Which employees are entitled to milk?

Labor legislation provides for a number of guarantees and compensations for employees associated with working in hazardous working conditions. 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 occupational diseases. How to organize the distribution of milk and whether it can be replaced with money will be discussed below.

Milk should be given to employees 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 from radioactive substances, etc.

The employer is obliged organize free milk distribution to employees if:

• the presence of harmful production factors was established during a special assessment of working conditions or certification of workplaces, provided that no more than five years have passed since their conduct;
• 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, this doesn't release him from the obligation to give milk to workers for working in hazardous working conditions. In practice, a situation is possible when some workers receive milk based on the results of a special assessment, some based on the results of workplace certification, and some simply due to the presence of harmful factors (for example, if the employer did not conduct a special assessment in a timely manner or previously avoided conducting workplace certification). That is, to provide free milk, there is no mandatory requirement for an examination of working conditions.

It is necessary to distinguish between harmful and especially harmful working conditions. List of works with special harmful conditions labor 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 not entitled to milk, but to medical and preventive nutrition.

What are the norms and procedures for dispensing milk?

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

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

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

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

• on days the employee is absent from work (regardless of the reason);
• on days when the employee performs work not related to the influence of harmful production factors;
• on days when the time spent working in hazardous working conditions is less than half of the work shift.

Table 1. Harmful factors and food products that are prescribed for working with them

Harmful production factor	Food product
Contact with inorganic compounds of non-ferrous metals (except compounds of aluminum, calcium and magnesium)	Milk and 2 g pectin (as products containing it)
Constant contact with inorganic compounds of non-ferrous metals (except compounds of aluminum, calcium and magnesium)	Fermented milk products or products for dietary (therapeutic and preventive) nutrition under hazardous working conditions
Production or processing of antibiotics	Fermented milk products enriched with probiotics (bifidobacteria, lactic acid bacteria), or colibacterin prepared from whole milk

Fermented milk products must be given out during the working day, and products enriched with pectin - before starting work.

How to arrange milk delivery?

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

Information on milk distribution is included in the collective agreement if it exists, 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 exist in the organization;
• norms and conditions for milk distribution;
• possible types of equivalent food products, norms for their issuance and replacement procedure;
• procedure for replacing milk and equivalent food products monetary compensation;
• conditions and procedure for stopping the supply of milk and equivalent food products.

What can replace milk?

With the consent of the employee, the employer may replace milk with equivalent food products or monetary compensation. Let's take a closer look.

Replacing milk with equivalent food products

If necessary, milk can be replaced with certain foods.

Table 2. Products that can replace milk

You cannot replace milk with sour cream, butter, other products (except those listed in Table 2). Products enriched with pectin (2 g) can be replaced with natural fruit and (or) vegetable juices with pulp in an amount of 300 ml.

To replace milk with an equivalent food product you must:

• obtain the employee’s written consent;
• 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 formalized by order (instruction) of the employer.

The employer (with the consent of the trade union or other representative body of workers) may stop providing milk and equivalent food products if safe working conditions are provided at the workplace. This fact must be confirmed by the results of a special assessment of working conditions or a previously conducted certification of workplaces. The cancellation of milk distribution must be formalized by order (instruction) of the employer. Changes should also be made to the collective agreement and employee employment contracts.

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 stating that he wants to receive money instead of milk;
• the possibility of replacing milk with monetary compensation must be provided for in the collective agreement and (or) employment contract with the 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 trade at the location of the employer. The retail price of products is determined according to Rosstat data, taking into account the opinion of the trade union organization. This procedure must be approached very carefully, because the employee has the right to challenge the amount of compensation in court. Especially if the procedure for determining it is not described in detail in the collective agreement.

