Labor disputes - calculation of work experience by age

B. I applied to the court to declare illegal the refusal of the Russian State Institution "Department of Labor, Social Protection and Migration in Zhambyl region" (hereinafter – Department) offset in preferential terms the period of his work in the city of Komsomolsk-on-Amur from April 1, 1982 to December 6, 1986 for the appointment of a state special allowance for him on the List No. 1 of industries, jobs, professions, positions and indicators for underground and open-pit mining, especially harmful and especially severe working conditions, approved by Resolution of the Government of the Republic of Kazakhstan dated December 19, 1999 No. 1930 (hereinafter referred to as List No. 1). The decision of the Taraz City Court of the Zhambyl region of September 13, 2019 denied the application. By a decision of the judicial board for civil cases of the Zhambyl Regional Court dated December 18, 2019, the decision of the court of first instance was overturned with a new decision on the satisfaction of the application. The Judicial Board for Civil Cases of the Supreme Court restored the procedural deadline for appeal against the decision of the appellate instance dated December 18, 2019 to the Russian State Institution "Department of Labor, Social Protection and Migration for the Zhambyl region". By overturning the decision of the appellate instance of December 18, 2019, it upheld the decision of the court of first instance of September 13, 2019 by virtue of the following.

Labor disputes - calculation of work experience by age

The court found that on April 1, 1982, B. was sent to the airport of Komsomolsk-on-Amur of the Russian Soviet Federative Socialist Republic (hereinafter referred to as the RSFSR) of the Council of the Union of Soviet Socialist Republics (hereinafter referred to as the USSR) to work as an air traffic control officer. On December 6, 1986, the employment relationship with B. was terminated on the basis of paragraph 5 of Article 29 of the RSFSR Labor Code in connection with his transfer to the Dzhambul Air Squadron. June 21, 2019 B. He applied to the Public Service Center with an application for the appointment of a state special allowance according to List No. 1, which was refused due to insufficient work experience. When B. subsequently contacted the Department by letter dated July 23, 2019, it was clarified that the calculation of the grace period of work at the airport of Komsomolsk-on-Amur for the appointment of a special state allowance is not provided. Taking into account the insufficient length of service of the applicant on the List No. 1, the refusal to appoint a state special allowance by the Department was recognized as legitimate. In substantiation of his claims, B. referred to the Agreement on Guarantees of the Rights of Citizens of the Member States of the Commonwealth of Independent States in the Field of Pension Provision, concluded in Moscow on March 13, 1992 (hereinafter referred to as the Agreement). According to paragraph 2 of article 6, in order to establish the right to a pension for citizens of the States parties to the Agreement, including pensions on preferential grounds and for long service, the length of service acquired in the territory of any of these States, as well as in the territory of the former USSR, before the entry into force of the Agreement, is taken into account.

The Taraz City Court refused to satisfy the application by pointing out that the period of B.'s employment in the city of Komsomolsk-on-Amur is not subject to preferential calculation for assigning him a special state benefit according to List No. 1, since the Law of June 21, 2013 No. 105-V "On Pension provision in the Republic of Kazakhstan" (hereinafter referred to as Law No. 105–V) does not regulate the possibility of preferential calculation of work experience in the Far North regions. The Judicial Board of the Zhambyl Regional Court recognized the above conclusions of the court of first instance as based on the incorrect application of substantive law, indicating that by Resolution No. 114 of the Council of Ministers of the USSR dated February 10, 1975, the city of Komsomolsk-on-Amur was included in the list of localities equated to the regions of the Far North. In accordance with subparagraph (e) of paragraph 5 of the Decree of the Presidium of the Supreme Soviet of the USSR dated February 10, 1960 "On the regulation of benefits for persons working in the regions of the Far North and in areas equated to the regions of the Far North" (hereinafter referred to as the Decree of the Supreme Soviet of the USSR) to persons who arrived to work in areas equated to the regions of the Far North additional benefits are provided in the form of offsetting one year of work for one year and six months when calculating the length of service that entitles to an old-age pension. Referring, inter alia, to paragraph 2 of Article 6 of the Agreement, the appeals board pointed out that in accordance with paragraph 2 of Article 3 of Law No. 105-V, if an international treaty ratified by the Republic of Kazakhstan establishes rules other than those contained in this Law, the rules of the international treaty apply. However, it is impossible to agree with such conclusions, since they are based on the incorrect application of substantive law. A dispute arose between the parties on the issue of calculating the length of service for the appointment of a state special allowance. According to Article 4 of the Law of the Republic of Kazakhstan dated July 13, 1999 No. 414-I "On the state special allowance for persons who worked in underground and open-pit mining, in work with particularly harmful and particularly difficult working conditions or in work with harmful and difficult working conditions" (hereinafter – Law No. 414-I) men Persons who, as of January 1, 1998, had at least 10 years of work experience on the List No. 1, are entitled to receive a special state benefit upon reaching the age of 53 and with a total work experience of at least 20 years. Work experience is calculated in accordance with the legislation of the Republic of Kazakhstan on pension provision. In turn, paragraph 2 of Article 13 of Law No. 105-V provides for an exhaustive list of grounds for preferential calculation of seniority by age, which does not include the period of work in areas equated to the regions of the Far North. It should also be borne in mind that concepts such as "pension on preferential grounds" and "calculation of work experience on a preferential basis" are not identical. A preferential pension is an old-age pension, for which other (preferential) conditions are established. According to the current pension legislation, the benefits consist in lowering the generally established retirement age. Thus, in accordance with Article 11 of Law No. 105-V, citizens who lived in areas of extreme and maximum radiation risk for at least 5 years from August 29, 1949 to July 5, 1963, in accordance with the Law of the Republic of Kazakhstan "On Social Protection of Citizens Affected by Nuclear Tests at the Semipalatinsk Nuclear Test Site" they have the right to assign pension payments based on age: 1) men – upon reaching the age of 50; 2) women – upon reaching the age of 45.

Labor disputes - calculation of work experience by age

Women who have given birth to (adopted, adopted) 5 or more children and raised them up to the age of eight are entitled to retirement benefits upon reaching the age of 53. In turn, in order to make pension payments, both on general and preferential grounds, it is necessary to have a certain length of service, when calculating which some periods of work (service) are calculated on a preferential basis – in one and a half, double or triple amounts (paragraph 2 of Article 13 of Law No. 105-V). The agreement provides for taking into account the length of service acquired in the territory of any participating state, as well as in the territory of the former USSR, only to establish the right to a pension, including pensions on preferential grounds, but not to assign benefits. In addition, the Agreement does not contain a rule obliging participants to take into account their work experience on a preferential basis. Therefore, the reference to it as an international treaty is unfounded. It is also necessary to recognize as unlawful the reference of the court of appeal to the Decree of the Supreme Military Council of the USSR as not having the status of an international treaty and legal force on the territory of the Republic of Kazakhstan. 

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