資料照片

It is the legal responsibility of the employer to pay social insurance for employees. However, in practice, the company signs an agreement with the employee to waive the payment of social security, and the social security fee payable is paid to the employee's salary in cash.

Event recap

The original intention of establishing a social security system in China is to protect the basic living needs and rights of citizens, and to cover as many people as possible, of which social insurance is a very important part of the content. However, in order to save costs, many enterprises do not pay social security to employees, and at the same time, some workers also have the concept of "high income is more important" and ignore the concept of long-term protection of rights and interests.

However, enterprises are often worried: they do not pay social security to employees, and they are afraid that employees will come back to chase this social security premium in the future. At this time, the enterprise will generally require the employee to sign a "Voluntary Waiver of Social Security Payment Agreement" to exempt himself from liability. So, does such an agreement work? If the employee subsequently complains about the payment of social security, who should bear the late payment fee?

Recently, the Liubei District People's Court of Liuzhou City heard such a labor contract dispute case, and the result showed that the above-mentioned agreement was invalid and the final late payment penalty was borne by the employer. There was an employment relationship between Mr. Jia and a company, and when the two parties signed the employment contract, Mr. Jia signed the "Application Form for Voluntary Waiver of Social Insurance Payment" provided by the company, which stated that Mr. Jia voluntarily applied for non-payment of social insurance, and that he would bear the relevant taxes and fees by himself, and requested the company to convert the corresponding social insurance premiums into cash and pay them to himself, and if he repented, he was willing to bear all the consequences and refund the social insurance premiums paid in full. During the existence of the employment relationship, a company failed to help Mr. Jia pay social insurance premiums for a total of 5 years. After the termination of the employment relationship between the parties, Mr. Jia complained to the Social Security Center that the company had failed to pay social insurance premiums for him in accordance with the law. After accepting the application, the Social Security Center successively issued the "Social Insurance Audit Opinion" and the "Notice of Supplementary Payment of Social Insurance Premiums" to the company, ordering the company to pay the unpaid social insurance premiums during the existence of Mr. Jia's employment relationship in full within 0 working days, as well as the resulting late payment penalty.

In the end, the company paid the social insurance premiums and late payment penalty within the time limit, but it sued the court because Mr. Jia believed that the application was signed voluntarily and that the late payment fee caused by the failure to pay social insurance should be Mr. Jia's fault. The court finally ruled that the company should bear the late payment penalty for the unit due to the failure to pay social insurance, and rejected its claim.

However, some people believe that if the employee and the employer reach an agreement not to pay social security at the beginning, but instead pay the employee more wages appropriately, although there are non-compliance with the law, in practice, it can meet the needs of both parties at the same time, especially for some small and micro enterprises. In this case, if the employee repents and complains to the enterprise in the future, it is also reasonably flawed, and the enterprise is equivalent to "suffering a dumb loss", so the late payment penalty arising from the payment of social security should be borne by the employee.

There is also a similar case from Yantai, Shandong Province, which shows that the employee and the enterprise reached a consensus through mutual consultation, and the employee voluntarily gave up the payment of social insurance, and the court finally ruled that the company had not fulfilled the statutory obligation even though it knew or should have known that if it did not pay social security for the employee in time, it would incur a late payment penalty, and therefore was mainly at fault for the resulting late payment penalty, and the employee was also at fault for the occurrence of the late payment penalty, which was a secondary fault, and the proportion of the late payment penalty borne by both parties was 30% and 0% respectively.

Photo by Zhu Lanying Zhanxiang