Retirement rehiring as a special way of employment, favored by state-owned enterprises, institutions and some private enterprises, the small society in the service of consultants in the process, but also often involved in the retirement rehiring of the relevant advice. In order to help enterprises and institutions with good retirees, do a good job of human resources wind control work, now summarizes the focus of the employer's focus on the three retirement rehiring issues and answers the following for enterprises and institutions HR reference.
Question 1: Retirement rehire belongs to the labor relationship or labor relations?In this regard, the small social gentleman analysis of two reasons: First, from the definition of retirement rehiring, retirement rehiring refers to have reached or exceeded the statutory retirement age (male workers over 60 years old, female workers over 50 years old, female cadres over 55 years of age) of the personnel, through the original employer or other employers to sign rehire agreement, to provide paid labor for the employer. Second, from the current provisions, according to the "on the trial of labor disputes on the interpretation of the law applicable to a number of issues (3)" Article VII, the employer and its recruitment of people who have been entitled to pension insurance or pensioners in accordance with the law of labor disputes, to the people's court, the people's court shall be dealt with according to the relationship between labor and service.
Such as Guiyang Intermediate People's Court hearing (2018) Qian01min final 3311 case, the court to rehire personnel Huangmou although has reached the legal retirement age, but did not enjoy the pension insurance benefits or receive a pension, the rehire personnel and rehire unit is recognized as a labor relationship, so as to support rehire personnel to demand the payment of overtime pay of more than 20,000 yuan of litigation requests.
Question 2: What are the three high-frequency risk points for employers to implement retirement rehiring?Retirement as a special way of employment, such as the use of proper, will greatly drive the employer's productivity, and even play the "four two pounds" of the wonderful. On the contrary, it may increase the employer's labor costs. The three important personal information related to the employer's fulfillment of the retirement rehire contract are as follows:
(1) the retirement age information of the rehire personnel: i.e., whether the rehire personnel have reached the true legal retirement age, whether there is any misrepresentation of age, borrowing of other people's identity cards, the use of false identity cards to fulfill the rehire relationship. Such as Yichun City Yuanzhou District People's Court hearing (2019) Gan 0902 Minchu 1760 case, the employer rehired know rehired personnel borrowed his brother's identity card, but still signed an agreement with him, the final court of the employer to rehire personnel to use false identity cards as the reason for the defense of not paying wages was not supported.
(2) Retirement information: There are three main types of retirement information, i.e., whether the labor relationship between the rehired person and the original employer has been terminated, whether the original employer has paid the full amount of social security for the rehired person, and whether the rehired person has been formally retired and enjoys the pension benefits or receives a pension.
(3) the reappointment of the professional working ability information: that is, whether the reappointment of the reappointment of the employer to arrange the position of the ability to work, the employer can let the reappointment of the relevant evidence, such as the original position of the book of office, and the arrangement of the position of the relevant professional and technical or title evaluation qualification documents, reappointment of the reappointment of personnel in the original employer to receive labor compensation information. The company's main goal is to ensure that the company is able to meet the needs of its employees and to ensure that the company is able to meet the needs of its employees and to ensure that the company's employees are able to meet the needs of its employees.
2. Not paying attention to the text of the rehire contract
In conjunction with the provisions of the Contract Law and the Circular of the Ministry of Labor on the Implementation of Several Issues of the Employment Contract System, we summarize the situation in which rehire units do not pay attention to the text of the rehire agreement.
(1) Wrong choice of contract type: The employer regards the legal relationship of retirement and rehiring as a labor relationship, and a large number of cases of using the text of the labor contract to sign the agreement of retirement and rehiring. As a result of the contract law, not the labor law, the two parties to the contract are relatively equal subjects, and their personal attributes and employment management attributes are far less than the labor relationship.
She suggests that the rehiring unit should sign a rehiring contract using a contract type that is not based on a labor relationship, such as a labor contract, an employment contract, a contract for contracting, a cooperation agreement, and so on.
