Preferential Pension for Batchers under List No. 1
Through their work, people give not only their time and effort but also part of their health. Some occupations are particularly harmful to the human body and may have a serious impact on a person’s health and life expectancy. This primarily concerns mining occupations, including batchers engaged in crushing, grinding, sorting and beneficiation of ores.
Ideally, hazardous and physically demanding work should be performed by machines and automated systems so that people do not have to risk their lives and health to meet the needs of society. However, this remains a goal for the future. Today, the state can primarily provide appropriate working conditions and social benefits for employees engaged in such hazardous occupations.
One of the most important benefits available to employees in the mining industry is the right to early retirement. Ukrainian legislation establishes special lists of occupations and positions that may entitle employees to retire at a reduced retirement age. These are known as List No. 1 and List No. 2.
List No. 1 includes jobs, occupations, positions and indicators relating to underground work and work performed under particularly harmful and particularly difficult working conditions, where full-time employment may entitle an employee to an old-age pension on preferential terms.
List No. 2 includes jobs, occupations, positions and indicators involving harmful and difficult working conditions, where full-time employment may also entitle an employee to an old-age pension on preferential terms.
List No. 1 includes employees engaged in crushing, grinding, sorting and beneficiation of ferrous metal ores, non-metallic minerals and mining chemical raw materials containing 2 percent or more crystalline (free) silicon dioxide in the dust. This category includes batchers.
To qualify for a pension under List No. 1, certain conditions must be met:
- the person must reach the age of 50;
- men must have at least 25 years of insurance record, including at least 10 years of employment in the qualifying occupation, while women must have at least 20 years of insurance record, including at least 7 years and 6 months of qualifying employment.
It should be noted that preferential pension benefits for occupations included in the statutory Lists may appear straightforward in legislation, but in practice applicants often encounter numerous difficulties when applying for an early pension.
The most common problems include:
- entries in the employment record book that do not comply with the applicable requirements and standards;
- the absence of workplace certification confirming harmful or hazardous working conditions.
In such cases, the Pension Fund of Ukraine may refuse to grant a preferential pension, and the applicant may need to challenge the refusal before an administrative court.
Ukrainian courts have already developed substantial case law concerning both improperly completed employment records and the absence or late completion of workplace certification.
An important example is the decision of the Supreme Court of 19 February 2020 in case No. 520/15025/16-а. In that case, an applicant was refused a pension under List No. 1 because the enterprise where the person had worked had failed to conduct workplace certification. The Pension Fund of Ukraine therefore argued that the harmful nature of the working conditions had not been properly confirmed.
In this case, the Supreme Court departed from the conclusions previously expressed by the Supreme Court of Ukraine in its decision of 10 September 2013 in case No. 21-183а13. The Court concluded that responsibility for failure to conduct workplace certification, or for conducting it late, rests with the owner of the enterprise rather than the employee. Moreover, responsibility for supervising compliance with workplace certification requirements lies with the state through the relevant supervisory authorities, not with the employee.
The Grand Chamber of the Supreme Court therefore concluded that the employer’s failure to conduct workplace certification, or its failure to conduct such certification in a timely manner, cannot constitute grounds for refusing an old-age pension on preferential terms.
Thus, employees working as batchers under harmful and particularly difficult working conditions may defend their right to a preferential pension even where problems with employment records or workplace certification result in a refusal by the Pension Fund of Ukraine.
