Updated at 21/06/2022 - 05:50 pm
The article provides guidance on the sanction level for paying social insurance premiums lower than the actual salary and solutions to do it right, avoiding penalties and arrears.
Question:
If the company pays social insurance at a lower rate than the actual salary in the labor contract as agreed with the employee, will there be a penalty?
Reply:
Point b, Clause 4 and Clause 7, Article 38 of Decree 28/2020/ND-CP stipulating penalties for administrative violations in the field of labor, social insurance, sending Vietnamese workers to work abroad according to the contract stipulating violations of regulations on payment of compulsory social insurance and unemployment insurance as follows:
4. A fine of between 12% and 15% of the total amount payable for compulsory social insurance and unemployment insurance at the time of making the record of administrative violation, but must not exceed VND 75.000.000, for a user. Labor has one of the following acts:
b) Payment of social insurance and unemployment insurance not in accordance with the prescribed level but not evasion;
7. Remedial measures.
a) Forcing the payment of compulsory social insurance and unemployment insurance premiums payable for the violations specified in Clauses 4, 5 and 6 of this Article;
b) Forcible payment of interest equal to 2 times the average social insurance fund investment interest rate of the preceding year, calculated on the amount and time of late payment, failure to pay or evade payment; if they fail to do so, at the request of a competent person, the bank, other credit institution, the State Treasury shall have to deduct from the employer's deposit account to pay the unpaid, late payment amount. payment and interest of this amount is calculated according to the highest demand deposit interest rate of state-owned commercial banks announced at the time of sanctioning to the account of the social insurance agency for violations. specified in Clauses 4, 5 and 6 of this Article for 30 days or more.
Thus, if the employer fails to pay social insurance premiums at the prescribed rate but is not evading payment, he/she may be administratively sanctioned according to the above provisions.
Solution:
Actual salary is understood as the actual salary received by the employee from the employer. In case the enterprise does not develop a salary mechanism and salary scale, the actual salary (actually received by the employee) is the basis for paying social insurance premiums, in this case, if the enterprise deliberately declares less than the The salary as a basis for calculating social insurance contributions is against the regulations, and may be sanctioned as above.
In order to comply with the law on labor, salary, social insurance and suitable for business operations, it is necessary to develop a salary mechanism, salary scale and regulations related to appropriate salary policy. From there determine the salary as a basis for calculating social insurance contributions in accordance with the law. This is the only way for businesses to determine the correct social insurance payment obligation.
To develop a policy on salary and social insurance in accordance with regulations, Enterprises can consult the consulting service to build salary policy and Social Insurance by EXPERTIS.
