Question:
When converting from a One-Member Limited Liability Company to a branch of the Ho Chi Minh City Cooperative Alliance for Trade, what procedures need to be followed with the Social Insurance Agency? Could you please provide specific details?
Currently, the law stipulates the transfer of social insurance books to employees for management. So, is there a specific document and procedure for this, and what are the steps that need to be taken?
Answer:
When an entity converts from a One-Member Limited Liability Company to a branch of the Ho Chi Minh City Cooperative Alliance for Trade, the following steps should be taken:
For the One-Member Limited Liability Company:
1. Fill out form D02-TS to report a reduction in the workforce, collect the valid Health Insurance Cards (BHYT), and return them to the Social Insurance Agency. Submit this form along with the decision from the competent authority regarding the conversion of the company to the Social Insurance Agency, along with a Receipt Confirmation Form 106/…/THU (for submission of documents to cease participation in social insurance).
2. Settle all outstanding payments and submit the final records to employees in accordance with regulations.
For the Branch of the Ho Chi Minh City Cooperative Alliance for Trade:
1. Complete the procedures for all employees using Form 101/…/THU (for Registration of Initial Participation in Social Insurance, Health Insurance, for units transferring from other provinces or cities), alongside the reduction procedures at the One-Member Limited Liability Company.
2. Pay the first month’s contributions for Health Insurance, Social Insurance, and Unemployment Insurance to receive the Health Insurance Cards as stipulated.
2. According to the provisions of the Social Insurance Law (Law No. 58/2014/QH13), employees have the right and responsibility to manage and preserve their Social Insurance Books from January 1, 2016.
However, as of now, the Social Insurance Agency of Ho Chi Minh City is still waiting for the Social Insurance Agency of Vietnam to issue specific regulations regarding the handover of Social Insurance Books for employees to self-manage. Therefore, it is recommended that the employer temporarily follow the current guidance on the procedure.
Question:
Based on Section III, Item I.2 of Official Letter No. 1684/HD-BHXH dated July 7, 2016, which provides guidance on contributions to the occupational accident and occupational disease insurance fund, it states: “When an employee enters into labor contracts with multiple employers and has already contributed to the occupational accident and occupational disease insurance fund at a different unit, a separate list should be created for them, and only 1% should be contributed for these individuals.”
I would like to inquire: My company has employees working at 3 different locations and has already contributed to occupational accident and occupational disease insurance at a different location. Does my company need to create a separate list to contribute 1% of the occupational accident and occupational disease insurance for this employee? If so, will this employee be eligible for benefits from all 3 locations if they have an occupational accident or occupational disease?
Answer:
– According to Official Letter No. 1684/HD-BHXH dated July 1, 2016, issued by the Ho Chi Minh City Social Insurance Agency, which provides guidance on contributions to the occupational accident and occupational disease insurance fund, in the case where an employee works for 3 companies, apart from the contribution of Health Insurance, Social Insurance, and Unemployment Insurance (32.5%) at one company, the other two employers must create a separate list and contribute only 1% to the occupational accident and occupational disease insurance fund for the employee if they fall under the mandatory social insurance participant category.
– According to Article 5 of Decree No. 37/2016/NĐ-CP dated May 15, 2016, issued by the Government, which regulates the regime of occupational accident and occupational disease insurance for employees entering into labor contracts with multiple employers, it is stipulated as follows: “Receive monthly or one-time accident and occupational disease allowances calculated based on the total salary amounts used as the basis for contributions to the occupational accident and occupational disease insurance fund of all labor contracts at the time the occupational accident or occupational disease occurs, but not exceeding the maximum limit as prescribed by social insurance laws.”
The regime of support for vocational training and conversion, medical examination, treatment of occupational diseases, occupational safety and hygiene training, and labor function restoration as prescribed in this Decree, and social insurance regimes as stipulated by social insurance laws.
Question:
We are a Two-Member Limited Liability Company with a very small scale, consisting of 2 employees. Specifically:
– We have 1 accountant who is working for another company, receiving a salary and contributing to Social Insurance, Health Insurance, and Unemployment Insurance there.
– We also have 1 employee responsible for marketing and sales.
Both employees have been working for our company since 2009 until now, with the following working conditions:
– Their working time and location are not regulated and not constrained in terms of time and location. Employees arrange their schedules when there are tasks.
– Salaries and allowances are paid monthly. The contributions for Social Insurance, Health Insurance, and Unemployment Insurance are bundled together with the salary payments.
– These salary and allowance payments are accounted for as part of the business management expenses.
Due to a lack of knowledge about Social Insurance laws, we have not been making contributions for Social Insurance, Health Insurance, and Unemployment Insurance for these 2 employees since 2009, as we thought they were working part-time.
We would like to ask: Does our situation described above (not contributing to Social Insurance, Health Insurance, and Unemployment Insurance for these 2 employees since 2009) violate the law? If so, which specific law provisions are being violated?
Answer:
– According to Article 168, Section 1 of the 2019 Labor Code, both employers and employees must participate in mandatory Social Insurance, Health Insurance, and Unemployment Insurance and are entitled to benefits as prescribed by the laws on Social Insurance and Health Insurance.
– According to Point 1.2, Section 1, Article 38 of Decision 959/QD-BHXH dated September 9, 2015, issued by the Vietnam Social Insurance regarding regulations on the management and collection of Social Insurance, Health Insurance, and Unemployment Insurance contributions, and the management of Social Insurance books and Health Insurance cards, if an employee simultaneously has two or more labor contracts (LĐH) with different units, they should contribute to Social Insurance and Health Insurance based on the first signed labor contract and pay Social Insurance and Health Insurance according to the contract with the highest salary.
– According to Point 1.2, Section 1, Article 4 of Decision 959/QD-BHXH dated September 9, 2015, issued by the Vietnam Social Insurance, employees with fixed-term labor contracts lasting from at least 1 month to less than 3 months (implemented from January 1, 2018), and employees with definite-term labor contracts, seasonal labor contracts, or contracts for specific jobs lasting from at least 3 months to less than 12 months, including contracts signed between the unit and representatives of individuals under 15 years old as regulated by labor laws, are subject to mandatory Social Insurance and Health Insurance. Units that do not register for Social Insurance, Health Insurance, and Unemployment Insurance for employees in these cases may be subject to back payments as specified in Article 42 of this Decision.
Therefore:
Your company is obligated to contribute to Social Insurance for these employees (who are not participating in Social Insurance elsewhere) with fixed-term labor contracts lasting from at least 3 months. The employer should submit back-payment applications to the Social Insurance office in the districts or districts where the company is located for guidance and resolution.
Failure to participate in Social Insurance, Health Insurance, and Unemployment Insurance for these employees may result in administrative fines as stipulated in violation of mandatory Social Insurance and Unemployment Insurance contributions in Article 26 of Decree No. 95/2013/ND-CP.
