List No. 1 Preferential Pension for Metal Picklers in Ukraine
People who perform particularly difficult or hazardous work may be exposed to working conditions that adversely affect their health. For this reason, Ukrainian legislation provides certain categories of employees with the right to early retirement on preferential terms.
Ukrainian pension legislation provides for the so-called List No. 1 and List No. 2, which cover certain types of production, work, professions, positions and indicators involving particularly harmful, particularly difficult, harmful or difficult working conditions.
To qualify for a preferential pension under List No. 1, an applicant must satisfy the statutory requirements concerning retirement age, total pensionable insurance service and the required period of employment in qualifying working conditions.
Similarly, a preferential pension under List No. 2 is granted where the applicant meets the applicable requirements concerning age, total pensionable service and the required duration of preferential service.
The exact requirements should be determined individually, taking into account the person's sex, age, period of employment, total pensionable insurance service, duration of preferential service and the legislation applicable during the relevant period of work.
Among the professions that may qualify for a List No. 1 preferential pension are metal picklers engaged in pickling metal in solutions containing hazardous substances of hazard classes 1 and 2 or carcinogens, provided that the person's actual employment and working conditions meet the requirements established by the applicable legislation.
However, the inclusion of a profession in a preferential list does not always mean that an employee will be able to exercise the right to early retirement without difficulties. Problems frequently arise when applying to the Pension Fund of Ukraine and, in particular, when the Pension Fund calculates and verifies the applicant's preferential pensionable service.
One of the common reasons for disputes is workplace certification. The Pension Fund may refer to the requirements established by the applicable legislation, including Resolution of the Cabinet of Ministers of Ukraine No. 461 of 24 June 2016 “On Approval of the Lists of Industries, Work, Professions, Positions and Indicators, Employment in Which Entitles a Person to an Old-Age Pension on Preferential Terms.”
At the same time, the documents required to confirm employment in harmful and difficult working conditions must be assessed in accordance with the applicable pension legislation and the period during which the person performed the relevant work.
In particular, paragraph 10 of Procedure No. 383 provides for documents used to confirm periods of employment in harmful and difficult working conditions. These may include a properly completed employment record book containing information about the position held and the relevant period of employment, an extract from the employer's order concerning workplace certification and, where the employment record does not contain sufficient information establishing entitlement to a preferential pension, a clarifying certificate issued in accordance with the applicable procedure.
Such clarifying certificates are particularly important where the employment record does not contain all the information necessary to establish the nature of the work, the specific working conditions or other circumstances relevant to determining whether the period qualifies as preferential service.
An important judgment in this area is the decision of the Grand Chamber of the Supreme Court of 19 February 2020 in case No. 520/15025/16-а. The Court addressed, among other things, the consequences of an employer's failure to conduct workplace certification and the protection of an employee's right to an old-age pension on preferential terms.
The Court concluded that responsibility for conducting workplace certification rests with the employer rather than the employee. Therefore, the failure or delay of an employer in conducting the required certification cannot, by itself, deprive an employee who actually worked in harmful conditions of the right to a preferential old-age pension.
Accordingly, if the Pension Fund of Ukraine refuses to recognize a metal pickler's preferential service because of deficiencies in employment records, the absence of a clarifying certificate or problems with workplace certification, the legality of such refusal should be assessed individually. Where sufficient grounds exist, the Pension Fund's decision may be challenged before an administrative court.
