Author: Cliff Jiangsu Yun Law Firm lawyer Zhang Jihong
Abstract: Article 32 of the Regulations on Salary Payment in Jiangsu Province stipulates that the employer shall pay the sick person's sick pay, sickness relief and living expenses in accordance with 80% of the local minimum wage. Social insurance premiums and housing provident fund paid by individuals; after the implementation of the regulations, the Jiangsu Provincial Labor and Social Security Department issued the "Notice on Adjusting the Minimum Wage Standards in Jiangsu Province" (Su Lao Social Salary [2005] No. 20), "On the adjusted The Implementation Opinions on the Minimum Wage Standards on Specific Issues (Sulau Society Salary [2005] No. 21), indicating that the employer pays wages at 80% of the minimum wage according to Article 32 of the Regulations on Salary Payment in Jiangsu Province. The unit only needs to bear the housing accumulation fund that the laborer has paid down. Therefore, according to the opinions of the Provincial People's Social Security Office, the personal self-care part of the social insurance expenses and the individual payment part exceeding the lower limit of the housing accumulation fund are allowed to be deducted from the salary. The conflict between the two regulations should be effectively resolved by the legislative branch.
Keywords: minimum wage standard sick leave wage social insurance premium housing accumulation fund
In order to safeguard the legitimate rights and interests of laborers to obtain labor remuneration and protect the basic living of individual workers and their family members, the Labor Law of the People's Republic of China, enacted in 1995, stipulates that the state implements a minimum wage guarantee system. In order to implement and better implement the minimum wage guarantee system, various localities have issued relevant regulations on minimum wages. The Minimum Wage Regulations (hereinafter referred to as “regulations”) formulated by the Ministry of Labor and Social Security will be implemented on March 1, 2004. This regulation stipulates the concept of the minimum wage, the scope of application, the factors that should be considered when determining and adjusting the minimum wage, the establishment of the minimum wage standard, and the adjustment of the program department. The minimum wage guarantee system plays a positive role in promoting the development of the labor market, promoting the legalization of wage management and wage payment, strengthening the macro-control of wages and incomes of enterprises, preventing some enterprises from excessively lowering wages of employees and protecting the legitimate rights and interests of workers. At the same time, however, there are many drawbacks due to the conflict between the standards and regulations implemented by various departments.
I. Briefing on the establishment, examination and approval of minimum wage standards and procedures
The determination of the minimum wage standard implements the principle of democratic consultation between the government, trade unions and enterprises. Article 48 of the Labor Law stipulates that the specific standards for minimum wages shall be prescribed by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government and reported to the State Council for the record. The "Minimum Wage Regulations" further clarifies that the plan for determining and adjusting the minimum wage standard shall be studied and formulated by the labor security administrative department of the people's government of the province, autonomous region or municipality directly under the Central Government, and the trade unions, enterprise associations/entrepreneur associations at the same level, and the proposed plan shall be reported. Send it to the Ministry of Labor and Social Security. After receiving the plan, the Ministry of Labor and Social Security shall seek the opinions of the National Federation of Trade Unions and the China Enterprise Confederation/Entrepreneur Association. The Ministry of Labor and Social Security may propose amendments to the plan. The labor security administrative department of a province, autonomous region or municipality directly under the Central Government shall submit the minimum wage standard plan of the region to the people's government of the province, autonomous region or municipality directly under the Central Government for approval, and publish it in the local government bulletin and at least one regional newspaper within 7 days after approval. The labor security administrative department of a province, autonomous region or municipality directly under the Central Government shall report the minimum wage standard to the Ministry of Labor and Social Security within 10 days after publication. Summarized from the above provisions, the steps for the establishment of the minimum wage standard are:
The local labor security administrative department drafts a plan - submits it to the Ministry of Labor and Social Security for consultation, approval, and submits it to the people's government at the same level for approval - public release to the public - to the Ministry of Human Resources and Social Security for the record.
Second, determine the main factors of the minimum wage standard
The minimum wage standard refers to the minimum labor remuneration payable by the employer in accordance with the law on the premise that the laborer provides normal labor within the statutory working hours or the working hours stipulated in the labor contract signed according to law. Therefore, the determination and adjustment of the monthly minimum wage standard is mainly based on the minimum living expenses of local workers and their dependents, the urban consumer price index, the social insurance premiums paid by individual employees, the housing accumulation fund, the average wage of employees, labor productivity, and employment. Comprehensive assessment of factors such as status, economic development level, employment status, and labor cost tolerance of enterprises.
