Work in our time is a great right and a great duty (V. Hugo). Every work involves a reward. In addition to the basic salary, the employee can receive additional payments, allowances and other incentive, compensation and guarantee payments.
For now, I would like to consider one of these allowances, namely the provision of appropriate compensation for work under regime restrictions, since for citizens who have received access to state secrets under the conditions of their official, industrial, scientific or scientific and technical activities or studies, this topic is always relevant
Relevant sources of law and acts of their application
According to the prescriptions of the second part of Art. 19 of the Constitution of Ukraine, state authorities and local self-government bodies, their officials are obliged to act only on the basis, within the limits of authority and in the manner provided for by the Constitution and laws of Ukraine.
According to the second part of Art. 97 of the Labor Code, the conditions for introducing and the amounts of allowances, surcharges, bonuses, rewards and other incentive, compensatory and guarantee payments are established by enterprises, institutions, organizations independently in a collective agreement in compliance with the norms and guarantees provided for by legislation, general and branch (regional) agreements .
Therefore, for employees who work with information that constitutes a state secret, during the establishment of allowances, the relevant legal norms regarding their establishment must be observed.
Public relations related to classification of information as a state secret, classification, declassification of its material carriers and protection of state secrets for the purpose of protecting the national security of Ukraine are regulated by the Law of Ukraine "On State Secrets".
According to the first part of Art. 20 of the Law of Ukraine "On State Secrets", state bodies, local self-government bodies, enterprises, institutions, organizations have the right to conduct activities related to state secrets, after the Security Service of Ukraine has granted them a special permit to conduct activities related to state secrets .
Parts one, two and seven of Art. 22 of the Law of Ukraine "On State Secrets" determines that, depending on the degree of secrecy of information, the following forms of access to state secrets are established: form 1 – for working with secret information that has degrees of secrecy of "special importance", "top secret" and "secret" ; form 2 – for working with classified information that has the degrees of secrecy "top secret" and "secret"; form 3 – for working with secret information that has the degree of secrecy "secret".
Access to state secrets is granted to able-bodied citizens of Ukraine over the age of 18 who need it due to the conditions of their official, industrial, scientific or scientific-technical activity or training, by the bodies of the Security Service of Ukraine after their verification.
The granting of admission involves: determining the need for a citizen to work with classified information; verification of a citizen in connection with access to state secrets; taking a written commitment by a citizen to preserve a state secret that will be entrusted to him; obtaining the citizen's written consent to the limitations of rights provided for by law in connection with his admission to state secrets; acquainting the citizen with the degree of responsibility for violating the legislation on state secrets.
Due to the establishment by the Law of Ukraine "On State Secrets" of the rights and freedoms of citizens who work in legislative, executive and judicial authorities, prosecutor's offices, other state authorities, the Verkhovna Rada of the Autonomous Republic of Crimea, the Council of Ministers of the Autonomous Republic of Crimea, local self-government bodies, enterprises, institutions, organizations (hereinafter – enterprises, institutions, organizations) with information that constitutes a state secret, there is a need for their compensation.
Yes, Art. 30 of the Law of Ukraine "On State Secrets" stipulates that in the event that, under the terms of his professional activity, a citizen constantly works with information that constitutes a state secret, he must be provided with appropriate compensation for work under regime restrictions, the types, amounts and procedure for providing it are established by the Cabinet of Ministers of Ukraine.
In fulfillment of the specified requirements of the Law, the Resolution of the Cabinet of Ministers of Ukraine dated 15.06.1994 No. 414 approved the Regulation on the types, amounts and procedure for providing compensation to citizens in connection with work that involves access to state secrets (hereinafter – the Regulation), which determines the types, amounts and the procedure for providing compensation to employees of legislative, executive and judicial authorities, prosecutor's offices, other state authorities, the Verkhovna Rada of the Autonomous Republic of Crimea, the Council of Ministers of the Autonomous Republic of Crimea, local self-government bodies, enterprises, institutions, and organizations that, under the terms of their professional activity, are permanently work with information that constitutes a state secret (hereinafter referred to as persons working under regime restrictions).
