The payment of social insurance (social insurance) is the basis for employees to enjoy a pension. Thanks to this money, workers will have a stable income to take care of their old age. So, does the company have to pay insurance for elderly employees? The content of the following article of Lawyer X will answer the above question for you. Hope this article brings many useful things to you.
Legal grounds
Law on Social Insurance 2014
Labor Code 2019
Who is considered an elderly worker?
Clause 1, Article 148 of the Labor Code (Labour Code) 2019 defines elderly employees as follows:
1. Elderly employee means a person who continues to work after the age specified in Clause 2, Article 169 of this Code.
Accordingly, elderly employees are understood as those who continue to work after retirement age under normal conditions.
The retirement age of employees under the new Labor Code will no longer be fixed as before, at 55 years old for women and 60 years old for men. Instead, the retirement age of employees under normal conditions will be gradually increased according to the roadmap to be full 60 years old for women in 2035 and full 62 years old for men in 2035.
Specifically, in 2021, the retirement age of employees under normal conditions is full 60 years and 3 months for men and 55 years and 4 months for women. After that, each year increases by 03 months for men and 04 months for women.
What type of labor contract can be signed with elderly employees?
Pursuant to Clause 1, Article 20 of the 2019 Labor Code, there are two types of labor contracts that the parties can choose from:
– Labor contract with an indefinite term
– Fixed-term labor contract (not exceeding 36 months).
In which, standard cases, only two definite-term labor contracts can be signed. If you want to continue using the employee, then you must sign an indefinite-term labor contract.
Does the business have to pay insurance for elderly employees?
However, Clause 1, Article 149 of the Labor Code 2019 clearly states:
1. When employing elderly employees, the two parties may agree to enter into multiple definite-term labor contracts.
Thus, when employing elderly employees, the employer can agree to sign multiple definite-term labor contracts or indefinite-term labor contracts depending on the parties’ needs.
Does the business have to pay insurance for elderly employees?
As analyzed above, in 2021, male employees must be at least 60 years old and three months old to reach retirement age. Therefore, employing male employees who have not reached the retirement age to work under a labor contract with a term of 1 month, the enterprise must pay compulsory social insurance (based on Clause 1, Article 2 of the Law on Social Insurance 2014).
Therefore, if the employee has reached the retirement age and continues to work, depending on the case, the employer may pay compulsory social insurance premiums.
Case 1: The employee is on pension
Employees who meet the same age and number of years of payment of social insurance will receive a monthly pension.
On the other hand, according to the provisions of Clause 2, Article 149 of the Labor Code 2019, an employee who is on pension but works under a new labor contract, in addition to the retirement regime, the employee is also entitled to a salary and other rights. other benefits according to the law and labor contract.
At the same time, Clause 9, Article 123 of the Law on Social Insurance 2014 also states:
Persons enjoying pensions, social insurance allowances or monthly allowances who are entering into labor contracts are not eligible to participate in compulsory social insurance.
From the above bases, it can be seen that, when using employees who are enjoying monthly pension, enterprises will not have to pay compulsory social insurance.
Case 2: The employee has not yet received the pension
According to the provisions of Clause 1, Article 2 of the Law on Social Insurance 2014; an employee who signs a labor contract with a term of a full 1 month is eligible to participate in compulsory social insurance. At the same time, this Law also limits pensioners who are not subject to compulsory social insurance.
Therefore, employees who are over working age but have not yet received a pension but continue to work under a labor contract for a full 1 month will still be paid compulsory social insurance by the employer.
People over 60 years old can pay for voluntary social insurance to enjoy a pension?
Pursuant to Clause 4, Article 2 of the 2014 Law on Social Insurance, participants of voluntary social insurance are Vietnamese citizens aged full 15 years or older and are not subject to participation in compulsory social insurance.
Accordingly, people over 60 years old who are not subject to compulsory social insurance can fully pay voluntary social insurance to enjoy pension.
Article 9 of Decree 134/2015/ND-CP lists 06 methods of voluntary social insurance payment that participants can choose from:
1 – Monthly payment;
2 – Pay every 3 months;
3 – Pay every 6 months;
4 – Pay every 12 months;
5 – One-time payment for many years to come, but not more than once every five years;
6 – One-off payment for the missing years for those who have reached the pension age but the missing payment period does not exceed 10 years.
Can elderly workers be required to work overtime?
The Labor Code of 2019 has no regulations restricting the use of elderly employees to work overtime. However, when employing these people to work overtime; the employer also needs to meet the conditions in Clause 2, Article 107 of the Labor Code 2019:
– Must have the consent of the employee;
– Ensure that overtime hours do not exceed 50% of normal working hours in a day; In the case of weekly working hours, the total number of normal working hours and overtime hours shall not exceed 12 hours/day; no more than 40 hours/month;
– Ensure that the number of overtime hours of employees does not exceed 200 hours/year for normal work, no more than 300 hours/year for some jobs such as: Manufacturing, processing and exporting textiles; garments, and electronics ; production and supply of electricity and telecommunications; water supply and drainage….
Thus, the employer allowed to use the elderly employee to work overtime if that person agrees, and at the same time must ensure the conditions on the number of overtime hours.
Related article:
- The term of the labor contract is in accordance with Vietnamese law
- In Vietnam, can public employees establish a business?
Frequently asked questions:
Currently, the contents related to the social insurance regime are prescribed in the 2014 Law on Social Insurance and its guiding documents. In Clause 1, Article 3 of the Law on Social Insurance 2014, social insurance is defined as follows:
1. Social insurance is a guarantee to replace or partially compensate an employee’s income when his/her income is reduced or lost due to illness, maternity, occupational accident, occupational disease, or end of working age. work or die, on the basis of contributions to the social insurance fund
According to Article 4 of the 2014 Law on Social Insurance, specifically, the regimes within the scope of which social insurance is in charge include:
1. Compulsory social insurance has the following regimes:
a) Sickness;
b) Maternity;
c) Occupational accidents and diseases;
d) Retirement;
d) Mortality.
2. Voluntary social insurance has the following regimes:
a) Retirement;
b) Mortality.
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