Which employee is entitled to milk?

Labor legislation provides for a number of guarantees and compensations for employees associated with work in harmful conditions labor. One of these compensations is free milk (Article 222 of the Labor Code of the Russian Federation). It is considered a valuable food product, therefore it is used to reduce the effects of harmful production factors and prevention of occupational diseases. How to organize the dispensing of milk and whether it is possible to replace it with money, we will figure it out below.

Milk needs to be given out to workers who are subject to increased

levels of harmful production factors. Their list is given in the order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n. Among such factors are, for example, epoxy resins, pesticides, pathogenic microorganisms, ionizing radiation of radioactive substances, etc.

The employer is obliged arrange for free distribution of milk to employees if:

• the presence of harmful production factors was established during special assessment working conditions or certification of workplaces, provided that no more than five years have passed since their implementation;
• in fact, the maximum permissible values ​​of harmful production factors have been increased (regardless of whether a special assessment or certification of workplaces was carried out).

If the employer has not carried out a special assessment, it is does not release him from the obligation to give milk to workers for work in harmful working conditions. In practice, a situation is possible when part of the workers receives milk based on the results of a special assessment, part on the results of workplace certification, and part simply on the basis of availability harmful factors(for example, if the employer did not carry out the special assessment in a timely manner or previously avoided carrying out the certification of workplaces). That is, for the free dispensing of milk, the obligatory examination of working conditions is not required.

It is necessary to distinguish between harmful and especially harmful working conditions. The list of jobs with particularly harmful working conditions is given in the order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 46n. Employees who work in such conditions are entitled not to milk, but to medical and prophylactic food.

What are the norms and procedures for dispensing milk?

The free milk dispensing rate is 0.5 liters per shift. The quality of milk must comply with the requirements of the Federal Law of June 12, 2008 No. 88-FZ "Technical Regulations for Milk and Dairy Products" and the Technical Regulations Customs Union TR CU 033/2013 "On the safety of milk and dairy products."

The employee must use the received milk at work: in a canteen, canteen or other specially equipped room that complies with the sanitary and epidemiological rules of SP 2.3.6.1079-01 "Organizations Catering... Sanitary and epidemiological requirements for public catering organizations, production and circulation of food products and food raw materials in them ”5.

If the inspection of Rospotrebnadzor discovers that the requirements for catering (when dispensing and storing milk) have been violated, then the employer may be punished: an administrative fine for officials- from 2,000 to 3,000 rubles, for an organization - from 20,000 to 30,000 rubles or administrative suspension of activities for up to 90 days (Article 6.6 of the Code of Administrative Offenses of the Russian Federation).

Milk is dispensed only on days of actual employment an employee at work with harmful working conditions, regardless of the duration of the shift (clauses 2, 4 of Order No. 45n). Milk not issued:

• during the absence of an employee at work (regardless of the reason);
• on days when an employee performs work that is not associated with the influence of harmful production factors;
• on days when the working time in hazardous working conditions is less than half of the work shift.

Table 1. Harmful factors and foodstuffs that are supposed to work with them

Harmful production factor	Food product
Contact with inorganic compounds of non-ferrous metals (except for compounds of aluminum, calcium and magnesium)	Milk and 2 g of pectin (as products containing it)
Permanent 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 prophylactic) nutrition under harmful working conditions
Manufacture or processing of antibiotics	Fermented milk products enriched with probiotics (bifidobacteria, lactic acid bacteria), or colibacterin prepared on the basis of whole milk

Fermented milk products must be dispensed during the working day, and pectin-fortified products must be dispensed before starting work.

How to issue milk dispensing?

Milk in the organization is issued on the basis of collective agreement and / or labor contracts with employees. This follows from Article 222 of the Labor Code. In addition, information on compensation for work with harmful and (or) hazardous working conditions, indicating the characteristics of these working conditions, must be prescribed in an employment contract (Article 57 of the Labor Code of the Russian Federation).

In the collective agreement, information on the issue of milk is included if available, because it is not a mandatory document for the employer. It is advisable to reflect in the collective agreement:

• a list of harmful production factors that are in the organization;
• norms and conditions for dispensing milk;
• possible types of equivalent food products, the norms for their issuance and the procedure for replacing them;
• procedure for replacing milk and equivalent food products monetary compensation;
• conditions and procedure for the termination of the dispensing of milk and equivalent food products.

What can replace milk?

With the consent of the employee, the employer can replace milk with equivalent food products or monetary compensation. Let's figure it out in more detail.

Replacing milk with equivalent food products

If necessary, milk can be substituted for certain foods.

Table 2. Products that can replace milk

You can not replace milk with sour cream, butter, other products (except those indicated in table 2). Products enriched with pectin (2 g) can be replaced with natural fruit and / or vegetable juices with pulp in the amount of 300 ml.

To replace milk with an equivalent food product, you must:

• obtain written consent from the employee;
• take into account the opinion of the primary trade union organization or other representative body of workers (if any).