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

Regulatory acts

Document	Will help you
Article 222 of the Labor Code of the Russian Federation	Make sure that workers are given milk for harmful working conditions
Article 6.6 of the Code of Administrative Offenses of the Russian Federation	Understand what punishment an 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 appropriate compensation should be specified in the employment contract
Clause 4 of Art. 27 Federal Law of December 28, 2013 No. 426-FZ	Find out that milk can be issued 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 issued to employees must meet
Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n	Find out which of the employees is entitled to milk for being harmful and in what order it is given out
Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 46n	Understand which employees are entitled to therapeutic and preventive nutrition
Sanitary and epidemiological rules SP 2.3.6.1079-01	Find out in which room workers should be given milk

Is it possible to replace the provision of milk to employees working in hazardous conditions with monetary compensation? How is the amount of compensation calculated? The question came from Vitaly.

Answer:

In accordance with Part 1 of Article 222 of the Labor Code (LC) of the Russian Federation, in jobs with hazardous working conditions, workers are given free milk or other equivalent food products according to established standards.

In accordance with Part 1 of Article 212 of the Labor Code of the Russian Federation, the employer is obliged to provide workers working in hazardous conditions with therapeutic and preventive nutrition. This rule applies to organizations of all forms of ownership. And even if the employer does not carry out special assessment working conditions (SOUT), this does not relieve him of the obligation to give milk to employees for working in hazardous working conditions.

Milk is provided only to those employees who are exposed to harmful production factors. The list of these factors is given in the order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n “On approval of the norms and conditions for the free issuance of milk or other equivalent food products to employees engaged in work with hazardous working conditions, the Procedure for making compensation payments in an amount equivalent to the cost of milk or other equivalent food products, and the List of harmful production factors, under the influence of which it is recommended to consume milk or other equivalent food products for preventive purposes.”

0.5 liters of milk are allocated per worker per work shift, and it must comply with the requirements of Federal Law dated June 12, 2008 No. 88-FZ “Technical Regulations for Milk and Dairy Products” and the Technical Regulations of the Customs Union TR CU 033/2013 “On safety of milk and dairy products."

Milk must be dispensed in specially designated premises that comply with the rules of SP 2.3.6.1079-01 “Public catering organizations”.

Milk is given to an employee for work only on those days when he is actually engaged in work with hazardous working conditions, regardless of the length of the work shift.

In accordance with Part 1 of Article 222 of the Labor Code of the Russian Federation, the employee has the right to choose what to receive for harmfulness: milk, other equivalent food products or monetary compensation.

If an employee chooses monetary compensation instead of receiving milk, he must provide written consent to receive it. In this case, the replacement of milk with monetary compensation must be provided for in the collective agreement and (or) employment contract with the employee.

When calculating the amount of compensation, the cost of milk with a fat content of at least 2.5% or equivalent food products presented in retail trade at the employer’s location must be taken into account. The retail cost of products is determined based on data Federal service state statistics, taking into account the opinion of the elected body of the primary trade union organization or representative body of workers.

The employee has the right to refuse monetary compensation at any time and demand milk.

Payment of monetary compensation by the employer is made, as a rule, on the days of payment of wages, at least once a month (clause 3 of the Procedure).

Due to the fact that the cost of milk is constantly changing, in accordance with Part 2 of Article 222 of the Labor Code of the Russian Federation, it is necessary to establish in a collective or labor agreement the procedure for making monetary payments. As a rule, the employer requests a certificate quarterly or uses official data from the website of the Federal State Statistics Service: http://www.gks.ru/. Based on this data, the employer issues an order that determines the monetary payment.

Other answers to questions can be found in

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

Article posted date: 02/27/2015

In jobs with hazardous working conditions, workers are given milk or other equivalent food products free of charge according to established standards. However, the current legislation provides for the possibility of replacing the delivery of milk with payment of monetary compensation to the employee. This publication discusses some legal aspects of the calculation and payment of this compensation by employers.

