases
3. can lead to chronic diseases
4. possible loss of ability to work

• Extreme working conditions. They occur when during a work shift there is a threat to the worker’s life, as well as a risk of developing lesions.

In general, the vast majority of occupations are those where the conditions do not cause much harm (for example, most office jobs). Ordinary workers in factories are often exposed to hazardous working conditions.

Why should an employer pay extra?

Increased noise levels, low or high temperatures, humidity, working with chemicals, radiation - this is a small list of conditions under which an employee is entitled to a bonus.

Milk for being “harmful”

Each organization is required to conduct a special assessment of working conditions (special assessment of working conditions) once every five years. If, after an assessment, it is revealed that employees are working in harmful conditions, then the employer must compensate them for this and employees may be entitled to the following types of compensation:

• reduced working hours
• additional leave of at least 7 days
• issuing special items (for example, medical nutrition)
• early retirement
• treatment in sanatoriums
• issuance of special clothing
• salary supplement

The duration of additional leave does not exceed 7 days, and in order to receive it, the employee must work in hazardous conditions for more than one year.

Special clothing is required to be issued by the employer at those places of work where the employee is exposed to chemicals, radiation, high humidity, temperature changes and other adverse environmental conditions. The employer, at his own expense, must provide washing, drying and storage of special clothing, and it must also be provided to employees free of charge.

In addition to special clothing, factory workers often receive special food, such as free milk, as compensation. Moreover, at work where working conditions are particularly harmful, therapeutic nutrition should be provided. The norms for issuing and also the rules by which medical nutrition is provided are approved by Order No. 46 of February 16, 2009. Ministry of Health.

Of course, an assessment of how harmful working conditions can be carried out not only by a special commission, but also determined by the employer independently, for example, based on the presence of a particular position in special lists of hazardous professions. Of course, this method cannot be 100% correct and is considered outdated today.

Amount of surcharge for harmful conditions

Supplement amount

Most often, it is the wage supplement that is found, because it is provided for in all categories of conditions under which harm may be caused to the employee’s body.

If an employee performs tasks in harmful or even dangerous working conditions, he is entitled to an increase (at least 4%) to his salary. This payment does not depend on how harmful the conditions are. As working conditions worsen, the employee is given additional leave (usually 7 days), and his work week is shortened (by at least 4 hours).

Compensation for working conditions is regulated by the Labor Code of the Russian Federation, as well as some Federal Laws.

If the employer does not pay the appropriate allowances, he is thus violating the law and may be subject to legal liability.

As a rule, employers almost always try to avoid additional payments to employees. Even if, after carrying out the special assessment, it was revealed that some subordinates need to be paid extra, then employers will pay the minimum, i.e. 4% of wages. However, at state-owned enterprises this percentage is almost always higher due to the fact that they have trade unions that defend the rights of workers and demand that the employer increase the rate (for example, up to 10% of wages).

The established amount of compensation for harm must be specified in the contract with the employee and in all other regulatory documents.

How to set a premium

In order for the allowance to take effect, the organization must take the following steps:

After the examination

1. Determine its size.
2. Fix the amount of the allowance in the regulations of the organization.
3. Make changes to the contract or agreement with the employee (you can make an additional agreement).
4. Pay an allowance.

• minimum allowance amount
• industry agreements
• union opinion (if there is one)

Some industries have special agreements that regulate the amount of the premium (for example, in the coal industry). If the type of activity of your organization is covered by such an agreement, then you should rely on it, and not on the minimum amount of the allowance established by the Labor Code of the Russian Federation.

The trade union decision must also be taken into account when deciding this issue.

Payments for harm caused in the workplace are not subject to contributions to extra-budgetary funds, as well as insurance premiums that the employer pays to cover the costs of accidents occurring at the enterprise.

The Labor Code imposes on the employer to prescribe compensation for hazards in the Regulations on remuneration at the enterprise, as well as in the employment contract.

Compensation for unfavorable working conditions can be canceled in an organization if, during the assessment of labor conditions carried out every five years, changes in working conditions for the better are identified to optimal or acceptable conditions.

Harmful working conditions: how to compensate correctly?

You will learn:

• In what cases and what kind of compensation are provided to employees working in hazardous working conditions?
• How to set higher wages correctly
• How to apply for a shortened working day and leave when working in hazardous working conditions

IN WHAT CASES AND WHAT COMPENSATIONS ARE PROVIDED?

