List No. 1 Preferential Pension for Metal Cleaners in Ukraine

Few people are familiar with the profession of a metal cleaner. However, this occupation may involve particularly difficult and hazardous working conditions and can therefore be important from the perspective of preferential pension entitlement in Ukraine.

To better understand the nature of this profession, it is useful to consider the typical duties performed by a metal cleaner.

According to the Ukrainian occupational qualification reference materials, a metal cleaner may perform the following types of work:

• cleaning particularly complex and critical thin-walled castings, products and components in cleaning drums and shot-blasting chambers to remove burnt-on material, scale, corrosion, residues of anti-corrosion coatings and to treat the surface layer;
• cleaning castings, products and components in continuous tumbling drums;
• operating cleaning and shot-blasting equipment of various types;
• setting up and adjusting shot-blasting, cleaning and tumbling equipment;
• selecting appropriate cleaning materials and determining cleaning conditions for different types of surfaces.

The profession of a metal cleaner may fall within List No. 1 where the statutory requirements concerning the relevant production process, profession, position and working conditions are satisfied. This means that employees who performed qualifying work as metal cleaners may be entitled to an old-age pension on preferential terms.

However, entitlement to a List No. 1 preferential pension depends on several conditions established by Ukrainian pension legislation, including:

1)         reaching the applicable preferential retirement age;

2)         having the required total pensionable insurance service and the necessary duration of employment in particularly harmful and particularly difficult working conditions covered by List No. 1.

The specific requirements should be determined individually because they may depend on the applicant's sex, age, period of employment, total pensionable service, duration of preferential service and the legislation applicable during the relevant employment periods.

The fact that a profession is included in the relevant preferential list does not always mean that a person will be able to obtain a pension without difficulties. In practice, disputes often arise when the Pension Fund of Ukraine verifies the applicant's employment documents and calculates the duration of preferential pensionable service.

Common problems may concern the wording of the job title in the employment record, insufficient documents confirming the nature of the work, missing clarifying certificates, or issues relating to workplace certification.

An important example of court practice is the judgment of the Grand Chamber of the Supreme Court of 19 February 2020 in case No. 520/15025/16-а. The dispute concerned a refusal to grant a preferential pension because workplace certification had not been conducted at the enterprise where the person had worked.

The Pension Fund argued that the absence of workplace certification meant that the harmful nature of the working conditions had not been properly confirmed. The issue before the court was whether an employee could be deprived of the right to a preferential pension because the employer had failed to perform its statutory obligation to conduct workplace certification.

In this case, the Grand Chamber departed from the earlier approach reflected in the judgment of the Supreme Court of Ukraine of 10 September 2013 in case No. 21-183а13. The Court concluded that responsibility for conducting workplace certification rests with the owner or employer rather than the employee. State authorities, rather than the individual worker, are responsible for exercising the relevant supervisory functions concerning compliance with workplace certification requirements.

Accordingly, the Grand Chamber of the Supreme Court concluded that the employer's failure to conduct workplace certification, or its failure to conduct such certification within the required period, cannot in itself constitute grounds for refusing an old-age pension on preferential terms to an employee who actually worked in harmful conditions and otherwise satisfies the statutory requirements.

Therefore, if the Pension Fund of Ukraine refuses to recognize a metal cleaner's preferential service because of the absence or late completion of workplace certification, such a refusal may be challenged before an administrative court. The applicant's employment records, actual working conditions and other available evidence should be analyzed together with the applicable legislation and relevant Supreme Court case law.