Replacing milk with cash compensation per year. Compensation in exchange for the issuance of milk: legal basis for payment and taxes (Larina N.)

2009 No. 000

On the replacement of free distribution of milk to employees,

employed in work with harmful working conditions,

compensation payment

In accordance with Art. 222 of the Labor Code of the Russian Federation, by order of the Ministry of Health and Social Development of the Russian Federation n, on the basis of clause 3.1.12 of the Collective Agreement, the decision of the meeting of employees dated 01.01.2001, written statements of employees to replace the free distribution of milk with a compensation payment p r and k a z y v a y:

1. To replace the free distribution of milk according to the established norm to employees employed in work with harmful working conditions with a compensation payment from 01/01/2010.

2. Approve the implementation procedure compensation payment in the amount equivalent to the cost of milk, employees of Tomsk State University (Appendix 1).

3. Heads of subdivisions, by January 15, 2010, submit to the department of labor protection the lists of employees for compensation payment in 2010 (Appendix 2, in hard copy (2 copies) and in electronic format). Indicate the number of days of actual employment in jobs with harmful working conditions (per month), due to the presence of harmful production factors provided by the List of harmful production factors (Appendix 3). The heads of departments in which the certification of workplaces for working conditions was carried out, to establish compensation payments to employees based on the results of the certification.

4. The head of the PFU shall ensure the establishment of the amount of the compensation payment in accordance with the Procedure for the implementation of the compensation payment.

5. The chief accountant of the UBUiK shall ensure the compensation payment to employees in accordance with the Procedure for the implementation of the compensation payment.

6. In the case of ensuring safe working conditions, confirmed by the results of certification of workplaces and the conclusion state expertise working conditions, cancel the compensation payment.

7 To the head of the affairs department, bring the order to the attention of the heads of the SBS, NB, KhF, BI, GGF, MMF, FTF, FF, FJ, IF, IVO, RIO, AChE, kindergartens 49, 113, dispensary, hotel, sports complex, campus.

8. To impose control over the execution of the order on the head of the OOT

First Vice-Rector

AGREED

Head of PFU

Chief Accountant

Chairman of the trade union

TSU organizations

Application

to the order of TSU

making a compensation payment in the amount

equivalent to the cost of milk, workers

Tomsk State University

1. Free distribution of milk to employees according to the established norm of milk can be replaced, upon written applications of employees, with a compensation payment in an amount equivalent to the cost of milk.

2. The amount of the compensation payment is accepted as equivalent to the cost of drinking whole pasteurized milk with a fat content of 3.2% in retail in Tomsk according to Territorial authority Federal Service state statistics for the Tomsk region.

3. Indexation of the compensation payment is made in proportion to the increase in prices for drinking whole pasteurized milk with a fat content of 3.2% in retail trade in Tomsk, according to the data of the Territorial Office of the Federal State Statistics Service for the Tomsk Region.

4. Indexation and establishment of a specific amount of compensation payment is made once every 3 months.

5. Compensation payment is made to employees for the days of actual employment in jobs with harmful working conditions.

6. Compensation payment is made according to separate statements once a month based on the established amount of compensation payment and according to the lists of employees submitted by the heads of departments in accordance with annual order about compensation.

Application

to the order of TSU

employees _____________________________________________________________

(name of department)

employed in jobs with harmful working conditions, for compensation payment

in the amount equivalent to the cost of milk in 20__

Department head

Trade Union Chairman

According to the current legislation, workers who work in unhealthy conditions are entitled to free milk distribution. Issue norms and list harmful factors approved by the Order of the Ministry of Health and Social Development Russian Federation in 2009. This Order also regulates the norms according to which the replacement of milk with monetary compensation is carried out.

It is much easier for managers to give out money than milk, which needs to be purchased, transported, stored, and even organize a place for its consumption. And for some workers, this option is more acceptable. In this case, it may be difficult how to properly document this.

The first and main condition for replacing milk with monetary compensation is the consent of the employee. The possibility of replacement should be spelled out in the collective agreement. If there is no such item, you need to make the appropriate changes.

In accordance with the requirements of legislation in the field of labor protection at enterprises with harmful working conditions, the employee must write statements. See an example of such a statement below.

Director of Rassvet LLC

Ivanov I.I.

from the X-ray technician

Petrova P.P.

STATEMENT

In accordance with the Order of the Ministry of Health and social development RF dated February 16, 2009 No. 45n, I ask you to replace the issuance of milk for work during harmful conditions labor compensation.

Date Signature Full name

The next step in resolving the issue will be an order that looks something like the one shown below.

ORDER No. __________

On the replacement of free distribution of milk to employees employed in work with harmful working conditions for compensation payments

On the basis of written applications of employees entitled to receive free milk, in accordance with the Order of the Ministry of Health and Social Development of the Russian Federation of February 16, 2009 No. 45n,

I ORDER:

1. Replace the free distribution of milk to workers employed in jobs with harmful working conditions with a compensation payment.

2. The calculation of compensation payments to employees is carried out in accordance with the approved list (Appendix 1 to this order).

4. The amount of the compensation payment shall be taken as equivalent to the cost of milk with a fat content of 2.5% in retail trade in the Moscow Region.