The main result of a special assessment of working conditions (hereinafter - SOUT) is the determination of the class of working conditions in the workplace. If, based on the results of the assessment and labor assessment, it turns out that employees work in harmful and (or) dangerous working conditions, then the employer must provide them with various compensations for work in such conditions. Otherwise, he may be brought to administrative liability under Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

According to Part 1 of Art. 14 of the Federal Law of December 28, 2013 No. 426-FZ “On Special Assessment of Working Conditions” ® (as amended on May 1, 2016; hereinafter referred to as Federal Law No. 426-FZ), working conditions are divided into four according to the degree of harmfulness and (or) danger class - optimal, acceptable, harmful and dangerous.

Classifying the working conditions at an employee’s workplace as hazard class 3 or 4 involves providing him with certain compensation depending on the degree of harm. This:

• additional payment to salary;
• additional leave;
• reduced working hours.

Provision (“+”)/non-provision (“-”) of compensation to workers depending on the class (subclass) of harmful working conditions established by the Special Labor Conditions, is reflected in the table:

According to Art. 92, 94, 117, 147 of the Labor Code of the Russian Federation, the employer must provide employees with appropriate compensation. But in practice, questions often arise about how exactly to do this. Let's consider several situations.

If compensation is provided for the first time

In Soviet times, workers working in hazardous working conditions were provided with compensation in accordance with the Resolution of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 No. 298/P-22 “On approval of the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day” (hereinafter referred to as the List). The employer only needed to check whether positions from the staffing table or work actually performed by employees were on the List.

Later, the concept of providing compensation changed: first, the legislation established the priority of certification of workplaces, and then to determine the harmfulness in the workplace - SOUT. Currently, in order to determine the need to establish compensation, the norms of Federal Law No. 426-FZ and the Labor Code of the Russian Federation require carrying out special assessments at workplaces.

If previously the employer did not provide compensation to employees for one reason or another (workplace certification was not carried out, and if it was carried out, it determined working conditions as acceptable or optimal, or the organization did not have workplaces for which compensation was required according to the List) , and now, through the implementation of an assessment and safety assessment, it has been determined that the working conditions of workers are considered harmful, then the employer must establish appropriate compensation for work in such conditions.

The Constitutional Court of the Russian Federation in its Determination No. 135-0 dated 02/07/2013 indicated that compensation is provided to all workers engaged in work with harmful and (or) dangerous working conditions, including those whose professions, positions or work performed are not provided for by the List, if their work under conditions of exposure to harmful and (or) dangerous factors in the production environment and the labor process is confirmed by the results of certification of workplaces for working conditions (and now SOUT).

If compensation was previously provided

Workers, in accordance with the List or previously conducted workplace certification, were provided with appropriate compensation. Let’s assume that the organization that provided them carried out a special assessment and assessment after 01/01/2014. Based on the results, the following results are possible:

1. The class of harmfulness of working conditions has been confirmed - guarantees and compensation must be provided in the same amounts as before the special assessment.
2. According to the results of the assessment, it turned out that compensation should be less than before.

In part 3 of Art. 15 of Federal Law No. 421-FZ of December 28, 2013 “On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law “On Special Assessment of Working Conditions”” (hereinafter referred to as Federal Law No. 421-FZ) states that when providing For employees engaged in work with harmful and (or) dangerous working conditions, compensation measures cannot be worsened, and the amounts cannot be reduced in comparison with the procedure, conditions and amounts of compensation measures actually implemented in relation to employees as of 01.01. .2014, subject to maintaining appropriate working conditions in the workplace.

Thus, the amount of compensation provided to employees in whose workplaces, based on the results of certification or due to other legal grounds (regulatory legal acts of the former USSR), harmful working conditions have been established, at the time of entry into force of Federal Law No. 426-FZ must be maintained until improvement working conditions at these workplaces, which is confirmed by the results of the special assessment and assessment process. This position is also supported by judicial practice.

Courts also hold that an employer's failure to provide compensation in the past does not deprive employees of the right to receive it at the present time.