According to the requirements of paragraphs 2, 3, 4-1 of the Regulation, it is determined that such compensation is provided to persons who work under regime restrictions, in the form of supplements to official salaries (tariff rates), wages (if the amount is determined by law) in percentage terms, the amount of which depends on the type of work, degree of secrecy and amount of information.
According to Clause 5 of the Regulations, persons who, according to their functional duties or during the performance of work in accordance with concluded contracts, are considered to be permanently working with information constituting a state secret, are engaged in the development, production, accounting, storage, use of documents, products and other material carriers of state secrets, make decisions on these issues or carry out constant control over the state of state secret protection.
In point "c" of part nine of Art. 21 of the Law of Ukraine "On State Secrets" defines that regime-secret bodies have the right to participate in the consideration of proposals for payment in accordance with the procedure established by regulations for compensation for work within regime restrictions.
However, it should be noted that the presence or absence of a proposal of a regime-secret body regarding the establishment of an allowance for work under conditions of regime restrictions is not an unconditional basis for the manager to make a corresponding decision.
According to the terms of Clause 6 of the Regulation, the personnel composition of persons working under regime restrictions and the amount of the allowance are determined by the head of the relevant body of legislative, executive and judicial power, the prosecutor's office, other state authorities, the Verkhovna Rada of the Autonomous Republic of Crimea, the Council of Ministers of the Autonomous Republic Crimea, local self-government bodies, enterprises, institutions and organizations where these persons work.
An allowance to official salaries (tariff rates) is paid only in the presence of a permit to carry out activities related to state secrets, granted in accordance with the legislation on state secrets.
At the same time, often during the application of the above-mentioned legislation or the regulatory legal acts developed on the basis of it, the subject of the provision of such compensations has difficulties in interpreting the legislation.
The Constitutional Court of Ukraine, in its Resolution dated January 27, 2000 No. 16-u/2000, does not rule out that courts, other state authorities, local self-government bodies, due to ambiguity, conflict or gaps in the law, different understandings of the purpose and content of the law, make contradictory decisions that indicates the presence of ambiguous application of the provisions of the laws of Ukraine.
The uniformity of the practice of applying legislation and the elimination of ambiguity in the application of legislation by courts in their decisions is ensured by reviewing court cases in the cassation procedure or in the supervision procedure, generalizing the practice of law enforcement by the Supreme Court of Ukraine and the Supreme Arbitration Court of Ukraine.
Court decisions
Therefore, the Supreme Court as part of the panel of judges of the Cassation Administrative Court, considering similar legal relations, reached the following conclusion in the case of April 25, 2018 No. 802/74/15-a.
Granting access to state secrets involves determining the need for a citizen to work with classified information. In particular, such a necessity arises if the performance of official duties requires access to state secrets.
That is, if the scope of functional duties for a certain position, in particular in a state body, implies that during their performance, a person will or may have the need to access state secrets (such as familiarization with documents and/or other material carriers of information, classified in accordance with the procedure established by law), such a person, in view of such official necessity, must receive in the prescribed procedure admission to the state secret of the appropriate form, which according to Art. 22 of the Law of Ukraine "On State Secrets" depends on the degree of secrecy.
The official's lack of access to state secrets (in the established form) makes it impossible for him to perform his official duties. Therefore, it is the tenure of the position, which, according to the scope of the tasks assigned to it, requires access to state secrets. The condition of appointment to which (stay at which) is the presence/necessity of registration of admission to state secrets.
Working under regime restrictions imposes certain obligations and restrictions on a person who has been granted access to state secrets of the prescribed form in the prescribed manner. If such work is conditioned by the performance of professional duties (in particular, for the corresponding position in a state body), this means that the person works permanently under the conditions of regime restrictions, in connection with which he has, in accordance with Art. 30 of Law No. 3855-ХІI creates the right to receive compensation.
Summarizing the above, the panel of judges decided that the norms of Art. 30 of the Law of Ukraine "On State Secrets", para. 2, 5 Provisions should be understood in such a way that a necessary condition for receiving compensation in connection with the performance of works that involve access to state secrets is that the person has access to state secrets (on the basis of which access to state secrets is granted), as well as the performance works/tasks and/or job duties that require access to state secrets or in view of the assigned tasks foresee the need for such access.
