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mr. zhang, 71 years old this year, has worked as a "temporary worker" at the weihe river management station of the water affairs bureau of eyi district, xi'an for 40 years. his employer has never paid social security for him. in order to protect his rights and interests, he filed a lawsuit in court, but it was rejected twice.

working as a cook in the staff canteen

from 30 to 70 years old

on september 5, master zhang's son xiao zhang said that in 1983, his father, who was 30 years old at the time, started working as a cook in the staff canteen of the weihe management station. he left his job and returned home at the end of last year. he was already 70 years old. "my father was a temporary worker and worked all his life. he didn't even have a normal vacation in these years. he worked diligently and received the minimum wage in society. when he retired, he made less than 2,000 yuan." xiao zhang said that his father should have retired at the age of 60. because he was in good health, he worked for another ten years, but he didn't even have social security. considering the worries about retirement and medical insurance, he decided to defend his father's rights.

xiao zhang said that at the beginning of last year, he reported the matter online while his father was still in office. the weihe river management station replied that "i have exceeded the prescribed age. according to regulations, people over 60 cannot pay social security. i can only apply for financial compensation through legal channels."

he applied for arbitration to the labor department, but the huyi district labor and personnel dispute arbitration committee refused to accept the case, arguing that "he had exceeded the statutory retirement age, was not eligible, and the request did not meet the acceptance conditions stipulated in the "labor and personnel dispute arbitration rules."

photo provided by the interviewee

the lawsuit was dismissed by two courts

determined to be “out of the court’s jurisdiction”

master zhang filed a lawsuit with the huyi district court, demanding that the defendant weihe management station pay 430,500 yuan in pension benefit losses, 57,105 yuan in economic compensation for termination of labor relations, and 2,527.2 yuan in unused annual leave wages in 2023.

the civil ruling of the huyi district court clearly stated that the plaintiff joined the defendant in april 1983 and worked as a cook with monthly salary. he left in november 2023. during the plaintiff's employment, the defendant did not arrange for the plaintiff to take annual leave and did not pay social security for the plaintiff in accordance with the law, resulting in the plaintiff being unable to enjoy pension insurance benefits. the plaintiff has tried many ways to protect his rights, but the issue has not been resolved so far.

the court found out through examination that the defendant claimed that the plaintiff received pension subsidies from relevant departments in 2014, 2016, 2017, 2018 and 2019 in accordance with the relevant policies of shaanxi province, and the plaintiff acknowledged this. the court held that the plaintiff had reached the statutory retirement age on june 13, 2013, and had since received pension subsidies from relevant departments in accordance with the relevant policies of shaanxi province. the plaintiff's request for the defendant to pay the loss of pension insurance benefits, economic compensation for termination of labor relations and unused annual leave wages in 2023 was not within the scope of the court's acceptance of the case, so the plaintiff's lawsuit was dismissed and the acceptance fee of 10 yuan was returned to the plaintiff.

dissatisfied with the ruling, the plaintiff appealed to the xi'an intermediate people's court. the xi'an intermediate people's court held that mr. zhang recognized that he had enjoyed the urban and rural residents' pension insurance since he was 60 years old, and had received pension subsidies from relevant departments in accordance with the relevant policies of shaanxi province, and rejected the appeal and upheld the original ruling.

received pension benefits

can i still enjoy employee pension benefits?

on the morning of september 5, the relevant person in charge of the weihe management station stated that master zhang was indeed a long-term temporary worker of the unit and that the failure to pay social security was a historical problem left over from many years.

"the province once introduced a policy for long-term temporary workers, and pension subsidies were paid from the fiscal side. master zhang received it for several years." he said that master zhang was still on the job when the subsidies were paid, but later the subsidies were suspended. now that he has resigned, the subsidies should continue to be paid in the future.

the reporter found out that on december 23, 2011, with the approval of the shaanxi provincial government, the provincial department of human resources and social security and the provincial department of finance issued the "notice on issues concerning the issuance of pension subsidies to agricultural household personnel who have worked in state-owned and collective enterprises in our province and were recruited according to the plan" (shaanxi human resources and social security no. [2011] 178). the funds needed to issue length of service subsidies to eligible persons will be borne by the provincial finance and the municipal and county finances at 50% each.