If the employee’s working conditions have improved, becoming safer (due to the installation of new equipment, reconstruction, etc.), the scope of guarantees and compensation is reduced. Judicial practice confirms that if a harmful factor is excluded, there is no need to provide compensation.

NOTE

When deciding on changes in compensation, the employer must be especially careful, since an unjustified reduction in the level of guarantees may be recognized by the state labor inspectorate as a violation of the law, for which the employer may be held administratively liable (Resolution of the Court of the Jewish Autonomous Region dated June 23, 2015 in case No. 4- A-29/2015).

HOW TO ESTABLISH COMPENSATION FOR WORK IN HARMFUL WORKING CONDITIONS?

Determine the amount of compensation

Please note:

1. Minimum sizes established in the Labor Code of the Russian Federation:

• the amount of increase in wages for employees engaged in work with harmful and (or) dangerous working conditions should not be less than 4% of the tariff rate (salary) established for various types of work with normal working conditions (Article 147 of the Labor Code of the Russian Federation);
• the minimum duration of annual additional paid leave for employees whose working conditions at their workplaces, according to the results of the special labor assessment, are classified as hazardous working conditions of the 2nd, 3rd or 4th degree or hazardous working conditions, is 7 calendar days (Article 117 of the Labor Code of the Russian Federation);
• reduced working hours are set to no more than 36 hours per week and no more than 8 hours per day (Articles 92, 94 of the Labor Code of the Russian Federation).

2. Industry (inter-industry) agreements.

When setting the amount of compensation, you should check whether the organization is subject to industry agreements.

For example, the Industry Agreement on the coal industry of the Russian Federation for the period from April 1, 2013 to March 31, 2016 dated 04/01/2013 stipulates that for workers engaged in work with especially difficult, dangerous and especially harmful working conditions, according to special lists , tariff rates increase by 10% and 20%.

If the organization is subject to industry (inter-industry) agreements, compensation should not be provided in a smaller amount than specified in the agreements.

3. Opinion of the trade union.

If the organization has a trade union, the specific amounts of compensation are established by the employer, taking into account his opinion (in the manner established by Article 372 of the Labor Code of the Russian Federation).

Enshrine the provision of compensation in local regulations

According to Art. 189 of the Labor Code of the Russian Federation, the working hours and rest time of employees (including information about the additional leave provided and a shortened working day) must be reflected in the Internal Labor Regulations (ILR; example 1).

Local standards on increased wages for workers working in hazardous working conditions are, as a rule, reflected in the Regulations on wages (example 2).

Provide a compensation clause in the employment contract

Part 2 of Art. 57 of the Labor Code of the Russian Federation establishes that an employment contract with an employee must specify both working conditions in the workplace, as well as guarantees and compensation provided to the employee.

Increased wages, reduced working hours, additional leave - all these conditions must be reflected by the employer in the employment contract with an employee working in hazardous working conditions, immediately upon concluding it with a new employee and in an additional agreement to the employment contract for those already working in the organization.

It is unlikely that the employee will object to the establishment of additional compensation, however, in the absence of his consent, such changes are possible if there are reasons and in compliance with the procedure provided for in Art. 74 Labor Code of the Russian Federation.

In example 3, there is a fragment of the terms in the employment contract regarding the provision of additional leave.

Provide compensation

Increased wages.

Additional payment (allowance) for work in hazardous working conditions is calculated monthly as a percentage of the salary (tariff rate). It must be reflected in the employee’s pay slip, since it is part of the salary (Part 1 of Article 129 of the Labor Code of the Russian Federation), and according to Part 1 of Art. 136 of the Labor Code of the Russian Federation, the employer is also obliged to notify in writing each employee about the components of the wages due to him for the corresponding period.

Question on topic

In organizations that have branches in the northern regions, is the regional coefficient calculated only on the amount of the salary or on the amount of the salary increased by the amount of additional payment for hazardous working conditions?

