21/12/2022 16:00

Vietnam: What should you do when the company does not pay social insurance but it is still deducted from your monthly salary?

Vietnam: What should you do when the company does not pay social insurance but it is still deducted from your monthly salary?

Currently, most businesses in Vietnam pay compulsory social insurance monthly for their employees. However, there are also many businesses that have not taken this issue seriously for a number of objective reasons, such as: The company does business at a loss, has no profit, and... directly affects the rights and interests of employees. In this case, what should the employee do?

For example, in Judgment 07/2017/LD-ST dated September 6, 2017 on social insurance disputes by the People's Court of Di An town, Binh Duong province, for a first-instance trial:

The plaintiff joined P Company Ltd. (hereinafter referred to as "P company" for short) on February 2, 2012, with the position of a worker at the Thanh Pham factory. Working place: T quarter, C ward, D town, province B. The plaintiff was signed to an unidentified labor contract by the company. From January 2016 to August 2016, the basic salary of the plaintiff was 3,825,000 VND; in addition, there were allowances such as accommodation, work performance,...
In September 2016, the plaintiff resigned from the company. During the time the plaintiff works under the labor contract, company P still deducts the plaintiff's salary every month to participate in compulsory insurance. However, in fact, the company only made deductions and payments of social insurance premiums in town D and province B until May 2016, and from June 2016 to August 2016, the company did not pay the social insurance premiums yet. Company P has not yet returned the social insurance book to the plaintiff or confirmed the insurance participation from the time the plaintiff started working until the time he quit.

Now, the plaintiff sues to request that Company P continue paying social insurance premiums for the plaintiff from June 2016 to August 2016 in accordance with the law and return the social insurance book to the claimant, confirming the insurance participation from the time the plaintiff starts working until the time he quits.

According to the provisions of articles 19 and 21 of the Law on Social Insurance 2014 as follows:

Article 19. Responsibilities of employees

1. To pay social insurance premiums in accordance with this Law.

2. To comply with regulations on making of social insurance dossiers.

3. To preserve social insurance books.

Article 21. Responsibilities of employers

1. To make dossiers for employees to be granted social insurance books, pay social insurance premiums and enjoy social insurance.

2. To pay social insurance premiums under Article 86, and make monthly deductions from employees’ salaries under Clause 1, Article 85, of this Law for simultaneous payment to the social insurance fund.

3. To introduce employees defined at Point a, Clause 1, in Clause 2, Article 45, or in Article 55, of this Law to the Medical Assessment Council for assessment of their working capacity decrease.

4. To coordinate with social insurance agencies in paying social insurance allowances to employees.

5. To coordinate with social insurance agencies in returning social insurance books to and certifying periods of social insurance premium payment for employees who terminate labor contracts or working contracts or cease working in accordance with law.

6. To provide accurate, sufficient and prompt information and documents relating to the payment of social insurance premiums and enjoyment of social insurance at the request of competent state management agencies or social insurance agencies.

7. Every 6 months, to post up information on the payment of social insurance premiums for employees; to provide information on employees’ payment of social insurance premiums at the request of employees or trade union organizations.

8. Annually, to post up information on employees’ payment of social insurance premiums provided by social insurance agencies under Clause 7, Article 23 of this Law.

In addition, according to the provisions of Clause 3, Article 18 of Decree No. 115/2015/ND-CP dated 11/11/2015 of the Government detailing a number of articles of the Law on Social Insurance on compulsory social insurance, "the employer must fully pay social insurance, unemployment insurance, and insurance late-payment interest for an employee meeting requirements for social insurance claim or terminating labor contract to settle social insurance and unemployment insurance for the employee."

Therefore, the company's failure to pay the compulsory insurance payments to the plaintiff is not fulfilling the employer's responsibilities specified in Clause 2, Article 21 of the Law on Social Insurance and is a prohibited act under the provisions defined in Clause 1, Article 17 of the Law on Social Insurance in 2014: "Avoid paying compulsory social insurance and unemployment insurance," which resulted in the claimant not being confirmed by the competent social insurance agency from the time the claimant started working until the time he quit. The plaintiff's lawsuit claim is grounded in accordance with the law and information from the Social Insurance agency.

To ensure the rights of employees in this case, the following can be done:

First, if the old company has difficulties in production and business and still owes social insurance money from many other employees, the employee can request the company to pay the social insurance, unemployment insurance, health insurance in advance and the late payment interest arising for themselves until the time of leaving to close the social insurance book. If approved by the social insurance agency of the district where the company pays monthly insurance, the employee can close the social insurance book.

 

Second, if the old company is really not able to pay the social insurance agency and so as not to affect the process of joining and closing the book at the company later, the employees can declare their social insurance book number to the company so that the company can register for social insurance for you. And when the old company closes the social insurance book, the employee can take the book and submit it to the new company.

Social insurance is considered as one of the main pillars in the social security system of a country today. Therefore, each employee needs to learn and update accurate information in this insurance field to protect his or her own rights and responsibilities.

Thanh Ngan
555


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