Viewpoint | Can both parties establish labor relations for new employees who have reached the legal retirement age?
Published:
2024-01-08
There has been a dispute between the theoretical and practical circles about whether the relationship between the employer and the workers who have reached the legal retirement age belongs to the labor relationship or the labor relationship. This paper will sort out the laws, regulations and local courts point of view, and put forward corresponding suggestions.
There has been a dispute between the theoretical and practical circles about whether the relationship between the employer and the workers who have reached the legal retirement age belongs to the labor relationship or the labor relationship. In practice, if the situation is identified as a labor relationship, the employer must strictly abide by the labor laws and regulations, which will increase the employer's employment risk and employment cost. This paper will sort out the laws, regulations and local courts point of view, and put forward corresponding suggestions.
Relevant laws and regulations:
Article 44 of the the People's Republic of China Labor Contract Law (2012 Amendment) shall be terminated under any of the following circumstances:
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(II) workers begin to enjoy basic old-age insurance benefits in accordance with the law;
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Other circumstances as prescribed by (VI) laws and administrative regulations.
Article 21 of the regulations on the implementation of the the People's Republic of China Labor contract Law, if the laborer reaches the legal retirement age, the labor contract shall be terminated.
In response to the above provisions, according to the "Labor Contract Law", we should first pay attention to whether workers enjoy basic pension insurance benefits. However, according to the "Implementation Regulations of the Labor Contract Law", when a worker reaches the legal retirement age, he can no longer establish a labor relationship with the employer. This judgment standard does not depend on whether the worker enjoys basic pension insurance benefits.
In response to the above controversy, the Supreme Court made a corresponding response. Article 32 of the (I) of Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases stipulates that if an employer and its recruited personnel who have enjoyed pension insurance benefits or received pensions in accordance with the law and file a lawsuit, the people The court shall deal with it as a labor relationship.
The Supreme Court believes that whether a relationship can be established should be judged by whether the worker enjoys old-age insurance benefits or receives a pension.
In practice, there are also different views on this situation.
Point 1: The conditions of "reaching the legal retirement age" and "enjoying pension insurance benefits or receiving pension" can be met.
The Guangdong High Court insists on this view. According to Article 16 of the "Several Opinions of the Guangdong Higher People's Court and the Guangdong Provincial Labor and Personnel Dispute Arbitration Commission on the Connection of Labor and Personnel Dispute Arbitration and Litigation": "If a worker reaches the legal retirement age or has already enjoyed basic pension insurance benefits, the labor relationship Termination".
Jilin High Court also adhere to this view. According to the (II) of the Jilin Provincial higher people's Court on the application of law in the trial of labor dispute cases: "to form an employment relationship with a person who has reached the legal retirement age and has enjoyed old-age insurance benefits or pensions, including old-age insurance for urban and rural residents, should it be recognized as a labor relationship or a labor relationship? Employers who have already enjoyed old-age insurance benefits or pensions, including old-age insurance for urban and rural residents, shall provide labor for them and shall be treated as labor relations."
Point 2: Age is the criterion. Regardless of whether they enjoy pension insurance benefits or not, the labor relationship between the two parties will be a new employer after the worker reaches the legal retirement age.
According to the views stated in Jinan Intermediate People's Court's "Analysis of Several Issues Concerning the Application of Law in Labor Dispute Cases (Second Edition)": It needs to be emphasized that the first paragraph of Article 32 of the "Judicial Interpretation of Labor Disputes" cannot be interpreted backwards. If an employer files a lawsuit over an employment dispute with a person who has already enjoyed pension insurance benefits or received a pension according to law, the people's court shall handle it according to the labor relationship; it cannot be interpreted as an employment dispute between the employer and the person recruited by the employer who has not enjoyed the pension insurance benefits or has not received the pension in accordance with the law, and the people's court shall handle the case in accordance with the labor relationship. The relationship between the employee who does not enjoy the pension insurance benefits or does not receive the pension and the employer should be determined according to the actual situation. As mentioned earlier, when a worker reaches the legal retirement age and a new employer, the relationship between the two parties is a labor relationship, not a labor relationship.
According to the views stated in the (II) of the People's Court of Zhejiang Higher People's Court and the Zhejiang Provincial Labor and Personnel Dispute Arbitration Court on Several Questions Concerning the Trial of Labor Dispute Cases: If a worker exceeds the legal retirement age and still accepts employment from the unit, he and The employing unit constitutes a labor relationship, and the laborer claims work-related injury insurance benefits to the employing unit due to work-related injuries or occupational diseases, it will not be supported. However, if the worker has not yet enjoyed the basic old-age insurance benefits or received the pension, and the employing unit has paid the industrial injury insurance premium for him, his industrial injury insurance benefits shall be supported.
Conclusion:Local courts have different views on the criteria for determining the relationship between workers who have reached the legal retirement age and employers. Therefore, when dealing with such problems, employers should not only rely on a single law or case as the basis for judgment, but should fully understand and consider the local judicial practice. Through in-depth understanding and comprehensive analysis, we can more accurately grasp the spiritual essence of relevant laws and regulations, so as to better safeguard the rights and interests of themselves and workers.
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