According to the Explanation approved by Resolution of the Ministry of Labor of Russia dated September 11, 1995 No. 49, letter of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 169-13, regional coefficients and percentage bonuses are calculated on the employee’s actual monthly earnings. The employee’s actual monthly earnings, on which regional coefficients and percentage bonuses are calculated, include: wages accrued to the employee at tariff rates (official salaries) for the time worked, allowances and additional payments to tariff rates (official salaries), compensation payments related to the regime work and working conditions, bonuses and rewards provided for by the remuneration systems or bonus regulations of the organization, and other payments established by the remuneration system of the organization. Therefore, the bonus for working in hazardous working conditions should be included in the salary on which the district coefficient is subject to calculation (Appeal rulings of the Supreme Court of the Republic of Karelia dated 04/29/2014 in case No. 33-1671/2014, Omsk Regional Court dated 12/10/2014 in case No. 33-8080/2014). Much less common is another approach to calculating the regional coefficient: both the regional coefficient and additional payment for work in hazardous working conditions are calculated directly from the salary (tariff rate) (Appeal ruling of the Trans-Baikal Regional Court dated November 19, 2013 in case No. 33-4228-2013). To introduce legal certainty, the employer should fix the calculation method in the LNA.

Additional vacation.

The start of additional leave is planned in the vacation schedule, it is granted according to the order in the same way as the next annual leave.

According to paragraphs. 8, 9 Instructions on the procedure for applying the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a reduced working day, approved by the Resolution of the State Committee of Labor of the USSR, All-Union Central Council of Trade Unions dated November 21, 1975 No. 273/P-20, additional leave, according to the List, is provided to the employee simultaneously with annual leave.

The length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions (Part 3 of Article 121 of the Labor Code of the Russian Federation). Thus, to calculate length of service, the employer must:

Determine the number of full months of work in harmful and (or) dangerous working conditions, for which it is necessary to divide the total number of days of work in appropriate conditions during the year by the average monthly number of working days. If the balance is less than half the average monthly number of working days, it is excluded from the calculation, if half or more, it is rounded up to a full month (Rostrud letter No. 657-6-0 dated March 18, 2008).

Reduced working hours.

By virtue of Art. 91 of the Labor Code of the Russian Federation, the employer keeps records of the time actually worked by each employee, including in the case of work in harmful and (or) dangerous working conditions. The working time sheet must reflect reduced working hours (letter code “LC” (digital - “21”) - reduced working hours versus the normal working hours in cases provided for by law).

Questions on the topic

Is it possible for an employee working in hazardous working conditions to increase their working hours from 36 to 40 hours?

Part 3 of Art. 92 of the Labor Code of the Russian Federation provides for the possibility of increasing working hours from 36 hours to 40 hours, but under the following conditions:

this norm must be enshrined in an industry (inter-industry) agreement and a collective agreement;

there must be a written consent of the employee, formalized by concluding a separate agreement to the employment contract.

The employee must express his consent to increase the working hours. Sometimes employers forget about this, and then the court takes the employee’s side (Decision of the Mezhdurechensky City Court of the Kemerovo Region dated April 30, 2014 in case No. 2-867/2014~M-659/2014);

the employee must be paid monetary compensation.

Can an inspector issue an order to pay overtime if employees were assigned 40-hour working hours instead of 36 hours in violation of the law?

Often, employees turn to the labor inspectorate with a complaint that the employer does not provide compensation for work in hazardous working conditions (for example, does not pay overtime). As a result, labor inspectorates often issue orders to make appropriate payments. Employers are challenging such orders as issued by inspectors in excess of their competence. In accordance with the International Labor Organization Convention No. 81 “On Labor Inspection in Industry and Commerce” of 07/11/1947 (adopted in Geneva on 07/11/1947 at the 30th session of the ILO General Conference, ratified by Russia on 04/11/1998), the labor inspector is not provided the right to issue mandatory instructions for the employer in labor disputes. This position is confirmed by judicial practice (Appeal rulings of the Saratov Regional Court dated September 11, 2014 No. 33-5170, Supreme Court of the Komi Republic dated December 12, 2013 in case No. 33-6287/2013).

Conclusions:

1. Compensation for work in harmful and (or) dangerous working conditions is established if, based on the results of the special labor safety assessment, appropriate working conditions are identified at the employee’s workplace.
2. What kind of compensation to provide is established by the Labor Code of the Russian Federation, depending on the class/subclass of working conditions.
3. When establishing compensation, it is necessary to make changes not only to the LNA, but also to the employment contracts concluded with employees.

Appeal ruling of the Irkutsk Regional Court dated February 12, 2015 in case No. 33-1070/15.

Date of entry into force of Federal Laws No. 421-FZ and No. 426-FZ.

