Preferential Pension for Electric Furnace Steelmakers in Ukraine
When choosing a future profession, people do not always consider the risks associated with a particular occupation, especially when such risks are not immediately obvious. One example is working in mines under difficult and hazardous conditions that may have a significant negative impact on a person’s health. There are also risks of mine collapses and other hazards associated with mining. In addition to miners, employees involved in metal processing and the processing of other metallic and non-metallic minerals may also be exposed to significant occupational risks.
For this reason, Ukraine provides special social protection for certain categories of employees working under hazardous and particularly difficult conditions. One of the most important forms of such protection is the possibility of early retirement on preferential terms. These preferential conditions generally provide for a lower retirement age and special requirements regarding the insurance record necessary to qualify for a pension.
Ukrainian legislation establishes special lists of industries, occupations, positions and types of work that may entitle employees to an old-age pension on preferential terms.
These are commonly referred to as List No. 1 and List No. 2.
List No. 1 includes, among others, employees engaged in the preparation of mixtures and repair of metallurgical furnaces, as well as electric furnace steelmakers.
To qualify for a preferential pension under List No. 1, certain statutory requirements must be met, including:
- the person must reach the applicable preferential retirement age, generally 50 years;
- men generally need at least 25 years of insurance record, including at least 10 years of employment in the relevant hazardous occupation, while women generally need at least 20 years of insurance record, including at least 7 years and 6 months of employment in the relevant occupation, subject to the applicable statutory rules.
However, the existence of a statutory right to a preferential pension does not always mean that it can be exercised without difficulty. In practice, the Pension Fund of Ukraine may refuse to include certain periods in the preferential insurance record because of the absence of workplace certification. In such cases, reference may be made to the Procedure for Applying Lists No. 1 and No. 2 of Industries, Works, Professions, Positions and Indicators for Calculating Employment Periods Entitling a Person to an Old-Age Pension on Preferential Terms, approved by Order No. 383 of the Ministry of Labour and Social Policy of Ukraine dated 18 November 2005.
Under this procedure, when determining entitlement to an old-age pension on preferential terms, the lists that were effective during the relevant period of employment are applied. The entire period of employment in the relevant positions or occupations may be included in the preferential record regardless of when they were added to the lists, provided that the relevant working conditions before 21 August 1992 are confirmed by appropriate documents and, for periods after 21 August 1992, taking into account the results of workplace certification.
However, a refusal by the Pension Fund does not necessarily mean that the employee has lost the right to a List No. 1 pension. Depending on the circumstances, such a refusal may be challenged before an administrative court.
An important example of judicial practice in this category of pension disputes is the judgment of the Supreme Court of Ukraine dated 19 February 2020 in case No. 520/15025/16-a.
The case concerned a refusal to grant a pension under List No. 1 because workplace certification had not been conducted at the enterprise where the person had worked. On this basis, the Pension Fund argued that the hazardous nature of the working conditions had not been properly confirmed.
In this case, the Supreme Court departed from the earlier approach of the Supreme Court of Ukraine expressed in its judgment of 10 September 2013 in case No. 21-183a13. The Court concluded that responsibility for failure to conduct workplace certification, or for conducting it late, rests with the employer rather than the employee. The state, acting through the relevant supervisory authorities, is responsible for monitoring employers’ compliance with workplace certification requirements.
Therefore, the Grand Chamber of the Supreme Court concluded that an employer’s failure to conduct workplace certification, or its untimely certification, cannot in itself constitute grounds for refusing an employee an old-age pension on preferential terms. This legal position is particularly important for electric furnace steelmakers and other employees whose occupations fall within List No. 1 and who face difficulties in having their preferential employment record recognised by the Pension Fund of Ukraine.
