Five situations in which enterprises can not pay social security for employees

Five situations in which enterprises can not pay social security for employees

Publisher: Lawyer Fang Hui | Date: August 23, 2022 | Category: Labor Dispute | 1826 people have seen it.

(1) Retirees are re-employed and sign labor contracts with enterprises.

Article 44 of the Labor Contract Law of People's Republic of China (PRC): "The labor contract shall be terminated if the laborer begins to enjoy the basic old-age insurance benefits according to law."

(2) Part-time employees who provide dependent services.

Dependent workers part-time workers refer to those who do not leave their jobs in their spare time to engage in a second occupation; Providing physical or mental labor expenses for a third party. Part-time workers have their own jobs, and signing labor contracts and paying social insurance are handled by the work unit, which has nothing to do with part-time.

(three) the labor service personnel accepted by the enterprise shall be paid by the receiving enterprise.

The labor dispatch unit shall conclude a labor dispatch agreement with the unit that accepts the labor dispatch. The dispatched personnel have already paid social security by the labor dispatch company, and the enterprise may not pay for this part of the personnel.

(four) the enterprise accepts the internship agreement signed by the interns in school.

No matter whether the internship unit is arranged by the school or contacted by the students themselves, the purpose of internship is not to get salary, but to gain professional knowledge and practical experience. There is no factual labor relationship between college students and internship units, and the unit does not need to pay social security for them.

(5) Self-employed outsourcing enterprise business.

If the employees on the production line are set as a group, their wages will become the profits of individual industrial and commercial households, and there is a certain tax exemption policy. At the same time, individual industrial and commercial households can also issue invoices to the company to reduce costs.

_ 4. Legal basis for paying social insurance:

1 Article 72 of the Labor Law of People's Republic of China (PRC): "The social insurance fund shall determine the source of funds according to the types of insurance, and gradually implement social pooling. Employers and workers must participate in social insurance and pay social insurance premiums according to law. "

2. Article 100 of the Labor Law of People's Republic of China (PRC): "If the employer fails to pay social insurance premiums without reason, the labor administrative department shall order it to pay within a time limit; If it is overdue, you can add a late fee. "

3. Article 38 of the Labor Contract Law of People's Republic of China (PRC): "In any of the following circumstances, the employee may terminate the labor contract:

(1) Failing to provide labor protection or working conditions as agreed in the labor contract;

(2) Failing to pay labor remuneration in full and on time;

(3) Failing 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 damage the rights and interests of workers;

(5) The labor contract is invalid due to the circumstances specified in the first paragraph of Article 26 of this Law;

(6) Other circumstances under which the laborer can terminate the labor contract as stipulated by laws and administrative regulations.

If the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or if the employer illegally directs or forces the risky operation to endanger the personal safety of the laborer, the laborer may immediately terminate the labor contract without notifying the employer in advance. "

4. Article 4 of the Social Insurance Law of People's Republic of China (PRC): "Employers and individuals in People's Republic of China (PRC) pay social insurance premiums according to law, and have the right to inquire about payment records and personal rights and interests records, and ask social insurance agencies to provide social insurance consultation and other related services. Individuals enjoy social insurance benefits according to law and have the right to supervise the payment of their own units. "

5. Article 86 of the Social Insurance Law of People's Republic of China (PRC): "If the employer fails to pay the social insurance premium in full and on time, the social insurance premium collection agency shall order it to pay it within a time limit or make up for it, and from the date of default, an overdue fine of 5/10000 shall be added daily; If it fails to pay within the time limit, the relevant administrative department shall impose a fine of more than one time and less than three times the amount owed. "

6. Article 74 of the Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law of People's Republic of China (PRC) stipulates: "Social insurance premiums for redundant employees, employees who take long leave, employees who take long sick leave, and employees who go to school with pay shall continue to be paid by the original units and individuals, and the payment period shall be included in the payment period."

7. Article 4 of the Regulations on the Administration of the Declaration and Payment of Social Insurance Fees: "The employing unit shall declare the payment to the local social insurance agency within the prescribed time limit on a monthly basis, and the declared items include:

(a) the name, organization code, address and contact information of the employer;

(two) the employer's bank, account name and account number;

(three) the employer's payment insurance, payment base, rate and payment amount;

(four) the roster of employees and the payment of employees;

(five) other matters stipulated by the social insurance agency. "

8. Article 16 of the Regulations on the Administration of the Declaration and Payment of Social Insurance Fees: "If an employer is under any of the following circumstances, the social insurance agency shall issue a Notice of Default of Social Insurance Fees within five working days from the date of finding out the fact of default, order the employer to pay back the social insurance fees within five working days after receiving the notice, and inform it that the overdue payment will be handled in accordance with the provisions of Articles 63 and 86 of the Social Insurance Law:

(a) failing to declare and pay social insurance premiums in accordance with the provisions;

(2) Failing to pay social insurance premiums in full and on time after reporting;

(three) due to concealment, omission of the number of employees, payment base and other matters and pay less social insurance premiums. "

9. Article 47 of the Law of People's Republic of China (PRC) on Mediation and Arbitration of Labor Disputes: "The arbitral award is final and takes legal effect from the date it is made, unless otherwise stipulated in this Law;

(a) labor remuneration, medical expenses for work-related injuries, economic compensation or the amount of compensation not exceeding the local minimum monthly wage 12 months;

(two) disputes arising from the implementation of national labor standards in terms of working hours, rest and vacation, social insurance, etc. "

10 article 57 of the law on the prevention and control of occupational diseases in People's Republic of China (PRC): "the expenses for diagnosis, treatment and rehabilitation of occupational disease patients, and social security for disabled and incapacitated occupational disease patients shall be implemented in accordance with the relevant provisions of the state on industrial injury insurance."

1 1. Article 59 of the Law on the Prevention and Control of Occupational Diseases in People's Republic of China (PRC): "If a worker is diagnosed with an occupational disease and the employer fails to participate in work-related injury insurance according to law, his medical care and living security shall be borne by the employer."

12 article 29 of the law on the protection of women's rights and interests in People's Republic of China (PRC): "the state promotes the maternity insurance system and establishes and improves other maternity-related security systems. Local people's governments at all levels and relevant departments shall provide necessary maternity assistance to poor women in accordance with relevant regulations. "