See also the Information of the Ministry of Labor of Russia “Standard questions and answers (explanation of the Ministry of Labor of Russia on the most frequently encountered questions about the special assessment of working conditions)” (http://www.rosmintrud.ru/docs/mintrud/salary/20).

Appeal ruling of the Murmansk Regional Court dated 03/04/2015 No. 33-353, Decision of the Oktyabrsky District Court of Arkhangelsk dated 01/22/2014 in case No. 2-553/2014.

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Employees who work in hazardous working conditions have the right to receive additional payments for hazardous working conditions, which are designed to compensate for the adverse effects of working conditions on the health of employees.

In this case, we are talking about a legislatively established rule on an increased salary for such employees (part 1 of article 146, part 1 of article 147 of the Labor Code of the Russian Federation). The same rule applies to hazardous work.

Additional payment for hazards based on workplace certification

First of all, the company should take into account that additional payment for harmfulness is established for employees only if their working conditions were recognized as harmful based on a special labor assessment. If, according to a special assessment of working conditions or the conclusion of a state examination, working conditions are considered safe, then such additional payment for work in hazardous working conditions cannot be established, since there are no harmful conditions themselves (Part 4 of Article 219 of the Labor Code of the Russian Federation).

At the same time, an organization that has employees working in hazardous conditions must take into account that legislation allows companies not yet to conduct a special assessment of working conditions if five years have not passed since the certification of workplaces (certification could be carried out until 01/01/2014, see Part 4 of Article 27 of Law No. 426-FZ). If, based on the results of this certification, it was recognized that employees work in hazardous conditions, they retain the right to additional payment for harmful conditions until the company conducts a special assessment.

How to calculate additional payment for hazardous working conditions

The current labor legislation regulates the mechanism for calculating salary increases for work in hazardous working conditions, establishing the minimum amount of salary increases for “harmful” work. The minimum amount of such an increase is four percent of the salary or tariff rate of employees performing the relevant work under normal working conditions (Part 2 of Article 147 of the Labor Code of the Russian Federation). In practice, this is most often formalized by establishing an additional payment.

However, this does not mean that all “harmful” workers should receive exactly this additional payment.

Firstly, a higher salary increase can be established in the organization taking into account the opinion of employee representatives, for example, when adopting a collective agreement. In addition, a higher percentage can be established both in an employment contract with a specific employee and in a local regulatory act of the organization, for example in the company’s internal labor regulations (part 3 of article 147, part 3 of article 219 of the Labor Code of the Russian Federation). If an employee began working under hazardous working conditions after being hired by the organization, then an additional payment can be provided in the additional agreement to the previously concluded employment contract, not forgetting to also indicate that the working conditions are harmful.

Secondly, other sizes can be established in sectoral lists of work (due to the fact that Resolution of the State Committee of Labor of the USSR, the Secretariat of the All-Union Central Council of Trade Unions dated October 3, 1986 No. 387/22-78 continues to be in force). For example, for coal mining, construction or construction and repair work, certain amounts of additional payment for hazardous working conditions are established.

The amount of additional payment for “harmful” work should also be recorded on the pay slip, since Art. 136 of the Labor Code of the Russian Federation obliges the employer to notify employees in writing about all the components that make up wages for the corresponding period.

In addition, it is also necessary to take into account that if employees work in the northern regions, then the regional coefficient should be charged for additional payment for hazardous working conditions (see Resolution of the Ministry of Labor of Russia dated September 11, 1995 No. 49).

Responsibility for non-payment of surcharges for hazards

Responsibility for incorrect calculation and/or non-payment of the additional payments in question lies entirely with the employer. In this case, the organization is liable for both non-payment of wages.

In other words, first, employees may suspend hazardous work as a self-protective measure. Employees have the right to do this after fifteen days of delay in salary and not to work until it is paid (including not coming to work); simply notify the manager about this in writing. Let us note that there are cases when it is impossible to suspend work (Part 2 of Article 142 of the Labor Code of the Russian Federation).

Secondly, the organization can be held financially liable, which means the subsequent payment of the entire amount of wages and interest (1/150 of the key rate of the Central Bank of the Russian Federation for each day of delay - Article 236 of the Labor Code of the Russian Federation). A larger interest rate may be established in the internal documents of the organization.

