If you are still working beyond the retirement age and do not establish a labor relationship, you are prone to disputes
How to protect the labor rights and interests of "silver employees"
Our reporter Chen Lei
Although Zhang Hongmei, a 55-year-old from Wuhu, Anhui, has reached the age where she can retire at home, she still chooses to work as a housekeeper in Beijing to make money. This job is not exposed to the wind and the sun, and the income of 3 months of work can match her one year of retirement. Jin, she is very satisfied with this.
In our country, workers should retire if they meet the requirements of "men have reached the age of 60, women have reached the age of 50, and have worked continuously for ten years."
But there are not a few "silver-haired workers" like Zhang Hongmei who are still working beyond the retirement age.
According to a sample survey released by the China Research Center on Aging at the end of 2019, 10.6 percent of the elderly in rural areas are still working.
According to the "2021 Migrant Workers Monitoring and Survey Report" released by the National Bureau of Statistics on April 29 this year, migrant workers over the age of 50 accounted for 27.3%.
According to the current labor laws and regulations, "silver employees" and the employer no longer form a labor relationship, and the employer only needs to pay remuneration, and the two parties do not involve social insurance.
This leaves the protection of labor rights and interests of "silver workers" in a blank area.
In an interview with a reporter from the "Rules of Law Daily" recently, a number of experts pointed out that with the deepening of my country's aging, there will be more and more "silver employees", and their labor rights and interests must be guaranteed through the system.
Retire and continue working
There is demand on both sides of the workforce
On the afternoon of May 9, the reporter saw Zhang Hongmei, who had just gotten off work from her employer's house, at the gate of a community in Chaoyang District, Beijing.
She was wearing a black casual suit and her hands were slightly puffy, which was the mark left by her long-term domestic work.
Zhang Hongmei is not tall, she speaks with a heavy accent and speaks very fast.
She told reporters that she used to work in a factory in Wuhu City, and then the factory ran into difficulties, and she retired when she was 50 years old.
After the Spring Festival in 2018, she and her husband went to Beijing to work together with their fellow villagers. The husband was doing renovations, and she was engaged in housekeeping. The two rented in an urban village near the capital airport.
Zhang Hongmei got up at 5:00 in the morning to make breakfast. After dinner, she took the bus to the employer's house. She usually arrived at work before 8:00. After changing into work clothes, she began to wash dishes, clean the room, wipe the floor, and prepare meals. Put on clean clothes and take the bus home.
She works 6 days a week and earns about 5,000 yuan a month.
When asked if she signed a contract with her employer, Zhang Hongmei said, "There is no contract, but one month's pay for one month's work."
In addition, the employer buys her an accident insurance every year, and nothing else.
Like Zhang Hongmei, the 68-year-old Hunan Shaoyang Humane Shan Gong is also receiving a pension and working part-time to earn money.
The difference is that Gong Wenshan participates in the endowment insurance for urban and rural residents, and the pension is very small, only 112 yuan per month.
Wen Shan Gong's wife died young, and he raised his two sons alone while working on a construction site.
Today, the two sons have graduated from college and both settled in Changsha, Hunan.
In 2014, Wen Shangong, who turned 60, began to receive a pension, which was only fifty or sixty yuan per month at that time.
In desperation, he continued to work at local construction sites with acquaintances, building and plastering walls, earning an income of about 20,000 yuan a year and earning pension money for himself.
But Wen Shangong found that in the past two years, the construction team called him to work less and less. His income last year was only seven or eight thousand yuan, and this year, there have been fewer opportunities to work.
"I'm old now, and my health is not very good. People don't want me anymore." Wen Shangong said with emotion.
He told reporters that in his hometown, there are quite a few villagers like him who receive pensions and work outside, but he has not heard of any contract signing.
Yang Juan, a Beijing citizen who retired from a school last year, found a job as a tutor immediately after retirement in order to increase her family's income. In addition to receiving a pension, she could earn an extra 8,000 yuan per month.
They are just a microcosm of the group of "silver-haired workers" in our country.
In recent years, many elderly people continue to work beyond the retirement age.
According to the results of a sample survey released by the China Research Center on Aging at the end of 2019, 10.2% of the elderly are still engaged in paid jobs.
9.7% of the urban elderly are still working, and 10.6% of the rural elderly are still working.
According to data released by the National Bureau of Statistics in February this year, in 2021, my country's elderly population aged 60 and above will reach 267.36 million.
According to Wang Tianyu, deputy director of the Social Law Office of the Institute of Law of the Chinese Academy of Social Sciences, this phenomenon is in line with the trend of social development.
With the deepening of the aging of the population and the reduction of the pension replacement rate, more elderly people will enter the job market in the future.
Xie Yang, managing partner of Beijing Zhilin Law Firm, believes that even if they exceed the retirement age, many elderly people are physically and intellectually capable of continuing to work for a period of time, and even have advantages in management experience. Valuable human resources.
In addition, these older adults continue to work, reflecting this need on both sides of the employment relationship.
The continued employment of people beyond retirement age will become more common in the future.
Does not apply labor laws
There is a gap in the protection of rights and interests
Zhang Hongmei was very careful when working at her employer's house to avoid accidents.
Although her employer buys accident insurance for her every year, she is still worried that if an accident occurs, not only will she suffer, but she may have to bear part of the medical expenses.
In mid-January this year, when she was wiping the range hood with a rag, she stood on the cabinet because she was not tall enough. The cabinet was too slippery. She accidentally lost her balance and knelt on it, and it took a while to get up. "The knee has been bruised for a long time, but fortunately there is no fracture."
The reporter logged on the China Judgment Documents Network and found that "silver employees" encountered unexpected things during their work.