5. Set the amount of compensation on the basis of monthly information on average retail prices for milk, provided by the department of state statistics for the city of Moscow.

6. Accountants - payment of compensation to be made once a month for the actual time worked, according to the provided timesheets.

7. To impose control over the execution of the order on the labor protection specialist Sidorova S.S.

Director I.I. Ivanov

Some OHS managers at LLCs are wondering where to start when considering compensation. In this case, we recommend that you carefully study Appendix No. 2 to the Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n. If you have studied it, but still there are difficulties, we bring to your attention a quote from it:

4. The specific amount of the compensation payment and the procedure for its indexation are established by the employer, taking into account the opinion of the primary trade union organization or other representative body of workers, and are included in the collective agreement. If the employer does not have a representative body of employees, these provisions are included in labor contracts concluded with employees.

5. The compensation payment is indexed in proportion to the increase in prices for milk and other equivalent food products in retail trade at the location of the employer in the territory of the administrative unit of the subject of the Russian Federation on the basis of data from the competent structural unit executive authority of the subject of the Russian Federation.

This process in our country is as follows. You must conclude an agreement with the department of Rosstat, according to which the latter must provide information on the average purchase prices for milk in your locality with a fat content of at least 2.5%. Every month you should receive a letter, duly executed, where the current prices are indicated. The service of the statistical service is paid, you will have to pay for it, but you will be sure that you are doing everything according to the law.

It is the duty of the employer to provide workers with free food, food, milk in conditions where work takes place in especially unhealthy conditions. In each case, the enterprise has norms for the issuance of milk, therapeutic and preventive nutrition. The main task for the employer is to create acceptable working conditions. Guarantee damage compensation subject to impact dangerous factors per person. In the article we will tell you who is entitled to replace milk with cash compensation in 2019, we will give explanations and answers to questions.

Milk for employees - general provisions

In order for the accounting department to be able to accept all costs in the future when determining taxable profit, mandatory conditions to be performed:

• Presence of harmful working conditions in the workplace;
• Their level exceeds statutory limits.

You can check for compliance with these conditions by referring to the appendix of the legislative act No. 45 of February 16, 2009, where the norms and requirements for the issuance of milk to employees are named. In 2014, changes were adopted that define the requirements for certification of workplaces of the SOUT and also the requirements for labor protection standards in the field:

• Assessment of traumatic conditions in the workplace;
• Assessment of the availability of providing personal protective equipment for workers in the production process;
• Comprehensive assessment jobs and working conditions.

The final results of the evaluation of the SUT are drawn up attestation commission. In the future, this document will become the main factor that regulates the standards for the issuance of free food and milk to workers.

Procedure for providing milk

The amount of free milk received by employees must correspond to the duration of the shift. If more hours were actually produced, then the milk rate also changes proportionally upwards. An enterprise of more than two hundred people is obliged to organize a place for the distribution of food, a distribution point, as well as a room for eating in accordance with the norms of SNiP.

Free provision of milk, medical nutrition is carried out on the days of actual employment at the workplace. Power supply is not provided:

• On idle days;
• Weekends and holidays;
• business trip period;
• Annual or study leave;
• During an illness or stay at a spa treatment. Read also the article: → "".

With the consent of the employee himself, the replacement of milk with alternative sour-milk liquid products takes place in the volumes provided for by the nutritional standards. In cases of reduction production processes from the usual 8-hour time to less, the employer has the right to stop distributing milk to employees. Provided that the work shift was reduced by more than half.

Registration to replace the issuance of milk with compensation

The volumes of free milk provided for by Article TC 222 (Distribution of milk and therapeutic and preventive nutrition) can be replaced by appropriate monetary compensation only if the written consent of the employee is obtained. To determine the due amount, the statistical price of milk with a fat content of at least 2.5% is taken. The conditions for replacing with a cash payment must be provided for by a collective or labor agreement and paid at least once a month.

If at the time of employment the conditions for receiving free food and milk were not specified in the contract, then the conditions should be established by a labor supplementary agreement.

Allowed indexation of the cost of milk, as it rises in price. This operation controlled by the trade union department of the enterprise. Cash compensation paid in exchange for the issuance of milk is not subject to personal income tax. However, the enterprise is obliged to provide the results of the attestation of workplaces, indicating the harmful working conditions, which require the issuance of milk.

In special cases, employees are provided with therapeutic and preventive nutrition. The list of enterprises that require the mandatory provision of such food is listed in the annex to order No. 46n dated February 16, 2009. Read also the article: → "".

In accordance with the specifics of work at these enterprises, therapeutic and preventive nutrition is issued to workers and employees at the beginning labor day in the form of hot breakfasts, or complex lunches, for those working on a rotational schedule. A special diet is reserved for workers when labor obligations performed in fact half work shift. And:

• During outpatient treatment occupational diseases;
• Employees who became disabled during the year due to an occupational disease;
• Employees who were transferred to another job due to an occupational disease for up to one year;
• Employees who are on leave in BiR to care for a child.

There is no financial compensation for therapeutic and preventive nutrition. Its issuance may be terminated due to cancellation in agreement with the trade union department, or if, as a result of attestation of workplaces, the SOUT has recognized them as safe and quite acceptable for work.

