To apply for a preferential pension, it is necessary to calculate the employee's insurance experience, which gives the right to assign a preferential pension. The time of work is counted in the length of service in calendar order. The length of service giving the right to a preferential pension includes periods: . temporary disability; . annual basic and additional holidays. Are the periods when the employee was granted study leave included in the length of service giving the right to a preferential pension?

Answer

In accordance with paragraph 5 of the Rules approved by Decree of the Government of the Russian Federation of July 11, 2002 No. 516, the length of service giving the right to early appointment of an old-age labor pension includes periods of annual basic and additional paid holidays. Paid study leave granted to employees who combine work with study, subject to certain conditions, does not apply to annual leave (basic or additional). Thus, periods of paid study leave when calculating the length of service for the appointment of an early pension in accordance with Articles 27, 28 of the Law of December 17, 2001 No. 173-FZ are not included in the length of service.

At the same time, it should be noted that today there is judicial practice, according to which study holidays are still included in the preferential length of service. See, for example, Ruling of the Supreme Court of the Russian Federation of June 3, 2011 N 19-В11-8 (#/document/99/902306191/?step=12); Determination of the Supreme Court of the Russian Federation of August 19, 2011 N 25-В11-2 (#/document/99/902345122/?step=14).

It is in this regard, given that the main argument of the courts was the accrual of insurance premiums to the Pension Fund for the period of study leave, the latter gave an explanation in December last year: rates of insurance premiums" ( #/document/99/499072510/?step=21), indicating that no additional insurance rate is charged on payments for study holidays. However, this clarification is not confirmed by the norms of the Federal Law of July 24, 2009 N 212-FZ (as amended on April 2, 2014) "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund."

In practice, the Pension Fund refuses to include periods of study leave in the length of service, and the courts come to the defense of the employee. Accordingly, this right, most likely, will have to be defended in court.

Note:

Unfortunately, the issues of pensions for employees do not relate to personnel topics and the competence of employers, within the framework of which experts of the KSS "Kadry System" provide answers. We will be happy to advise you on the preparation of documents for the current place of work of the employee for retirement. With general issues of pension provision, the employee should contact the territorial branch of the Pension Fund, where the Fund's specialist, based on all available information about the work experience of the employee, will be able to give correct advice.

Thank you for understanding.

Details in the materials of the System:

1. Situation: Is study leave taken into account when calculating the length of service for assigning a preferential pension

No, it doesn't count.

Nina Kovyazina,
Deputy Director of the Department of Education and Human Resources of the Ministry of Health of Russia

*So highlighted part of the material that will help you make the right decision.

With respect and wishes for comfortable work, Gorshneva Svetlana,

expert of the most personnel reference system "Sistema Kadry"

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Yevgeniya SHARKEL, Legal Counsel of the Solidarity newspaper, answers readers' questions

NIKOLAEVA M.N., Chairman of the primary trade union organization of OAO Novovyatsky Mechanical Plant:

I ask you to provide clarifications on the procedure for applying Decree of the Government of the Russian Federation No. 516 of July 11, 2002 “On approval of the Rules for calculating periods of work giving the right to early appointment of an old-age labor pension in accordance with Art. Art. 27, 28 of the Federal Law “On labor pensions in the Russian Federation”.

1. According to clause 6 of the Rules: is there a certain minimum amount of time during which work was performed in a part-time working week and at which regular leave, additional leave for work in harmful working conditions and temporary disability benefits are counted in the length of service? For example: a plastics extruder worked part-time for two weeks in January due to lack of materials; in March was on sick leave for a week; in June he was on another vacation, and the rest of the time he worked as usual. What periods of work in this case will be included in the “preferential” experience?

2. Clause 9 of the Rules says that periods of downtime in work, giving the right to early retirement, are not included in the “preferential” length of service. In this case, does the “preferential” length of service include the time the employee is on the next vacation and on sick leave, if they fell on working hours? The personnel department of the enterprise does not include in such length of service the time the employee is on the next vacation and on sick leave, guided by paragraph 6 of the Rules. Is it correct?

3. Are periods of regular and additional leave for work in harmful working conditions and periods of temporary disability during working hours included in the “preferential” length of service, if the employee took unpaid leave for periods of downtime in agreement with the administration?

