The Legal Obligation To Pay Social Insurance For Workers Deserves Attention.

The twelfth provision of the social insurance law stipulates: "the employer shall pay the basic old-age insurance premium according to the proportion of the total wages of the employees prescribed by the state, and shall be credited to the basic endowment insurance co-ordination fund.

The workers shall pay the basic old-age insurance premiums according to the proportion of their wages stipulated by the state and enter them into personal accounts.

The meaning of this provision stipulates that the employer shall pay the social insurance for the laborers, which is the statutory mandatory obligation of the employing units. On the other hand, it has determined the cardinal standard for the employer to pay the social insurance for the laborers.

A certain percentage of the total wage shall be paid by the paying unit.

In reality, there are the following situations:

First, the employers refuse to pay social insurance for workers in order to save labor costs.

Two, employers have paid social insurance for workers, but the number of social insurance contributions declared is lower than that stipulated in the social insurance law.

The three is the agreement between employers and laborers, in order to provide workers with certain compensation forms instead of paying social insurance for workers, and by giving written promises to workers, they promise to abandon the right of units to pay social insurance and voluntarily bear all legal consequences.

What are the legal consequences of these three situations?

In the first instance, it is the case that employers refuse to pay social insurance for workers.

Article thirty-eighth, paragraph 1 (three) of the labor contract law stipulates that if the employer fails to pay the social insurance premium in accordance with the law, the worker may terminate the labor contract.

Article forty-sixth (1) of the labor contract law stipulates that a laborer shall pay an economic compensation to laborers if the laborer terminates the labor contract in accordance with the thirty-eighth provision of this law.

The forty-seventh provision of the labor contract law stipulates: "economic compensation is paid to laborers according to the number of years worked by the laborers in their units and the wages paid for one month per year.

For more than six months with less than one year, the financial compensation for half a month's wages will be paid to the laborers for a period of one year or less than six months.

The monthly salary of laborers is higher than that of the Municipal People's Government of the municipality directly under the central government or the municipal district where the unit is located, and the monthly average wage of the workers in the region is three times higher than that of the local people's government. The standard of paying the economic compensation to the workers is three times the average monthly wage of the workers, and the maximum period of payment for the economic compensation is not more than twelve years.

The monthly wage mentioned in this article refers to the average wage of a worker within twelve months before the termination or termination of the labor contract.

Therefore, the employer fails to pay social insurance for workers in accordance with the law. The worker can propose to terminate the labor contract with the employer, and may require the employer to pay the economic compensation to him, and calculate the economic compensation according to the standard of the wages paid for one month at a full year, with a maximum salary of not more than 12 months.

For example, Xiao Zhang was employed in B company in Beijing, earning 8000 yuan a month, but B has not paid social insurance for Xiao Zhang. Now Xiao Zhang has worked for B company for 5 years and 8 months.

Xiao Zhang now proposes to terminate the labor contract with B company on the ground that B company fails to pay social insurance, and requests for payment of the economic compensation. The economic compensation it can claim is six months' gross salary, that is, 48000 yuan.

In view of the second case, the employer pays the social insurance for the laborers, but the base of the social insurance payment is the local minimum social security payment base standard instead of the "social insurance" standard.

"A certain percentage of the total wages of the employees stipulated in this unit shall be paid.

The sixty-third provision of the social insurance law stipulates: "the employer fails to pay the social insurance premium on time and in full, and the social insurance premium collection organization shall order him to pay or make up for the time limit."

If the employer fails to pay or supplement the social insurance premium within the time limit, the social insurance premium collection institution may inquire into the savings account of the bank and other financial institutions, and may apply for the decision of the relevant administrative departments at or above the county level to assign the social insurance premium, and notify the bank or other financial institutions in writing to allocate the social insurance premium.

If the employer fails to pay the social insurance premium in full and fails to provide guarantee, the social insurance premium collection institution may apply to the people's court for seizure, sealing up and auction of the property whose value is equivalent to that of the social insurance premium, and the auction proceeds shall be paid to the social insurance premium.

The twenty-seventh provision of the implementation of the provisions of the social insurance law of the People's Republic of China stipulates: "if a worker disputes with his employer in the case of social insurance, he may apply for mediation, arbitration and litigation in accordance with the provisions of the People's Republic of China labor dispute mediation and Arbitration Law and the labor and personnel dispute arbitration rules".

If the employee considers that the employer has not paid the social insurance premiums or other social insurance rights and interests in time and in full, it may also require the social insurance administrative department or the social insurance premium collection institution to deal with it according to law.

Therefore, according to the aforementioned provisions, employers can not pay the social insurance premiums for workers, workers can apply for mediation, arbitration, initiate proceedings, or appeal to the social insurance levy agencies, requiring employers to pay social insurance premiums in full.

However, in practice, workers can not initiate labor arbitration on the grounds that employers do not pay social insurance in full, otherwise they will not be accepted.

The thirty-first session of the Beijing Higher People's court and the Beijing labor dispute arbitration committee on the legal application of labor dispute cases has clearly stipulated: "after the implementation of the labor contract law, the employer has not established the social insurance relationship for the workers according to the categories stipulated in the city, and the worker's request for cancelling the labor contract and requiring the employer to pay the economic compensation shall be supported, but the date of payment for the economic compensation shall be calculated from January 1, 2008.

The worker shall not support the employer's request for cancelling the labor contract on the ground that the employer fails to pay the social insurance premium or fails to pay the social insurance premium, and requires the employer to pay the economic compensation.

For the third case, that is, the employer pays a certain amount of compensation to the worker instead of paying the social insurance. What is the legal consequence? As mentioned before, the employer pays the social insurance premium for the laborer, which is the statutory and compulsory obligation of the employer.

Therefore, the agreement that the employer pays the compensation to the laborer and the laborer's promise to give up the employer's right to pay the social insurance is invalid, and the agreement is not protected by law.

In case of dispute, the laborer can still claim the termination of the labor contract on the grounds that the employer fails to pay the social insurance, and advocate the employer to pay the economic compensation in accordance with the law. At the same time, the social insurance compensation paid by the laborer from the employer should also be returned to the employer.

This situation is actually more unfavorable to employers.

That is to say, the employer has paid the social insurance compensation to the laborers, but it does not exempt him from the legal obligation to pay the social insurance premium for the laborers. Once the laborers go back on their work in the future, they will also have to pay the workers in addition to the social insurance premium.

Responsibility.

Therefore, it is suggested that employers should pay attention to the legal obligation to pay social insurance for workers, standardize management and not lose sight of small gains.

For more information, please pay attention to the world clothing shoes and hats and Internet cafes.