"my father did receive subsidies for a few years, but the money was very little." xiao zhang said that it is the legal obligation of employers to pay social security for employees. policy-based pension subsidies are not the same concept as employee pensions. the amount standard is very different from pension insurance benefits. subsidies cannot replace employee pensions.

"labor arbitration doesn't work, and neither does prosecution. what should i do now?" xiao zhang was helpless.

lawyer's view

the name of the temporary worker no longer exists. this case falls within the jurisdiction of the court.

wang shu, a lawyer at shaanxi jiaxuan law firm, believes that the case involves the following issues:

first, the issue of determining the identity of master zhang as a "temporary worker". "temporary workers" is a concept that was formed before the promulgation and implementation of the "labor law" relative to formal workers in enterprises. after the promulgation and implementation of the "labor law", all employers and employees fully implemented the labor contract system, and all types of employees enjoyed equal rights in employers. therefore, the name of temporary workers relative to formal employees in the past sense no longer exists. in this case, the employer, the weihe management station of the eyi district water affairs bureau, has the obligation to sign a labor contract with the worker master zhang and establish various social insurances for him in accordance with the law so that he can enjoy relevant welfare benefits.

second, according to the labor contract law, it is the legal obligation of employers to pay social insurance for employees. if the employee fails to pay social insurance premiums for 15 years when he reaches the statutory retirement age due to the employer's fault, and the social insurance agency cannot make up the payment according to law, the employer shall bear the liability for compensation for the loss of relevant pension benefits. this case belongs to this kind of situation.

third, this case falls within the jurisdiction of the court. first, policy-based pension subsidies cannot replace social pension insurance, and their funding sources, payment standards, and conditions for receiving them are all different from employee pensions. in this case, although mr. zhang received policy-based pension subsidies, this did not affect his employee pension benefits.

article 1 of the supreme people's court's "interpretation on several issues concerning the application of law in the trial of labor dispute cases" (iii) stipulates that if a dispute arises where a worker demands compensation from an employer on the grounds that the employer has failed to handle social insurance procedures for him/her and the social insurance agency cannot make up for it, resulting in the worker being unable to enjoy social insurance benefits, the court should accept the case.

in this case, the dispute between master zhang and the weihe management station of the eyi district water affairs bureau should be accepted by the huayi district labor and personnel dispute arbitration committee and the court.

wang shu suggested that if there is sufficient evidence to prove the labor relationship, it is recommended that master zhang file a new lawsuit to demand compensation for loss of pension insurance benefits and to request a monthly pension.

if the party concerned is dissatisfied with the symbolic replacement of pension by pension subsidy, he may apply for a retrial to the provincial high court

zhao liangshan, senior partner of shaanxi hengda law firm and a well-known public interest lawyer, believes that it is the legal obligation of the employer to pay social security for employees. policy-based pension subsidies and employee pensions are not the same concept. however, master zhang has received pension subsidies from relevant departments in accordance with relevant policies of shaanxi province, and his behavior indicates that he has acquiesced to the policy-based pension subsidies. in addition, because the employer has not paid social security for master zhang for a long time, in practice, according to relevant social security policies, it cannot be paid now. one important reason why the first and second instance courts did not support master zhang's appeal is that master zhang's situation is a historical legacy and the situation is special. in response to such special cases, the relevant departments of shaanxi province have issued a temporary worker policy, which provides pension subsidies from the fiscal budget to compensate for the loss of interests of employees who have not paid social security, which means that this pension subsidy symbolically replaces the pension. the first and second instance courts made their judgments based on this policy.

zhao liangshan suggested that if master zhang is dissatisfied with the first and second instance judgments, he can apply to the higher court for retrial according to article 205 of the civil procedure law. if a party believes that a judgment or ruling that has already taken effect is wrong, he can apply to the higher court for retrial. article 212 of the civil procedure law stipulates that a party shall apply for retrial within six months after the judgment or ruling takes effect. master zhang can apply for retrial to the higher court, the shaanxi provincial high court, within six months in accordance with the law. for this case, the provincial high court will initiate the retrial procedure and then safeguard his own rights and interests.