Registration of the issuance of milk in the employment contract

The method of transferring free milk to workers and employees has no legal limits, and therefore is regulated by the employer. Issuance can be organized in the factory canteen, cafeteria or equipped point fast food employees. The decision and conditions for the issuance of free milk, as well as the possibility of replacing it with monetary compensation for the independent purchase of milk, are fixed by an employment contract or a bilateral supplementary agreement.

In the relevant section (benefits and compensations), you must specify:

“... for a worked shift on harmful production facilities, in conditions harmful effects the body of an employee is entitled to a norm of free milk in the amount of 0.5 liters per shift.

Also, at the written request of the employee, a monthly monetary compensation for free milk is established at the rate of 35 rubles. per liter, according to the actual hours worked under the conditions of the harmful effects of production.

Be sure to obtain a written consent from the employee to replace free milk with a cash payment:

“... the full name of the employee agrees to a cash replacement for free milk. I ask you to pay compensation to the card (to your hands through the cash desk of the enterprise) ”the date and signature of the applicant is required.

An order for an enterprise to replace free milk with a cash payment is agreed with the trade union.

Methods and terms for obtaining compensation

On the basis of a personal application, the accounting department issues an order certified by the head of the enterprise and the trade union organization. The order must specify:

• Estimated price for 1 liter of milk;
• Method of calculating compensation;
• Payment term.

Further, compensation is calculated based on the actual hours worked in hazardous production, with the effects of harmful factors on the basis of the monthly work sheet. The total amount of payments is the product of the volume of milk given out free of charge by the actual hours worked.

Draw up a register of payments and approve it in the trade union department and the head of the organization. The cost of milk is indexed as inflation rises in the region. The standard provides for a method of issuing free milk, as well as a replacement for monetary compensation. Due to the specifics of the company's activities, some employees different reasons it is not always convenient to spend time getting food and milk. It happens that the body simply does not tolerate lactose. In such cases, it is more profitable to apply to the manager or shift supervisor for a replacement with monetary compensation.

Possible reasons for denial of compensation

An essential decision to terminate monetary replacement free milk in production conditions can serve as:

• Changing the working conditions of the worker;
• Reduction of the standard of harmful effects on health;
• The employee is on annual paid leave;
• The results of attestation of workplaces, which certify the absence of harmful effects on the health of workers.

The termination of cash payments for milk replacement may be associated with a reduction in production volumes, and, accordingly, a decrease in the degree of harmful effects on the human body. Read also the article: → "".

An employee may voluntarily refuse compensation or in the event of dismissal. According to some research data, it was found that in 2017 more than half a million employees were involved in hazardous industries. Despite the fact that they are provided with therapeutic and preventive nutrition and free milk, many develop signs of occupational diseases caused by harmful working conditions.

Milk is allocated strictly according to the standards for the purpose of prevention, to those workers who encounter harmful sources in the maximum permissible concentration. To maintain the health of an employee at the proper level, a cumulative series of measures is required aimed at full protection from harmful factors that adversely affect workplaces.

The amount of compensation in Moscow and the regions

Based on Law No. 426FZ, which requires compliance with the conditions and guarantees in the event of negative impacts on enterprises and institutions:

• chemical industries;
• non-ferrous metallurgy production;
• electrical and radio engineering production;
• production of mercury thermometers;
• when working with radioactive elements and sources of ionizing radiation;
• when carrying out loading and unloading operations of apatite in sea and river ports;
• in conditions of high atmospheric pressure;
• for the production of ferrous metallurgy;
• Food Industry;
• organizations whose work is associated with the storage and elimination of chemical weapons.

At the time of assessing working conditions, the presence of harmful factors, the degree of their impact on a person, which has a negative impact on the performance and general well-being of employees, is taken into account. If, according to the results of certification, hazard class 3 or 4 is assigned, then the enterprise is obliged to provide employees with free milk, therapeutic and preventive nutrition and other alternative food products.

If an employee, due to his professional activity assigned a disability group, he is entitled to receive social support in the form of medical nutrition.

Normative fundamental acts of compensation

Answers to common questions

Question number 1. The company pays compensation to replace free milk. What are the payment terms provided by law?

There are no strict limits and terms for the payment of compensation in a particular case. Observing the rule of payment at least once a month, the employer himself sets the date. You can add payment either to the advance payment or to the main earnings. This provision is fixed by a local act.

Question number 2. What products can replace milk?

In accordance with the conditions specified in Order 46n, it is allowed to replace milk with an alternative food ration, which consists of fermented milk products, vegetables, fish, and meat.

Question number 3. Is it allowed to distribute free meals in organizations with low or no harmful effects of production on a person?

In accordance with regulations that have a negative impact on workplace, the employee is required to provide a therapeutic and preventive diet, free milk. If the issuance does not comply with the requirements of the Ministry of Health of the Russian Federation, then the cost of products is subject to taxation at a rate of 13% personal income tax.

Working in a workplace with harmful working conditions is hazardous to health. That is why, at the legislative level, employees employed in such organizations were registered.

