Audit case of industrial injury insurance benefits

Audit case of industrial injury insurance benefits

The Social Insurance Law and the Regulations on Work-related Injury Insurance stipulate that the employer shall pay the work-related injury insurance premium according to the total wages of employees multiplied by the determined rate. However, should the employer make up the difference of unpaid work-related injury insurance benefits according to the actual salary? Let's take a look at some cases of review of work-related injury insurance benefits!

Case 1: Work-related injury insurance treatment review

20 12 Chen works in a company in Xuzhou, and the company pays work-related injury insurance for him according to the standard lower than his actual salary. On February 20 13, Chen was injured at work. Later, it was recognized as a work-related injury with a grade of nine disability. Social insurance agencies pay a one-time disability allowance 17775 yuan. After that, the two sides failed to negotiate on the compensation for the difference, and Chen applied for labor arbitration. The arbitration commission refused to support the applicant's claim to pay the difference of one-time disability allowance 2 1 123 yuan. Chen refused to accept the result of labor arbitration and sued the company to the court.

Focus of controversy

Because the employer has not paid the work-related injury insurance premium in full, can the worker ask him to make up the difference in work-related injury treatment?

divergence

The plaintiff believes that according to Article 4 of the Provisional Regulations on the Collection and Payment of Social Insurance Fees and Articles 3 and 10 of the Regulations on Industrial Injury Insurance, the collection and payment of industrial injury insurance fees shall be carried out in accordance with the provisions of the Provisional Regulations on the Collection and Payment of Social Insurance Fees on the collection and payment of basic old-age insurance fees, basic medical insurance fees and unemployment insurance fees. The amount of work-related injury insurance premium paid by the employer is the product of the total wages of employees multiplied by the unit payment rate, and individual employees do not pay work-related injury insurance premium. Therefore, the employer shall truthfully declare the total wages of employees when paying work-related injury insurance premiums. In this case, the employer shall bear the difference caused by the employer's intentional underreporting of the salary base.

According to the defendant company, according to Article 3 of Opinions of Jiangsu Higher People's Court on Several Issues Concerning the Trial of Labor Dispute Cases (No.4 [2004] of Su Gao Law Committee), disputes involving the payment of basic old-age insurance, basic medical insurance, unemployment insurance, work injury insurance and maternity insurance by urban enterprises, if the employer has participated in social pooling insurance, the people's court shall not accept them as labor dispute cases regardless of whether the employee sues the employer or the social insurance institution. ?

Labor dispute arbitration committee's point of view: According to Item (4) of Article 4 of Detailed Rules for Handling Labor and Personnel Disputes in Jiangsu Province, the applicant's request shall not be treated as a labor dispute, and the right relief shall be sought through the social insurance fee collection agency.

The view of the court of first instance: The people's court shall accept the dispute between the laborer and the employer over the compensation for his grandson on the grounds that the employer has not gone through the social insurance formalities for him and the social insurance agency cannot reissue it. Disputes arising from the payment base of workers are not within the scope of acceptance by the people's courts, and workers should apply to the relevant departments for settlement. Therefore, the plaintiff's claim about the difference of one-time disability allowance is ignored by our court.

Lawyer's view

This is a case actually handled by the author. In practice, many local courts often think that such cases should be handled by the labor administrative department, not the scope of labor disputes. In this case, the practice of the court of first instance is very representative. Because the employer has not paid the work-related injury insurance premium in full, can the worker ask him to make up the difference in work-related injury treatment? It has always been controversial. The author believes that this claim of workers should be supported. The main reasons are as follows:

First of all, from the current effective legal provisions,

1. According to Article 2 of the Labor Dispute Mediation and Arbitration Law and Article 83, paragraph 3 of the Social Insurance Law, such cases are included in the scope of court hearing. Even the four judicial interpretations of labor disputes issued by the Supreme Court have not been explicitly ruled out. Secondly, as can be seen from the above provisions, the way for workers to protect their rights can be solved by the labor administrative department or through litigation, not limited to the former.

2. According to the second paragraph of Article 62 of the Regulations on Work-related Injury Insurance, if the employer fails to pay work-related injury insurance for the employees, the employee's work-related injury benefits shall be paid by the employer. In the same way, the difference caused by the employer's underpayment of work-related injury insurance premiums should naturally be borne by the employer, and it is no longer a simple dispute over the base of social security contributions.

3. Even if the employer pays the work-related injury expenses, in practice, the social insurance agency will not pay compensation for the fault of the employer, that is, it will not re-approve the work-related injury treatment according to the payment base. It is unfortunate that workers are injured at work. This kind of kicking the ball in judicial trial can only make it more difficult to protect the legitimate rights and interests of workers and directly affect social harmony and stability.

