The company did not pay social security contributions according to the actual salary, resulting in the loss of compensation for work-related injuries

According to Article 4 of the Administrative Regulations on the Declaration and Payment of Social Insurance Premiums, the employer should make a monthly declaration of contributions to the local social security agency within a specified period of time, and in a contribution year, after the initial declaration of the employer, the employer should declare the changes in the relevant matters of the declaration for the remaining months.

The case:

Zhang Mou is an employee of a coal chemical company, and according to the law, the company paid social insurance for Zhang Mou. On December 28, 2015, Zhang Mou was diagnosed with coal workers' pneumoconiosis II by the local occupational disease prevention and control institute. Later, Zhang applied to the local human resources and social security bureau for the recognition of work injury, and after investigation and review of the case materials, the nature of his injury was recognized as a work injury. In the same year, Zhang's work injury was appraised, and his labor grade was recognized as Grade IV. After the appraisal, the workers' compensation insurance fund allocated to Zhang a one-time disability benefit of 34,562.43 yuan. However, Zhang was confirmed to suffer from occupational disease before the 12-month average salary of 3411.75 yuan, and the coal company only according to Zhang's 2014 average monthly salary of 1644 yuan as the basis for the payment of workers' compensation insurance, resulting in Zhang failed to receive the full amount of the corresponding benefits. Zhang then requested the Labor Dispute Arbitration Commission to make up the lump sum disability benefit of RMB 37,084. The Labor Dispute Arbitration Committee decided not to accept the request on the grounds that it did not fall within the scope of labor dispute arbitration. Zhangmou then sued to the court, as before. The court ruled that the coal company to make up for Zhang's one-time disability benefit, and in accordance with the latest wage standard monthly allowance.

Lawyer's analysis

The main dispute in this case is whether the unit failed to participate in the full amount of insurance compensation for work-related injuries, and who is obliged to make up for it.

According to Article 30(2) of the Regulations on the Administration of Social Insurance Premiums Declaration and Payment, if the employer fails to pay the social insurance premiums in full and on time, the social insurance administrative department shall order the employer to pay the premiums within a certain period of time or to make up the full amount of the premiums in accordance with the provisions of Article 86 of the Social Insurance Law, and shall impose a late payment fine of 0.5% on a daily basis from the date of non-payment of the premiums; if the employer fails to pay the premiums within a certain period of time, the employer shall impose a fine of not less than one and not more than three times of the amount of the unpaid premiums. The social insurance administrative department shall impose a fine of not less than one but not more than three times the amount of the unpaid contributions. As a matter of fact, all the contents of the Administrative Provisions on Declaration and Payment of Social Insurance Premiums clarify the obligation of employers to pay social insurance in full, but the whole text fails to clarify the issue of how to compensate for the full amount of damages caused to the workers injured at work by the failure of the employers to pay or pay social insurance in full, which leads to the lack of unified standards for various departments in dealing with the corresponding issues in the judicial practice. However, at least one thing is certain, that is, the full payment of social insurance for workers is a mandatory obligation imposed by the state on each employer, in the case of the coal company failed to pay the full amount of social insurance to Zhang Mou at fault. According to Article 62(2) of the Regulations on Work-Related Injury Insurance, if an employer fails to purchase work-related injury insurance for its employees and the workers are injured at work, the employer shall pay the expenses in accordance with the items and standards of work-related injury insurance treatment stipulated in the Regulations. Accordingly, if the employer fails to pay the work-related injury insurance, the work-related injury insurance benefits shall be paid by the employer, and if the injured worker cannot obtain the statutory compensation due to the employer's failure to pay the full amount of work-related injury insurance related expenses, the party at fault shall make up for the difference, which is not only the responsibility of compensation for the fault, but also the responsibility arising from the failure to fulfill the statutory obligations as the first act. Therefore, in the above case, the coal company should be Zhang a person to assume the responsibility of compensation for work injury treatment.

Lawyer's tips

Based on the above cases, the workers also need to pay attention to the base of social insurance payment when the disputes arising from the employer's failure to pay the full amount of social insurance for the workers occur in the business practice.

The above analysis has repeatedly emphasized that the employer has not paid the full amount of social insurance to the workers, so how should the so-called "full amount" be understood, in other words, how to be considered "full" payment of social insurance? In fact, it is very simple, workers only need to grasp a key issue, that is, the average wage of the 12 months prior to the time of the injury. At the same time, the average wage must not be lower than the minimum wage in the jurisdiction. New employees or enterprises can refer to the wage standard of workers in the same region and similar positions for the initial declaration of the insurance base. Specifically according to how the base is calculated can be handed over to the workers' compensation insurance fund management department accounting.

Another point to remind workers is that if the employer does not pay the social insurance for the workers or the insurance base problem with the employer to produce labor disputes, does not belong to the scope of labor dispute arbitration committee to accept the case. Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (III) stipulates that the people's court shall accept a dispute in which a worker requests the employer to pay compensation for losses on the grounds that the employer has failed to carry out the social insurance procedures for him or her, and the social insurance agency is unable to make up for this, resulting in the worker not being able to enjoy his or her social insurance benefits. Accordingly, if a dispute arises between a worker and his employer over social insurance benefits when the worker suffers a work-related injury or under other circumstances, he can directly apply for arbitration to require the employer to pay the worker or his close relatives the full amount of the work-related injury insurance benefits in accordance with the law. Otherwise, the loss of work-related injuries and other social insurance benefits should enjoy the event carrier, only on the insurance base of the dispute with the employer, only in the human resources and social security departments to the labor inspection brigade complaints.

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