4. Additional leave for work in hazardous working conditions in accordance with Art. 121 of the Labor Code of the Russian Federation is charged only for the time actually worked under the relevant conditions. The administration excludes from the “preferential” length of service the time the employee is on additional leave for working in hazardous working conditions during the calendar year, when the calculation is based on the actual time worked, that is, in the part-time working week. Are the actions of the administration legal?

1. No, it doesn't exist. Your question in this part is governed by paragraph 5 of the Rules. According to par. 2, paragraph 5 of the said Rules, the length of service giving the right to receive an early pension also includes periods for the employee to receive state social insurance benefits due to temporary disability (on a “sick leave”) and periods of annual paid holidays, including additional ones. This paragraph is included in the Rules as an exception. That is, if, according to the general rule (clause 5 of the Rules), periods of work performed constantly, during a full working day, are counted in a calendar order, then the above periods in the working biography (“sick leave”, holidays) are counted without taking into account whether he worked whether the employee is permanent or part-time, full-time or part-time. The main thing is that during these periods (being on “sick leave” or on paid holidays), insurance contributions to the Pension Fund of the Russian Federation are transferred to the employee. A general rule applies here: an employee has the right to a pension if insurance contributions to the Pension Fund of the Russian Federation were accrued for periods of work (Art. 3, 10 of the Federal Law “On labor pensions in the Russian Federation” of December 17, 01 No. 173-FZ). If the employee works in harmful conditions, then the additional leave due for this will be included in the length of service giving the right to early retirement. Moreover, despite the fact that a worker employed in work associated with harmful conditions often has a reduced working day.

In the example you have given, an employee will be counted a “sick” week, regular vacation and a full-time period of work in the preferential length of service, giving the right to early retirement. Two weeks, when the employee worked part-time, can be counted as “preferential” service, provided that, in addition to not having enough material, the employee worked part-time due to a decrease in production volumes. This is how paragraph 6 of the Rules is established.

2. Your HR department is not right not to include periods of being on “sick leave” and on regular leave during the downtime period in the “preferential” work experience. But this is provided that the downtime arose through the fault of the employer or for reasons beyond the control of the employer and employee. Since such downtime periods are paid (Article 157 of the Labor Code of the Russian Federation), therefore, during this time the employer must transfer insurance premiums to the Pension Fund of the Russian Federation.

3. If an employee has taken unpaid leave for a period of downtime and falls ill, then in this case the time spent on “sick leave” will not be included in the “preferential” length of service. Since “sick leave” during the period of unpaid leave is not paid (paragraph 2, clause 15 of the Regulations on the procedure for providing benefits for state social insurance, approved by the Resolution of the Presidium of the All-Union Central Council of Trade Unions of November 12, 1984 No. 13-6). And for an employee who does not receive any remuneration for work, insurance contributions to the Pension Fund are not charged (Article 235 of the Tax Code of the Russian Federation).

An employee can apply for additional leave at this time only by writing an application for paid leave. You cannot be on two holidays at the same time - on leave without pay and on additional leave (which belongs to the category of paid holidays). It is assumed that the employee should receive “vacation pay” for additional leave, therefore, the period of being on additional leave should be included in the “preferential” length of service, even if before that the employee was on leave without pay.

4. The actions of the administration are again illegal. Periods of additional leave granted to an employee, even if he worked part-time, should not be excluded from the “preferential” length of service (clause 5 of the Rules).