(2) rehiring compensation, rehiring rights and obligations, liability for breach of contract, rehiring termination and other important provisions of the agreement is unclear:
As mentioned above, some of the employers directly apply the content of the labor contract, such as remuneration for labor services with reference to the salary, liability for breach of contract is directly invoked in the labor contract law of the relevant provisions of the economic compensation, or even the dispute resolution will be agreed to labor arbitration. Even the dispute settlement agreement for labor arbitration, for the rehiring unit to create too many obligations, similar agreements will be rehired for the performance of the agreement to lay the risk.
Xiaoshejun suggests that the employer combined with the purpose of rehiring and rehiring of their own conditions to set the conditions of rehiring, in the rehiring agreement clearly rehire the period, rehire the rights and obligations of both parties during the rehire period, rehire compensation, rehire agreement termination of the circumstances of the breach of contract liability and other important provisions. The small society gentleman think, agreed to return to the termination of the situation is particularly important, the role of the provisions of the switch, that is, the return to the unit can be set up through the provisions of the combination of their own production and operation of changes in the situation and return to the actual work of the staff of the actual work of the situation, decide to return to the agreement fulfillment of the tempo.
3. Not paying attention to the dynamic tracking of the performance of the contract
She summarized the two ways in which employers do not pay attention to the tracking of the performance of the contract as follows. The two are indispensable, but also because of the specific positions have their own focus, such as engaged in high altitude, underground, radioactive types of work more emphasis on the physical function of the rehired personnel, while similar to the pilot is more focused on vocational skills. The author summarizes that the rehired personnel are mainly divided into three categories: technical personnel, managerial personnel, and resource aggregation personnel, of which technical personnel account for the majority. To technical rehired personnel, for example, because the part of the personnel more rehired in the high-tech, scientific research type of employers, such industries due to market demand adjustment, there are equipment production line update fast, professional knowledge of the characteristics of the iteration of the fast, do not rule out the part of the rehired personnel due to knowledge of the rigidity of the rehired work can not be competent.
She suggested that the employer not only sign the rehire agreement before the rehire of the work of the ability to examine, but also in the rehire of the contract fulfillment process, regular tracking rehire of the work of the ability to do regular health checkups and skills training, in order to fully understand the rehire of the physical skills and vocational skills, to do a good job of adjusting the arrangements in advance, to avoid the temporary passive.
(2) Does not pay attention to the optimization of the combination of rehired personnel and existing employees
On the whole, rehired personnel do not account for a high proportion of the overall human resources structure of the employer. Based on practical experience, we estimate that rehired personnel account for about 2%-15% of the total labor ratio of the employer. Generally speaking, the employer will make arrangements for the rehired staff that are different from those for the regular staff, such as working hours, compensation, assessment methods, and so on. According to the overall ecological environment of employee relations in different industries, it is not excluded that there are formal employees who ostracize, isolate, and are hostile to the rehired staff, resulting in a certain amount of internal friction, especially in the rehired staff's work unit is not the original employer, which may be relatively prominent.
In this regard, the small social gentleman suggested that the rehiring unit can be combined with the existing manpower structure, the rehiring of staff and existing employees to work with, according to the department, the position, the work environment, etc., to achieve the rehiring of staff and the existing staff of the manpower optimization of the combination. For example, through the "pass on" way, by the skilled rehired staff to teach the relatively inexperienced a few regular employees. By setting *** with the assessment tasks and other ways to promote the mutual integration of the two sides, mutual understanding and integration in a good working environment, so as to realize the employer harmonious employment, the purpose of prosperous development.
Question 3: Is it necessary to buy commercial insurance for rehired staff?The small society gentleman thinks, whether the rehired personnel can be recognized as a work injury, to a large extent determines whether the employer needs to buy commercial insurance for the rehired personnel. According to the Ministry of Human Resources and Social Security "on the retirement of rehired personnel, interns, labor dispatch personnel work injury insurance issues of the reply" that is, human social construction word 2016 No. 35, the existence of a labor relationship between the worker and the employer is the prerequisite for the composition of the relationship of work injury insurance.