Accrual conditions

In accordance with Art. 222 of the Labor Code of the Russian Federation, payment of compensation in exchange for the provision of 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 the provision of milk;
- harmful working conditions (i.e. the employee’s right to receive free food) 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 the consumption of milk (other equivalent food products) is recommended, the Norms and conditions for their free issuance, as well as the Procedure for payment of monetary compensation are approved by Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 N 45n (hereinafter referred to as Order N 45n).
In accordance with paragraphs 2 and 3 of the said document, the amount of 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 employer’s location on the territory of an administrative unit of a constituent entity of the Russian Federation. Compensation payments must be made at least once a month.
I would like to analyze one of the most difficult situations related to the conditions for calculating compensation. Consider the following example. In employment contracts with employees, the organization provided for the payment of compensation in exchange for the provision of milk to employees who work in hazardous 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. The 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 employment contracts (in this case, the abolition of the possibility of paying compensation in exchange for milk) in writing two months in advance. The question arises: does the employee have the right to demand payment of 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 to the employment contract at the initiative of the employer. This follows from paragraph. 1 tbsp. 74 Labor Code of the Russian Federation. In other situations (for example, in the case of a change at the initiative of an employee), there is no need to comply with the two-month notice rule.
In the case under consideration, 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 employee’s working conditions, the payment of compensation can be canceled. If the employee intends to refuse compensation in exchange for milk on his own initiative, he should submit an application to the employer about this. It is explained this way. Based on Art. 222 of the Labor Code of the Russian Federation, compensation is paid based on the employee’s application. Consequently, cancellation of this order is also possible upon application. If the condition for payment of compensation was provided for in the employment contract, you will also need to draw up an additional agreement to the employment contract, signed by both the employee and the employer’s representative.

Taxes

Let us immediately note that compensation in return for the provision of milk is not subject to any salary taxes or contributions. Personal income tax does not need to be calculated on the basis of clause 3 of Art. 217 Tax Code of the Russian Federation. From this legal norm it follows 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 exempt from personal income tax. local government compensation payments (within the limits established in accordance with the legislation of the Russian Federation) related to payment of the cost and (or) issuance of the due allowance in kind, as well as payment Money in return for this allowance.
Compensations paid in return for the provision of milk and other equivalent products are not subject to insurance contributions for compulsory pension (social, medical) insurance in accordance with paragraph. 2 pp. "and" clause 2, part 1, art. 9 of the Federal Law of July 24, 2009 N 212-FZ. Also, compensation is not subject to contributions for insurance against industrial injuries in accordance with paragraph. 11 pp. 2 p. 1 art. 20.2 of the Federal Law of July 24, 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). The relevant 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.
There is a high probability that in the event of an audit, specialists from regulatory agencies will insist that without conducting a special assessment (or certification of workplaces, the results of which will still be valid at the time of the audit), recognition of the above costs as expenses for the purposes of calculating income tax is impossible.
However, in our opinion, the legal position suggesting the possibility of taking these costs into account is quite justified.
In order for labor costs to be included in the income tax calculation, 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, and 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 also include other expenses 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 payment of compensation in exchange for 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 March 31, 2014 N 03-03-РЗ/13985. IN this document the following is said. Working conditions in which the levels of exposure to harmful production factors do not exceed established standards are not recognized as harmful, and, therefore, the organization’s expenses for providing free milk to employees of the enterprise in such conditions do not apply to compensation payments.
At the same time, the cost of milk (other equivalent food products) given free of charge to employees of the enterprise (the amount of compensation for milk) when determining the tax base for income tax can be included in labor costs as a payment in kind.

Indexing

Quite often, practitioners have questions about the indexation of compensation in exchange for the provision of milk. The legislation says the following. The employer is obliged to index compensation in proportion to the increase in prices for milk (other equivalent products) in retail trade. The basis for indexing is data from the competent authority of the region. This is stated in paragraph 5 of the Procedure approved by Order No. 45n. At the same time, unfortunately, in the norms given above normative document there is no answer to questions that may arise when making an indexing decision. For example, how often an organization should index compensation payments, and from which departments to take information when calculating indexation.
When enforcing law, business entities should take into account the following:
- the employer has the right to independently determine unresolved issues (for example, the frequency of indexation);
- 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 provides compensation to employees in exchange for milk, is located in the Yamalo-Nenets Autonomous Okrug (Yamalo-Nenets Autonomous Okrug), this procedure can be applied.