Thirdly, non-payment threatens to be subject to administrative liability (a warning or a fine in accordance with Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Finally, it is possible to bring the first person of the organization to criminal liability in the form of a fine, deprivation of the right to hold certain positions, forced labor, or even imprisonment (

The Labor Code guarantees compensation for work associated with exposure to harmful or dangerous factors. From the article you will learn how the amount of payment is determined in case of deviation from normal working conditions in 2019.

Read in the article:

Compensation for harmful working conditions

The Labor Code guarantees workers engaged in hazardous work certain benefits and compensation. Let's list them:

• Increased duration of annual calendar leave (Part 1 of Article 116, Part 2 of Article 117 of the Labor Code of the Russian Federation).
• Shortened working day (part 1 of article 92, part 2 of article 94 of the Labor Code of the Russian Federation).
• Increased wages (Article 147 of the Labor Code of the Russian Federation).

The assignment of increased pay is possible only after a special assessment of working conditions. This is due to the fact that all guarantees under SOUT are the result of an assessment of conditions in the workplace in accordance with Law No. 426-FZ (Article 7). All workplaces can be classified into one of four hazard classes: optimal, acceptable, harmful or dangerous.

Additional payment for work in hazardous conditions is provided only to those who work in class 3 or 4 working conditions. Since the appointment of benefits raises many questions among employers, the Ministry of Labor has published special clarifications on the grounds for establishing compensation for employees (). This document must be consulted in difficult cases in 2019.

Additional payment for hazardous working conditions in 2019

If the working conditions at the enterprise have changed, it is necessary to conduct an SOUT. Based on its results, it is possible to either increase or decrease benefits and allowances. If the employer has improved working conditions, benefits will be revised. But the basis for this can only be the recorded results of the special assessment. the employee's workplace may be reclassified into a different hazard class. For example, the enterprise has modernized equipment, personal protective equipment has been replaced with new, more modern ones, materials or reagents have been replaced - all these are reasons for an unscheduled special safety equipment and a change in the class of equipment.

If this happens, then, according to , it is necessary to conclude an additional agreement with the employees, since the working conditions and, accordingly, payment have changed. If an employee does not want to work under such conditions, management can make a decision unilaterally. In this case, the employee is notified in writing 2 months in advance of the change in salary due to changes in working conditions (). If after these 2 months agreement is still not reached, the employee is dismissed.

When, as a result of the SOUT, it is established that conditions, on the contrary, are worsening, new compensation must be assigned (according to Articles 92, 117, 147, 219 of the Labor Code).

The standard provision provides for the following salary ratios:

3rd grade – 4, 8, 12%

4th grade – 16, 20, 24%.

An order establishing additional payment for hazardous working conditions is an internal document of the organization and must contain the details accepted in the organization:

• date, name and number of the order;
• the exact name of the organization;
• the exact name and amount of compensation;
• a list of employees receiving additional pay, indicating their positions and hazard class;
• signatures, seal.

The order must be communicated to the chief accountant of the organization.

Let us consider, as an example, how much additional payment will be for harmful working conditions when working with poisons. In addition to increased wages, it guarantees workers employed in class 3 and 4 production reduced working hours, no more than 36 hours per week.

There are age and gender restrictions for working with pesticides, and restrictions on the length of the working day. The enterprise and monitor their compliance with safety regulations, provide certified personal protective equipment and workwear.

Poisons have their own classification, so each specific pesticide and the conditions for working with it must be considered separately. Additional payments for working with poisons cannot be less than 4 and more than 24% of the salary. The amount of additional payment remains at the discretion of the organization’s management.

Who is entitled to a pension for hazardous working conditions?

For employees employed in hazardous work, a preferential pension is provided. only to those who worked in conditions classified as 3 and 4 classes. This list of professions has been approved. If there was a break in the work experience during which the employee was employed in non-hazardous conditions or was unemployed, the benefit is not provided.

So, to recalculate the pension, the following conditions must be met:

• The employee was continuously employed in production, the hazard class of which was confirmed by the SOUTH standards or by certification of workplaces.
• All necessary contributions to the Pension Fund were paid by the employer at an increased rate.
• The employee's profession complies with the requirements of December 28, 2013 (clauses 1-18, clause 1, article 30).