In an employment contract between an employer and an employee in without fail it indicates how harmful the production is and at what level compensation is made.

general information

Money or monetary compensation

Since the legislation provides for the possibility of replacing the free distribution of milk or other equivalent products with a cash equivalent, the employee, at his discretion, has the right to write an application addressed to the employer to replace compensation in kind with a compensation payment.

However, the basis for such a replacement is not only the application of the employee, but also the presence of an appropriate clause providing for such a possibility in a collective or employment contract.

As practice shows, the team makes a decision together, choosing one of two options by voting.

The employer has no right to impose on employees one form or another of compensation for harmful working conditions, as well as the right to delay the issuance of milk or give it in advance.

Payments of compensation funds are made at least once a month according to the established schedule. Most often this is either on the day the advance is received, or on the day of payment. wages. Milk is dispensed in a different way

Do you need on the subject? and our lawyers will contact you shortly.

How is the calculation made

According to the approved norms, the amount of compensation is calculated based on the average cost in the region of milk with a fat content of at least 2.5%. In this case, the final amount of compensation directly depends on the number of days worked. For employees who receive equivalent food products instead of milk, the amount of compensation payment is established based on the cost of equivalent food products. food products.

The specific amount of the compensation payment and the procedure for its indexation are established by the employer, taking into account the opinion of the primary trade union organization or other representative body of employees.

That is, if in the region there is an indexation of the cost of milk or products replacing it, then the clause of changing the amount of compensation should be prescribed in the labor or collective agreement, taking into account this indexation. If this clause is not provided for by the contract, then the employees have the right to propose the preparation additional agreement subject to indexing.

Where to learn about indexing

It is not necessary for an employee to monitor the markets independently for changes in the cost of food and milk. It is enough to send a written request to the structural department executive body authorities at the place of service.

The average waiting time for a response is 10 business days.

With an official response, you must contact the employer in writing, if indexation was not taken into account when calculating compensation.

The employer does not have the right to refuse to increase if indexation in the region has been carried out. The right to receive a full-fledged material payment by an employee is prescribed at the legislative level. Infringement of this right is illegal and punishable.

How is in-kind compensation made?

According to the established norms, in 2019, all workers engaged in hazardous production can count on “payments” in kind.

In this case, the calculation is made exclusively for the days that the employee actually worked. The norm of free delivery of milk is 0.5 liters per shift, regardless of the duration of the shift. If the time of work in hazardous working conditions is less than the established duration of the work shift, milk is issued when work is performed under the specified conditions for at least half of the work shift.

Attention: the distribution of milk or products that replace it is made immediately after the work shift in a specially designated place for this, which corresponds to established requirements and sanitary standards.

As a rule, this is a separate room (for example, a food block), where sanitization is carried out and food storage rules are observed.

Pectin and other products as compensation

Order of the Ministry of Health and Social Development of Russia dated April 19, 2010 No. 245n provides that workers in contact with inorganic compounds of non-ferrous metals (except for compounds of aluminum, calcium and magnesium) are given 2 g of pectin in addition to milk as part of food products enriched with it (for example, drinks, jelly, jams , marmalades, juice products from fruits and (or) vegetables and canned food). It is allowed to replace these products with natural fruit and (or) vegetable juices with pulp in the amount of 300 ml.

With constant contact with inorganic compounds of non-ferrous metals (except for compounds of aluminum, calcium and magnesium), fermented milk products or products for dietary (therapeutic and preventive) nutrition under harmful working conditions are issued instead of milk.

At the same time, the issuance of pectin-enriched food products should be organized before the start of work, and fermented milk products - during the working day.

In addition, instead of fresh milk, workers involved in the production or processing of antibiotics are given fermented milk products enriched with probiotics (bifidobacteria, lactic acid bacteria), or colibacterin prepared from whole milk.

The legislator also draws attention to the fact that the replacement of milk with sour cream, butter, other products (except for equivalent products provided for by the norms for the free distribution of equivalent food products that can be given to employees instead of milk) is not allowed, just as the issuance of milk or other equivalent products is not allowed. food for one or several shifts in advance, as well as for past shifts, since the employee must consume milk immediately after exposure to hazardous factors on his body or before.

Employer actions

The employer concludes a contract for the supply of products at his own expense.

The manufacturer does not play any role, since it is not the company that is checked, but the final product. It must comply with the standards prescribed in the technical regulations.

Only in this case issuance of dairy products is considered legal and lawful. If the product does not match technical regulations or does not “hold out” to it in any way, then this is considered a violation of the rights of employees engaged in hazardous production.

Who can apply for

An entry in the employment contract about harmful working conditions is not enough to receive compensation in kind.

In order for a person to be able to receive the milk norm due to him at the end of the shift, the employer is obliged to evaluate the workplace and assign it a hazard class.

It depends on this indicator at what rate the employee will receive compensation and in what amount.

If this was not initially stated in the employment contract, then changes are made by drawing up an additional agreement. As a rule, such a procedure is required only for new production positions or jobs.

If a person comes to a previously formed place, then the contract includes a clause on the assessment of harmfulness based on the assessment carried out in the past.