In the Yamal-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 Decree of the Government of the Yamal-Nenets Autonomous Okrug dated July 23, 2012 N 600-P. It presents data on prices for pasteurized or sterilized milk with 2.5 - 3.2% fat content.
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 mandatory weekly indexing. The indexation period can be any, for example annual.
If in the relevant region electronic system, similar to the above, the employer can use other sources of official data on the level of inflation in consumer prices for milk. For example, to obtain information on the level of price increases, you can contact the territorial office of Rosstat.

In our diagnostic and treatment center there are employees who are given free milk according to established standards. Recently, more and more often, some of them have begun to request that instead of providing free milk, they be paid monetary compensation. The administration is not against it, but there is one problem. We recently re-signed a collective agreement, but we forgot to include a clause about the possibility of such a replacement. Will it be enough to include an agreement to replace milk with monetary compensation in employees’ employment contracts? Shouldn’t we now go through the entire procedure of signing a collective agreement again?!

The issue of the admissibility of replacing the provision of milk for work with harmful production factors with monetary compensation was discussed for a long time and very actively. There were supporters of the innovation among both employers and employees. There were also plenty of opponents to such a replacement. Let's say more, now there are battles over the issue of abolishing such benefits in general, not to mention the possibility of replacing them with money.

But, despite the “controversial” issue, amendments to Art. 222 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) were introduced, came into force on October 14, 2007 and are still in effect.

Is it possible to replace milk with cash compensation?

Let's be honest, the wording of Part 1 of Art. 222 of the Labor Code of the Russian Federation is very complex and you will not find a clear answer to the question of how to correctly document the replacement of milk with monetary compensation from specialists. So your doubts are quite understandable.

Previously, Art. 222 Labor Code of the Russian Federation

Now, Art. 222 of the Labor Code of the Russian Federation as amended by Federal Law dated October 1, 2007 No. 224-FZ

In jobs with hazardous working conditions, workers are given milk and other equivalent food products free of charge according to established standards.

In jobs with hazardous working conditions, workers are given milk and other equivalent food products free of charge according to established standards. The provision of milk or other equivalent food products to employees at established standards, upon written statements from employees, may be replaced by a compensation payment in an amount equivalent to the cost of milk or other equivalent food products, and (or) an employment contract

The whole problem lies in two unions that are indicated in this norm. We quote: “the provision of... milk to employees... upon written statements from employees can be replaced by a compensation payment... if this is provided for in the collective agreement AND (OR) employment contract." What does it mean? On the one hand, the norm can be read as follows: “issuance to employees. milk. upon written statements from employees, it may be replaced by a compensation payment... if this is provided for in the collective agreement AND employment contract." Everything seems to be clear. For such a replacement, it is necessary that this condition be in both the collective agreement and the labor agreement.

Another interpretation of this norm is more problematic: “issuance to employees. milk. upon written statements from employees, it may be replaced by a compensation payment... if this is provided for in the collective agreement OR employment contract." What happens in this case? The conjunction “or” gives grounds to assert that in order to replace milk with monetary compensation, it is sufficient that this condition be stated in at least one of these documents: either in the collective agreement or in the labor agreement. If you take this point of view, then the answer to your question is quite obvious - include this condition in the employment contracts of employees, and this will be quite enough. There is no need to make changes to the sorcerer-thief. Yes, and there is a certain logic in this. It is quite possible that an organization has a collective agreement in which there are no conditions regarding the replacement of milk with monetary compensation, but it comes new employee and in accordance with Part 1 of Art. 222 of the Labor Code of the Russian Federation asks the employer to include such a condition in the employment contract. Maybe? Quite. The law allows it. Well, why not make changes to the collective agreement for the sake of one employee?