3. Article 32 of the Regulations on the Payment of Wages in Jiangsu Province stipulates conflicts with the regulations of the provincial social security department
In 1995, Jiangsu Province implemented the Interim Provisions on Minimum Wage of Enterprises in Jiangsu Province, which stipulated the principles for determining the minimum wage standard, the procedures for formulation, and the competent authorities.
In 2003, when Jiangsu Province announced the minimum wage standard, it was clear that when the enterprise implemented the minimum wage standard, the minimum amount of social insurance contributions paid by the laborer was borne by the enterprise, and the accumulation fund for the individual payment of the laborer was not clear.
In 2004, when Jiangsu Province announced the minimum wage standard, it was clear that the minimum wage standard does not include the minimum social insurance premium and housing accumulation fund paid by the individual worker according to law. When the employer uses the minimum wage as the payment standard, it should pay separately and pay the labor to the relevant institution. The minimum social insurance premium and housing provident fund paid by individuals.
The "Regulations on Wages Payment in Jiangsu Province", which was implemented on January 1, 2005, further implemented the minimum wage guarantee system, and stipulated that workers' sick pay and sickness relief fees, employers should not stop work due to labor reasons, stop production, and go out of business for more than one wage. The living expenses after the payment period must not be less than 80% of the minimum wage. Article 32 of the Regulations on Salary Payment in Jiangsu Province stipulates that if an employer pays 80% of the local minimum wage to the sick person’s sick pay, sickness relief and living expenses, it must be undertaken by the employee at the same time. Social insurance premiums and housing provident funds paid. The Department's regulations correspond to the minimum wage standards previously announced by the provincial social security department, but the exclusion of the provisions is also the cause of the subsequent conflict.
On October 14, 2005, the “Notice on Adjusting the Minimum Wage Standard for Jiangsu Province” promulgated by the Labor and Social Security Department of Jiangsu Province (Sulau Society Salary [2005] No. 20) stipulated that the adjusted minimum wage standard in the province includes laborers. The social insurance premium paid by an individual according to law, but does not include the individual's contribution to the minimum housing provident fund. That is to say, if the employer uses the minimum wage as the standard for paying wages to the workers, the social insurance expenses of the individual part shall be borne by the laborer, and the housing provident fund for the minimum amount of the individual's contribution shall be borne by the employer.
Subsequently, on October 26, 2005, the Labor and Social Security Department of Jiangsu Province issued the “Implementation Opinions on the Adjusted Minimum Wage Standards on Specific Issues” (Su Laoshe Salary [2005] No. 21), which was revised and announced by our province this year. The minimum wage standard includes social insurance premiums paid by laborers according to law. When the employer implements Article 32 of the Regulations on Salary Payment in Jiangsu Province: “According to 80% of the local minimum wage, it shall be paid to the employee’s sick pay, sickness benefit and living expenses, and must be paid by the employee at the same time. The social insurance premiums and housing provident fund." The provisions should be linked to the province's minimum wage regulations, in accordance with the "Notice on Adjusting the Minimum Wage Standards in Jiangsu Province" (Sulau Society Salary [2005] No. 20), That is to say: if the employer pays 80% of the local minimum wage to the sick person's sick pay, sickness relief and living expenses, it only needs to pay the housing reserve fund of the minimum amount of personal payment that the employee should bear.
At this point, in Article 32 of the Regulations on Wages Payment of Jiangsu Province, “the employer shall pay the sick person’s sick pay, sickness relief and living expenses in accordance with 80% of the local minimum wage. The provisions of the social insurance premiums and housing provident funds paid by individuals seem to have no applicable basis, but this is not the case, such as:
The Nanjing Intermediate People's Court made a (2016) Su 01 Minsheng 3114 civil ruling on the "Two Cases of Labor Dispute of Ge Xiumei and Nanjing Liuhe Coal Mine Machinery Co., Ltd.", and the court judge held that according to the "Jiangsu Province Wage Payment Regulations" Article 32 stipulates that, in accordance with the provisions of Articles 27 and 31 of these Regulations, the employer shall pay the sick person’s sick pay, sickness relief and living expenses in accordance with 80% of the local minimum wage. It is necessary to bear both the social insurance premium and the housing provident fund that should be paid by the individual worker. Coal mining machinery company issued the sick pay wages to Ge Xiumei at 80% of the minimum wage standard in Nanjing. At the same time, it should also bear the social insurance premium and housing accumulation fund paid by Ge Xiumei personally, and decide the difference between the sick pay and the wages.