4. According to Article 4 of "Regulations on the Administration of Social Insurance Fee Declaration and Payment" (Order No.20 of Ministry of Human Resources and Social Security) issued by Ministry of Human Resources and Social Security on September 26th, 2065438, the employer shall make a change declaration if the relevant declaration items change in the remaining months after the initial declaration. Therefore, after the initial declaration, the employer should declare in time according to the changes in the wages of workers. In this case, the employer failed to fulfill the above legal obligations, which led to the plaintiff's failure to fully enjoy the treatment of work-related injury insurance, and the defendant should bear the responsibility of making up the difference.

Second, judging from the precedent in practice.

To this end, the author retrieved relevant cases. Judging from the cases published by China Court Network, People's Court Newspaper and other media, there have been many cases supporting workers to ask employers to make up the difference in treatment of work-related injuries.

Third, from the social orientation of judicial decisions.

Guiding social value orientation is an important function of judicial trial. Employers' failure to pay social security fees in accordance with the law not only violates administrative regulations, but also infringes upon the legitimate rights and interests of workers. This kind of kicking the ball in judicial practice will undoubtedly make the employer's illegal behavior of not paying social security fees in full even more fearless.

To sum up, the author believes that the defendant, as an employer, should pay the industrial injury insurance premium to the social insurance agency based on the plaintiff's actual labor remuneration. However, due to the fault of the employer, the plaintiff failed to enjoy the full treatment of work-related injuries, and the defendant should bear the responsibility of making up the difference.

In addition, from the perspective of effectively protecting the legitimate rights and interests of workers, maintaining the unity of the legal system and building a harmonious society, it is suggested that the Supreme People's Court should make it clear through judicial interpretation or guiding cases, so as to end the chaotic situation of different judgments of local courts.

Case 2: Work-related injury insurance benefits review Liu joined Company A on August 25th, 201/year as the design director, and both parties signed a written labor contract with a monthly salary of 23,000 yuan. On May 3, 20 14, Liu was injured at work, and on July 28, 20 14, he was recognized as a work-related injury by Shenzhen Human Resources and Social Security Bureau. 20 14 years17 October, and was identified as Grade 9 disability by Shenzhen Labor Ability Appraisal Committee. Shenzhen Social Security Bureau paid Liu's work-related injury benefits from the social security fund, but because Company A has been buying social security for Liu with the minimum wage in Shenzhen, it did not buy it according to Liu's actual salary. In the end, the Social Security Fund Center paid work-related injury insurance for Liu according to the social security payment standard, resulting in the difference of one-time disability grant 1 17765 yuan, one-time disability employment grant 104680 yuan, and one-time work-related injury medical grant/26 170 yuan. Therefore, Liu applied to the Labor Arbitration Committee for arbitration, demanding that Company A bear the total difference of 2486 15 yuan.

arbitration award

The Arbitration Commission finally ruled that Company A paid Liu a one-time disability subsidy, one-time disability employment subsidy and one-time work-related injury medical subsidy with a difference of 248,665,438 yuan +05.

legal ground

Article 2 of the Guangdong Higher People's Court and the Guangdong Labor Dispute Arbitration Commission's "On the Application of the Labor Contract Law" and "Guiding Opinions on Several Issues" stipulates that the following disputes shall be treated as labor disputes:

(a) disputes between workers and employers due to the payment period of endowment insurance;

(2) The laborer demands the employer to pay work-related injuries, unemployment, maternity, medical care and compensation on the grounds that the employer has not paid social insurance premiums for him;

(3) The laborer demands the employer to bear the loss of work-related injury benefits on the grounds that the employer has lowered the wage standard for paying social insurance premiums.

Lawyer's review

In reality, in order to reduce costs and expenses, many employers do not pay social insurance for their employees according to their actual wages, but often choose to buy social insurance for their employees according to the local minimum standards, which is illegal and has huge legal risks. Article 2 of the Guiding Opinions of Guangdong Higher People's Court and Guangdong Labor Dispute Arbitration Commission on the Application of: < Labor Contract Law > on Several Issues stipulates that it is a labor dispute that a worker asks the employer to bear the loss of work-related injury treatment on the grounds that the employer reduces the wage standard for paying social insurance premiums. Therefore, if workers find that the employer buys social security at a price lower than their actual wages, resulting in a final difference, they can file a labor arbitration and ask the employer to bear the liability for compensation.

It is mandatory for employers and workers to participate in social security in the Labor Law. The employer's signing a statement that the laborer voluntarily does not buy social security or does not buy social security according to the minimum wage standard cannot be exempted from responsibility, because such a statement is invalid because it violates the mandatory provisions of the law. If the employee fails to participate in work-related injury insurance after the work-related injury accident, the employer shall pay the employee according to the compensation for work-related injury; Participated in work-related injury insurance, but the payment base does not match the actual salary, and the difference in work-related injury compensation is partially made up by the employer.

;