According to scientists, milk is unique product, which helps to eliminate toxins and increase the body's resistance to diseases.

That is why at the legislative level a normative act was adopted providing for the issuance of milk 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 specified in Article 222 of the Labor Code of the Russian Federation at each enterprise, in the presence of particularly 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 take place on jobs and positions held.

In particular, in Order of the Ministry of Health and Social Development of the Russian Federation No. 45n the norms for issuing a specified product are established and a list of dangerous factors is approved, in the presence of which the issuance of a specified product is required. Indeed, many enterprises can have harmful conditions, 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 stopped 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 Decree of the Government of the Russian Federation No. 168 and completely free for employees. After all, the law establishes a norm, according to which the obligation to observe labor safety and compensate for harmful conditions is assigned to the employer, therefore, milk is issued at the expense of the enterprise.

Terms of Service

In accordance with Federal Law No. 426, each company, regardless of the form of ownership, is required to assess the places of work in order to establish employment conditions at workplaces, in particular, the presence of harmful factors that may affect the overall performance of workers and their health in mind development opportunities occupational diseases or trauma.

If, as a result of the evaluation production processes, employment conditions 3 or 4 class will be assigned, which implies especially dangerous or harmful factors, the employer will be obliged to issue milk compensation to workers, but taking into account some aspects. In particular, a prerequisite for the issuance of milk is that the detected factors belong to the list of harmful factors specified in Order No. 45n. Also, in pursuance of the norms of Decree No. 168, an employee must hold a position specified in the list of industries and positions approved by Order No. 46n.

That is, not all enterprises by law provide for compensation in the form of milk distribution, and not all employees can receive food products in the presence of harmful factors. Indeed, 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 or temperature regime, the issue of milk compensation will not be provided.

Issuance rates

According to the norms enshrined in clause 4 of Order No. 45n, milk compensation must be provided only on the day of release worker to work and, accordingly, the performance of immediate duties in harmful conditions. Milk should be dispensed during the shift or at the end of the shift. 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.

Based on clause 5 of Order No. 45n, a worker working with non-ferrous metals, in particular aluminum or magnesium, is also required 2 grams pectin, which can be found in jelly products, as well as juices and fresh fruits. Moreover, pectin is not given 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 dairy products, which should be issued at the end of each shift, but fresh fruit is recommended to be consumed before it starts.

In accordance with clause 6 of the agreed order milk can be substituted special meals, the list diet of which is specified in Order No. 46n and which includes fermented milk products, vegetables, fruits, as well as bread, tea, along with meat or fish. And if the worker is engaged in the production of antibiotics, the issuance of milk in the order of the agreed norm should be replaced by a special ration.

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

Issuance procedure

The conditions for issuing compensation milk are approved by Decree No. 168, which states that the issuance of a specified product or a certain diet should be carried out only in rooms specially provided for this purpose and meeting hygienic requirements, that is, in the same canteens or buffets.

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, but if less than half, then no. Accordingly, the agreed product is not issued during vacation and sick leave, as well as business trips or weekends.

Another mandatory requirement is product quality, which must comply with both GOSTs and the norms of Federal Law No. 88, according to which milk is only natural product without added water and preservatives. Also, in accordance with Order No. 45n, replacement of compensation 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 can be replaced with a special diet, but only in 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 standards specified above. It is also allowed to replace 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 can be replaced with other equivalent products with the consent of the employee himself, but only subject to 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 and with the implementation labor activity and with the receipt of guarantees.

Also, the replacement of milk with a preventive diet is allowed only with the permission of the Rospotrebnadzor, 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 the provision of dairy products, but taking into account the norms enshrined in legislation.

That is, to start, you need conduct a hazard assessment in production through certification of workplaces. Then make a list of employees who, in view of the presence of certain factors and their position, are entitled to receive milk or products replacing it.

Then you need issue an order indicating the conditions for dispensing milk, in particular, the allocation of premises for dispensing products, ration and quantity. It is also necessary to include in the collective agreement the conditions for the provision of milk as compensation for employment conditions that deviate 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 the working day or at lunchtime.

And to the employer should appoint responsible person for the purchase of milk and the storage of this product, not to mention food products from special. diet, because the storage and quality of products also have rules that imply compliance with sanitary and hygienic requirements.

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

Financial compensation

In accordance with 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 retail prices of this product at the location of the enterprise. Also, according to clause 2 of Order No. 45n, an employee can replace with money not only milk, but also the ration that is given to him in connection with work in special conditions, and again, food prices 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 in order to receive it, the employee just needs to write an application. By the way, if the worker wishes to refuse compensation and receive food in kind, it is enough for him to write an application, and at any time, and not from the beginning of the month or other reporting period.

