Employees voluntarily abandon the purchase of social security. Can they ask for economic compensation if they are resigned?

Legal knowledge points: Paying social security in accordance with the law is the legal obligation of employers and workers. Most of the social security is paid by employers and workers in accordance with their respective proportion. However, in practice, in order to reduce the cost of employment, many employers signed a written agreement with the workers when the workers joined the job. Will also be willing to sign this kind of abandonment purchase agreement.

The similar "voluntary abandonment of the purchase of social security agreements" signed by the employer and the workers is definitely invalid, which is beyond doubt.

However, if the two parties voluntarily signed such a similar "abandonment of the purchase of social security agreements", whether the worker can still use the provisions of Article 38 of the Labor Contract Law of the People's Republic of China, " "Social insurance" proposed to resign and request payment for economic compensation?

Because paying social insurance is an important rights and interests of workers and the legal obligations of both parties. If social security is not paid in accordance with the law, it will cause serious violations of the rights and interests of the workers. Resign and ask for compensation. However, can the workers still resign and ask for economic compensation for such parties who voluntarily abandon their purchase of social security?

In this regard, Xiaobian checked many similar cases in different regions, and found that the judicial jurisprudence in various places has its own local guidance. For the same fact, the judgment in each place is different, and even the differences are even different. bigger. According to the judgment results generated by different guidelines in various places, I summarized it. This guidance can be divided into three categories:

First, affirmative opinions. The voluntary abandonment of social security agreements signed by the employer and the workers is invalid. Workers can still submit a resignation in accordance with the provisions of Article 38 of the Labor Contract Law of the People's Republic of China and ask the employer to pay economic compensation. The guidance of species represents the judgment views of most regions, which is not good for the unit.

Second, negative opinions. The voluntary abandonment of social security agreements signed by the employer and the workers is invalid, and the workers can no longer propose a resignation in accordance with the provisions of Article 38 of the Labor Contract Law of the People's Republic of China and ask the employer to pay economic compensation. Opinions are not good for workers.

Third, the opinions of folding. The voluntary abandonment of social security agreement signed by the employer and the workers is invalid. Workers can filed a resignation in accordance with the provisions of Article 38 of the Labor Contract Law of the People's Republic of China and requested the employer to pay economic compensation, but there are conditions for conditions, but there are conditions for conditions, but there are conditions for conditions, but there are conditions for conditions, but there are conditions for conditions, but there are conditions for conditions, but there are conditions for conditions, but there are conditions for conditions, but conditions are conditions. Restrictions, that is, workers are required to request employers to pay social security for workers within a certain period of time. If the employer does not pay for the workers within a certain period of time, the workers can resign and ask for economic compensation. For example, the guidance of some areas stipulates that if the employer signed a voluntary abandonment of the social security agreement with the workers, the worker needs to make a request to buy to the unit. Forced resignation and require economic compensation.

Judging from the three points above, the first two points of opinion are just the opposite, representing two extremes, and the third point of view is used to use the view. Because different judgments have been adopted in various places, if you have a similar situation, you should try to find the local judgment views of similar cases in order to better claim your litigation request. In order to better illustrate relevant legal issues, the editor now shares a practical case involving the legal issue for everyone to read.

Brief introduction of the case: Chen Mouhui complained that Chen Mouhui joined the property company on February 15, 2014. The position is security guards. After joining the job, he has not signed a labor contract or a social security for me. I paid overtime, Chen Mouhui filed a resignation and later applied for labor arbitration, but Chen Mouhui was dissatisfied with the results of the arbitration.

At present, Chen Mouhui appealed to the court to request a decision: the property company paid Chen Mouhui from February 15, 2014 to November 30, 2016, 38,480 yuan; paying 10,200 yuan in compensation for labor relationship economy; payment of 2014 The annual leave salary of 2016 was 5,850 yuan; the high temperature subsidy of 1,800 yuan from 2014 to 2016 was paid. The property company argued that the property company recognized the content and ruling opinion of the arbitration award review and requested to reject Chen Mouhui's unreasonable request.

Judgment: The court believes that Chen Mouhui joined the property company to work, and the two sides established a legal labor relationship. The legitimate rights and interests of the two parties were protected by law.

When the original property company confirmed that Chen Mouhui's salary was re -employed on February 16, 2014, the monthly salary was 2900 yuan/month, and its salary was adjusted to 3200 yuan/month in May 2015. Adjust to 3400 yuan/month.

About overtime pay. After calculating the property company, Chen Mouhui should pay Chen Mouhui from February 22, 2016 to November 30, 2016. The overtime paid was 6730.38 yuan (5684.6 yuan+1045.78 yuan).

Regarding the economic compensation of labor relations. When Chen Mouhui joined the employment, he applied to the property company for not buying social insurance on his personal reasons, but he did not require the property company to participate in social insurance during his work. Now Chen Mouhui has not participated in social insurance for him to participate in social insurance. For resignation and requiring the property company to pay the economic compensation of the relief relationship, the court has no basis, and the court does not support it. About annual leave salary. Chen Mouhui applied to the Arbitration Commission for labor arbitration on February 21, 2017, requiring the property company to pay the annual leave salary before February 21, 2016, which has been eclipsed for one year. The court did not support the annual vacation salary before the 21st. According to Article 3 of the "Regulations on Employees Paying the Year of Payment" and Article 12 of the "Relative Measures for Employees of Employees", Chen Mouhui can enjoy from February 22, 2016 to November 30, 2016 3 days of paid annual leave. The property company did not arrange Chen Mouhui's annual vacation in 2016, and supported Chen Mouhui's annual vacation salary court. %).

About high temperature fees. Chen Mouhui usually works in the security pavilion. It is mainly responsible for security and guarding the door. It does not meet the open -air operations or high -temperature operators stipulated in Article 13 The court does not support the request of high temperature fees.

Results of the judgment: 1. The defendant property service Co., Ltd. paid the plaintiff Chen Mouhui from February 22, 2016 to November 30, 2016 within ten days of the judgment. During the 10th day of the day, Chen Mouhui Liu Dangshun's paid annual leave salary was 937.93 yuan from February 22, 2016 to November 30, 2016.

Lawyer comments: From the perspective of the judgment of this case, the plaintiff Liu Mouhui voluntarily did not buy social security after his employment, so he resigned on the grounds that the defendant's property company did not pay social security and asked for economic compensation to obtain the court that the court failed to get the court. Support, so the court used in this case was negative opinions in the above three opinions. This opinion was not good for workers, so the lawsuit requesting the payment of economic compensation was not supported.

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