The decision to replace milk with an equivalent food product is drawn up by an order (instruction) of the employer.

The employer (with the consent of the trade union or other representative body of workers) may stop dispensing milk and equivalent food products if the workplace provides safe conditions labor. This fact should be confirmed by the results of a special assessment of working conditions or previously carried out certification of workplaces. Cancellation of milk dispensing must be formalized by an order (decree) of the employer. Also, changes should be made to the collective agreement and labor contracts of employees.

Replacing milk with money

Article 222 of the Labor Code makes it possible to replace milk with monetary compensation. To do this, the following conditions must be met:

• the employee must write a statement that he wants to receive money instead of milk;
• the possibility of replacing milk with monetary compensation should be provided for in a collective agreement and (or) an employment contract with an employee.

The procedure for paying compensation can be found in Appendix No. 2 to Order No. 45n. Its size must be equivalent to the cost of milk with a fat content of at least 2.5 percent or equivalent food products in retail at the employer's location. The retail cost of products is determined according to Rosstat data, taking into account the opinion of the trade union organization. This procedure must be treated very carefully, because the employee has the right to challenge the amount of compensation in court. Especially if the procedure for its determination is not described in detail in the collective agreement.

Payment is made at least once a month (as a rule, together with wages). Its specific size must be specified in the collective agreement or in employment contracts. In practice, contracts indicate not the amount of compensation (after all, the cost of milk is constantly changing), but the procedure for determining it.

Normative acts

Document	Will help you
Article 222 of the Labor Code of the Russian Federation	Make sure that workers are supposed to provide milk for harmful working conditions
Article 6.6 of the Administrative Code of the Russian Federation	Understand what punishment the employer faces for non-compliance with the rules for dispensing milk
Article 57 of the Labor Code of the Russian Federation	Find out that information about harmful working conditions and related compensation should be written in the employment contract
Clause 4 of Art. 27 of the Federal Law of December 28, 2013 No. 426-FZ	Find out that milk can be dispensed based on the results of workplace certification
Federal Law of June 12, 2008 No. 88-FZ, decision of the Council of the Eurasian Economic Commission of October 9, 2013 No. 67	Clarify what requirements milk given to workers must meet
Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n	Find out which employee is entitled to milk for harm and in what order it is given
Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 46n	Understand which of the employees is entitled to therapeutic and prophylactic nutrition
Sanitary and Epidemiological Rules SP 2.3.6.1079-01	Find out in which room workers need to dispense milk

Compensation for milk dispensing: legal basis payments and taxes (Larina N.)

Date of placing the article: 27.02.2015

At work with harmful working conditions, employees are provided with milk or other equivalent free of charge in accordance with established standards. foodstuffs... However, the norms of the current legislation provide for the possibility of replacing the dispensing of milk with the payment of monetary compensation to the employee. This publication discusses some of the legal aspects of the calculation and payment of this compensation by employers.

Terms of accrual

In accordance with Art. 222 of the Labor Code of the Russian Federation, payment of compensation in exchange for dispensing milk is possible if:
- the employer will provide for it in the collective agreement (employment contracts with employees);
- employees will submit written applications for payment of compensation in exchange for dispensing milk;
- harmful working conditions (i.e., the right to receive free meals by an employee) will be confirmed by the results of an inspection (special assessment) of working conditions.
The list of harmful production factors, under the influence of which it is recommended to consume milk (other equivalent food products), the Norms and conditions for their free issuance, as well as the Procedure for payment of monetary compensation, were approved by Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 N 45n (hereinafter - Order N 45n).
In accordance with clauses 2 and 3 of the said document, the amount of compensation payment is assumed to be 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 on the territory of the administrative unit of the subject of the Russian Federation. The compensation payment must be made at least once a month.
I would like to analyze one of the most difficult situations associated with the conditions for calculating compensation. Consider the following example. In the employment contracts with employees, the organization provided for the payment of compensation in exchange for the issuance of milk to employees who work in harmful working conditions. The next inspection of working conditions - namely, a special assessment of working conditions - in the organization was carried out at the end of 2014. Working conditions of some categories of employees, based on the results of the special assessment, were recognized as acceptable.
Article 74 of the Labor Code of the Russian Federation obliges the employer to notify employees of upcoming changes in labor contracts (in this case, the cancellation of the possibility of paying compensation in exchange for the dispensing of milk) in writing in two months. The question arises: does the employee have the right to claim compensation within two months after the special assessment, and is the employer obliged to satisfy these requirements? It is important to understand that the above requirement applies to cases of changes in the employment contract at the initiative of the employer. This follows from par. 1 tbsp. 74 of the Labor Code of the Russian Federation. In other situations (for example, in the case of a change initiated by an employee), there is no need to comply with the two-month notice rule.
In this case, the change occurred due to circumstances beyond the control of either the employee or the employer's administration. After all, a special assessment is only an impartial check carried out in the manner prescribed by regulatory legal acts. Therefore, immediately after the results of a special assessment confirm the absence of harmful factors in the working conditions of the employee, the payment of compensation can be canceled. If the employee intends to refuse compensation in exchange for dispensing milk on his own initiative, he should submit an application to the employer about this. This is explained as follows. Based on Art. 222 of the Labor Code of the Russian Federation, compensation is paid on the basis of an employee's application. Consequently, the cancellation of this order is also possible upon application. If the condition for the payment of compensation was provided for in the employment contract, you will also need to issue additional agreement to the employment contract, signed by both the employee and the representative of the employer.