If your organization has not concluded a collective agreement, then the question of the need to include a condition on the possibility of replacing milk with monetary compensation does not arise. The presence of this condition in the employment contract with the employee will be sufficient

But still. We would strongly advise you not to follow this, albeit convenient, position. In our opinion, firstly, This condition must be specified in the employment contract with the employee. This follows, albeit not always directly, from the law and from the meaning of the employment contract itself. Besides, If your organization has or plans to conclude a collective agreement, then such a condition should definitely be included in it. In this case, no inspection authorities will definitely have any questions about the legality of replacing milk with monetary compensation. Isn't that what we are trying to achieve? :)

The meaning of the word “equivalent” means “equal”, i.e. the amount of compensation should be equal to the amount for which the employee will actually be able to purchase milk at prices prevailing in the given area

Considering the issue of the procedure for making compensation payments provided for in Part 1 of Art. 222 of the Labor Code of the Russian Federation, it should be remembered that by law it is determined by the Government of the Russian Federation taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social labor relations (Part 3 Art. 222 of the Labor Code of the Russian Federation). By the way, despite the fact that the amendment to the Labor Code of the Russian Federation, allowing for the possibility of compensation payment in an amount equivalent to the cost of milk or other equivalent food products, came into force in October 2007, the specified Procedure was approved by order of the Ministry of Health and Social Development of Russia No. 45n “On approval norms and conditions for the free issuance of milk or other equivalent food products to employees engaged in work with hazardous working conditions, the procedure for making compensation payments in an amount equivalent to the cost of milk or other equivalent food products, and the List of harmful production factors, when exposed to which for preventive purposes consumption of milk or other equivalent food products is recommended” only on February 16, 2009 (hereinafter referred to as Order No. 45n).

How to replace milk distribution with cash compensation

In order to be able to replace milk distribution with compensation payments, you must perform the following actions:

Stage 1. Include the possibility of such a replacement in the collective agreement.

Stage 2. Specify the possibility of such a replacement in the employment contract.

Stage 3. Receive from employees who want to replace milk distribution with monetary compensation a written statement with a corresponding request.

Stage 4. Issue an order to replace milk distribution with monetary compensation.

Now let’s look step by step at the actions that need to be taken so that workers have the opportunity to replace the milk they are given with monetary compensation.

Stage 1.
Introducing into the collective agreement a condition on the possibility of replacing milk distribution with monetary compensation.

This stage only needs to be completed if the company has a collective agreement.

The amount of compensation payment is accepted as equivalent to the cost of milk with a fat content of at least 2.5% in retail trade at the employer’s location on the territory of an administrative unit of a constituent entity of the Russian Federation

If an organization (an individual employer) has concluded a collective agreement, and one of the parties (or maybe two at once) has a desire to supplement the agreement with a condition for the possible payment of monetary compensation, then changes must be made to the collective agreement.

In addition to the condition itself regarding the possibility of replacing milk supply with monetary compensation, it is necessary to determine the following:
frequency of compensation payment (at the discretion of the parties, but at least once a month);
specific amount of compensation payment;
procedure for indexing compensation payments. Indexation of compensation payments is made in proportion to the increase in prices for milk in retail trade at the employer’s location in the territory of the administrative unit of a constituent entity of the Russian Federation based on data from the competent structural unit executive authority of a constituent entity of the Russian Federation.

The commission for conducting collective negotiations, concluding and amending a collective agreement is created from representatives of employees and the employer on an equal basis

Amendments and additions to the collective agreement are made in the manner established by the Labor Code of the Russian Federation for its conclusion, or in the manner established by the collective agreement ( Art. 44 Labor Code of the Russian Federation).

So if your collective agreement does not define any special procedure for making changes and additions to it, then you should be guided by the one defined by the Labor Code of the Russian Federation for its conclusion.

To conduct collective negotiations, prepare a draft collective agreement and conclude it, a special commission must be created in the organization ( Part 1 Art. 35 Labor Code of the Russian Federation).

An employee can apply to the employer with a written application to replace the milk supplied with a compensation payment for the supply of milk in monetary compensation only if such a possibility is provided for in his employment contract

Please note: both employees and the employer can initiate changes and additions to the collective agreement. In this case, the second party will be obliged to enter into negotiations within seven calendar days from the date of receipt of the specified proposal, sending a response to the initiator of their implementation ( Part 2 Art. 36 Labor Code of the Russian Federation). We should not forget about the deadline established by law for this procedure. Work on introducing amendments to the collective agreement must be completed within three months from the date of the start of negotiations by signing the accepted amendments and additions to the collective agreement on the terms agreed upon by the parties (Part 2 of Article 40 of the Labor Code of the Russian Federation).