Meanwhile, Article 2 of the Opinions on Several Issues Concerning the Implementation of the Regulations on Work-Related Injury Insurance (II) distinguishes between two scenarios as to whether rehired personnel are entitled to work-related injury insurance. First, the rehired personnel, such as those who have reached or exceeded the statutory retirement age, but did not apply for retirement formalities or not enjoy the basic pension insurance for urban workers in accordance with the law, continue to work in the original employer during the work of accidental injuries or occupational diseases, the employer shall bear the responsibility for work-related injuries insurance. Secondly, for the rehired personnel who have reached or exceeded the legal retirement age or have already received the basic pension insurance treatment for urban workers, and who have suffered accidental injury or suffered from occupational disease due to work during the work period of the rehired unit, if the rehired unit has already paid the work-related injury insurance premiums for them according to the project, the Regulations on Work-related Injury Insurance shall be applied, with reference to the cases such as the Anqing Yingjiang People's Court's trial of (2019) Anhui 0802 Minchu 1944 case.
From the local regulations, there are differences in the actual operation of the localities, for example, in Shanghai, the Shanghai Municipal Bureau of Human Resources and Social Security issued the "Notice on the Implementation of the Implementation Measures of Shanghai Municipal Workers' Compensation Insurance" on a number of issues clearly stipulated in the fourth article, the employees to reach the legal age of retirement did not apply for the procedure of receiving the basic pension insurance treatment on a monthly basis, or do not meet the conditions of receiving the basic pension insurance treatment on a monthly basis, and continue to work at the same time.
In order to avoid the rehiring of personnel injured after the employer to bear the high cost of compensation, at the same time for the rehiring of personnel rehired to work to provide safe and effective protection, the small social gentleman suggested two: First, it is recommended to rehire units for the rehiring of personnel to buy commercial insurance, especially for the rehiring of non-retirement formalities or not according to the law of enjoying the basic pension insurance for urban workers, the specific types of insurance can be consulted with a professional insurance company. The specific types of insurance can be consulted with professional insurance companies. Secondly, for the purchase of commercial insurance costs, the rehiring unit can be combined with the issuance of rehiring staff compensation, planning and coordination in advance.
Retirement rehiring labor is actually relatively simple! Regardless of the Labor Contract Law "Regulations for the Implementation of the Labor Contract Law", as well as the Supreme People's Court "on the trial of labor disputes on the application of the law on a number of issues in the interpretation of the third" have clearly stipulated that the worker reaches the statutory retirement age, began to enjoy the basic pension insurance benefits, the termination of the labor relationship. If an employer recruits a retired employee and a labor dispute arises between the two parties, the labor relationship will be handled according to the labor service relationship. For this kind of employment, the labor arbitration department and the people's court are also relatively unified understanding. Such disputes, the arbitration department is not admissible, the people's court according to labor relations. It should be noted that, as the employer to use this form of employment, it is best to sign a labor contract, the responsibilities of both parties, rights and interests of the text agreement, while recruiting employees should be kept to prove that they have enjoyed the retirement benefits of the relevant evidence, so that if a dispute arises, more conducive to the protection of each other's rights and interests!
There is only one special case need to pay attention to, according to the Ministry of Human Resources and Social Security, "on the implementation of the regulations on work-related injuries insurance, a number of issues of opinion two," if the employer recruits retired rehired personnel, in the employment of accidental injury or occupational disease during the period of employment, if the unit has been to participate in the project of the work-related injuries insurance and contribute to the work-related injuries insurance regulations should be applied. Other than that, they are all connected to labor relations, including injuries, etc., and are subject to civil laws and regulations such as personal injury. The above reply is for reference only!
For the retired rehired workers, how should enterprises use labor? At present, I also belong to the enterprise rehired retirees, and has been rehired for five years, now combined with my many years of practical experience, and we come together to share this meaningful topic. For enterprises employing retirees, the main risk is still due to the lack of understanding of the retirees' physical condition, which may lead to accidents. In order to prevent accidents, I suggest the following risk prevention measures.
First, sign a good labor agreement.
As the retiree is rehired by the enterprise, it is not a labor relationship, but a labor relationship, signed a labor agreement and not a labor contract. But for the signing of the labor agreement, not only to meet the requirements of relevant laws and regulations, but also to the rights and obligations of both parties to make a clear agreement. Labor agreement is best after the company's legal adviser against the relevant laws and regulations carefully revised, carefully considered. Labor agreements follow the main laws and regulations for the "General Principles of Civil Law of the People's Republic of China *** and the People's Republic of China *** and the State Contract Law". The content of the agreement to agree on the validity of the agreement, generally up to one year, the implementation of a one-year signature. Secondly, it should be agreed clearly on the content of the work, labor remuneration, medical and other matters, but also to agree clearly on the agreement to terminate the agreement, the termination of the agreement and other related matters.
