Basic facts of the case:
Mr. Long joined the elite company in July 2010 and engaged in printing. The two parties signed a written labor contract, and the last labor contract was an indefinite labor contract signed in July 2015, in which it was stipulated that Long's basic salary was 2,300 yuan per month. The elite company has participated in social insurance for Long.
Subsequently, in mid-2016, Long was diagnosed by the Occupational Disease Prevention and Control Institute as: occupational chronic mild benzene poisoning. In September of the same year, the Municipal Occupational Disease Diagnosis and Appraisal Committee identified Long as suffering from occupational chronic mild benzene poisoning, and the District Human Resources and Social Security Bureau determined that Long's situation was a work-related injury. At the beginning of 2017, the Municipal Labor Ability Appraisal Committee identified Long's degree of labor dysfunction as level 7.
According to the results of work-related injury identification and the degree of obstacle to work-related ability, the District Social Insurance Management Office applied for work-related injury insurance benefits, and the District Social Insurance Management Office reviewed and approved Long's one-time disability subsidy of more than 30,000 yuan in March 2017, and after receiving the payment and verification table, Long found that the wage standard calculated by the subsidy was only 2,300 yuan per month, compared with the average salary of 4,000 yuan before suffering from occupational diseases according to his own statistics The month is much lower, Long asked the staff to understand, and learned that the original elite company did not pay according to the actual wage standard when paying all kinds of social insurance for itself, but in accordance with the standard payment of 2,300 yuan per month agreed in the labor contract, which led to the decline in the standard of work-related injury insurance benefits.
Legal basis:
Article 1 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (I): "If the following disputes between an employee and an employer arise as labor disputes, and the parties are dissatisfied with the ruling made by the labor dispute arbitration institution and file a lawsuit in accordance with the law, the people's court shall accept them: (1) disputes between the worker and the employer in the course of performing the labor contract;(2) Disputes arising after the labor relationship has been formed between the employee and the employer without a written labor contract;(3) Disputes between the worker and the employer over whether the labor relationship has been dissolved or terminated, and whether severance for the termination or termination of the labor relationship should be paid;(4) Disputes arising from requests from the employer to return the deposit, security deposit, mortgage or collateral of the labor contract received by the worker after the termination or termination of the labor relationship between the worker and the employer, or the dispute arising from the transfer procedures such as the personnel file and social insurance relationship of the worker;(5) Disputes arising from the employee's claim that the employer has not completed the social insurance formalities for the employee, and the social insurance agency is unable to make up for it, resulting in the employee's inability to enjoy social insurance benefits;(6) Disputes arising from the recourse of pensions, medical expenses, work-related injury insurance benefits and other social insurance benefits between the employee and the original employer who has not yet participated in the overall social insurance plan after retirement;(7) Disputes arising from work-related injuries or occupational diseases in which a worker requests the employer to grant work-related injury insurance benefits in accordance with the law;(8) Disputes arising from the employee's request for the employer to pay additional compensation in accordance with Article 85 of the Labor Contract Law;(9) Disputes arising from the independent restructuring of enterprises. ”
Article 58 of the Regulations of Guangdong Province on Work-related Injury Insurance: "If an employer underreports the wages of its employees and fails to pay the work-related injury insurance premiums in full, resulting in a decrease in the work-related injury insurance benefits enjoyed by the injured employees, the employer shall make up the difference in the work-related injury insurance benefits to the injured employees." ”
Article 62 of the Labor Contract Law of the People's Republic of China: "The employer shall fulfill the following obligations: (1) implement national labor standards and provide corresponding labor conditions and labor protection;(2) Inform the dispatched worker of the work requirements and remuneration;(3) Pay overtime pay and performance bonuses, and provide job-related benefits;(4) Provide on-the-job dispatched workers with the necessary training for their jobs;(5) In the case of continuous employment, the normal wage adjustment mechanism shall be implemented. The employer shall not re-dispatch the dispatched worker to another employer. ”
Article 62 of the Regulations on Work-related Injury Insurance: "If an employer fails to participate in work-related injury insurance in accordance with the provisions of these Regulations, the social insurance administrative department shall order it to participate within a time limit, pay the work-related injury insurance premiums that should be paid, and impose a late fee of 5/10,000 per day from the date of non-payment;If the payment is still not made within the time limit, a fine of not less than 1 time but not more than 3 times the amount of the outstanding payment shall be imposed. If an employee of an employer who is required to participate in work-related injury insurance in accordance with the provisions of these Regulations but does not participate in work-related injury insurance suffers a work-related injury, the employer shall pay the expenses in accordance with the work-related injury insurance benefits and standards stipulated in these Regulations. After the employer participates in the work-related injury insurance and pays the work-related injury insurance premiums and late fees that should be paid, the work-related injury insurance** and the employer shall pay the newly incurred expenses in accordance with the provisions of these Regulations. ”
Article 63 of the Social Insurance Law of the People's Republic of China: "If an employer fails to pay social insurance premiums on time and in full, the social insurance premium collection agency shall order it to pay or make up the amount within a time limit." If the employer fails to pay or make up the social insurance premiums within the time limit, the social insurance premium collection agency may inquire about its deposit account with banks and other financial institutionsThey may also apply to the relevant administrative departments at or above the county level to make a decision on the allocation of social insurance premiums, and notify their opening banks or other financial institutions in writing to allocate social insurance premiums. If the balance of the employer's account is less than the social insurance premiums to be paid, the social insurance premium collection agency may require the employer to provide a guarantee and sign an agreement on deferred payment. If the employer fails to pay the social insurance premiums in full and fails to provide a guarantee, the social insurance premium collection agency may apply to the people's court to seize, seal up or auction the property whose value is equivalent to the social insurance premiums to be paid, and use the auction proceeds to offset the social insurance premiums. ”
Article 13 of the Interim Regulations on the Collection and Payment of Social Insurance Premiums: "If the paying unit fails to pay and withhold social insurance premiums in accordance with the regulations, the labor and social security administrative department or the taxation authority shall order it to pay within a time limit;If the payment is still not made within the time limit, in addition to the amount of outstanding payment, a late fee of 2 per day will be charged from the date of non-payment. Late fees are incorporated into social insurance**.