Stage 2.
Inclusion in the employment contract of a condition on the possibility of replacing the milk provided with monetary compensation.

This stage applies to all employers, regardless of the existence of a concluded collective agreement.

The employer must send the amendments made to the collective agreement for notification registration to the relevant labor authority within seven days from the date of their signing

After an addition is made to the collective agreement providing for the possibility of replacing milk issued according to established standards with a compensation payment (monetary compensation), you need to fulfill one more requirement of Part 1 of Art. 222 of the Labor Code of the Russian Federation - include this condition in the employment contracts of employees.

By the way, this condition must be spelled out in the employment contract even before the employee contacts the employer with a written statement containing a request for a replacement.

IT IS FORBIDDEN!

Replace the provision of milk with a compensation payment in the absence of a written application from the employee about this

If such innovations occur in the process of labor relations, then this condition is included in the employment contract by concluding additional agreement. By the way, it is not possible to unilaterally introduce a condition into an employment contract regarding the possibility of replacing the milk provided with a compensation payment by the employer. Changing the terms of the employment contract determined by the parties is allowed only by agreement of the parties to the employment contract ( Art. 72 of the Labor Code of the Russian Federation). This fully applies to the issue of guarantees for employees working in hazardous working conditions.

Historical reference

The history of providing workers with food goes back more than 90 years. Since 1918, in accordance with the recommendations of V.I. Lenin, some groups of workers at production began to be given milk. Later, these recommendations became mandatory and were legitimized by the Decree of the Council of People's Commissars of August 4, 1921. It stated the need to supply workers with 0.769 liters of milk or 49 g of butter. In 1922, this norm of providing “pests” with food was already included in the Labor Code, first in the form of the provision of fat, and after the war in the form of the distribution of milk. In the 1920s, the introduction of mandatory free food distribution in factories was justified by the tense social situation. Starving workers could rebel at any time - providing milk and butter helped curb discontent. The scientific justification was not long in coming: good nutrition strengthened the body and improved its protective properties, so milk was declared the number one product for neutralizing harmful factors.

Mandatory milk distribution had its opponents, but their voices, which did not correspond to the official party line, were not heard.

Add to job description The employee responsible for calculating compensation payments is obliged to monthly request data on milk prices in retail trade at the employer’s location from the competent structural unit of the executive authority of the constituent entity of the Russian Federation

But any party can take the initiative to make amendments to the employment contract. Note: labor legislation does not require the mandatory execution of documents such as a written statement from the employee or a written proposal from the employer to change the terms of the employment contract, although in practice such documents can be drawn up and serve as the basis for concluding an additional agreement to the employment contract.

The agreement to the employment contract is drawn up in writing according to the form developed by the employer, in two copies. The agreement must indicate which section of the employment contract is being supplemented. An additional agreement to the employment contract must be signed by both parties to the employment relationship. After registering the additional agreement in a special accounting form, by analogy with drawing up an employment contract, the employee’s receipt of a copy of the additional agreement is confirmed by the employee’s signature on the copy of the agreement kept by the employer.

Additional agreement to the employment contract on the possibility of replacing milk with monetary compensation

It should be remembered that for a significant number of workers there are certain contraindications for the use of milk, which seriously complicates the implementation of treatment and preventive measures:
milk should not be used in cases of poisoning by fat-soluble poisons (phosphorus, carbolic acid, organic solvents, hydrocarbons and their derivatives, etc.);
milk is contraindicated for colitis and gastritis with low acidity of gastric juice;
milk consumption should be limited in a number of diseases (edematous-albuminuric type of chronic nephritis, amyloid-lipoid nephrosis, etc.);
The intake of milk is excluded in case of lactose deficiency, which can increase with age, and in case of diseases of the gastrointestinal tract;
Drinking milk is contraindicated if you are allergic to it.