If the employer intends to pay in kind not with milk, but with a substitute product, then this should be stated in the employment contract along with the results of the assessment and the established norm. Otherwise, substitutions are unacceptable and constitute a violation of the employee's rights.

It should be borne in mind that workers receiving free therapeutic and preventive nutrition due to especially harmful working conditions are not given milk or other equivalent food products.

How to get products

No additional actions are required on the part of a hazardous production worker to obtain the prescribed products in kind.

The employer is obliged to independently assess the workplace and set the norm, focusing on accepted standards and recommendations. If he did not do this, then the employee has the right to insist on such a procedure in writing.

An application for in-kind compensation is not required.

Cash compensation is declarative and voluntary, however, some organizations offer employees a material form on their own if they do not have specially equipped places for dispensing dairy products.

This is not a violation, however, the right of the employee remains to demand compensation in kind.

Dear readers!

We describe typical ways to resolve legal issues, but each case is unique and requires individual legal assistance.

For a prompt resolution of your problem, we recommend contacting qualified lawyers of our site.

Last changes

The procedure for issuing products that slow down the intoxication of the body has not undergone significant changes.

Moreover, scientific studies have shown that some substances are not only not excreted by milk or its substitutes, but, on the contrary, are absorbed faster. That is why some organizations have abandoned the procedure for issuing such in-kind compensation in favor of material supplements.

All procedures are carried out only with the consent of the employees, who, in most cases, prefer cash and not products. At the same time, citizens choose preventive nutrition for themselves, based on their personal preferences and state of health.

Our experts monitor all changes in legislation in order to provide you with reliable information.

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February 16, 2017, 23:19 May 11, 2019 17:56

At work with harmful working conditions, workers should be given milk or other equivalent food products free of charge according to established norms. As you know, under certain conditions, workers can receive monetary compensation for their value instead of products. In practice, with the reading of this norm, certain difficulties arise, which we decided to discuss in our section “Attention, a problem!”

Part 1 Art. 222 of the Labor Code of the Russian Federation provides that the issuance of milk or other equivalent food products to employees according to established norms, upon written applications of employees, can be replaced by a compensation payment in an amount equivalent to the cost of milk or other equivalent food products, if this is provided for by a collective agreement and (or) an employment contract .

Many employers, providing for such a mechanism for replacing the issuance of milk with monetary compensation in their organization, asked themselves the question: does the wording of Part 1 of Art. 222 of the Labor Code of the Russian Federation, what if the organization has a collective agreement, then the possibility of replacing milk with monetary compensation should be provided for both in it and in the employment contract with each employee working in hazardous working conditions? Or should this norm be read as follows: the possibility of replacement should be provided for in at least one of the documents: either in a collective agreement or in a labor contract?

The question is quite interesting and difficult. We asked experts in the field to answer it. labor law.

By the way

Expert opinion

It is better to include a condition on the replacement of milk with monetary compensation both in the collective agreement and in labor contracts.

E.V. Orlova,
department director internal audit LLC "Komo"

In accordance with Part 1 of Art. 222 of the Labor Code of the Russian Federation, the issuance of milk or other equivalent food products to employees according to the established norms, upon their written applications, can be replaced by a compensation payment in an amount equivalent to the cost of milk or other equivalent food products, if this is provided for by the collective agreement and (or) labor contract.

To understand the meaning and content of this norm, it is necessary to use the laws of logic, as well as the rules of grammatical interpretation, according to which words and expressions in such cases correspond to the meaning that they have in the literary language.

In legal acts, as well as in legal documents the construction and (or) is often used, implying "either this, or that, or both at once."

For example, according to par. 1 st. 255 of the Tax Code of the Russian Federation, the taxpayer's labor costs include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensation accruals related to the mode of work or working conditions, bonuses and one-time incentive accruals, expenses associated with the maintenance of these employees, provided for by the norms of the legislation of the Russian Federation, labor agreements (contracts) and (or) collective agreements.

Paragraph 25 of Art. 255 of the Tax Code of the Russian Federation also provides that for the purposes of Chapter 25 of the Tax Code of the Russian Federation, other types of expenses incurred in favor of the employee, provided for by the employment contract and (or) the collective agreement, are included in labor costs for the purposes of Chapter 25 of the Tax Code of the Russian Federation.

Thus, based on the grammatical and logical interpretation of the provisions of Part 1 of Art. 222 of the Labor Code of the Russian Federation, it can be concluded that the replacement of milk with monetary compensation is possible in any of two cases:

• (or) it is provided for both in the collective agreement and in the employment contract;
• (or) it is provided either in the collective agreement or in the employment contract.

However, if you want to fix the decision to replace milk with monetary compensation in only one of the documents (for example, in a collective agreement), using the disjunction of the union or in Part 1 of Art. 222 of the Labor Code of the Russian Federation, you should take into account the systematic interpretation of the norms of all branches of law, in particular tax legislation and legislation on insurance contributions to state off-budget funds.

So, tax code The Russian Federation prohibits taking into account any payments to employees in expenses, in addition to those paid on the basis of employment contracts (clause 21, article 270 of the Tax Code of the Russian Federation). From the point of view of labor law and taxation, the collective agreement belongs to the sphere social partnership but not to employment contracts.

