Is it legal for an employer to entrust a third party to pay social security for its employees?
Author | Wang Hongting Lawyer
In practice, employers often entrust third-party companies to pay and withhold social security for their employees, mainly because: 1. The movement of workers (in different places and locally) between affiliated enterprises has not handled changes in social security contributions; 2. The company recruits workers in different places, and the workers require social insurance in the city where they live; 3. The company recruits workers locally, and the workers require social insurance in different places.
Is this situation legal? What are the legal consequences?
1. Case introduction
Qiaomou v. Wuhan Guodan Company for labor disputes
First Inquiry: (2017) Hubei 0102 Minchu No. 8628
second-instance: (2018) Hubei 01 Minzhi No. 3245
On September 1, 2014, Qiao signed a written employment contract with Guodan Company, agreeing that Qiao was engaged in the work of inviting tenders, with an average monthly salary of 4,000 yuan.The working place is in Beijing.The contract period is from September 1, 2014 to December 31, 2018. September 2014,Guodan Company entrusted a third-party AIA company to pay social insurance to the Beijing Municipal Social Insurance Department for Qiao.
On December 25, 2015, Qiao was injured while going out to work. Wuhan Human Resources and Social Security Bureau identified Qiao's injury as a work-related injury, and identified Qiao's work-related injury disability level as level 9.However, the social security department refused to pay Qiao work injury treatment on the grounds that the employer Guodan Company did not pay social security for Qiao.
On August 14, 2017, Qiao filed an arbitration application with the Labor and Personnel Dispute Arbitration Commission of Jiang'an District, Wuhan City, requesting that Guodan Company pay a one-time disability grant of 48,000 yuan, a one-time work injury medical grant of 41,244 yuan, and a one-time disability employment grant of 61,8
66yuan to Qiao.
Wuhan City, Jiang'an District Labor and Personnel Dispute Arbitration Committee made an arbitration award for offshore labor [2017] No. 965. Qiao refused to accept the arbitration award and filed a lawsuit in the court.
2. Referee results
The court held that,It is the legal obligation of the employer to pay social insurance for employees.The employer should report to itLocal social insurance agencyhandleSocial insurance registration and should be submitted to themThe local social insurance agency pays for its employeessocial insurance。
Implementation of social insurance registrationterritorial managementThe account opening and payment unit shall be the employer, that is, the employer that has established a labor relationship with the laborer. It is illegal for the employer to entrust a third party to pay for the employee's social insurance.
The case was finally decided by arbitration, first instance, and second-instance, and Guodan Company should pay Qiao a one-time disability grant of 36,000 yuan; a one-time medical grant of 43,816 yuan, but Qiao only claimed 41,244 yuan, and the excess was regarded as Qiao's automatic abandonment; the one-time disability employment grant was 65,7
24yuan.
3. Dispute interpretation
Is it legal for the employer to entrust a third party to pay social security?
According to Article 57 of the Social Insurance Law: "An employer shall, within 30 days from the date of establishment, apply to the local social insurance agency for social insurance registration with a business license, registration certificate or unit seal. The social insurance agency shall review the application within 15 days from the date of receipt and issue a social insurance registration certificate.
Article 58 stipulates: "Employers shall apply for social insurance registration with the social insurance agency for their employees within 30 days from the date of employment. If social insurance registration is not handled, the social insurance agency shall determine the social insurance premiums they should pay." It is the legal obligation of the employer to pay social insurance for workers. Social insurance registration is subject to territorial management, that is, the employer shall handle social insurance registration with the social insurance agency where it is located, and shall pay social insurance to the social insurance agency where the unit is located.The account opening and payment unit shall be the employer, and for this purpose, the employer shall entrust a third-party company to pay for the social insurance for workersillegal｡
II. Legal responsibilities that the employer may have to bear
1. The employer may have to bear the resulting loss of social security benefits
Through the above case, it can be seen that the employer (Guodan Company) entrusted a third party (AIA Company) to pay social insurance for the employee Qiao. After Qiao had a work-related accident and identified a disability level, the social security agency where the employer was located refused to pay work-related injury insurance benefits on the grounds that the employer paid social insurance for Qiao, resulting in Qiao being unable to obtain work-related injury benefits. Finally, Guodan Company paid work-related injury insurance benefits to Qiao.
Therefore, it can be seen that,If the employer entrusts a third party to pay social insurance to the laborer, resulting in the laborer being unable to enjoy social insurance benefits, the employer shall bear the responsibility for payment.
2. The worker claims to be forced to terminate the employment contract on this grounds, and the employer may need to pay economic compensation
According to the third paragraph of Article 38 of the employment contract law: "If the employer has any of the following circumstances, the employee may terminate the employment contract:... (3) Failure to pay social insurance premiums for the employee according to law;..." and the first paragraph of Article 46: "In any of the following circumstances, the employer shall pay economic compensation to the employee: (1) The employee terminates the employment contract in accordance with the provisions of Article 38 of this Law;..." If the employer fails to pay social insurance benefits to the laborer according to law, the laborer has the right to terminate the employment contract and require the employer to pay economic compensation in accordance with the above provisions.
