Solving the source of economic compensation for employees involves the standard of economic compensation. According to the different nature of the restructuring subject, the identity of its employees is also different, so the standard of economic compensation for terminating the labor contract is also different.
(A) the general standard of economic compensation for employees of state-owned enterprises
According to the spirit of document No.313 of Caiqi [2002], "If the people's governments at or above the county level have prescribed standards, the economic compensation paid by enterprises shall be implemented according to the regulations; If there is no standard, it shall be implemented according to the standard specified in document No. [1994]48 1 "issued by the Ministry of Labor. Although the economic compensation standards issued by different places are different, the main provisions refer to the relevant provisions of the Ministry of Labor [1994]48 1.
Specific standards specified in the document. The [1994]48 1 issued by the Ministry of Labor is to pay the economic compensation equivalent to one month's salary every year according to the working years of workers. If the working time is less than one year, the economic compensation shall be paid according to the standard of one year. The wage calculation standard of economic compensation refers to the average monthly wage of employees 12 months before the termination of the labor contract under the normal production conditions of the enterprise. Among them, if the average monthly salary of employees is lower than the average monthly salary of enterprises, it shall be calculated and paid according to the average monthly salary of enterprises; If the average monthly salary of employees is more than 3 times the average monthly salary of enterprises, it can be calculated and paid according to the standard of not exceeding 3 times the average monthly salary of enterprises. Business operators should also follow the above measures.
(two) the standard of economic compensation for employees of bankrupt enterprises
State-owned enterprises are seriously insolvent and no longer have the conditions to continue production and operation, so they can apply for bankruptcy. However, the bankruptcy law does not include the payment of economic compensation to employees in the statutory liquidation scope of bankrupt enterprises. According to the relevant provisions of the Notice of the State Council on Issues Related to Trial Bankruptcy of State-owned Enterprises in Several Cities and the Supplementary Notice of the State Council on Issues Related to Trial Merger and Bankruptcy of State-owned Enterprises in Several Cities and Re-employment of Employees, the resettlement expenses for employees of bankrupt enterprises in pilot cities shall be paid from the income from the transfer of land use rights legally obtained by bankrupt enterprises, and the insufficient part shall be paid from the income from other bankrupt property disposal, which can be included in the first order for repayment. In principle, the standard of resettlement fees shall be calculated according to three times the average wage income of enterprise employees in the pilot cities where bankrupt enterprises are located.
(3) Economic compensation standards for employees of public institutions
Since the central and local governments have not yet issued regulations on economic compensation for employees in the restructuring of public institutions, the specific standards of economic compensation for employees will refer to the standards of economic compensation for employees in state-owned enterprises. According to the provisions of the document number. State-owned Assets Allocation [2003] No.21in the document No.859 of China Economic and Trade Enterprise Reform, the specific standard of economic compensation paid to employees remains unchanged.
However, considering that most of the employees in public institutions are public officials, and some of them are national civil servants, due to various reasons, quite a few people have not yet opened pension insurance accounts. Once the system is reformed, the pension of these employees will also be a hassle. Therefore, it is really unfair to implement this group of people with full reference to the economic compensation standards for employees of state-owned enterprises. Each unit may, according to the actual situation in the region, apply to the higher authorities for other forms of subsidies except economic compensation, and the specific standards shall be determined by the higher authorities.
(4) Compensation other than economic compensation.
We have noticed the first document. China Economic and Trade Enterprise Reform [2002] No.859 stipulates that "the restructured enterprise can pay the economic compensation for the termination of labor relations with the state-owned net assets, resulting in the reduction of state-owned assets in the book, and reduce the state-owned capital after approval according to the prescribed procedures". The word "equality" has been questioned by many colleges and universities, which means that it has been recognized by the central government, and restructured enterprises can pay other forms of compensation other than economic compensation for employees with state-owned net assets. Of course, not all restructured enterprises are suitable for this condition. For example, the restructuring of the above-mentioned institutions can refer to this standard and seek other compensation methods. Other people who have less economic compensation, are engaged in dangerous occupations and occupations that endanger health, have certain special skills and have made significant contributions to the enterprise, can be proposed by the restructured enterprise to the higher authorities in light of the actual situation, and the specific standards are determined by the higher authorities.