On April 8 this year, in a case uploaded by the People's Court of Wuxing District, Huzhou City, Zhejiang Province, a 53-year-old Yunnan native Ruan accidentally fell off a scaffold while working on a construction site in Huzhou, and was injured.
Ruan asked the construction site project company to apply for work-related injury certification, but he could not form a labor relationship with the company because he was over the retirement age and could not enjoy work-related injury insurance.
There are also "silver workers" who are owed labor remuneration during their working hours.
In January this year, the Supreme People's Procuratorate released 5 typical cases of refusal to pay labor remuneration, one of which involved "silver employees" - a cultural communication Co., Ltd. in Yiwu City, Zhejiang Province, when it was operating a mass-selling KTV, it owed Fang Moumou due to poor management. The salary of 27 employees was 97,089 yuan, and two of them were older than the retirement age.
The reporter searched the Chinese Judgment Documents Online with "over the retirement age" and "labor disputes" as keywords, and found more than 1,200 civil first-instance judgments in total.
The reasons for the worker's lawsuit include injury during work, arrears of labor remuneration, and non-payment of compensation.
Wang Tianyu's analysis believes that under the current legal framework, as long as workers who are over the retirement age and receive endowment insurance benefits are still working, the labor laws are no longer applicable, and they are included in the scope of civil law adjustment, that is, through signing labor contracts to adjust with the employer. The rights and obligations between the two parties, once the two parties do not sign a labor contract, or the relevant content is unclear in the labor contract, there will be a vacuum in the protection of workers' rights and interests, and the risk of the above-mentioned disputes is very high.
In Xie Yang's view, compared with labor relations, the provisions on labor relations in my country's laws are relatively specific and comprehensive. There is a whole set of legal systems consisting of special laws, regulations, and rules of ministries and commissions. It has many unique systems and characteristics, such as trial period system, written contract, double salary, economic compensation system for termination of contract, compensation system for illegal termination of contract, social insurance system, work-related injury system, etc. These systems basically do not exist in labor relations.
For example, Xie Yang said that according to the law, labor contracts must be signed in writing. If a written contract is not signed, it is also necessary to pay double wages. For labor contracts, Chinese law does not stipulate that a written contract must be signed, and there is no requirement for labor services. Therefore, the specific rights and obligations in the labor relationship mainly depend on the agreement of the parties themselves. If the overage person does not sign a written contract, it will definitely have an adverse impact on the protection of rights in the future.
Wang Tianyu believes that one of the reasons for this conflict is that my country's retirement system has lagged behind the development of society to a certain extent.
"my country's current retirement system was established in 1978. At that time, the national average life expectancy was 66.9 years for males and 69 years for females. There were not many employees who met the retirement conditions. The retirement metals issued by the state were of a welfare nature. Over the past 40 years of reform and opening up, my country's economy has The society has undergone tremendous changes. A social endowment insurance system linked to individual contributions has been established, and the range of people receiving pensions has also expanded dramatically. For example, "silver workers" cannot deny their labor status and employment rights just because they exceed the retirement age. "Wang Tianyu said.
Standardize the signing of labor contracts
Timely reform of the retirement system
It is worth noting that in response to problems such as "silver employees" injured during work, the human resources and social security departments and individual places have been exploring to expand the coverage of work-related injury insurance.
In March 2016, the Ministry of Human Resources and Social Security issued relevant opinions, stating that employers who have reached or exceeded the statutory retirement age or who have received basic pension insurance benefits for urban employees have suffered accidents or injuries due to work-related reasons during the employment period. In case of occupational diseases, if the recruiting unit has paid work-related injury insurance premiums for it by participating in the project, the Regulations on Work-related Injury Insurance shall apply.
In April 2019, Quzhou City, Zhejiang Province issued the "Trial Measures for Retired and Rehired Persons to Participate in Work Injury Insurance". Employers can apply for work-related injury insurance separately during the employment of male 65-year-old and below and female 60-year-old and below retired and re-employed personnel.
By the end of November of that year, nearly 5,000 people had participated in this work-related injury insurance.
In December 2020, Guangdong Province issued regulations to include those who have and did not enjoy the basic pension insurance benefits of government agencies, institutions or urban employees into work-related injury insurance.
This means that, in some places, employers who hire qualified "silver employees" can go through the formalities for participating in work-related injury insurance separately for them.
Wang Tianyu's suggestion is that, under the current legal framework, regarding the issue of work-related injury insurance commonly involved in "silver-haired employees", a scheme of distinguishing labor rights and social insurance rights and interests can be adopted, and on the basis of local exploration, the coverage of work-related injury insurance can be expanded. Include them in the work injury insurance system.
In Xie Yang's view, some places have introduced specific measures for over-age personnel to participate in work-related injury insurance, but there are certain restrictions on the insured. If there are too many, they should be canceled. "Work-related injury protection for overage workers is the bottom line."
Wang Tianyu also suggested that under the current legal framework, even if "silver employees" cannot sign labor contracts with employers, they can still sign labor contracts with employers. Therefore, the government can recommend labor contract templates and encourage both parties to sign standardized labor contracts. Clearly agree on the rights and obligations of both parties, such as work content, labor remuneration, and medical compensation, to protect legitimate rights and interests.
In Wang Tianyu's view, in the long run, it is even more necessary to reform the current labor law system, especially the retirement system, and include "silver employees" in the scope of labor law adjustment. workers make no difference.”
"From a longer-term perspective, protecting over-aged persons through the establishment of labor relations may be the fundamental way." Xie Yang said.
(Zhang Hongmei, Wen Shangong and Yang Juan are all pseudonyms in the text)