As a worker, you can retire and receive a pension to live out your old age when you reach a certain age. However, there are also many situations, such as as China has begun to enter an aging society, more and more retirees enter the job market, through re-employment, re-entrepreneurship, etc., workers have reached the retirement age and are still working. So, can the employment relationship be recognized if the employee exceeds the statutory retirement age?
Retirement refers to a legal act in which an employee withdraws from the field of occupational labor in accordance with the provisions of laws and regulations and enjoys the corresponding retirement benefits in accordance with the law, as well as the factual state caused by such legal acts, when the statutory retirement requirements are met. China implements a statutory retirement system and a compulsory retirement system, that is, after reaching the statutory retirement age, it is necessary to end the ongoing labor relations and go through retirement procedures.
Article 21 of the Regulations for the Implementation of the Labor Contract Law stipulates that the employment contract shall be terminated when the employee reaches the statutory retirement age. Paragraph 2 of Article 44 of the Labor Contract Law stipulates that the labor contract shall be terminated if the employee begins to enjoy basic pension insurance benefits in accordance with the law.
Although China's law does not prohibit the re-employment of those who have retired or retired from enjoying basic pension insurance benefits, such personnel are no longer workers in the sense of the labor law. Article 13 of the Circular of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System stipulates that when a retiree who has already enjoyed pension insurance benefits is re-employed, the employer shall sign a written agreement with the employee to clarify the rights and obligations such as work content, remuneration, medical treatment and labor insurance benefits during the employment period.
At the same time, Article 32 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases and Article 7 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases stipulate that if an employer files a lawsuit in the event of an employment dispute with an employee who has been entitled to pension insurance benefits or received a pension in accordance with the law, the people's court shall handle it in accordance with the employment relationship. Where an enterprise has a person on leave without pay, a retired employee who has not reached the statutory retirement age, a laid-off employee who is waiting for work, and an employee who is on a long leave of absence for the purpose of an enterprise's operational suspension of production, and initiates a lawsuit due to an employment dispute with the new employer, the people's court shall handle it in accordance with the labor relationship.
It can be seen that post-retirement work is not an employment relationship. The relationship between the retiree and his employer is handled as a labor relationship, and the employment contract signed with the employer is not a labor contract, but a labor contract that stipulates the work content, remuneration, medical treatment and other benefits during the employment period.
Theoretically speaking, for those who enjoy retirement benefits after reaching retirement age, there is a living guarantee, and there is no need to provide them with double social insurance barriers. Therefore, in the judiciary, they should be deemed not to have the qualifications of employees and cannot establish an employment relationship with the employer.
It should be noted that if a retiree is rehired by the employer or re-employed by another company, the minimum wage standard is no longer applicable, and his labor remuneration is determined by both parties through negotiation. If a retiree is reemployed and injured at work, he or she generally cannot be treated as a work-related injury, unless there are special provisions, but the company may be required to compensate in accordance with the standard of civil compensation. At the same time, none of the existing laws and regulations stipulate that if an employee reaches the statutory retirement age to terminate the employment contract, the employer shall pay economic compensation. The employer is not required to pay economic compensation if the employer terminates the employment relationship with the retiree.
In addition to reaching the retirement age, there are also requirements for the length of service and the minimum number of years of social pension insurance contributions, and the relevant retirement procedures need to be processed. Therefore, in practice, there are cases where workers have reached the statutory retirement age but are unable to enjoy pension insurance benefits or receive retirement pensions. Therefore, it is first necessary to clarify that the concept of a person who has reached the statutory retirement age and a retiree are two different concepts. Merely reaching the statutory retirement age does not necessarily mean that a retiree is a retiree. Only those who have reached the statutory retirement age and have begun to enjoy pension insurance benefits or receive a pension are considered retirees.
SoCan a person who has reached retirement age and is not entitled to pension insurance benefits or receive a pension be recognized as an employment relationship with the employer?Or can an employer establish an employment relationship when it recruits employees who have reached retirement age and are not entitled to pension insurance benefits or receive retirement pensions?According to the provisions of the Labor Law, the employment of personnel only needs to be at least 16 years old at the time of recruitment, and it does not say that the employer cannot recruit personnel who have exceeded the retirement age, and the employee has not begun to enjoy the benefits of pension insurance or receive a retirement pension, which does not meet the criteria for determining the employment relationship stipulated in the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases, and thus determines that it is an employment relationship. According to Article 21 of the Regulations for the Implementation of the Labor Contract Law, if an employee reaches the statutory retirement age, the labor contract shall be terminated and recognized as an employment relationship. At present, there is no unified view, and it needs to be determined based on the guiding cases or precedents of the high courts in various regions.
Extended reading: In the Reply of the Administrative Trial Division of the Supreme People's Court on the Question of Whether an Employment Relationship Is Formed between a Retiree and His Current Employer and Whether the Regulations on Work-related Injury Insurance Applies to Injuries Injured During Working Hours, "According to Articles 2 and 61 of the Regulations on Work-related Injury Insurance, if a retiree is employed by his current employer, and the current employer has paid work-related injury insurance premiums for him, and if he is injured by an accident at work during his employment, the relevant provisions of the Work-related Injury Insurance Regulations shall apply."
The Administrative Tribunal of the Supreme People's Court's Reply to the Request for Instructions on Whether the Regulations on Work-related Injury Insurance Should Be Applied to Migrant Workers and Peasants Who Have Exceeded the Statutory Retirement Age for Work. The content of the reply to the Shandong court is: The "Request for Instructions on Whether the Regulations on Work-related Injury Insurance Applicable to the Injuries of Migrant Workers and Farmers Who Exceed the Statutory Retirement Age" submitted by your court has been received. After research, we agree in principle with the inclined opinion of your hospital. That is, if a migrant farmer hired by an employer who exceeds the statutory retirement age is employed during working hours and due to work-related reasons, the relevant provisions of the Regulations on Work-related Injury Insurance shall be applied to determine the work-related injury.