At the same time, Art. 255 of the Tax Code of the Russian Federation allows to take into account in expenses the remuneration of employees provided for by labor and (or) collective agreements.

In particular, monetary compensation instead of milk can be taken into account for income tax purposes either as part of labor costs (clause 3 of article 255 of the Tax Code of the Russian Federation) or as part of the costs of ensuring normal working conditions (clause 7 of clause 1 of article 264 Tax Code of the Russian Federation), or as part of other expenses incurred in favor of the employee (Clause 25, Article 255 of the Tax Code of the Russian Federation), subject to the requirements of Clause 1, Art. 252 of the Tax Code of the Russian Federation.

In the letters of the Federal Tax Service of Russia dated 04/01/2011 No. KE-4-3 / 5165 and the Federal Tax Service of Russia for Moscow dated 03.24.2005 No. 20-08 / 18981 it is noted that if the employment contract concluded with a specific employee does not include those or other accruals provided for in the collective agreement and (or) local regulations, or there are no references to them, then such accruals cannot be accepted for profit taxation purposes. True, in these letters we are talking about incentive accruals for production results. But it is possible that the same approach tax authorities apply to compensation for the cost of milk. In a number of cases, judges also agree with this (Decree of the Federal Antimonopoly Service of the West Siberian District dated August 21, 2006 No. F04-5211/2006 (25441-A67-42) in case No. A67-1972/06).

Therefore, in order to avoid problems with income tax inspectors, we recommend that employers include a clause on the replacement of milk with monetary compensation in both the collective agreement and the employment contracts of employees working in hazardous conditions.

Now with regard to legislation on insurance premiums to state off-budget funds. If you decide to reflect the replacement of milk with monetary compensation only in the collective agreement (without including this condition in labor contracts), then from the point of view of insurance premiums, everything is ambiguous.

Federal Law No. 212-FZ dated July 24, 2009 “On Insurance Contributions to Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and the Territorial Compulsory Medical Insurance Funds” (hereinafter referred to as Law No. 212-FZ) and Federal Law No. 125-FZ of 24.07. social insurance from accidents at work and occupational diseases ”(hereinafter - Law No. 125-FZ) there is no mention of payments under collective agreements at all. The only exception is the cost of travel for employees and members of their families to the place of vacation and back, paid by the payer of insurance premiums to persons working and living in the Far North and equivalent areas (clause 7, part 1, article 9 of Law No. 212-FZ , clause 8, part 1, article 20.2 of Law No. 125-FZ).

clarifications from the authorities, and judicial practice on this issue no. Since collective agreements do not apply to labor agreements, we believe that payments only under collective agreements, including the replacement of milk with cash compensation (and in any amount, regardless of the established norms), should not be subject to insurance contributions to the PFR, the FSS of Russia, FFOMS and TFOMS, as well as contributions from accidents at work and occupational diseases (part 1 of article 7 of Law No. 212-FZ, part 1 of article 5, part 1 of article 20.1 of Law No. 125-FZ).

From the content of the norms of Part 1 of Art. 7, para. 2 pp. "and" p. 2 h. 1 art. 9 of Law No. 212-FZ, part 1 of Art. 5, part 1, art. 20.1, paragraph 2, part 1, art. 20.2 of Law No. 125-FZ it follows that for monetary compensation instead of milk (within the limits established by law) paid to an employee employed in work with harmful working conditions, provided for by the terms of an employment contract, insurance premiums to off-budget funds, as well as from accidents at work and occupational diseases are not charged.

Thus, in order to avoid disputes with insurance premium inspectors, it is better for employers to include a condition on replacing milk with cash compensation. And in collective agreements and labor contracts.

Expert opinion

If the employer has a collective agreement, then the condition for monetary compensation should be fixed both in the collective agreement and in employment contracts

S.V. Kamenskaya,
Senior Lecturer
department of labor law and law social security
Academy of Labor and Social Relations

With the adoption of Federal Law No. 224-FZ dated 01.10.2007 “On Amendments to Article 222 of the Labor Code of the Russian Federation”, the issuance of milk or other equivalent food products in cash to employees. Recall that earlier attempts by employers to resolve this issue at the local level were not recognized as legal. It was argued that with such a replacement, the goal is lost, which is to neutralize harmful production factors that adversely affect the health of workers. Based on this, the amounts paid in exchange for milk and other equivalent products were not recognized as compensation payments in favor of employees (letter of the Ministry of Finance dated February 21, 2007 No. 03-04-06-02 / 30).

Now, according to the current labor legislation, funds paid in exchange for the issuance of milk and other equivalent products are called compensation payments and are allowed under the following conditions:

1) the presence of a written application of the employee to receive money instead of products;

2) the establishment of such a replacement in the collective and (or) labor contract.

Without touching upon the problem of the expediency of the legislator's approach, according to which it is allowed to compensate employees for the adverse effects of harmful production factors in monetary form, let us stop

In particular, monetary compensation instead of milk can be taken into account for the purposes of implementing the compensation mechanism in practice.

In part 1 of Art. 222 of the Labor Code of the Russian Federation in question on the establishment of a condition for the replacement of milk and other equivalent food products in a collective agreement and (or) in an employment contract. In what sense - connecting or dividing - should the union and (or) be used between the phrases collective agreement and labor agreement?

