Giving the right to sue for social insurance debts to trade unions: Challenges!
(Baonghean) - The 2014 Social Insurance Law takes effect from January 1, 2016. One of the notable new points is the provision granting the right to sue enterprises that owe social insurance to trade unions. This is a significant challenge and difficulty for the social insurance industry, requiring close coordination, increased exchange and dialogue between industries in resolving problems related to social insurance debts...
The “double” challenge
For a long time, lawsuits have been considered the strongest and most effective measure to handle enterprises that owe social insurance. Since the Nghe An provincial social insurance agency officially sued violating enterprises, the results have been very clear. For example, in 2014, 23 units were sued, of which the provincial social insurance agency sued 1 unit, the district social insurance agency sued 22 units; the total amount of social insurance and health insurance debt of the sued units was 15,098,536,256 VND.
Lawsuits have a great deterrent effect. Many businesses fear being sued and will consider violating social insurance regulations or voluntarily pay back because they do not want to affect the company's image.
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| Nghe An Labor Federation and Social Insurance signed a cooperation program in 2016. |
However, according to the new regulations, if the court does not accept the lawsuit of the Social Insurance agency, employers will likely delay paying social insurance because the Social Insurance agency does not have strong enough measures to deter them.
On April 14, 2016, the Supreme People's Court issued Document No. 105 on guidance on the implementation of the Law on Social Insurance to the People's Courts at all levels. The document clearly states: According to the provisions of Clause 9, Article 22 of the Law on Social Insurance, the Social Insurance agency has the right to: Handle violations of the law or make recommendations to competent state agencies to handle violations of the law on social insurance, unemployment insurance, and health insurance. Thus, from the effective date of the Law on Social Insurance, the Court will not accept the petition of the Social Insurance Agency to claim social insurance money from the employer. For cases accepted before January 1, 2016 but not yet resolved, the Court will issue a decision to suspend the settlement of the case, return the petition and instruct the plaintiff to comply with the provisions of the Labor Code, the Law on Social Insurance and the Law on Handling of Administrative Violations. The lawsuit against units and enterprises that owe social insurance money is assigned to the trade union organization. |
Mr. Ngo Ngoc Thanh - Head of Debt Exploitation and Collection Department, Provincial Social Insurance said: "Currently, apart from suing enterprises violating social insurance, other measures are not very feasible. For example, the maximum fine for administrative violations is only 75 million VND. With this fine, enterprises often choose to pay the fine because the fine is too low compared to the amount of social insurance debt that must be paid, and even delay in implementing the administrative penalty decision."
On the part of trade unions, granting the right to sue enterprises that owe social insurance is a regulation that is suitable for the new situation, enhancing the position of trade unions in enterprises, helping trade unions have more basis to ensure good performance of their role in representing the voice and legitimate rights of workers.
However, with the large number of units that need to sue the Social Insurance system, the time to pursue lawsuits is long and costly, if all of them are put on the trade union organization, it will be very difficult to handle due to limited human resources. At the same time, the trade union staff is not yet fully aware of the legal regulations on litigation and lawsuits, so they will face many difficulties in handling lawsuits against enterprises that owe Social Insurance.
Another challenge that is clearly identified is that the Social Insurance Agency sues enterprises that owe Social Insurance only based on the amount of debt and the time of debt, while when the trade union sues enterprises that owe Social Insurance, it needs to be authorized by the employee. If the employee does not know about the social insurance debt status of the enterprise, does not authorize, and the superior trade union does not clearly understand the social insurance debt situation of the enterprise, it will lead to a situation where enterprises owe large amounts of social insurance but no one stands up to file a lawsuit, seriously affecting the rights of the employees.
Mr. Nguyen Chi Cong - Head of the Legal Policy Department, Provincial Labor Federation said that up to now, the Vietnam General Confederation of Labor has not yet issued a specific implementation guidance document and therefore, up to this point, the Provincial Labor Federation has not yet initiated a lawsuit against any enterprise owing social insurance.
Strengthen dialogue and coordination
Faced with challenges in the practical implementation of the new provisions of the Social Insurance Law, Nghe An Social Insurance has implemented many synchronous solutions to overcome them, ensuring progress and quality of work. In order to help trade unions take the initiative in filing lawsuits against social insurance debts, in the coming time, the provincial Social Insurance will coordinate with the Labor Federation to support trade unions in terms of data, procedures for filing lawsuits as well as the process of filing lawsuits and enforcing judgments with the aim of recovering social insurance, health insurance and unemployment insurance debts to promptly resolve the legitimate rights of employees.
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| Workers work at Minh Anh Garment Company (Bac Vinh Industrial Park). |
In addition, the Social Insurance sector has established interdisciplinary inspection teams to work with debtors, urge the collection of social insurance, health insurance, and unemployment insurance debts; inspect the implementation of social insurance, health insurance, and unemployment insurance payments and compliance with trade union laws at employers operating in the province. At the same time, the sector has proactively organized training sessions to disseminate the amended Social Insurance Law, along with dialogues between the Social Insurance agency and employers on difficulties in the implementation of the Law....
From June 1, 2016, the specialized inspection function on social insurance, health insurance, and unemployment insurance contributions of the social insurance agency according to Decree No. 21/2016/ND-CP dated March 31, 2016 of the Government will take effect. This is an important legal basis to help the social insurance industry effectively collect and reduce outstanding social insurance, health insurance, and unemployment insurance debts. In case of detecting signs of violations in social insurance and health insurance contributions, the social insurance agency will promptly organize inspections, checks and strictly handle them according to regulations. |
Phuong Chi
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