The issuance of milk and other products is carried out not only in order to increase the working capacity of workers, but also in order 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 compensating employees working in hazardous conditions are described in the following video:

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 at the written request 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, the collective agreement in the section "Occupational safety and health" or "Guarantees and compensation for workers" must provide that

The employer undertakes:
- on days of actual employment at work with harmful working conditions, provide employees with free delivery of milk (in the amount of 0.5 liters per shift, regardless of its duration) or other equivalent food products;
- to produce the issuance of milk in the canteen of the organization;
- at the written request of the employee, to replace the issuance of milk with monetary compensation;
- Calculate monetary compensation monthly based on the average cost of milk with a fat content of at least 2.5% or other equivalent food products in retail the city of Taganrog;

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

When concluding an employment contract, o make a clause on the replacement of milk with a compensation payment.

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

Society with limited liability“Vodvor” (LLC “Vodvor”) represented by Director Vladimir Yurievich 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 as follows.

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

On days of actual employment at work with harmful working conditions, provide the Employee with free delivery of milk (in the amount of 0.5 liters per shift, regardless of its duration) or other equivalent food products;
- to replace milk dispensing with monetary compensation at the written request of the Employee;
- Calculate 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 retail trade in Taganrog;
8. Signatures of the parties

from Employer: Rozgin V.Yu Rozgin

Director ------ --------
(head (signature) (signature transcript)
organizations)

from employees:
Chairman of the primary Great P.I. Veliky
trade union organization —————— ————————
(position) (signature) (signature transcript)

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

Application of an employee to replace milk with cash compensation

Director of VoDvor LLC
V.Yu. Rozgin
packer
Serdobolin Lev Sidorovich

Statement

I ask you to replace my daily delivery of milk 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 labor contract N 111-2010 / TD dated June 16, 2010.

Serdobolin L.S. Serdobolin
02.08.2010

Sample order to replace milk with cash compensation.

Order to replace milk with monetary compensationVodvor Limited Liability Company
VoDvor LLC Order N 98-ok

On the replacement of milk distribution with monetary compensation

Having considered the application of Lev Sidorovich Serdobolin dated August 2, 2010,

I order:
1. To replace the daily delivery of milk to the packer Lev Sidorovich Serdobolin 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 of at least 2.5%) in retail trade in the city of Taganrog.
3. Make the specified payment on the 20th day of each month.
4. I entrust the control over the execution of the order to the head of the labor protection department S.A. Korovin

Director Rozgin V.Yu. Rozgin

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

The procedure for such a replacement is established by P Annex No. 2 to Order No. 45n. In accordance with the above document, the amount of the 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 location of the employer.

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

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 compensation for damage, subject to the impact of hazardous factors on a 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 the limits established by law.

You can check for compliance with these conditions by contacting the application legislative act No. 45 dated 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;
• Estimation of availability of collateral individual funds protection of workers in the production process;
• Comprehensive assessment of 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 issuing workers free food and milk.

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 of production processes from the usual 8-hour time to less, the employer has the right to stop distributing milk to employees. Provided that working shift decreased 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 provided to workers and employees at the beginning of the working day in the form of hot breakfasts, or set meals, for those working on a rotational schedule. Special mode food is retained by the workers when labor duties were performed in fact half of the work shift. And:

• During the period of outpatient treatment of 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 of harmful effects on the body, 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, for various reasons, it is not always convenient for some employees to spend time on 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 is taken into account, the degree of their impact on a person, which bad influence on the performance and general well-being of employees. 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 is assigned a disability group, he has the right to receive social support in the form of therapeutic nutrition.

Normative fundamental acts of compensation

Name of the legal document	Number and date	What governs
Order of the Ministry of Health of the Russian Federation	45n, from 02/16/2009	List of products, standards for hazardous working conditions
Labor Code RF	Article 222	The right to receive food or monetary compensation is fixed
Order of the Ministry of Health of the Russian Federation	46n, from 02/16/2009	List of enterprises and positions that give the right to free meals
Order of the Ministry of Health of the Russian Federation	342n, from 04/26/2011	Carrying out certification of workplaces
the federal law	426, dated 12/28/2013	Regulates the SOUT procedure

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 position is fixed 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.

The organization applies a general taxation system, income and expenses are reflected in tax accounting accrual method. There are electric and gas welders in the organization, and they are compensated for the milk due for harmfulness. Compensation payment in the amount equivalent to the cost of milk is made through the cash desk of the organization. How to reflect this compensation payment in the accounting and tax accounting of the organization?

After considering the issue, we came to the following conclusion:

In accounting, the compensation payment in the amount equivalent to the cost of milk is recognized as part of the expenses for ordinary activities. For profit tax purposes, this payment is included in the cost of production and sales.

Rationale for the conclusion:

Article 222 of the Labor Code of the Russian Federation establishes that in jobs with harmful working conditions, workers are given milk or other equivalent food products free of charge according to established standards.

At the written request of employees, the issuance of milk according to the established norms may be replaced by monetary compensation in an amount equivalent to the cost of milk.

The procedure for making a compensation payment in an amount equivalent to the cost of milk or other equivalent food products was approved by order of the Ministry of Health and Social Development of Russia dated February 16, 2009 N 45n (hereinafter referred to as the Procedure).