Tax

Immediately, we note that compensation in return for the issuance of milk is not subject to any salary taxes and contributions. Personal income tax does not need to be charged on the basis of clause 3 of Art. 217 of the Tax Code of the Russian Federation. It follows from this legal norm that all types established by the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies are exempted from personal income tax. local government compensation payments (within the limits established in accordance with the legislation of the Russian Federation) associated with the payment of the cost and (or) the issuance of the due in-kind allowance, as well as with the payment of funds in return for this allowance.
Compensations paid in exchange for the dispensing of milk and other equivalent products are not subject to insurance premiums for compulsory pension (social, health) insurance in accordance with par. 2 pp. "and" Clause 2, Part 1, Art. 9 of the Federal Law of 24.07.2009 N 212-FZ. Also, compensation is not subject to insurance premiums from industrial injuries according to par. 11 pp. 2 p. 1 art. 20.2 of the Federal Law of 24.07.1998 N 125-FZ.
Let us add that exemption from salary taxes is possible only if the harmful nature of the employee's working conditions is confirmed by the results of a special assessment of working conditions (or certification, if its results are still valid at the relevant time). Expenses for payment of compensation can be taken into account when calculating income tax as part of labor costs (clause 4 of article 255 of the Tax Code of the Russian Federation). An urgent question is: is it possible to take into account the amount of compensation when calculating income tax in cases where harmful working conditions are not confirmed by the results of a special assessment? There are two points of view on this issue.
It is highly likely that, in the event of an audit, specialists from regulatory agencies will insist that without a special assessment (or certification of workplaces, the results of which at the time of the audit will still be valid), the recognition of the above costs as expenses for the purpose of calculating income tax is impossible.
However, in our opinion, the legal position, which implies the possibility of taking into account these costs, is quite justified.
In order for labor costs to be included in the calculation of income tax, they must simultaneously satisfy the following conditions:
- be provided for by the norms of Russian legislation;
- meet the criteria provided for in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (costs must be economically justified, documented, aimed at generating income).
The list of labor costs that can be taken into account when taxing profits is not closed (clause 25 of article 255 of the Tax Code of the Russian Federation). That is, they can include other costs that are not directly specified in Art. 255 of the Tax Code of the Russian Federation, but provided for by the norms of the labor (collective) agreement. Therefore, since, as we indicated above, the condition for the payment of compensation in exchange for the dispensing of milk is prescribed in an employment or collective agreement, there is reason to believe that its amount can in any case be taken into account when calculating income tax. In fact, this legal position is confirmed in the Letter of the Ministry of Finance of Russia dated 03.31.2014 N 03-03-RZ / 13985. IN this document the following is said. Working conditions in which the levels of exposure to harmful production factors do not exceed the established standards are not recognized as harmful, and, therefore, the costs of the organization for the free delivery of milk to the employees of the enterprise in such conditions do not refer to compensation payments.
In this case, the cost is free of charge you this employee m of a milk enterprise (other equivalent food products) (the amount of compensation for milk), when determining the tax base for income tax, can be included in labor costs as payment in kind.

Indexing

Quite often, practicing specialists have questions about the indexation of compensation in exchange for dispensing milk. The legislation says the following. The employer is obliged to index the compensation in proportion to the increase in the price of milk (other equivalent products) in retail trade. The basis for indexing is the data of the competent authority of the region. This is stated in clause 5 of the Procedure approved by Order N 45n. At the same time, unfortunately, in the norms of the above normative document there is no answer to questions that may arise when deciding on indexing. For example, how often the organization should index compensation payments, and from which departments to take information when calculating the indexation.
Business entities in law enforcement should take into account the fact that:
- the employer has the right self-determination on unresolved issues (for example, on the frequency of indexing);
- it makes sense to study regional legislation in order to identify sources of information on product prices (in terms of determining the competent authority of the region).
For example, if the employing organization, which calculates compensation for employees in exchange for milk, is located in the Yamalo-Nenets Autonomous Okrug (Yamalo-Nenets Autonomous Okrug), this procedure can be applied.