If the employee is a working pensioner, an additional payment to his salary is calculated in the same way as other employees.

Harmful working conditions are understood as a set of factors manifested in production activities that can have a negative impact on the health of personnel. In order to determine the presence of harmfulness, as well as its degree, certification (assessment) of workplaces is carried out. The main method for certification (assessment) is measurements.

The presence of harmful working conditions at a production enterprise implies that the employer has an obligation to compensate employees for working in such conditions. Compensation is carried out through the provision of benefits (for example, in the form of shortened working hours, additional leave, special food, protective equipment, vouchers to sanatoriums) and monetary compensation payments. Providing them is an obligation, not a right of the employer.
It should be remembered that the presence of hazardous working conditions limits the possibility of hiring women for certain positions (Article 253 of the Labor Code of the Russian Federation). By virtue of Article 265 of the Labor Code of the Russian Federation, the use of labor by persons under 18 years of age in work with hazardous conditions is prohibited. Lists of works that involve the presence of harmful factors are approved in a manner determined by the Government of the Russian Federation.

What kind of work is considered harmful?

Among the factors determining the presence of a negative impact on the health of employees, it should be noted that the standards are exceeded in relation to:

• the severity of work, which implies increased physical stress on the human body;
• labor intensity, which implies an increased load on the senses and central nervous system;
• external factors affecting the employee’s body (ambient temperature, wind speed, air humidity);
• sound, ultrasonic and vibration effects;
• infrared and ultraviolet radiation;
• radioactive contamination;
• x-ray radiation;
• exposure to electric and magnetic fields;
• illumination level;
• level of concentration of chemicals, bacteria, microorganisms.

Based on the entire range of signs that negatively affect workers, working conditions are legally divided into 4 groups. Based on this, they could be:

• optimal;
• acceptable;
• harmful;
• dangerous.

The degree of exposure of workers to harmful factors may vary. In cases where it exceeds certain values, the existing working conditions are considered harmful. It is believed that when performing work functions in such conditions, the risk of developing occupational illnesses increases significantly.

Harmful conditions must be distinguished by drawing a line from hazardous conditions. It is customary to speak of hazardous conditions when personnel are exposed to factors that directly have a negative impact on their health. An example in this case is the work of painters in paint shops. If such employees have the necessary protective equipment, the conditions in which they work are considered harmful. Working without protective equipment implies dangerous working conditions.

In order to determine whether working conditions at a particular workplace are dangerous or harmful, measures are taken to certify workplaces. Within their framework, environmental parameters are measured, as well as a comparison of the results obtained with standards. The list of hazardous professions is set out in Resolution No. 10 of January 26, 1991 of the USSR Cabinet of Ministers.
It should be taken into account that the names of the positions of specialists performing work in hazardous conditions must exactly correspond to their designation in qualification reference books. These directories comply with Resolution No. 10 of January 26, 1991 and, in turn, are subject to approval by the Government of the Russian Federation. If the job titles of specialists do not correspond to the information set out in the reference books mentioned, these specialists may lose bonuses, preferential length of service, as well as other preferences due to these categories of employees.

Peculiarities of remuneration in hazardous and hazardous industries

Regulation of work processes, payments and provision of additional benefits to workers employed in hazardous industries is carried out by Articles 219, 92, 117, 147 of the Labor Code of the Russian Federation. In particular, in accordance with the requirements set out in Article 147 of the Labor Code of the Russian Federation, in 2018, employees have the right to receive additional payments for work in hazardous conditions. It should be taken into account that, by virtue of Art. 219 of the Labor Code of the Russian Federation, the establishment of allowances is guaranteed only to persons directly performing work under the negative impact of production factors. Thus, persons exposed to the negative impact of negative factors can expect to receive increased wages.

Each employee who performs his or her job functions under the negative influence of production factors has the right to count on receiving these payments, which represent a salary supplement if it was established based on the results of certification activities before the beginning of 2014. This threshold was established due to the fact that until 2014 there were regulations requiring mandatory certification of workplaces in order to determine the presence of harmful and dangerous factors.

Federal Law No. 426-FZ of December 28, 2013 replaced certification with an assessment of the working conditions of personnel. At the same time, by virtue of Part 4 of Art. 27 of the said normative act, employers have the right not to inspect those places of work of personnel that were assessed less than 5 years ago. The law contains an exception to this rule: before 5 years, only those jobs are assessed where additional unscheduled analysis of the existing state of working conditions is necessary.

