PROBLEMS OF HANDLING 2021 EMPLOYEES WHO DO NOT PARTICIPATE IN SOCIAL INSURANCE FOR ACCOUNTANTS

According to the Labor Code 2019, it is stipulated:

SINCE January 1, 2021, there is no longer any room for seasonal labor contracts. ONLY 2 TYPES OF LABOR CONTRACTS EXIST: DETERMINED TERM LABOR CONTRACTS AND DETERMINED TERM LABOR CONTRACTS

This regulation is considered a great progress of labor law to protect employees, limit the situation where employers "circumvent the law" and do not pay social insurance for employees by signing the following forms: Seasonal and service contracts...

So if it is not a TEMPORAL CONTRACT - LABOR CONTRACT, then what type of contract will not be subject to social insurance participation?

Instead of SIGNING A LABOR CONTRACT, businesses will switch to signing SERVICE PROVISION CONTRACTS with INDIVIDUAL.

Currently, many businesses, in order to avoid social insurance, health insurance and unemployment insurance obligations for employees as well as avoid having to bear legal responsibilities prescribed by labor law, have Propose to employees to sign a SERVICE PROVISION CONTRACT instead of signing a labor contract.

So, is signing a service contract between a business and an employee (individual) legal?

Determining whether a contract is a service contract or a labor contract will be based on the definition of the relationship between the parties in the contract, the legal basis and practical issues, not on the "name of the contract". copper".

Specifically, the law has the following provisions:

Article 13, Labor Code 2019 stipulates: “A labor contract is an agreement between an employee and an employer regarding paid employment, wages, working conditions, rights and obligations of each party in the labor relationship.”.

Article 3.5, Labor Code 2019 stipulates: “Labor relations are social relations arising in the hiring, use of labor, and payment of wages between employees, employers, and representative organizations. representatives of the parties and competent state agencies. Labor relations include individual labor relations and collective labor relations.

Article 3.1, Labor Code 2019 stipulates: "Employee is a person who works for the employer according to an agreement, is paid a salary and is subject to 1TP5Management, # operating, 1TP5Monitoring of the employer.

The minimum working age of an employee is 15 years old and capable of working under a labor contract.

Article 513, 2015 Civil Code stipulates: "A service contract is an agreement between the parties, whereby the service provider PERFORMS WORK for the service hirer, and the service hirer MUST PAY for the service." service to the service provider".

Article 3.9, Commercial Law 2005 stipulates: “Providing services is a COMMERCIAL ACTIVITY, whereby one party (hereinafter referred to as the service provider) is obliged to perform services for another party and receive payment. maths; The service user (hereinafter referred to as the customer) is obliged to pay the service provider and use the service according to the agreement.

From the above regulations, it can be seen that the definitions of labor contracts and service contracts are quite similar and difficult to distinguish (both are agreements between the parties and the employee/service provider is both an agreement between the parties and the employee/service provider). receive a sum of money). Therefore, determining whether a contract is a service contract or a labor contract is not always simple and clear.

When a labor dispute occurs, the Court will base on the following legal bases and practical issues to determine whether a contract between a business and an individual is a labor contract or a service contract:

– Employees are subject to the management and administration of the enterprise

One of the FUNDAMENTAL DIFFERENCES that we can see is that the employee is always "subject to the management and administration of the employer" while the service provider does not necessarily have an obligation. This.

However, in many cases, the service provider is still obliged to comply with the requirements from the service hirer (depending on the contractual agreement and the type of service) and therefore it may be difficult to distinguish This obligation is similar to the obligation to "be subject to the management and administration of the employer" in labor relations.

Individuals who do NOT register their business usually do not have the right to provide services

Article 3.1, Commercial Law 2005 stipulates: “Commercial activities are activities aimed at making a profit, including buying and selling goods, providing services, investing, promoting trade and activities aimed at other profits". Thus, providing services for profit is a type of commercial activity and this commercial activity must comply with the 2005 Commercial Law and relevant laws (Article 4.1, 2005 Commercial Law).

According to Article 2.3, Commercial Law 2005, all commercial activities must be carried out by TRADERS WITH REGISTERED BUSINESS, except for the case of "individuals operating commercially independently and regularly without having to register." business"; These exclusions are specifically listed in Decree 39/2007/ND-CP, mainly including small types of services such as "shoe shine, lottery ticket sales, lock repair, car repair, and housekeeping". parking, car washing, hair cutting, painting, photography and OTHER SERVICES WITH OR WITHOUT A FIXED LOCATION” and are individuals conducting commercial activities through this RETAIL SERVICE PROVIDER? called traders.

Comparing with the case of a business when there is a need to recruit workers, it is clear that the business does not hire an individual to regularly provide the above types of small services but hires an individual to perform the activities required. Ask for certain expertise and qualifications.

However, for activities that require this expertise and qualifications, individuals must have business registration according to regulations to be allowed to perform as a commercial activity governed by commercial law. trade instead of a form of labor relations governed by labor law.