As for the latter, in order to resolve the issue of whether a person's working conditions involve working with information and its carriers that constitute a state secret, it is first necessary to find out the scope of the functional duties of this person by position and the conditions (requirements, criteria) that a person must be responsible for being appointed to this position and/or performing work/tasks related to access to documents, other material carriers of information constituting a state secret. This can be established, in particular, on the basis of job instructions, internal departmental documents and/or by-laws that contain requirements for occupying a certain position in the relevant body or regulate the procedure for performing work/tasks that require access to state secrets.
If a person received access to state secrets in the prescribed manner, works, in particular, in a state body, and the nature of his working conditions in view of the position he holds involves regime restrictions related to access to state secrets, the head of the relevant body is obliged to assign him an allowance in the amount determined by the Regulation, on which to issue a corresponding administrative document.
The fact of non-payment of an allowance for work in conditions of regime restrictions is not and cannot be evidence of non-performance of work related to access to state secrets.
Similar legal positions are also set forth in Supreme Court rulings dated 07/25/2019 in case No. 296/6615/17, dated 05/07/2020 in case No. 813/2925/18 and dated 01/28/2021 in case No. 240/229/20.
Moreover, from the decision of the Council of Judges of Ukraine dated 28.01.2022 No. 4 regarding the provision of clarifications on the procedure for issuing compensation to judges and employees of the court apparatus in connection with work that involves access to state secrets, we see that the need for such clarifications the judicial branch of government also had clarifications.
Taking into account the systematic analysis of the norms of the current legislation, the Council of Judges of Ukraine decided that the norms of Art. 30 of the Law of Ukraine "On State Secrets", para. 2, 5 Provisions should be understood in such a way that a necessary condition for receiving compensation in connection with the performance of works that involve access to state secrets is that the person has access to state secrets (on the basis of which access to state secrets is granted), and compensation is not necessarily depends on the performance of work/tasks and/or job duties that require access to state secrets or, in view of the assigned tasks, foresee the need for such access.
Also, the Council of Judges of Ukraine decided that, in accordance with the legislation on state secrets, a permit to carry out activities related to state secrets is granted to a judge or an employee of the court apparatus who work in positions according to the nomenclature of employee positions, the stay in which requires registration of the permit and the provision access to state secrets, by its essence and legal nature under regime restrictions should be considered as entitling a person to receive compensation (supplements to official salary) on a permanent basis.
Summarizing the above, it should be noted that the legal position of the Supreme Court of Ukraine is stated in this decision, which is similar to the one stated in the above-mentioned resolutions.
Clarification regarding the presence/absence of a conflict of interest when the manager makes a decision to provide himself with incentive payments
Also quite interesting is the issue of managers who, in connection with the performance of work involving access to state secrets, need such allowances. After all, most often a conflict of interests arises for a manager who independently makes a decision to provide himself with incentive payments.
According to the clarification of the National Agency for the Prevention of Corruption dated 13.06.2022 No. 11 regarding the presence/absence of a conflict of interest during the exercise of powers regarding certain issues of remuneration, such a conflict of interest will be absent if the manager makes a decision to provide himself with incentive payments for in agreement with the appointing entity/higher level manager.
In order to prevent the emergence of a conflict of interests, separate legal acts defining the procedure for establishing incentive payments provide for the procedure for agreeing the appropriate payments to the manager with the subject of appointment/higher-level manager.
Approval of the size of the incentive payment is a condition for exercising the official authority of the manager to set it for himself, and not an independent official authority. Therefore, the requirements of the first part of Art. 28 of the Law of Ukraine "On the Prevention of Corruption" (to report a conflict of interest; not to take actions and not to make decisions in conditions of a real conflict of interest) in cases of application after obtaining the specified consent (can be carried out, including, by signing and sending a written submission or proposal ) are not distributed.
There will be no conflict of interest when the manager makes a decision to establish this or that type of payment, if he is obliged to establish a specific amount of payment, and the law does not allow him to choose from at least two or more possible payment options (lack of discretion).
Considering the requirements of Art. 30 of the Law of Ukraine "On State Secrets" and Clause 2 of the Provisions when the manager sets himself an allowance in connection with the work that involves access to state secrets, he has no discretion, since the specified norms are imperative, and the amount of the corresponding allowance determined by the law is fixed (without specifying its limits).