The Reply of the Research Office of the Supreme People's Court on the Application of Law in the Case of a Labor Dispute between Wang and a Company for Retrial: "In principle, I agree with the first opinion of the adjudication committee of your court, that is, according to the relevant provisions of the Labor Law of the People's Republic of China and the Interim Regulations on the Collection and Payment of Social Insurance Premiums, the collection and payment of social insurance premiums is the statutory duty of the social insurance premium collection department, and does not fall within the scope of civil cases accepted by the people's courts. In addition, it is suggested that your court may issue a judicial recommendation to the relevant social insurance premium collection department in connection with this case, suggesting that it strengthen investigation and research on the current dispute between the employer and the employee over the collection of insurance premiums, properly handle similar issues, and protect the legitimate rights and interests of the relevant parties in accordance with the law. This is the case. ”
Case Analysis: The main focus of the dispute in this case is whether the dispute arising from the payment of social insurance base falls within the scope of acceptance of labor dispute cases
In view of the focus of the dispute in this case, the elite company believes that: 1As an employer, the elite company has fulfilled its obligation to pay social insurance (including work-related injury insurance) in accordance with the law, and the one-time disability subsidy is not an expense item that should be borne or paid by the employer. According to the Regulations on Work-related Injury Insurance, the one-time disability subsidy and one-time medical subsidy shall be paid by the work-related injury insurance**, and the employer has no obligation to pay. 2.According to Article 63 of the Social Insurance Law of the People's Republic of China, Article 13 of the Interim Regulations on the Collection and Payment of Social Insurance Premiums, and the Reply of the Research Office of the Supreme People's Court to the Issues Concerning the Application of Law in the Case of a Labor Dispute between Wang and a Company for Retrial, the collection and payment of social insurance premiums is the statutory duty of the social insurance premium collection department, and the dispute over the social insurance payment base does not fall within the scope of civil cases accepted by the people's courts. If an employee requests the employer to pay the difference in social insurance benefits due to the employer's failure to pay social insurance premiums in full, resulting in a decrease in the social insurance benefits he or she enjoys in accordance with the law, he or she shall report to the social insurance premium collection agency for handling and should not be accepted as a labor dispute case.
Long believes that the elite company did not declare the work-related injury insurance according to his actual salary, which led to an error in the calculation of the amount of work-related injury benefits by the handling agency, which reduced his legitimate rights and interests, and the above-mentioned behavior of the elite company caused me to not receive the work-related injury insurance benefits that I should have received in full, and the difference should be made up by the elite company.
The court held that this case was a dispute arising from the employer's failure to pay the work-related injury insurance premiums in full, resulting in the work-related injury insurance benefits enjoyed by Long in accordance with the law being lower than the amount stipulated in the "Work-related Injury Insurance Regulations", and then requiring the employer to compensate for the losses, and the losses could no longer be remedied through administrative channels. In accordance with Article 1, Paragraph 5 of the Interpretation (1) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases, Long's request for the employer to make up the difference in work-related injury insurance benefits falls within the scope of civil litigation heard by the people's court. In accordance with the provisions of Article 62, Paragraph 2 of the Regulations on Work-related Injury Insurance, although the elite company purchased work-related injury insurance for Long, it did not purchase it in full, resulting in Long's failure to enjoy the work-related injury insurance benefits in full, and the difference was based on the fact that the elite company purchased work-related injury insurance for Long.
Failure to purchase in accordance with Long's actual salary standard should be made up by an elite company.
In the end, the court found that the elite company needed to pay Long the difference in compensation for various work-related injury insurance benefits.
The author of this article: Li Jianhui, lawyer, Guangdong Weifa Law Firm.