Dear Victor. This document terminated the employment contract with the grandmother (you can demand a refund). In this case, you must specify in the receipt. As part of the enforcement proceedings, you have the right to go to court and challenge the payment in court, and the writ of execution on the basis of Art. 1109 of the Civil Code of the Russian Federation, Art. Art. 119, 93 and 107 of the Criminal Procedure Code of the Russian Federation
Article 45
1. For the obligations of one of the spouses, execution may be levied only on the property of this spouse. If this property is insufficient, the creditor shall have the right to demand that the share of the debtor spouse, which would be due to the debtor spouse in the division of the common property of the spouses, be allocated in order to levy execution on it. 2. Collection is levied on the common property of the spouses for the common obligations of the spouses, as well as for the obligations of one of the spouses, if the court has established that everything received under the obligations of one of the spouses was used for the needs of the family. In case of insufficiency of this property, the spouses bear joint and several liability for the specified obligations with the property of each of them.
If it is established by a court verdict that the common property of the spouses was acquired or increased at the expense of funds obtained by one of the spouses in a criminal way, execution may be levied, respectively, on the common property of the spouses or on a part of it.
3. Liability of spouses for harm caused by their minor children is determined by the civil legislation. In accordance with Part 2 of Art. 65 of the Family Code of the Russian Federation, parents have the right to conclude in writing an agreement on the procedure for exercising parental rights by a parent living separately from the child.
If the parents cannot reach an agreement, the dispute is resolved by the court with the participation of the guardianship and guardianship authority at the request of the parents (one of them). At the request of the parents (one of them) in the manner prescribed by the civil procedural legislation, the court with the obligatory participation of the guardianship and guardianship body has the right to determine the procedure for exercising parental rights for the period until the court decision enters into legal force.
3. In case of failure to comply with the court decision, the measures provided for by the civil procedural legislation are applied to the guilty parent. In case of malicious failure to comply with the court decision, the court, at the request of a parent living separately from the child, may decide to transfer the child to him based on the interests of the child and taking into account the opinion of the child.
4. A parent living separately from the child has the right to receive information about their child from educational institutions, medical organizations, social protection institutions and similar organizations. The provision of information may be refused only if there is a threat to the life and health of the child on the part of the parent. Refusal to provide information may be challenged in court.

Degtyareva A.G.(01/13/2017 at 11:23:31)

Hello! To the point of your question, I would like to clarify the following:

On October 6, 1992, amendments were made to the Labor Code of the RSFSR then in force. dated 09/25/1992 "On the introduction of amendments and additions to the Code of Labor Laws of the RSFSR" amendments were made to Art. 167 Labor Code of the RSFSR; Part 5 of this article is worded as follows: "it is counted in the general and continuous, as well as in the length of service in the specialty (except for cases on preferential terms)".

The above Law of September 25, 1992 entered into force on October 6, 1992, until that time Art. 167 of the Labor Code of the RSFSR did not contain a clause excluding the inclusion of parental leave in the length of service for granting a pension on preferential terms.

Article 167 of the Labor Code of the RSFSR (as amended in force until 10/06/1992) provided for inclusion without retention until the child reaches the age of one year in the general and continuous experience, as well as in the length of service in the specialty.

The calculation of the length of service in the relevant types of work takes place according to the Rules approved by the Decree of the Government of the Russian Federation of July 11, 2002 No. 516.

The special length of service includes directly periods of work giving the right to an early appointment of a labor pension, periods of receiving state benefits during a period of temporary disability, as well as periods of annual paid holidays.

In addition, the special experience of all privileged categories of workers includes leave to care for a child upon reaching the age of 1.5 and three years, which took place before October 6, 1992 (before the entry into force of the Law of the Russian Federation of September 25, 1992 No. 3543 -1 "On the introduction of amendments and additions to the Labor Code of the Russian Federation"). Thus, in accordance with the legislation of the Russian Federation, as of October 5, 1992, it is envisaged to include a period of parental leave in the special length of service.

Periods of parental leave are subject to inclusion in the length of service in the specialty in case of early appointment of a pension if the indicated periods took place before October 6, 1992 (the time of entry into force of the Law of the Russian Federation of September 25, 1992 "On Amendments and Additions to the Code laws on labor of the Russian Federation", with the adoption of which the said period ceased to be included in the special length of service in the case of granting a pension on preferential terms), regardless of the time of applying for a pension and the time of the emergence of the right to early appointment of an old-age pension.

Good luck! If you have any other questions - please contact. Please leave your feedback for the answer - I will be very grateful to you.
Sincerely, [email protected]

If we are talking about such holidays, then yes.

Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation composed of:

presiding: Korchashkina T.E.,

judges Nazarova A.M., Zadvornova M.V.

considered at the hearing February 4, 2011 g. civil case on the claim Babicheva T.T. to the State Institution - the Office of the Pension Fund of the Russian Federation in the city of Yakutsk of the Republic of Sakha (Yakutia) on the recognition of the right to an early old-age labor pension on the supervisory complaint Babicheva T.G. against the decision of the Yakutsk City Court of the Republic of Sakha (Yakutia) dated December 14, 2009, which refused to satisfy the stated requirements, and the decision of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Sakha (Yakutia) dated February 15, 2010, by which the said decision of the court was the first instances are left unchanged.

Having heard the report of Judge of the Supreme Court of the Russian Federation Korchashkina T.E., the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation found.

Babicheva T.G. filed a lawsuit against the State Institution - the Office of the Pension Fund of the Russian Federation in the city of Yakutsk of the Republic of Sakha (Yakutia) to recognize the right to an early retirement pension, in support of which she referred to the fact that she had acquired the necessary 25-year teaching experience for appointment However, by the decision of the State Institution - the Office of the Pension Fund of the Russian Federation in the city of Yakutsk of the Republic of Sakha (Yakutia) dated September 11, 2009, she was denied an old-age labor pension earlier than the generally established retirement age due to the lack of the required special length of service. At the same time, the length of service that gives the right to early appointment of an old-age labor pension did not include the periods of her being on advanced training courses and study holidays. The plaintiff does not agree with this decision, in connection with which she asked the court to oblige the pension authority to include the indicated periods in the special length of service and to assign her a labor pension from July 20, 2009.

By the decision of the Yakutsk City Court of the Republic of Sakha (Yakutia) dated December 14, 2009, in satisfaction of the claims of Babicheva T.G. denied.

By the decision of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Sakha (Yakutia) dated February 15, 2010, the decision of the court of first instance was upheld.

At the request of a judge of the Supreme Court of the Russian Federation dated September 7, 2010, the case was requested to the Supreme Court of the Russian Federation for verification by way of supervision and by the decision of the judge of the Supreme Court of the Russian Federation dated December 24, 2010, the supervisory appeal Babicheva T.G. with the case referred for consideration in the judicial session of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.

In the supervisory complaint Babicheva T.T. contains a request to cancel the court rulings held in the case with reference to the fact that the court, when considering the case, committed significant violations of the substantive law governing the legal relations that have arisen.

The parties, being notified of the time and place of the consideration of the case by way of supervision, did not appear at the judicial session of the Judicial Collegium, and therefore, on the basis of Article 385 of the Civil Procedure Code of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds it possible to consider the case in their absence.

After checking the case file, having discussed the arguments of the supervisory appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds the supervisory appeal Babicheva T.T. to be satisfied.

The grounds for the cancellation or change of court decisions in the exercise of supervision are significant violations of the norms of substantive or procedural law that influenced the outcome of the case, without the elimination of which it is impossible to restore and protect the violated rights, freedoms and legitimate interests, as well as the protection of legally protected public interests (Article 387 of the Civil procedural code of the Russian Federation).

When considering the present case, the courts of the first and cassation instances committed such significant violations of substantive law, expressed as follows.

In accordance with subparagraph 19 of paragraph 1 of Article 27 of the Federal Law of December 17, 2001 N 173-FZ "On labor pensions in the Russian Federation", an old-age labor pension before reaching the age established by Article 7 of this Federal Law is assigned to persons at least 25 years of teaching activities in institutions for children, regardless of their age.

Clause 2 of Article 27 of this Federal Law provides that the Lists of relevant jobs, professions, positions, specialties and institutions, taking into account which an old-age labor pension is assigned in accordance with Clause 1 of this Article, the rules for calculating periods of work (activity) and the appointment of the said pension when necessary are approved by the Government of the Russian Federation.

From the materials of the present case it appears that Babicheva T.T. filed a lawsuit against the defendant for the inclusion in the length of service in the specialty, giving the right to the appointment of an early retirement old-age pension, the periods spent on advanced training courses: from February 7, 2000 to February 11, 2000, from June 16, 2006 to June 25, 2006, from October 30, 2006 to November 4, 2006 and periods of study leave from August 11, 2003 to September 30, 2003, from January 20, 2004 to March 10, 2004 .