In addition, there is a whole range of organizational and technical problems that arise when dispensing milk: from the need to check it for compliance with the Technical Regulations for Milk and Dairy Products to inappropriate use at home. Let's say more. Nowhere in the world, with the exception of the CIS countries, are any special diets used to prevent occupational diseases, and nowhere are workers given vitamins, much less milk, for this purpose. An international policy in the field of workers' nutrition was formulated by the League of Nations back in 1936 based on the results of a study of the nutrition of workers in Europe and North America. It was then recognized that the high prevalence of undernutrition and malnutrition among workers was due not only to economic reasons and insufficient income, but also to ignorance and inefficient use of available resources. IN last years In Western countries, voluntary initiatives by employers are developing to provide workers with free fruits and vegetables during the working day. These initiatives reflect an understanding of the main threats to the health of workers, among which the leading ones, as in Russia, are chronic non-communicable diseases. In their occurrence, a significant role is played not by industrial, but by behavioral risk factors, including unhealthy diet. The level of occupational diseases compared to the level of chronic non-communicable diseases is simply insignificant. So, in 2003 in Russian Federation the share of disabled people due to occupational diseases among all disabled people of working age was 0.53%, and compared to the number of disabled people due to cardiovascular diseases, they were 38.5 times less.

In future, When concluding an employment contract with an employee hired for a job in hazardous working conditions, where milk is provided free of charge according to established standards, it is advisable to immediately include in the employment contract a clause stating that, at the request of the employee, the distribution of milk for days of work in such conditions can be replaced by cash compensation in an amount equivalent to the cost of milk.

However, that's not all.

Stage 3.
Execution by the employee of a written application to replace the delivery of milk with a compensation payment (monetary compensation).

Referring again to Art. 222 of the Labor Code of the Russian Federation, it becomes clear that in order to replace milk issued according to established standards with a compensation payment, it is not enough to provide for such a possibility in collective and labor agreements. Part one of the above article provides for such a replacement only if there is an application from the employee, and it must be written. It turns out that, Until the employee has addressed the employer with a written request to replace the milk provided with monetary compensation, the employer is obliged to continue to provide him with milk.

According to the law, the employer can, but is not obliged to satisfy the employee’s request to replace the delivery of milk with monetary compensation

If an employee wants to make a replacement provided for by a collective and (or) employment agreement, then he must contact the employer with a statement drawn up in free form, but at the same time, of course, containing the employee’s personal request.

Employee's application to replace milk distribution with monetary compensation (sample)

After registration, the application is transferred to the head of the organization or other authorized representative of the employer to resolve the issue on its merits. The head of the organization puts a resolution on the application containing the decision he has made.

And here it should be noted that in the collective agreement and (or) employment contract, the parties establish a condition on the possibility of replacing the milk provided with a compensation payment (Part 1 Art. 222 of the Labor Code of the Russian Federation). So, even though such a condition is contained in the collective agreement and (or) employment contracts of employees, the employer has no obligation to satisfy the employee’s request.

Therefore, if the head of the organization or another authorized representative of the employer does not agree to fulfill the employee’s request set out in a written statement, then this should be reflected in the resolution.

Stage 4.
Issuance of an order to replace milk distribution with monetary compensation.

The direct issuance of such an order is not provided for either by the Labor Code of the Russian Federation or by the Procedure for making compensation payments (approved by order No. 45n). But how else to convey to interested parties, i.e. those who will carry out this replacement, information that the distribution of milk to an employee or employees from a certain date will be replaced by the payment of monetary compensation? Of course, only by issuing an appropriate order. And after signing and registering it, familiarize the above-mentioned persons with it. By the way, don’t forget about the employee himself. He must also be familiar with the order against signature.

Order to replace milk distribution with monetary compensation (sample)

Summary

To avoid problems later, it is advisable to provide for the possibility of replacing the provision of milk to employees with monetary compensation both in the collective agreement (if it is concluded in the company) and in the employee’s employment contract. In addition, there must be a written statement from the employee.