Secondly, non-work-related injuries and deaths are a major risk.
Enterprises use the general staff, due to belong to the labor contract relationship, you can apply for social insurance for employees, which for the avoidance of business risk is mainly work injury insurance, but the employment of retirees, because they have enjoyed the retirement treatment, can not be in the work injury insurance for them, can only buy commercial insurance, so many units are rehired to apply for the life of the personnel So many organizations are applying for life accident insurance for the rehired staff. When applying for life accidental injury insurance, try to follow the higher percentage of compensation for the insurance, to maximize the enterprise to avoid the burden of future life casualties.
Third, put the good steel on the knife edge.
For general jobs, it is not recommended to hire retired rehires. The best thing about hiring a new employee is that they are in short supply or can't be replaced by a regular employee. So it is important to rationalize the company's management or professional and technical positions. Many companies hired by the rehired personnel, most of them belong to the market shortage of professionals. Of course, professionals do not mean technical jobs, in fact, many management positions are also in short supply, or recruiting general young people in the short term can not be replaced. For example, corporate party work positions, discipline inspection and supervision positions, these positions seem very simple, but there is a strong professionalism, the quality of personnel requirements are very high, not only to be very strong comprehensive coordination skills, professional knowledge, organizational and management skills, writing skills, and so on.
Fourth, try to use the unit's retirees.
The use of the unit retirees have several advantages. First, the retiree's personal situation is better understood. Including his personal qualities, professional competence, organizational leadership, comprehensive word processing skills, the ability to pass on the ability to help, physical condition, etc. is the root of the know-how, the use of a more smooth, good use; Secondly, the unit of the retirees of the unit's business situation, the personnel situation, the industrial product situation are more aware of how to know how to go to work, how to deal with a variety of issues unit, how to help and train young people. There is no transition period, and the leaders do not need to spend more experience to ask and worry about; Third, the treatment and compensation issues are better solved. The retired staff of this unit, for the previous treatment unit in the post is more clear, will not be and the company pussyfooting around, more will not be arbitrary to the company's problems, looking for trouble, can be the company's employment risk to a minimum.
In short, the return of retirees is a relatively common practice in many companies, the main purpose is to meet the needs of the company's business management, to cultivate successors for the company's successors, and to give full play to the management advantages and professional and technical advantages of retirees, to ensure that the company's continuous and stable operation. However, if you don't pay attention to the risks involved, or if you don't effectively analyze and prevent the risks of using retired staff, you may also bring unnecessary losses to the company.
Hello owner, how should we use the laborers who are retired and rehired? Retirement rehired workers still exist, although the proportion is less than 5%, but still there, for example, our unit has the relevant personnel to carry out the retirement rehired. The main reason for this is that most of the people who are rehired are middle-ranking cadres and above, and due to the lack of middle-ranking cadres and above, the group is forced to rehire, but of course, this is also out of the will of the retirees themselves, and are willing to come to the workplace to work.
Then the retirement rehire and our formal employees, not the same place, is that after retirement can not sign a labor contract, only to the form of labor contract to agree, but also can not pay social security, then do not pay social security, for the business unit, although it is a good thing, but there is no workplace insurance, this piece of the business unit in fact, is to bear certain risks and responsibilities, so that the In general, the enterprise will buy some commercial life accident insurance to replace the workers' compensation insurance.
In fact, the benefits of rehiring retirees is that on the one hand, you can continue your next generation, young employees grow up as soon as possible, on the other hand, you can really use their own work experience to help the business unit in the play, which for the business unit, his labor costs are also reduced, because after all, you do not need to bear the personal social security treatment is relatively speaking, compared to the formal staff to The cost is still pay less, so that the enterprise unit is also happy to employ such retirees.