In the Yamalo-Nenets Autonomous Okrug, there is an information and analytical system for monitoring and analyzing the socio-economic development of the Yamalo-Nenets Autonomous Okrug (IAS Monitoring Yamal, http://monitoring.yanao.ru/). It was put into operation on August 1, 2012 on the basis of the Decree of the Yamalo-Nenets Autonomous Okrug dated July 23, 2012 N 600-P. It presents data on prices for pasteurized or sterilized milk 2.5 - 3.2% fat.
Accordingly, the employer will have to make a choice by indicating in the collective agreement (employment contracts with employees) the prices for which milk will be used when determining the amount of compensation.
At the same time, IAS Monitoring Yamal provides data on weekly price changes. However, the legislation does not require employers in the region to carry out weekly indexation. The indexing period can be any, for example, annual.
If in the respective region electronic system There is no such thing as the above, the employer can use other sources of official data on the level of consumer price inflation for milk. For example, to obtain information on the level of price increases, you can contact the territorial office of Rosstat.

According with part 1 of Art. 222 of the Labor Code of the Russian Federation and Order N 45n The issuance of milk or other products, upon written application of the employee, can be replaced by a compensation payment in an amount equivalent to the cost of milk or other products, if this is provided for by the collective agreement and (or) the employment contract.

In this case, it is necessary to provide in the collective agreement of the section "Occupational safety and health" or "Guarantees and compensation for workers" that

The employer undertakes:
- on the days of actual employment in jobs with harmful working conditions, provide workers with free milk delivery (in the amount of 0.5 liters per shift, regardless of its duration) or other equivalent food products;
- to dispense milk in the organization's buffet;
- at the written request of the employee, replace the dispensing of milk with monetary compensation;
- calculate the monetary compensation on a monthly basis based on the average cost of milk with a fat content of at least 2.5% or other equivalent food products in the retail trade of Taganrog;

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

When concluding an employment contract, it is necessary o introduce a clause on replacing milk with a compensation payment.

sample Employment contract with employee (extract) Employment contract N 87-2010 / TD

Society with limited liability“Vodvor” (LLC “Vodvor”) represented by the director Vladimir Yuryevich Rozgin (hereinafter referred to as the Employer), acting on the basis of the Charter, and Kuskina Natalia Petrovna, hereinafter referred to as the Employee, have entered into this agreement on the following.

5. Guarantees and compensation to the employee.
5.1. The employer undertakes:

On the days of actual employment in jobs with harmful working conditions, provide the Employee with free milk delivery (in the amount of 0.5 liters per shift, regardless of its duration) or other equivalent food products;
- replace the dispensing of milk with monetary compensation at the written request of the Employee;
- calculate the monetary compensation on a monthly basis based on the average cost of milk with a fat content of at least 2.5% or other equivalent food products in the retail trade of Taganrog;
8. Signatures of the parties

from the Employer: Rozgin V.Yu Rozgin

Director ------ --------
(head (signature) (signature decryption)
organizations)

from Employees:
Chairman of the Primary Great P.I. Veliky
trade union organization —————– ————————
(position) (signature) (transcript of signature)

Sample application of an employee to replace milk with monetary compensation.

Employee's application for milk replacement with monetary compensation

Director of LLC "Vodvor"
V.Yu Rozgin
packer
Serdobolina Lev Sidorovich

Statement

Please replace my daily milk delivery with monetary compensation from September 3, 2010 in accordance with clause 5.1 of the collective agreement of Vodvor LLC dated August 3, 2010, clause 5.1 of the employment contract N 111-2010 / TD of June 16, 2010.

Serdobolin L.S. Serdobolin
02.08.2010

Sample order to replace milk with monetary compensation.

Order to replace milk with monetary compensation Vodvor Limited Liability Company
LLC "Vodvor" Order N 98-ok

About replacing milk dispensing with monetary compensation

Having considered the application of Serdobolin Lev Sidorovich dated 02.08.2010,

I order:
1. To replace the packer Serdobolin Lev Sidorovich the daily milk dispensing with monetary compensation from September 3, 2010.
2. Accountant S. B. Kotikova to calculate the amount of compensation based on the average cost of milk (fat content not less than 2.5%) in retail trade in Taganrog.
3. Make the specified payment on the 20th day of each month.
4. I assign control over the execution of the order to the head of the labor protection department S.A. Korovin

Director Rozgin V.Yu Rozgin

Acquainted with the order:
Serdobolin L.S. Serdobolin
03.09.2010
S.B. Kotikova Kotikova
03.09.2010
Korovin S.A. Korovin
03.09.2010

The procedure for such a replacement is established by P Appendix No. 2 to Order No. 45n. In accordance with the above document, the amount of compensation payment must be calculated based on the cost of milk with a fat content of at least 2.5% or equivalent products in retail trade at the employer's location.

It must be remembered that:
- Compensation payment must be made at least once a month.
The compensation payment is indexed in proportion to the rise in prices for milk and other products in retail trade at the location of the employer.

At work with harmful working conditions, employees should be provided with milk or other equivalent food products free of charge according to established standards. As you know, if certain conditions are met, workers can receive monetary compensation for their value instead of products. In practice, when reading this norm, certain difficulties arise, which we decided to discuss in our section "Attention, problem!"