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 on the territory of the administrative unit of the subject Russian Federation(clause 2 of the Order). Clause 4 of the Procedure specifies that specific size 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. If the employer does not have a representative body of employees, these provisions are included in labor contracts concluded with employees.

According to clause 3 of the Procedure, compensation payments must be made at least once a month.

Accounting

Facts of economic life that have or are likely to have an impact on financial position of an economic entity, the financial result of its activities and (or) cash flow are the objects of accounting (clause 8, article 3, clause 1, article 5 of the Federal Law of December 6, 2011 N 402-FZ "On Accounting" (hereinafter - Law N 402-FZ).

The compensation payment in favor of the employee in the amount equivalent to the cost of milk, provided for by the collective (labor) agreement, leads to a decrease in economic benefits commercial organization and the occurrence of expenses, information about which in accounting is formed according to the rules provided for by the rules of PBU 10/99 "Expenses of the organization" (hereinafter - PBU 10/99) (clause 2 PBU 10/99).

This payment, by virtue of paragraph.n. 5, 6, 7, paragraph two, clause 16 PBU 10/99, will be included in the expenses for ordinary activities in the amount payable to employees.

At the same time, according to paragraph 8 of PBU 10/99, when forming expenses for ordinary activities, they should be grouped according to the following elements:

• material costs;
• labor costs;
• deductions for social needs;
• depreciation;
• other costs.

For the purposes of management in accounting, accounting of expenses by cost items is organized. The list of cost items is established by the organization independently.

At the same time, expenses in accounting in accordance with clause 17 of PBU 10/99 are recognized regardless of the intention to receive revenue, other or other income and the form of the expenditure (cash, natural and otherwise) in the period when they occurred. At the same time, the fact of receiving income does not matter (clause 18 of PBU 10/99, clause 5 of PBU 1/2008 "Accounting Policy of the Organization", hereinafter - PBU 1/2008).

Chart of accounts accounting financial and economic activities of organizations and the Instructions for its application (approved by order of the Ministry of Finance of Russia dated October 31, 2000 N 94n) provides for various balance accounts for accounting for settlements with employees for wages and other transactions:

*(2) It should be noted that these expenses can be taken into account when determining the tax base for income tax as part of the expenses associated with the production and sale, also on another basis, namely as expenses for providing normal conditions labor and safety measures (clause 7 clause 1 article 264 of the Tax Code of the Russian Federation).

This approach is reflected in judicial practice (see, for example, the decisions of the Federal Antimonopoly Service of the Urals District of March 13, 2012 N F09-1132 / 12 in the case of N A60-19637 / 2011, the FAS of the East Siberian District of February 11, 2010 in the case of N A19-12414 / 09, FAS of the North-Western District of 18.01.2010 in case N A44-2439 / 2009, etc.).

In particular, in the decision of the Federal Antimonopoly Service of the Urals District dated March 13, 2012 N F09-1132/12 in case N A60-19637/2011, attention was drawn to the fact that, in accordance with Art. 209 of the Labor Code of the Russian Federation, a harmful production factor is a production factor, the impact of which on an employee can lead to his illness. A hazardous production factor is a production factor, the impact of which on an employee can lead to his injury. At the same time, the obligation of the employer to distribute milk to employees is due to the fact that the employee is employed in work related to the presence of production factors at the workplace, which are provided for in the legislation as harmful production factors, under the influence of which, for preventive purposes, the use of milk or other equivalent food products is recommended.

Note that the organization has the right to refer to the norm of paragraph 4 of Art. 252 of the Tax Code of the Russian Federation, according to which, if some costs can be attributed simultaneously to several groups of expenses with equal grounds, the taxpaying organization has the right to independently determine which group to attribute such costs to.

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 the 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 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 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

Complex logical propositions consist of several simple propositions linked by logical unions. Logic singles out, in particular, two logical unions: connecting union (conjunction) and; separating union (disjunction) or. Disjunction (from lat. disjunctio - separation, difference) - one of the logical operations; reflects the use of the union or in logical conclusions in the sense of "either this, or that, or both at once." Conjunction (from lat. conjunctio - union, connection) - one of the logical operations; reflects the use of the union 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 disjunction, then to another operation that excludes or. The union and is also ambiguous: 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 "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 non-budgetary funds.

Thus, the Tax Code of the Russian Federation prohibits any payments to employees, in addition to those paid on the basis of employment contracts, to be taken into account in expenses (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 cost 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 tax authorities will apply the same approach 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 cash, 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, 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, we are talking about establishing 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 said 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 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 relevant initiative was taken by labor collective), so the presence 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 Russian Federation, approved. 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, item 4 of the specified Order gives us the following 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 he is still satisfied with its 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 on the territory of the administrative unit of the constituent entity of the Russian Federation on the basis of data from a competent structural unit 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 legislation and other regulatory legal acts containing labor law norms.

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