The civil judgment of the (2015) Ning Min Zhong Zi No. 3668 "Appellant Lu Gang and Appellant Osas Energy Environmental Equipment (Nanjing) Co., Ltd. Retrieving Labor Remuneration and Compensation Disputes", even proceeded On the other hand, it is considered that “in addition to the social insurance premiums and housing accumulation fund paid by the workers, the employer should pay the workers a sick pay wage of 80% of the local minimum wage,” regardless of the employer’s standard. Workers who issue sick pay shall ensure that the wages of workers are not less than 80% of the minimum wage.
The opinions of the above two judges are not individual cases. They are the main referees of the courts in Jiangsu Province. It can be seen that the actual referee’s point of view is the provisions of Article 32 of the Regulations on Salary Payment in Jiangsu Province, which conflict with the regulations of the social security department. .
Fourth, the drawbacks of the conflict and the solution
I believe that the conflict between the provisions of Article 32 of the Regulations on Salary Payment in Jiangsu Province and the provisions of the social security department will at least bring about the following shortcomings:
First, it leads to the employer being at a loss. In the end, is the employer implemented according to the regulations of the provincial social and social departments, or is it implemented in accordance with Article 32 of the Regulations on the Payment of Wages in Jiangsu Province? If it is implemented in accordance with the regulations of the provincial social and social departments, the employer only bears the housing minimum of the laborer’s personal minimum, and the personal social insurance premium is borne by the laborer. Does it mean that the employer is facing insufficient payment of wages and the payroll difference is made up? And even pay the risk of economic compensation? If it is true that the payment standard is illegal and causes losses due to the regulations of the executive department, should the employer be able to recover the compensation from the human and social departments?
Second, the labor arbitration department has different basis from the court. The labor arbitration commission is subordinate to the human society department, and its implementation standards should generally be consistent with the social security department, while the court judgment is the "Jiangsu Province wage payment regulations", so that the two labor dispute dispute resolution agencies There will be conflicts in the opinion of the referee. On the one hand, it is not conducive to the resolution of labor disputes, on the other hand, it will also waste judicial resources.
Third, the wages of workers' sick pay are almost the same as those during normal working hours. For example, if the monthly salary standard of the laborer is 1890 yuan, it is assumed that the social security of the laborer's personal self-care part is 281 yuan per month, and the minimum housing accumulation fund is 141.6 yuan. If the minimum wage is implemented, the laborer normally goes to work. The monthly real wage should be 1890 yuan less than the social security of the laborer's personal self-care part of 281 yuan or 1609 yuan; the actual wage during the employee's sick leave is 1890 yuan multiplied by 80%, that is, 1512 yuan, the difference between the wages of work and sick leave Less than 100 yuan, is this unfair for workers who are working normally? Will it lead to a decline in the enthusiasm of workers and an increase in false sick leave?
In view of the many drawbacks caused by the above conflicts, I believe that the minimum wage standard in the Minimum Wage Regulations means that “the laborer provides normal labor under the statutory working hours or the working hours agreed in the labor contract signed according to law. The minimum labor remuneration payable by the employer according to law, and the factors of social security and provident fund have been taken into account when determining the minimum wage standard. The departments and departments of the provinces are the departments that set the minimum wage standard, and their opinions are more in line with the original intention of the legislation and more authoritative. Moreover, the notice of the Provincial People's Social Security Office is issued after the promulgation of the "Regulations on the Payment of Wages in Jiangsu Province", which should be regarded as a supplement or amendment to the provincial wage payment regulations. If the employer pays wages or living expenses at 80% of the minimum wage standard, It is only necessary to bear the housing accumulation fund that the laborer has to pay according to the limit. All units should be legally guaranteed according to this implementation. Article 32 of the Regulations on the Payment of Wages in Jiangsu Province stipulates that the original intention of the minimum wage standard has not been met. For the current conflicts between the opinions of the referee and the regulations of the human and social departments, the provincial legislative department shall pay the Regulations on Salary Payment in Jiangsu Province. Article 32 shall be amended in accordance with the law.
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