Part 1 of 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 the established norms, upon written statements 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, envisaging such a mechanism for replacing milk dispensing with monetary compensation in their organization, asked themselves whether the wording of Part 1 of Art. 222 of the Labor Code of the Russian Federation, that 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 harmful 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 the collective agreement, or in the labor agreement?

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

By the way

Complex logical judgments consist of several simple judgments connected by logical unions. Logic distinguishes, in particular, two logical unions: connecting union (conjunction) and; dividing union (disjunction) or. Disjunction (from Lat. Disjunctio - separation, difference) is one of the logical operations; reflects the use of the union or in logical conclusions in the sense of "either this, or this, or both at once." Conjunction (from Latin conjunctio - union, connection) is one of the logical operations; reflects the use of the union and in logical conclusions. The ambiguity of the grammar of the Russian language lies in the fact that the union or is used in two meanings: either to denote a disjunction, then for another operation that excludes or. The union is also ambiguous and: it can indicate the simultaneity of actions, their sequence, the conditionality of one action by another.?

Expert opinion

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

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

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 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 a collective agreement and (or) an employment 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 regulatory 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 tbsp. 255 of the Tax Code of the Russian Federation, the taxpayer's expenses for labor remuneration include any charges to employees in cash and (or) in kind, incentive charges and allowances, compensation charges related to the mode of work or working conditions, bonuses and one-time incentive charges, costs associated with the content of these employees stipulated by the norms of the legislation of the Russian Federation, labor agreements (contracts) and (or) collective agreements.

Clause 25 of Art. 255 of the Tax Code of the Russian Federation also stipulates that other types of expenses incurred in favor of the employee, stipulated by the employment contract and (or) the collective agreement, are also 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 replacing milk with monetary compensation is possible in any of two cases:

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

However, if you want to fix the decision on replacing milk with monetary compensation in only one of the documents (for example, in a collective agreement), using a 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 systemic interpretation of the norms of all branches of law, in particular, tax legislation and legislation on insurance contributions to state extra-budgetary funds.

So, tax code The RF prohibits taking into account any payments to employees other than those paid on the basis of employment contracts (clause 21 of Article 270 of the Tax Code of the RF). From the point of view of labor law and taxation, the collective agreement refers to the sphere of 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 employee benefits stipulated by labor and (or) collective agreements in expenses.

In particular, monetary compensation instead of milk can be taken into account for profit 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 expenses for 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 (paragraph 25 of Article 255 of the Tax Code of the Russian Federation), subject to the requirements of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation.

In the letters of the Federal Tax Service of Russia dated 01.04.2011 No. KE-4-3 / 5165 and the Federal Tax Service of Russia for Moscow dated 24.03.2005 No. 20-08 / 18981, it is noted that if the employment contract concluded with a specific employee does not include certain other charges provided for in the collective agreement and (or) local regulations, or there are no references to them, then such charges cannot be accepted for profit tax purposes. True, these letters are about incentive payments 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 agree with this (Resolution of the FAS of the West Siberian District of 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 employers to include a clause on replacing milk with monetary compensation both in the collective agreement and in the employment contracts of employees working in hazardous conditions.

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

In the Federal Law of 24.07.2009 No. 212-FZ "On Insurance Contributions to the Pension Fund Russian Federation, The Social Insurance Fund of the Russian Federation, the Federal Fund for Compulsory Medical Insurance and Territorial Compulsory Medical Insurance Funds "(hereinafter referred to as Law No. 212-FZ) and Federal Law No. 125-FZ of 24.07.1998" On Compulsory Social Insurance against Industrial Accidents 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 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 of article 9 of Law No. 212-FZ , clause 8 of part 1 of 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 replacement of milk with monetary compensation (and in any amount, regardless of the established norms), should not be subject to insurance contributions to the Pension Fund of the Russian Federation, the Federal Social Security Service of Russia, FFOMS and TFOMS, as well as contributions from industrial accidents 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" clause 2, part 1 of Art. 9 of Law No. 212-FZ, part 1 of Art. 5, part 1 of Art. 20.1, clause 2, part 1 of 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 at work with harmful working conditions, provided for by the terms of the employment contract, insurance premiums in off-budget funds, as well as from accidents at work and occupational diseases are not charged.

Thus, in order to avoid disputes with insurance premiums inspectors, it is better for employers to include a condition on replacing milk with monetary compensation. and in a collective agreement, and in employment contracts.

Expert opinion

If the employer has a collective agreement, then the condition of monetary compensation should be fixed in both the collective agreement and labor contracts.