When deciding to refuse to include in the length of service, giving the right to early appointment of an old-age labor pension, the periods of stay of Babicheva T.G. on advanced training courses and study holidays, the court of first instance proceeded from the fact that the Rules for calculating periods of work giving the right to early appointment of an old-age labor pension in accordance with Articles 27 and 28 of the Federal Law "On labor pensions in the Russian Federation", approved Decree of the Government of the Russian Federation of July 11, 2002 N 516 does not provide for the inclusion of these periods in the special experience of pedagogical workers.

The court of cassation also agreed with this position.

Meanwhile, the Judicial Collegium cannot agree with the conclusions of the courts, since they were made with significant violations of the substantive law that influenced the outcome of the case, without the elimination of which it is impossible to restore the violated pension rights of the plaintiff.

According to paragraph 4 of the Rules for calculating periods of work, giving the right to early appointment of an old-age labor pension in accordance with Articles 27 and 28 of the Federal Law "On labor pensions in the Russian Federation", approved by Decree of the Government of the Russian Federation of July 11, 2002 N 516, in length of service that gives the right to early appointment of an old-age labor pension, periods of work performed constantly for a full working day are counted, unless otherwise provided by these Rules or other regulatory legal acts, provided that insurance premiums are paid for these periods to the Pension Fund of the Russian Federation .

In accordance with Article 187 of the Labor Code of the Russian Federation, when an employer sends an employee for advanced training with a break from work, he retains his place of work (position) and the average salary at his main place of work.

Thus, the period of being on advanced training courses is a period of work with the preservation of the average salary, from which the employer must make deductions of insurance premiums to the Pension Fund of the Russian Federation, in connection with which the court refuses to include in the length of service in the specialty that gives the right to appointment early labor retirement pension, the periods of the plaintiff's stay at advanced training courses cannot be recognized as corresponding to the above provisions of the law.

In addition, by virtue of Article 173 of the Labor Code of the Russian Federation, employees who are sent for training by the employer or who independently enroll in educational institutions of higher professional education with state accreditation, regardless of their organizational and legal forms in part-time education, successfully studying in these institutions, the employer provides additional vacations while maintaining average earnings.

In accordance with clause 5 of the Rules for calculating periods of work giving the right to early assignment of an old-age labor pension in accordance with Articles 27 and 28 of the Federal Law "On labor pensions in the Russian Federation" to the length of service giving the right to early assignment of an old-age labor pension, except periods of work also includes periods of receipt of state social insurance benefits during the period of temporary disability, as well as periods of annual basic and additional paid holidays.

As seen from the case file, Babicheva T.T. studied at a state-accredited ... state pedagogical academy. During the periods from August 11, 2003 to September 30, 2003, from January 20, 2004 to March 10, 2004, the plaintiff at the place of work in kindergarten "..." was granted additional leave with the preservation of the average salary and paid insurance contributions to the pension fund.

When making a decision, the court did not take into account the indicated circumstances and the practice of considering cases of this category, the above provisions of the current legislation were not applied, in connection with which the court's conclusions on the refusal to include the periods of the plaintiff's stay in advanced training courses and on study holidays in the length of service, giving the right to early appointment of an old-age labor pension cannot be recognized as legal.

Under such circumstances, in order to correct a judicial error made during the consideration of the case by the courts of the first and cassation instances in the application of substantive law, which led to the issuance of an unjust decision, the Judicial Board recognizes the decision of the Yakutsk City Court of the Republic of Sakha (Yakutia) dated December 14, 2009 and the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Sakha (Yakutia) dated February 15, 2010, subject to cancellation with the direction of the case for a new trial.

In a new consideration of the case, the court should take into account the above, taking into account all the circumstances established in the present case and in compliance with the requirements of the substantive and procedural law, resolve the dispute that has arisen.

Guided by articles 387, 390, 391 of the Civil Procedure Code of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation determined:

the decision of the Yakut City Court of the Republic of Sakha (Yakutia) dated December 14, 2009 and the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Sakha (Yakutia) dated February 15, 2010 are canceled, the case is sent for a new trial to the court of first instance.

presiding Korchashkina T.E.

Judges: Nazarova A.M.