The literal interpretation of the mentioned norm of the Labor Code of the Russian Federation allows us to talk about two options for determining the condition for replacing milk with a compensation payment:

1) both in the collective agreement and in the employment agreement;

2) either in a collective agreement or in an employment contract.

If the employer has a valid collective agreement, there is uncertainty with the condition to replace milk with a cash payment: should it be duplicated in the employment contract, or is it enough to be mentioned in at least one act - a collective agreement or an employment contract.

Assuming the existence of an alternative, then only the union would be used in the sentence or, giving the employer the opportunity to choose between a collective agreement and an employment contract. In this case, there is no need for an alliance and, according to the meaning of which, both treaties are binding.

Apparently, the union or is intended for those cases when the employer does not have a collective agreement, and the only act where it is possible to reflect the condition on the replacement of milk with a cash payment remains an employment contract. Labor legislation does not oblige the employer to accept a collective agreement (only to participate in collective negotiations regarding its conclusion, if the labor collective has taken the appropriate initiative), therefore, the existence of this act is a voluntary matter. In this regard, in order to avoid any advantages or restrictions for employees depending on whether employers have valid collective agreements and to preserve the freedom of expression of the parties labor relations when concluding collective agreements, the legislator left the opportunity to do with only an employment contract.

This is confirmed by clause 4 of the Procedure for making compensation payments in an amount equivalent to the cost of milk or other equivalent food products (Appendix No. 2 to the order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n). The specific amount of the compensation payment and the procedure for its indexation are established by the employer, taking into account the opinion of the primary trade union organization or other representative body of employees, and are included in the collective agreement. In the absence of the procedure for the payment of this compensation. Here in paragraph 2 it is emphasized that the replacement of milk or other equivalent food products with monetary compensation is possible if this is provided for by the collective agreement and (or) the employment contract. Important: the specified norm requires from the employee employed by the employer of the representative body of employees, these provisions are included in the employment contracts concluded with employees.

Thus, for cases where there is a collective agreement, the union should be used And: the condition for cash payment instead of milk should be reflected both in the collective agreement and in the labor contract. This provision is consistent with Art. 219 of the Labor Code of the Russian Federation, according to which each employee has the right to compensation established in accordance with the Code, a collective agreement, an agreement, a local normative act, an employment contract, if he is engaged in hard work, work with harmful and (or) dangerous working conditions.

Expert opinion

The condition on monetary compensation must be fixed both in the collective agreement and in labor contracts. It is also mandatory to have employee statements

L.V. Frantsuzova,
Lawyer for labor law of LLC "Personnel holding "Beta Press""

The idea of ​​“monetization of benefits”, which a few years ago provoked a strong reaction from people who are usually referred to as socially unprotected segments of the population, eventually affected the “labor” benefits of people employed in work with harmful working conditions.

Part 3 Art. 222 of the Labor Code of the Russian Federation, in particular, states that the implementation of the compensation payment provided for in Part 1 of Art. 222 of the Labor Code of the Russian Federation, is established in the manner determined by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.

By this issue it is necessary to refer to the Decree of the Government of the Russian Federation of March 13, 2008 No. 168, which just determines the procedure for paying this compensation. Here in paragraph 2 it is emphasized that the replacement of milk or other equivalent food products with monetary compensation is possible if this is provided for by the collective agreement and (or) the employment contract. Important: the specified norm requires an employee employed in work with harmful working conditions to confirm in writing, in the form of an application, his consent to the replacement of food products with monetary compensation. And this is even though the corresponding condition is already included in his employment contract! Why did the legislator establish this additional procedure? We'll talk about this below. Until then, having read normative document Government of the Russian Federation until the end, we find that a more detailed solution of issues related to the provision of workers employed in jobs with harmful working conditions, therapeutic and preventive nutrition, was entrusted to the Ministry of Health and Social Development of Russia (for this reason, they even made appropriate changes to the Regulations on the Ministry of Health and social development of the Russian Federation, approved by Decree of the Government of the Russian Federation of June 30, 2004 No. 321). The said Ministry had to prepare the document by December 30, 2008. However, Order No. 45n was issued only on February 16, 2009, and was registered with the Ministry of Justice of Russia even later - on April 20, 2009. It is clear that all this time the practice of applying Art. 222 of the Labor Code of the Russian Federation was developed by the employers themselves. And she was not always legally literate.

Appendix No. 2 to Order No. 45n of February 16, 2009 of the Ministry of Health and Social Development of Russia establishes the procedure for compensation payments in an amount equivalent to the cost of milk or other equivalent food products. So, paragraph 4 of the specified Order gives us next rule. The specific amount of the compensation payment and the procedure for its indexation are established by the employer, taking into account the opinion of the primary trade union organization or other representative body of employees, and are included in the collective agreement. If the employer does not have a representative body of employees, these provisions are included in labor contracts concluded with employees. This is how one should understand the use of the union or in the speech construction "... if it is provided for by a collective agreement and (or) an employment contract". But there are several nuances.