S.V. Kamenskaya,
Senior Lecturer
Department of Labor Law and Law social security
Academy of Labor and Social Relations

With the adoption of the Federal Law of 01.10.2007 No. 224-FZ "On Amendments to Article 222 of the Labor Code of the Russian Federation", the issuance of milk or other equivalent food products to workers in cash equivalent. 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 negatively 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 cash, paid in exchange for the dispensing of milk and other equivalent products, are called compensation payments and are allowed if the following conditions are met:

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

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

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

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

In part 1 of Art. 222 of the Labor Code of the Russian Federation deals with 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 separating - should be used the union and (or) between the phrases collective agreement and employment contract?

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

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

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

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

If we assume that there is an alternative, then the sentence would use only the conjunction or allowing the employer to choose between a collective agreement and an employment agreement. At the same time, there is no need for an alliance and, in the sense of which both agreements are binding.

Apparently, the union is 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 replacing milk with a cash payment is the employment contract. Labor legislation does not oblige the employer to accept a collective agreement (only to participate in collective bargaining on its conclusion, if labor collective), therefore the presence of this act is voluntary. In this regard, in order to avoid any advantages or restrictions for employees depending on whether employers have collective agreements in force and to preserve the freedom of expression of the parties labor relations when concluding collective agreements, the legislator left the opportunity to do only with 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 16.02.2009 No. 45n). The specific amount of 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. In the absence of y, the procedure for payment of this compensation. Here, in clause 2, it is emphasized that the replacement of milk or other equivalent food products for monetary compensation is possible if it is provided for by the collective agreement and (or) the labor agreement. Important: the specified norm requires an employee employed by an employer to be a representative body of employees, these provisions are included in labor contracts concluded with employees.

Thus, for cases where there is a collective agreement, the union should be used and: condition about cash payment instead of milk, it should be reflected both in the collective agreement and in the labor agreement. This provision is consistent with the rule of 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 regulatory act, an employment contract, if he is engaged in heavy work, work with harmful and (or) dangerous working conditions.

Expert opinion

The condition of monetary compensation must be enshrined in both the collective agreement and employment contracts. It is also mandatory to have applications from employees.

L.V. Frantsuzova,
Labor lawyer, Beta Press Personnel Holding LLC

The idea of ​​“monetizing benefits”, which a few years ago caused a violent reaction from people who are usually classified as socially unprotected strata of the population, ultimately affected the “labor” benefits of people employed at work with harmful working conditions.

Part 3 of Art. 222 of the Labor Code of the Russian Federation, in particular, states that the implementation of compensation payments under 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.

On this issue, it is necessary to refer to the Decree of the Government of the Russian Federation of 13.03.2008 No. 168, where the procedure for paying this compensation is precisely determined. Here, in clause 2, it is emphasized that the replacement of milk or other equivalent food products for monetary compensation is possible if it is provided for by the collective agreement and (or) the labor agreement. Important: the specified norm requires an employee employed in work with harmful working conditions, in writing, in the form of an application, to confirm his consent to the replacement of food products with monetary compensation. And this 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, after reading normative document The Government of the Russian Federation to 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 Russian Federation, approved Decree of the Government of the Russian Federation of June 30, 2004 No. 321). The said Ministry was supposed to prepare the document before 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 were developed by the employers themselves. And she was not always legally competent.

Appendix No. 2 to the Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n establishes the procedure for compensation payments in an amount equivalent to the cost of milk or other equivalent food products. Thus, item 4 of this Order gives us the following rule. The specific size 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. 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 agreement". But there are a few nuances.

The collective agreement is designed to regulate social and labor relations in the organization or at 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 the collective bargaining agreement specifies that the employer replaces food with monetary compensation. And if an employee comes to work who does not agree with this rule and wants to receive medical and preventive nutrition in kind? Or is an already working employee no longer satisfied with the practice of receiving compensation? Of course, employment contracts governing individual conditions work of a particular employee are more suitable for this kind of situations, because they describe the conditions under which the employee is working, 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 workers, but to the person who risks their health.

Here one cannot but recall what we drew 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 to replace food for money. It turns out that a collective or labor agreement is not enough? And workers must additionally confirm their consent? If so, how often should they submit such applications? Every month before the accrual of a set amount by the accounting department? Once a year? Unfortunately, the Ministry of Health and Social Development of Russia does not give answers to these questions. Note that the regulatory document of the Government of the Russian Federation has greater legal force than the regulatory legal act of the ministry. Yes and the federal law - Labor Code The RF, which stands above the regulatory legal act of the RF Government, also mentions the statements of employees. Why has the Russian Ministry of Health and Social Development “forgotten” 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 size of the compensation payment is assumed to be equivalent to the cost of milk with a fat content of at least 2.5% or equivalent food products in retail trade at the employer's location on the territory of the administrative unit of a constituent entity of the Russian Federation.

Let's take the subject of the Russian Federation - Moscow. Needless to say, in different Moscow districts 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 compensation is established by the employer, taking into account the opinion of the primary trade union organization or other representative body of workers. Perhaps, by his application, the employee must confirm that he agrees to the payment of compensation because he is still satisfied with its amount?