Refusal to provide employees performing their work functions in hazardous conditions with the required additional payment is recognized as a legislative violation and is the basis for bringing employers to legal liability.

How to calculate the amount of surcharge

In Russia, the amount of minimum payments to employees performing their labor functions under the influence of harmful factors is legally established. Thus, the amount of additional payment in this case cannot be less than 4% of the salary, which is established for specific types of work performed under normal conditions.

As a basis for calculating additional payments for harmfulness, it is customary to use the Standard Regulations on the Assessment of Working Conditions, introduced on October 3, 1986. In accordance with it, the following calculation algorithm is used:

1. Identification of the hazard class by comparing the established maximum permissible indicators with the hazard parameters actually existing in a particular production.
2. Conversion of production hazard classes (established in reporting documents for certification or assessment of working conditions) into points based on the following table:



Class 3.1	Class 3.2	Class 3.3	Class 3.4



3. Establishing the period of influence of negative factors. The amount of the surcharge is determined taking into account the period of actual stay in the area affected by the negative factor.
4. Determining the amount of additional payment for harm to a specific employee. When setting the interest rate, the totality of all negative factors is taken into account. In this case, the following table should be used as a guideline when calculating:

The employer has the right to increase the percentage of additional payment specified by law, taking into account the severity and harmfulness of the conditions in which the employee performs his work functions. The specification of the amounts of such allowances must be fixed in special documents such as:

• individual employment contracts;
• collective agreements;
• local regulations.

The formation of these documents regarding the establishment of increased premiums for work in hazardous conditions should be carried out taking into account the financial and economic situation of the organization.

In addition to monetary payments, specialists performing labor functions under the influence of harmful factors have the right to demand:

• reduction of the working week to 36 hours;
• provision of annual additional leave for a period of 7 days.

In addition to the mentioned types of compensation, legislation (Article 222 of the Labor Code of the Russian Federation) provides for the provision of special food products to employees exposed to negative factors during work. In particular, the employer is responsible for providing milk or equivalent food products to specialists engaged in hazardous work.

Representatives of:

• state examination of working conditions (according to Part 2 of Article 216.1 of the Labor Code of the Russian Federation);
• tax service in collaboration with SZN specialists (letter of the Ministry of Finance of the Russian Federation No. 03-05-02-04/36 dated 04/07/2006).

Accounting for additional payment for harmful effects

The considered additional payments of a compensatory nature, provided for by collective agreements, are subject to reflection in accounting as part of the costs of the organization’s core activities. In this case, they are subject to reflection in the debit of the account. 20 “Main production” and credit account. 73 “Settlements with personnel for other operations.”

Can the surcharge be waived?

Organizations that have implemented measures aimed at reducing the negative impact of production factors on personnel to an acceptable (permissible) level are exempt from the obligation to pay compensation to employees for working in hazardous conditions. Such activities usually include actions aimed at:

• effective modernization of equipment, premises and means of labor;
• providing specialists with individual protective kits that help reduce the harmful effects of harmful factors.

If, as a result of the measures taken, the impact on people of harmful factors was not completely eliminated, however, the hazard class was lowered, then employers have the right to reduce the percentage of compensation payments. The decision to provide (or refuse to provide) payments of this nature is made by organizations in the process of reviewing reports on assessing the working conditions of employees.

Employees have the right to disagree with the employer’s decision to refuse to provide compensation or with the decision to downgrade the hazard class. In this case, the employee may submit an appeal to the supervisory authority demanding a review of the results of measures to assess working conditions.

Conclusion

The presence of harmful working conditions in an organization requires the management bodies of the enterprise to take measures aimed at reducing the negative impact of production factors, as well as providing compensation to employees employed in hazardous conditions. Neither employees nor the management bodies of the enterprise have the right to independently determine the presence of harmful factors or the class of harmfulness. This work should be carried out by a special commission as part of activities to assess working conditions. Establishing this fact (harmful working conditions) requires an immediate response from the management body, namely ensuring the protection of personnel by issuing special protective kits, carrying out modernization measures (creating additional protective screens, ventilation hatches, etc.), and establishing compensation.