In the case that the employer entrusts a third-party company to pay for the withholding of social security,There is no social insurance company between the employer and the worker, so the worker is likely to be forced to terminate the employment contract. However, it should be reminded that for the above situation, the judicial practice varies from place to place. For details, please refer to the author's previous articles to share.
III. Legal responsibilities that workers may have to bear
According to Article 88 of the Social Insurance Law: "Anyone who defrauds social insurance benefits by fraud, forgery of certification materials or other means shall be ordered by the social insurance administrative department to return the defrauded social insurance funds, and a fine of not less than twice but not more than five times the defrauded amount shall be imposed." Because in the case of an employer entrusting a third party to pay social insurance,The laborer, the employer, and a third party may have signed false certification materials or agreements, so as to establish a social insurance relationship between the laborer and the third-party company and pay social insurance premiums. For this reason, the laborer's behavior may belong to the act of defrauding social insurance funds, and may be legally responsible for returning social insurance funds, fines, etc.; if the circumstances are serious, criminal liability may be required.
4. Practical recommendations
The employer and the worker in the labor relationship and the social insurance relationship must be the same. The employer cannot entrust a third party to pay social insurance for the worker. If this happens, both the employer and the worker may bear certain legal responsibilities. If the situation referred to in this article occurs, it is recommended that all parties keep relevant written explanation materials (for example, if the worker personally requests to pay social insurance in a different place or other units, the worker's explanation should be kept) to minimize the legal risks required.
5. Legal requirements
Law of the people's Republic of China on employment contracts
Article 38 The employer may terminate the employment contract under any of the following circumstances:
(1) Failure to provide labor protection or working conditions as stipulated in the employment contract;
(2) Failure to pay labor remuneration in full and on time;
(3) Failure to pay social insurance premiums for laborers according to law;
(4) The rules and regulations of the employing unit violate the provisions of laws and regulations and harm the rights and interests of laborers.
(5) The employment contract is null and void due to the circumstances specified in Paragraph 1 of Article 26 of this Law;
(6) Other circumstances under which the employee may terminate the employment contract as stipulated by laws and administrative regulations.
If an employer forces a laborer to work by means of violence, threat or illegal restriction of personal freedom, or if the employer violates the rules and orders or forces risky operations to endanger the personal safety of the laborer, the laborer may immediately terminate the employment contract without notifying the employer in advance.
Article 46: Under any of the following circumstances, the employer shall pay economic compensation to the laborer:
(1) The worker terminates the employment contract in accordance with Article 38 of this Law;
(2) The employing unit proposes to the laborer to terminate the employment contract in accordance with Article 36 of this Law and agrees to terminate the employment contract through consultation with the laborer;
(3) The employer terminates the employment contract in accordance with Article 40 of this Law;
(4) The employer terminates the employment contract in accordance with the provisions of Paragraph 1 of Article 41 of this Law;
(5) Terminating a fixed-term employment contract in accordance with the provisions of Paragraph 1 of Article 44 of this Law, except where the employer maintains or enhances the conditions stipulated in the employment contract to renew the employment contract and the worker does not agree to renew it;
(6) terminating the employment contract in accordance with the provisions of Items 4 and 5 of Article 44 of this Law;
(7) Other circumstances stipulated by laws and administrative regulations.
"Social Insurance Law of the People's Republic of China"
Article 57 The employing unit shall apply to the local social insurance agency for social insurance registration within 30 days from the date of establishment with the business license, registration certificate or unit seal. The social insurance agency shall review the application within 15 days from the date of receipt and issue a social insurance registration certificate.
If the employer's social insurance registration items are changed or the employer terminates them according to law, it shall, within 30 days from the date of change or termination, go to the social insurance agency to handle the change or cancellation of social insurance registration.
The market supervision and management department, the civil affairs department, and the institutional establishment management organ shall promptly inform the social insurance agency of the establishment and termination of the employer, and the public security organ shall promptly inform the social insurance agency of the birth, death, household registration, relocation, and cancellation of individuals.
Article 58 Employers shall, within 30 days from the date of employment, apply to the social insurance agency for social insurance registration for their employees. If social insurance registration is not handled, the social insurance agency shall determine the social insurance premiums that they shall pay.
Individual industrial and commercial households without employees who voluntarily participate in social insurance, part-time employees who do not participate in social insurance at the employer, and other flexible employees shall apply to the social insurance agency for social insurance registration.
The state establishes a national unified individual social security number. Individual social security numbers are citizenship numbers.
Article 88: Anyone who obtains social insurance benefits by fraud, forgery of certification materials or other means shall be ordered by the social insurance administrative department to return the fraudulent social insurance funds, and a fine of not less than twice but not more than five times the fraudulent amount shall be imposed.
Lawyer Profile
Wang Hongting Lawyer
Guangdong
, a full-time lawyer
Secretary General of Marriage and Family Department, Zhiheng Marriage, Family Affairs and Wealth Inheritance Law Center
Contributor of Shenzhen Lawyers Association
Areas of expertise:
Marriage wealth, corporate governance
Civil and commercial affairs, labor disputes,
Infringement, bankruptcy liquidation
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