The employer is also obliged to regularly index the compensation payment in proportion to the rise in prices for milk and other equivalent food products in retail trade at the employer's location on the territory of the administrative unit of a constituent entity of the Russian Federation on the basis of data from the competent structural unit organ executive power subject of the Russian Federation. This means that it is possible that the employee will receive different amounts every month.

Does the employer have to inform the employee about the amount of compensation this time? The law does not impose such an obligation on the employer. Consequently, it is possible not to personally notify each employee of the amount that will be credited and paid to him. Why, then, a statement - a written confirmation of the employee about his consent to the "monetization" of dairy products?

In addition, the speech construction "... not less often ..." sets up the fact that specific terms should be set by the employer in a document. By analogy with the dates of salary payments. Otherwise, the workers will think every time when they will receive the money?

Clause 14 of Appendix No. 1 to the order of the Ministry of Health and Social Development of Russia reads: "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."

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

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

Part 4 of 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 labor legislation and other regulatory legal acts containing labor law norms.

By agreement of the parties, the labor 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 the event that safe (permissible) working conditions are ensured, confirmed by the results of certification of workplaces, the employer will decide to stop the free distribution of milk or other equivalent food products and, accordingly, to pay 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 obtaining the consent of the primary trade union organization or other representative body of workers (if available from the employer) 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 did not reveal the presence of harmful production factors or exceeding their established standards.

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

So, albeit with different argumentation, our experts came to a common conclusion: if your organization has a collective agreement, then the condition for monetary compensation for food products should be provided for in it. In employment contracts concluded with employees in harmful conditions, this point should also be recorded. Also, in no case should we forget that, ultimately, the initiative to receive monetary compensation belongs to the employee, who formalizes his desire with an appropriate statement.

Magazine: Handbook of a personnel officer, As of: 06.03.2012, Year: 2012, Number: No. 4

• HR administration and labor law

According to research by scientists, milk is a unique product that helps to eliminate toxins and increase the body's resistance to disease.

That is why, at the legislative level, it was adopted normative act, providing for the issuance of dairy compensation to workers who are employed, in the manner prescribed by law and taking into account the list of especially harmful factors.

Legislative regulation

According to the norms stipulated in Article 222 of the Labor Code of the Russian Federation at each enterprise, in the presence of especially harmful or dangerous labor factors, the company's management is obliged to ensure the issuance of dairy products to employees as compensation for work in conditions that deviate from hygienic standards, taking into account the specified factors that occur at working areas and positions held.

In particular, in Order of the Ministry of Health and Social Development of the Russian Federation No. 45n the norms for the issue of the agreed product have been established and the list of hazardous factors has been approved, in the presence of which the issuance of the specified product is required. After all, harmful conditions can be at many enterprises, but toxins or chemical fumes may not be present everywhere, which is why a list of certain factors is provided, the influence of which is controlled by the consumption of dairy products.

Moreover, on the basis of the agreed norm, not only milk is issued, but also other products, the list of which is determined by law, namely Resolution of the Government of the Russian Federation No. 168 and completely free of charge for employees. After all, the law establishes a norm according to which the obligation to observe labor safety and compensation for harmful conditions is assigned to the employer, therefore, milk is issued at the expense of the enterprise.

Terms of provision

In accordance with Federal Law No. 426, each company, regardless of the form of ownership, is obliged to assess workplaces to determine the conditions of employment for workplaces, in particular, the presence of harmful factors that can affect the overall performance of workers and their health in mind the possibility of developing occupational diseases or injuries.

If, according to the results of the assessment production processes, employment conditions will be assigned grade 3 or 4, which implies particularly dangerous or harmful factors, the employer will be obliged to issue milk compensation to workers, but taking into account some aspects. In particular, mandatory condition milk dispensing is the belonging of the detected factors to the list of harmful factors specified in Order No. 45n. Also, in pursuance of the norms of Resolution No. 168, the employee must hold a position specified in the list of industries and positions approved by Order No. 46n.

That is, not all enterprises provide for compensation in the form of milk dispensing at all enterprises, and far from all employees can receive food products in the presence of harmful factors. After all, the basis for the provision of dairy products, first of all, is harm to the body when working with chemical elements, therefore, with increased vibration, either temperature conditions, the issuance of milk compensation will not be provided.

Issuance rates

According to the norms enshrined in clause 4 of Order No. 45n, milk compensation should be provided only on the day of release a worker to work and, accordingly, perform direct duties in harmful conditions. Milk must be dispensed during the shift or at the end of it. in the size of half a liter... Moreover, the provision of the agreed product based on the results of the worked month is not allowed, due to the fact that the employee must consume milk immediately after exposure to hazardous factors on his body or before that.

On the basis of clause 5 of Order No. 45n, a worker working with non-ferrous metals, in particular aluminum or magnesium, is also required to 2 grams of pectin, which can be found in jelly products, as well as juices and fresh fruits. Moreover, pectin is issued not instead of milk, but together with it at the same time. However, if the worker interacts with the same aluminum constantly, milk can be replaced by fermented milk products, which should be issued at the end of each shift, but fresh fruit is recommended to be consumed before its start.