The owner of the good, for the retirement of rehired workers, enterprises should be how to use labor? The retired workers are very common, but of course not a lot of the overall proportion, about 5% or less of the level. I work in a workplace where there are retired and rehired employees, but most of them are middle-ranking or above, why because only employing middle-ranking or above, for the enterprise can get a greater return, only to have a certain role in the enterprise, general employees he is rarely anti-employment.
What is the difference between retired staff and regular employees, the biggest difference is that the labor contract is different, we are 60 years of age, not yet retired personnel normal signing of labor contracts, and according to the law by the protection of the labor contract law, but the retired staff will not be able to sign a labor contract, but also not by the protection of the labor contract law, can only sign a labor contract, then the nature of the labor contract and the labor contract, the labor contract and the labor contract. The nature of the labor contract is completely different from the labor contract, and can not afford social security.
The biggest impact of no social security on the business unit is not able to buy workers' compensation insurance for employees, so once the risk of work-related injuries occur when the business unit may therefore pay a greater cost and pressure, so it can only go to buy some commercial insurance, such as life accident insurance, etc. instead of workers' compensation insurance, this is a disadvantage, then the benefits are actually there, because the retired rehirees themselves, their social security insurance is not the same as that of the labor contract. Retired rehired personnel itself its social security treatment does not need to work unit to bear, so that the work unit, in essence, in the labor cost. It is relatively low, which is why the retired rehired personnel, willing to rehire the reason.
The employment of retired rehired staff is divided into the following two levels.
First, the retired personnel terminate the labor contract and retirement procedures in accordance with the law, after joining the new company in accordance with the labor relations, if an accident or injury occurs in the work, in accordance with the circumstances of the personal accident damages, so this situation suggests that the company to buy employer's liability insurance in order to diversify the risk;
Second, the retired personnel to terminate the original labor contract into the new company, and did not enjoy the pension insurance treatment, so the company to buy employer's liability insurance to diversify the risk. The second is that the retired workers terminate the original labor contract and enter the new company, and do not enjoy the pension insurance treatment according to the law, at this time the retired workers do not enjoy the pension insurance treatment of the jurisprudence of the local attitude is not consistent, some regions will be recognized as the existence of a labor relationship between the two sides, according to the labor relationship, the employer's greatest risk of work-related injuries, the economic compensation or indemnification of the responsibility for the issue of the employer, so it is recommended that the employer to try to avoid the use of over-age laborers, and if you employ the overage The company's main goal is to avoid the risk of accidental injury, and to avoid the risk of labor.
In reality, there are indeed some business units that will hire back retirees, mainly some managerial talents and technical scarcity talents, so that they can return to the enterprise and play a greater value through the rehiring.
Then, in the process of rehiring, the enterprise unit with the retiree's labor relations in the latter to reach the retirement age has been automatically lifted, the enterprise unit will not continue with the retiree to sign a labor contract, but will sign a labor agreement, the enterprise unit is not to pay social security for them.
However, because of the age of the rehired personnel, the physical condition is not as good as the young employees, in the absence of social security for their payment, including work injury insurance, the premise of the enterprise in order to avoid the risk of employment, you can apply for a commercial insurance, mainly life accident insurance, to guard against rehired personnel in the work of the accidental situation.
On the whole, the enterprise has some core technology and ability to be rehired, which is good for improving the management level of the enterprise, and rehired personnel labor costs are relatively low, for the enterprise and rehired personnel is a win-win thing.
@SocialSocietyPawn, thanks for reading.
Retirement rehiring workers should also ensure their legitimate rights and interests, reduce business risks
First of all, the retirement rehiring is a labor relationship is not a labor relationship, through the signing of the labor employment agreement to ensure that the two sides of the rights and business, to avoid disputes.
Secondly, the agreement between the two parties should refer to the implementation of the following labor standards: 1. working time provisions; 2. labor protection provisions; 3. minimum wage provisions. The parties can negotiate and agree on the relevant labor rights and obligations.
Then, we should pay attention to the health condition of the workers (such as regular medical checkups), and reduce the risk by taking commercial insurance for work-related injuries or accidents
Finally, we should ask the workers to provide proof of their identity and proof of their retirement and pension, so as to make it easier for them to submit to the Labor Inspection Department for the annual labor inspection, and to avoid any unforeseen incidents (e.g., the company's internal retirement being mistaken for formal retirement).
Not at all