How We Counted Vocational Education Towards a Miner’s Preferential Pension
The right to a pension is one of the key social rights of Ukrainian citizens, providing financial security after reaching retirement age. In practice, however, applicants may be refused a pension because the Pension Fund of Ukraine does not include certain periods in their insurance record or preferential pensionable service.
Mr. Behma faced precisely this situation. In November 2023, he submitted an application for an old-age pension on preferential terms (a miners’ pension) through the web portal of the Pension Fund of Ukraine. However, the Pension Fund refused to grant the pension on the grounds that he did not have the required amount of preferential pensionable service.
The Pension Fund refused to include the period during which the applicant studied at a vocational educational institution in his preferential pensionable service. It also excluded a period of employment from both his general insurance record and preferential pensionable service because insurance contributions had not been paid for that period.
After analyzing the pension authority’s refusal and the client’s documents, we decided to challenge the decision before an administrative court. Our legal position was based on the following arguments.
From 1997 to 2002, Mr. Behma studied at a vocational educational institution in the specialty of “Mining Technician-Electromechanic.” Under the applicable rules, periods of study at vocational education institutions may be included in a person’s employment record, including continuous employment and service in a profession that entitles the person to preferential pension benefits, subject to the requirements established by the legislation applicable to the relevant period.
However, we argued that the disputed legal relationship had to be assessed under the legislation in force at the time the relevant circumstances arose, including the Regulations on the Procedure for Granting and Paying State Pensions approved by Resolution of the Council of Ministers of the USSR No. 590 dated 3 August 1972.
Those Regulations provided that periods of study at vocational schools within the state labor reserve system and the vocational education system were included in the general employment record. At the same time, the relevant provisions did not establish the restrictions concerning the timing of subsequent employment or the person’s specific profession on which the Pension Fund had relied.
The Pension Fund justified its refusal to include the period of employment from 19 September 2023 to 17 November 2023 by referring to the information contained in the Register of Insured Persons and the certificate confirming preferential service. However, Article 62 of the Law of Ukraine “On Pension Provision” establishes that the principal document confirming employment history is the employment record book. Clarifying certificates confirming special employment history or other additional documents are generally required where the employment record book does not contain the necessary information.
Therefore, the absence of a clarifying certificate did not, in itself, disprove the existence of the employee’s relevant preferential pensionable service.
The court of first instance granted the claim, set aside the pension authority’s decision refusing to grant Mr. Behma a pension, ordered the Pension Fund to include his period of study from 1997 to 2002 in his preferential pensionable service, and ordered it to include the disputed period of employment in his general insurance record and preferential pensionable service. The court also required the Pension Fund to grant him a pension.
The Pension Fund disagreed with the judgment of the court of first instance and filed an appeal.
Following appellate review, the appellate court partially changed the outcome of the case. It refused to include the period of employment from 19 September 2023 to 17 November 2023 in the applicant’s general insurance record and preferential pensionable service. However, it upheld the conclusion that the period of study from 1997 to 2002 had to be included in Mr. Behma’s preferential pensionable service.
This did not ultimately prevent Mr. Behma from obtaining his pension. The Pension Fund complied with the court judgment, included the relevant period of vocational education in his preferential pensionable service and granted him an old-age pension on preferential terms.
The court judgments are available at the following links: https://reyestr.court.gov.ua/Review/116957510, https://reyestr.court.gov.ua/Review/119691869.