In the manner of clause 6 of the agreed order milk can be replaced special food, the list ration of which is stipulated in Order No. 46n and which includes dairy products, vegetables, and fruits, as well as bread, tea, along with meat or fish. And in the event that a worker is busy producing antibiotics, the dispensing of milk in accordance with the agreed norm should be replaced with a special diet.

For example, an employee is entitled to at least 70 grams of meat and 3 eggs per shift worked, as well as 100 grams of sour cream and 90 grams fresh vegetables, not to mention 100 grams of bread and 400 milliliters of tea, which, in general, makes up a pretty decent lunch full of vitamins and amino acids. Or the worker can be given 500 grams of kefir or fermented baked milk, 100 grams of cottage cheese and 60 grams of cheese before the change.

Issuance procedure

The conditions for dispensing compensatory milk were approved by Decree No. 168, which states that the issuance of a specified product or a specific ration should be carried out only in rooms specially provided for these purposes and meeting hygienic requirements, that is, in the same canteens or canteens.

Also in the order of the agreed norm, milk and dairy products should be issued only on the day of going to work, and if the employee has worked less than the established shift rate, but more than half, he is entitled to milk, if less than half, then no. Accordingly, the agreed product is not issued during vacation and sick leave, as well as during business trips or on weekends.

Another mandatory requirement is an quality of issued products, which must comply with both GOST and Federal Law No. 88, according to which milk is only natural product no added water or preservatives. Also, in accordance with Order No. 45n, the replacement of compensatory milk with other products, in particular, sour cream or butter, is not allowed. And if, due to technological reasons, it is impossible to deliver fresh milk to the enterprise, it is allowed to replace it with a special ration, but only by agreement with the Trade Union and Rospotrebnadzor.

What products can replace milk

According to the norms enshrined in clause 5 of Order No. 45n milk replacement fermented milk products or preventive nutrition, the diet of which is approved by Order No. 46n is allowed in accordance with the norms specified above. It is also allowed to replace the pectin contained in jelly products and canned food by issuing freshly squeezed vegetable and fruit juices with pulp, but in an amount of at least 300 grams per shift.

In accordance with clause 8 of Order No. 45n, milk replacement can be carried out with other equivalent products with the consent of the employee himself, but only under the condition of agreement with the Trade Union Committee, which, in accordance with Article 373 of the Labor Code of the Russian Federation, must express its opinion in all legal relations related to the implementation labor activity and with the receipt of guarantees.

Also, replacing milk with a preventive diet is allowed only with permission from the Rospotrebnadzor authorities, whose duties include monitoring the quality of food, compliance with sanitary standards and hygiene requirements as well as consumer rights.

Registration procedure

According to the norms prescribed in Article 222 of the Labor Code of the Russian Federation, the company's management has the right to independently determine the procedure for providing dairy products, but taking into account the norms enshrined in the legislation.

That is, first you need assess harmful factors in production through certification of places of work. Then make a list of employees who, in view of the presence of certain factors and the position held, are entitled to receive milk or products that replace it.

Then you need issue an order with an indication of the conditions for dispensing milk, in particular, the allocation of a room for dispensing products, ration and quantity. It is also necessary to introduce into the collective agreement the conditions for the provision of milk as compensation for employment conditions deviating from the norm, and indicate that milk compensation is provided only on the days of taking over the shift, for example, at the end of working day either at lunchtime.

And to the employer a responsible person should be appointed for the purchase of milk and storage of this product, not to mention food products from specials. ration, because there are also rules for the storage and quality of products that imply compliance with sanitary and hygienic requirements.

After the publication of the above-mentioned documents, checklist, in which each worker who received milk signs and on the basis of which a report is drawn up on the product consumed. By the way, the schedule of outputs must also be attached to the statement, because the person responsible for dispensing milk must also know on what day the employee is entitled to milk compensation.

Financial compensation

In the order of the norms enshrined in Article 222 of the Labor Code of the Russian Federation, the worker has the right at will, replace the receipt of milk with a cash equivalent, but taking into account inflation and prices retail of this product at the location of the enterprise. Also, according to clause 2 of Order No. 45n, an employee can replace money with not only milk, but also the ration that is given to him in connection with work in special conditions, and, again, the prices of products must correspond to the retail price in the region.

Based on clause 3 of the Agreed Order, compensation must be paid at least once a month and to receive it, the employee just needs to write a statement. By the way, if the worker wishes to refuse compensation and receive food in in kind, it is enough for him to write a statement, and at any time, and not from the beginning of the month or other reporting period.

Milk and other products are dispensed not only to increase the working capacity of workers, but also to prevent the development of chronic and occupational diseases. After all, caring for the health of workers is not only the prerogative of the state, but also the duty of employers.

The rules for providing compensation to employees working in hazardous conditions are described in the following video: