How to pay social security for employment in different places

Key points: Non-operating "offices" (liaison offices) do not belong to branches or branches, cannot be used as independent payment units, and cannot be paid by social security in different places; Engaged in business activities, belonging to branches or branches, can pay social insurance premiums in different places according to the Interim Measures for the Administration of Social Insurance Registration. Question: Human resource consultation of a foreign-funded enterprise: Our company has offices all over the country, and its headquarters is registered in Shanghai. Does the company pay comprehensive insurance for employees working in different places conform to the labor law? An employee currently working in Tianjin believes that companies working in different places should pay local insurance for their employees. If this employee applies for a labor arbitration company in Tianjin, is there any certainty of winning the case? Looking forward to your reply. Thank you!

A: This case involves three aspects:

(A) the main position of the office

According to the reply of the State Administration for Industry and Commerce 1997 on the definition of branch in the first paragraph of Article 35 of the Regulations on the Administration of Registration of Enterprise Legal Persons in People's Republic of China (PRC), the branch mentioned in the first paragraph of Article 35 of the Regulations on the Administration of Registration of Enterprise Legal Persons refers to the economy invested and established by an enterprise legal person, which has a fixed business place, directly engages in business activities in its own name, does not have legal person status, and its civil liability is borne by its subordinate enterprise legal person. According to the above provisions, those who do not operate are only institutions (offices) that contact and handle affairs, neither branches nor branches.

Before the implementation of the new Company Law, the original Detailed Rules for the Implementation of the Regulations on the Administration of the Registration of Enterprise Legal Persons stipulated that the offices established by foreign-invested enterprises should apply for registration. At that time, the company had to go through the registration procedures to set up an office. After the new "Company Law" and "Regulations on the Administration of Company Registration" came into effect, the situation changed. Article 25 of the Opinions of the State Administration for Industry and Commerce, the Ministry of Commerce, the General Administration of Customs and the State Administration of Foreign Exchange on Several Issues Concerning the Application of Laws in the Examination and Registration of Foreign-invested Companies stipulates: "The company registration authority will no longer register the offices of foreign-invested companies. The original registered office shall not go through the formalities of alteration or extension. After the expiration of the time limit, it shall cancel the registration or apply for the establishment of a branch as needed. Branches of foreign-invested companies may engage in liaison, consultation and other businesses within the company's business scope. Those who engage in business activities in the name of the office shall be investigated and dealt with by the company registration authority according to law.

It can be seen that under the new situation, foreign-funded enterprises can only engage in liaison and consultation work without industrial and commercial registration, and cannot engage in business activities in the name of offices.

Social insurance for employment in different places

According to the Interim Measures for the Administration of Social Insurance Registration, the social insurance registration is subject to territorial management. If the payer has a branch in a different place, the branch shall generally apply for social insurance registration as an independent payer to the local social insurance agency. Cross-regional payment units, their social insurance registration places shall be determined by the relevant regions through consultation. If there are different opinions, the place of registration shall be determined by the social insurance agency at the next higher level.

Your company's headquarters is registered in Shanghai. Because the office is not a branch, there is no main condition for paying social security locally. If the main body of the labor contract signed with the laborer is a Shanghai company, it shall go through the employment registration formalities in Shanghai. Because the payment of social insurance is closely related to the employment registration procedures, if an employee working in a foreign office does not have a Shanghai household registration, your company can pay comprehensive insurance for him without having to pay social insurance locally.

(3) the qualification of the parties in labor arbitration and the burden of proof in the place of performance.

According to the Labor Dispute Mediation and Arbitration Law and related regulations, the subjects applying for labor dispute arbitration must belong to the eligible subjects for adjustment of labor laws and regulations: according to the current laws, the eligible subjects applying for labor arbitration mainly include:

1) enterprises, individual economic organizations, private non-enterprise units and other organizations and workers who form labor relations with them.

2) State organs, institutions, social organizations and workers who have signed written labor contracts with them.

3) Foreigners, people from Taiwan, Hong Kong and Macao who have obtained legal employment qualifications and people who have settled abroad.

4) Illegal employers and the subject of child labor accidents.

The office does not belong to the employer in the sense of labor law, and the dispute between the office staff and the office does not belong to the labor dispute. If the office applies to the Labor Dispute Arbitration Commission for arbitration, the Arbitration Commission will not accept it. Therefore, your employees can only apply for arbitration with the Shanghai company as the respondent.

If an employee applies to Shanghai for arbitration, according to the Labor Dispute Mediation and Arbitration Law, the labor dispute shall be under the jurisdiction of the labor dispute arbitration committee in the place where the labor contract is performed or where the employer is located. Where both parties apply for arbitration to the labor dispute arbitration committee in the place where the labor contract is performed and the place where the employer is located, it shall be under the jurisdiction of the labor dispute arbitration committee in the place where the labor contract is performed. The law confirms the principle of priority jurisdiction of the place of performance, but in judicial practice, workers are still required to bear the burden of proof of the place of performance. For the company, if it encounters arbitration in Tianjin, it can raise jurisdiction objection to the local arbitration commission. Promote the settlement of disputes in Shanghai.

Editor's Note: In the practice of enterprise's employment management in different places, it often appears that the company headquarters is willing to pay social insurance for employees in different places, and at the same time cancels the social insurance payment in the place where the company is registered, which contains certain labor dispute risks. If employees are registered in Shanghai and actually work in Shenzhen, employee insurance is paid in Shenzhen (many companies entrust outsourcing companies to operate and pay), because Shanghai does not pay any social insurance. In the future, employees may be supported by arbitration if they terminate the contract and demand economic compensation on the grounds that the enterprise fails to pay social insurance according to law. It is suggested that enterprises require employees to provide monthly social insurance payment list as evidence to exempt the company headquarters from paying social insurance responsibility, and clarify the social insurance payment method and liability for breach of contract through agreement. This is conducive to preventing disputes and controlling enterprise risks to a minimum.