The collective agreement is intended to regulate social and labor relations in an organization or individual entrepreneur(Article 40 of the Labor Code of the Russian Federation). He names the benefits (including those discussed by us) to the entire team and establishes the procedure for providing them to employees. Let's say a collective bargaining agreement specifies that an employer replaces food with cash compensation. And if an employee enters work who does not agree with this rule and wants to receive therapeutic and preventive nutrition in kind? Or is an already working employee no longer satisfied with the practice of receiving compensation? Of course, employment contracts that regulate the individual working conditions of a particular employee are more suitable for this kind of situation, because they describe the conditions under which this employee works, and not the entire team. In our opinion, the right to choose should be given not to the employer and not to the representative body of employees, but to the person who risks their health.

Here it is impossible not to recall what we paid attention to above. The order of the Ministry of Health and Social Development of Russia does not say anything about written applications that must be submitted by workers who agree with the replacement of food for money. It turns out that a collective or labor agreement is not enough? And employees must additionally confirm their consent? If so, how often should they apply? Every month before the accounting department calculates the set amount? Once a year? Unfortunately, the Ministry of Health and Social Development of Russia does not provide answers to these questions. Note that the normative document of the Government of the Russian Federation has greater legal force than the normative legal act of the ministry. Yes and the federal law- The Labor Code of the Russian Federation, which is higher than the normative legal act of the Government of the Russian Federation, also mentions the statements of employees. Why did the Ministry of Health and Social Development of Russia “forget” about them? What is the purpose of such statements?

Do your employees working in hazardous working conditions know what specific amount they will receive if they refuse products? The amount of the compensation payment is accepted as equivalent to the cost of milk with a fat content of at least 2.5% or equivalent food products in retail trade at the location of the employer in the territory of an administrative unit of a constituent entity of the Russian Federation.

Take the subject of the Russian Federation - Moscow. Needless to say, in different Moscow regions, the prices for the same milk are completely different. If we take into account that the compensation payment must be made at least once a month (clause 3 of Appendix 2 to the order of the Ministry of Health and Social Development of Russia), then it becomes clear that this figure may change from month to month.

But the specific amount of the compensation payment is established by the employer, taking into account the opinion of the primary trade union organization or other representative body of workers. Perhaps, with his application, the employee must confirm that he agrees to the payment of compensation because his still satisfied with her size?

The employer is also obliged to regularly index the compensation payment in proportion to the increase in prices for milk and other equivalent food products in retail trade at the location of the employer in the territory of the administrative unit of the constituent entity of the Russian Federation on the basis of data from the competent structural unit of the executive authority of the constituent entity of the Russian Federation. This means that each month the employee will receive different amounts.

Should the employer inform the employee about what the amount of compensation will be this time? The employer is not required by law to do so. Therefore, it is possible not to personally notify each employee about how much he will be accrued and paid. Why, then, a statement - a written confirmation of the employee about his consent to the "monetization" of dairy products?

In addition, the speech construction "... at least ..." sets up the fact that specific deadlines should be set by the employer in any document. By analogy with the dates of payment of salaries. Otherwise, employees will think every time when they will receive the money?

Paragraph 14 of Appendix No. 1 to the order of the Ministry of Health and Social Development of Russia states: "Other issues related to the free distribution of milk or other equivalent food products are resolved by the employer independently, taking into account the provisions of the collective agreement."

What if there is no collective agreement? In this case, there is an urgent need to regulate at least the following issues:

• the amount of compensation;
• procedure for determining the amount of compensation;
• the procedure for indexing compensation;
• timing of payment of compensation.

Part 4 Art. 57 of the Labor Code of the Russian Federation recommends clarifying, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor law and other regulatory legal acts containing labor law.

By agreement of the parties, the employment contract may also include the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and the employer arising from the terms of the collective agreement, agreements.

But at the same time, non-inclusion in the employment contract of any of the specified rights and (or) obligations of the employee and the employer cannot be considered as a refusal to exercise these rights or fulfill these obligations.

The employee must be prepared for the fact that in case of ensuring safe (permissible) working conditions, confirmed by the results of attestation of workplaces, the employer will decide to stop the free distribution of milk or other equivalent food products and, accordingly, the payment of compensation for them.

The collective agreement does not contain such a "personification" of the working conditions of a particular specialist.

Nevertheless, clause 13 of Appendix No. 1 to the order of the Ministry of Health and Social Development of Russia requires the consent of the primary trade union organization or other representative body of workers (if the employer has them) to stop the free distribution of milk or other equivalent food products to workers whose workplaces, according to the results of certification workplaces in terms of working conditions, the presence of harmful production factors or exceeding their established standards was not revealed.

It seems that the termination of payment of compensation should be agreed in the same manner.

So, albeit with different arguments, but our experts came to a common conclusion: if your organization has a collective agreement, then the condition for monetary compensation for food should be provided for in it. In employment contracts concluded with workers in harmful conditions, this moment should also be fixed. Also, in no case should one forget that, ultimately, the initiative to receive monetary compensation belongs to the employee, who formalizes his desire with a corresponding statement.

Journal: Directory of personnel officer, As of: 03/06/2012, Year: 2012, Number: No. 4

• HR and Labor Law