Publication date: 16.04.2024
LEGAL OPINION
AWARD FOR ACADEMIC TITLE «SENIOR RESEARCHER»
Legal analysis of the situation to be considered: «Is there an obligation in a higher education institution (hereinafter - Higher Education Institution) to set a premium for the academic title «senior researcher», if the position held is not related to such title».
General the allowance for the academic title "senior researcher" may vary depending on the internal policy of the university where the researcher works. Usually, this allowance is paid as an additional reward for a high level of achievements in research work and recognition by scientists of their merits. The amount can be fixed or set as a percentage of the researcher's basic salary. Exact information about the allowance is usually indicated in the employment contract or in the internal rules of a particular university.
First of all, it is necessary to determine whether the issue is regulated by local regulatory acts of higher education institutions (collective agreement, regulations on labor remuneration, establishment of allowances, etc.).
If not, you should be guided by the normative legal acts of Ukraine, namely in accordance with para. 3 subparagraph «v» subparagraph 3 p. 4 of the Order of the Ministry of Education and Culture dated September 26, 2005 №557 «On streamlining the terms of remuneration and approving schemes of tariff categories of employees of educational institutions, educational institutions and scientific institutions» (hereinafter – Order of the Ministry of Education and Culture №557) to establish additional payments to employees
b) for academic title:
professor - in the maximum amount of 33 percent of the official salary (salary rate);
associate professor, senior researcher, senior researcher - in the maximum amount of 25 percent of the official salary (salary rate).
The specified surcharge is set for employees if their profile activity coincides with the existing academic title. If the specified employees have two or more academic titles, the surcharge is established for one (higher) rank;
Correspondence of the academic title and scientific degree to the profile of the employee's activity in the position held is determined by the head of the educational institution.
The payment of additional payment for the title of senior researcher is specified in Part 2 of Art. 59 of the Law of Ukraine «On Higher Education», namely:
2. Scientific-pedagogical, scientific and pedagogical workers of higher education institutions are subject to additional payments for the scientific degree of Doctor of Philosophy and Doctor of Sciences in the amounts of 15 and 25 percent of the official salary, respectively, as well as for the academic title of associate professor and senior researcher - 25 percent of the official salary, professor - 33 percent official salary. A higher education institution can establish a larger amount of additional payments at the expense of its own income.
From the above, it can be seen that the issue is settled:
- By the Law «On Higher Education», which establishes a mandatory supplement for an academic title (regardless of the suitability of the position held)
- By order of the Ministry of Education and Culture №557, according to which the condition for assigning a surcharge is the need to determine whether the activity of the position coincides with the existing academic title.
As can be seen from the Order of the Ministry of Education and Culture №557, the head of a higher educational institution (rector) can, by order, determine that the academic title and scientific degree of the profile of the employee's activity in the position held coincide and assign such an additional payment. Or, if it does not coincide, do not assign an allowance, determining that the position held does not coincide with the scientific title.
There is an explanation from the Department of Socio-Economic Protection of the Trade Union of Education and Science Workers of Ukraine (hereinafter - the Trade Union) dated November 15, 2018 on the question «What is the procedure for establishing additional payments for a scientific degree, academic title, seniority allowances for an associate professor for teaching work on hourly calculation and for part-time work of vice-rector and associate professor?» (hereinafter - Clarification).
Summary The explanation reads as follows: «A scientific and pedagogical worker who has a candidate's scientific degree in the relevant field of sciences, or an academic title, has passed a competitive selection and was elected to the position of associate professor of the department, then the surcharge for a scientific degree and an academic title must be made to him regardless of the topic of the dissertation, specialty and field of science for which he was awarded, as a person whose profile activity coincides with a scientific degree and a scientific title.»
By analogy with the conclusion of the Explanation, it can be concluded by a lawyer that the Trade Union recommends setting the allowance regardless of the connection of the position held with the scientific degree for which the allowance should be established.
In this regard, there are different judicial practices, according to which:
1.It is necessary to prove that the position held is related to the scientific degree at which the allowance is established (or not established)
2.It is not a by-law regulatory document that should be followed, but a Law that does not link the establishment of a surcharge to the need to hold exactly the position that is associated with a scientific degree.
An example of an approach to the priority of the law is the decision of the Second Administrative Court of Appeal dated 04/12/2023 in case № 520/6367/22 (the question is not identical, but the principle is the same) https://reyestr.court.gov.ua/Review/110183964. As stated in it, «to disputed legal relations involving the plaintiff, as to a scientific and pedagogical employee of a higher educational institution with specific conditions of study, the provisions of the Law of Ukraine "On Higher Education" should be applied, by which, in particular, Part 2 of Art. 59, additional payments for a scientific degree (candidate of sciences) of at least 15 percent of the official salary and for an academic title (associate professor) of at least 25 percent of the official salary have been established. The panel of judges does not accept the certificate of the appeal that the special legislation, which is Resolution № 704 and Procedure № 260, provides for the establishment of maximum amounts of additional payments that are subject to accrual and payment to military personnel, since in relation to scientific and pedagogical workers who are serving in higher military educational institutions with specific study conditions, the Law of Ukraine "On Higher Education" is special and should be applied in the competition of legal norms. The panel of judges notes that the rules for determining the additional payment for a scientific degree, established by paragraphs 2 p. 6 Resolutions of the Cabinet of Ministers of Ukraine "On financial support of military personnel, rank-and-file and senior officers and certain other persons" № 704 dated 30.08.2017 apply to all military personnel who have such scientific degrees and academic titles, at the same time for those military personnel who serve in higher military educational institutions, such surcharge must be established taking into account the minimum guarantees provided for in Art. 59 of Law № 1556-VII. In addition, the establishment by the court of scientific supplements for a scientific degree, depending on the type of educational institution of various sizes, is considered by scientific and pedagogical workers as a discriminatory attitude towards a separate category of persons who, having relevant scientific degrees and titles and working in educational institutions with specific conditions of study, the scope of which regulated by Law № 1556-VII, receive additional payments in smaller amounts than education workers working in higher educational institutions.»
In the event of a legal dispute, an examination may be appointed, which will determine the suitability of the position for a scientific degree. For example, the job duties of vice provost and senior investigator can be compared (whether they are related to each other and whether they overlap and the basis for setting the allowance will depend on it).
The lawyer's analysis of the situation gives reason to believe that the issue is ambiguous and may cause a dispute, both at the initiative of the employee (in case of non-establishment of an allowance) and at the educational institution itself (in case of imposition of sanctions by inspection bodies for «misuse of budget funds».)
Legal conclusion: based on the priority of the Law of Ukraine «On Higher Education» over the Order of the Ministry of Education and Culture №557, which is specifically defined by the Letter of the Ministry of Justice of Ukraine dated 30.01.2009 №H-35267-18, the allowance is assigned if there is a scientific title, only its presence is sufficient.
