It Is A Statutory Obligation To Pay Social Security Fees For Employees.

Case 2008 October 14th, Cheng and a company in Hefei (hereinafter referred to as the company) signed a "labor contract", agreed that the term of the contract is fixed period, and from November 1, 2008 onwards, the job is for sale, the work place is Anhui Province, the working hours are irregular working hours, the monthly average salary is (before tax) 11701 yuan.

In September 2015, the company revoked Cheng's post and arranged for a certain job to be pferred. The salary in August 2015 and September dropped to 2000 yuan from 10000 yuan a month.

In November 3, 2015, Cheng made a formal resignation on the ground that the company reduced wages, benefits and changes in the working environment.

The company handled the social insurance for Cheng Mou during the period from July 2012 to November 2015, but did not apply for social insurance from October 2008 to June 2012.

When Cheng left office, he failed to negotiate with the company, and applied for arbitration to the labor arbitration committee of the company where he was located. He asked the company to make up the social insurance for October 2008 to June 2012.

The company replied that Cheng's request for the replacement of social insurance from October 2008 to June 2012 exceeds the limitation of arbitration and should not be supported.

Comment and analysis based on

The twenty-seventh provision of mediation and Arbitration Law stipulates that the time limit for applying for arbitration of labor disputes is one year.

The time limit for arbitration shall be counted from the date when the party knows or should know that his rights are infringed.

In this case, Cheng, from July 2012, should know that the company did not deal with the social insurance before it was processed, while Cheng applied for arbitration in November 2015. Apparently, it is obviously more than a year's arbitration timeliness and should not be supported.

However, the seventy-second provision of the labor law stipulates that employers and workers must participate in social insurance according to law and pay social insurance premiums.

The fourth provision of the social insurance law stipulates that employers and individuals in People's Republic of China shall pay social insurance premiums according to law.

The twenty-sixth provision of the Provisional Regulations on the collection of social insurance premiums stipulates that if the payment unit fails to pay social insurance premium or late fee, the labor insurance administrative department or the tax authorities shall apply to the people's court for compulsory collection according to law.

The interpretation of the Supreme People's Court on Several Issues concerning the application of law in labor dispute cases is stipulated in Article 1:

and

The following disputes between the two parties are the labor disputes stipulated in the second article of the labor law. If the parties concerned are not satisfied with the decisions made by the labor dispute arbitration committee and bring a suit to the people's court according to law, the people's court shall accept that:

(three) after the workers retire, disputes arising from the recovery of pension, medical expenses, work-related injury insurance benefits and other social insurance premiums with the original employers who have not yet participated in social insurance co-ordination.

It can be seen that social insurance is a social security system established by the state through legislation. Employers and employees establish labor relations, that is, they have legal obligations to pay various social insurance premiums for their employees.

The payment of social insurance premiums is different from the general contractual obligations performed by employers on the basis of labor contracts.

The time limit for recourse to social insurance premium does not fall within the application scope of ordinary labor dispute arbitration application.

In this case, although Cheng's application for arbitration exceeds the ordinary arbitration application period, the legal obligation of the company to pay social insurance premiums is not eliminated.

Finally, the labor arbitration commission supported the arbitration request of Cheng. The ruling: the company made the social insurance for Cheng from October 2008 to June 2012. The amount of social insurance premiums paid by the two sides was approved by the social insurance agency in accordance with the law.