Second, the payment method of economic compensation
In the restructuring of state-owned enterprises, economic compensation must be paid and cannot be discounted, so how to pay this relatively huge restructuring cost is a headache for restructured enterprises, and after paying the restructuring cost, it will not affect the development of the restructured enterprises, so how to pay economic compensation is particularly important.
(A) the mode of payment of economic compensation
In fact, the documents issued by the central government and most local governments on the payment of economic compensation for employees of restructured enterprises all emphasize the problem of "paying with the net assets of state-owned enterprises", but there are no clear regulations or restrictions on how to pay. Therefore, from the financial point of view, paying employees economic compensation with net assets can actually be paid in the form of equity, creditor's rights and cash.
1. Cash payment form
The form of cash payment requires enterprises to pay employees in cash as economic compensation for the termination of long-term labor contracts. For enterprises with abundant cash flow, this method is acceptable, and it is a one-time solution, which will not leave sequelae for the restructured enterprises, but it will greatly occupy the capital flow of enterprises, reduce the ability of enterprises to resist risks, and make enterprises easily fall into crisis.
2. Form of equity payment
The form of equity payment is to directly implement the net assets of the enterprise to each employee in the form of economic compensation. After the enterprise is restructured, the rights and interests of employees in the restructured enterprise will be formed. Although this method is allowed in the relevant document policy, there are two obvious obstacles in operation. First of all, due to the limitation of the number of shareholders in the company law, the number of employees holding shares is limited, and it is difficult to get the approval of the relevant departments to set up employee holding clubs and other holding carriers, so the identity and method of employee holding shares are the first problem to be solved; Secondly, the way of employee collective shareholding is no longer feasible in most places. Local governments prefer that the management of the former enterprises absolutely control the restructured enterprises, and do not support all employees to hold shares together. Therefore, from the above two points of view, it is not a good way to pay employees economic compensation in the form of equity.
3. Payment form of creditor's rights
If the payment ability of the restructured enterprise is relatively poor, in order to reduce the pressure on the production and operation of the enterprise caused by the payment of the restructuring cost, the economic compensation of the employees can be converted into the liabilities of the restructured enterprise and the corresponding net assets of the enterprise can be reduced. After the enterprise is restructured, the creditor's rights of the employees holding the restructured enterprise are paid off in accordance with the corresponding regulations and conditions. In order to avoid the risk of violating the accounting law and tax law after the restructuring, the restructured enterprise must obtain the approval of the higher authorities and the government and pay the employees economic compensation in the form of creditor's rights.
(B) the mode of payment of economic compensation and the development of restructured enterprises
The payment method of economic compensation is closely related to the development of restructured enterprises, and should be determined in combination with the survival and development mode and long-term interests of enterprises. Although different enterprises can pay economic compensation in different ways, generally speaking, the better way to solve this problem is to pay employees economic compensation in cash, equity and creditor's rights.
First of all, employees who do not continue to work in the restructured enterprise should be paid in cash at one time, so that these employees have nothing to do with the restructured enterprise and reduce some burdens.
Secondly, for former enterprise managers and technical business backbones who intend to become shareholders of restructured enterprises, they can directly pay their economic compensation in the form of equity. If there are a large number of people, the "quasi-natural person" method can be adopted, that is, several natural persons are tied together and one person agrees to hold shares on behalf of them.
Finally, the economic compensation of the remaining employees will be converted into their creditor's rights to the restructured enterprise, and the conditions and time limit for repayment and interest payment will be agreed by both parties. At the same time, in order to ensure that this part of the creditor's rights can be repaid, the restructured enterprise should take the fixed assets of the enterprise as collateral.
Adopting this method to solve the problem of economic compensation for employees can not only alleviate the financial pressure of restructured enterprises, but also avoid full shareholding, which is conducive to redefining the shareholder structure of restructured enterprises. At the same time, the personal interests of employees staying in the restructured enterprise are related to the interests of the enterprise to a certain extent in the form of creditor's rights, but the risk of employees is less than that of shareholders in the restructured enterprise. The specific situation of enterprises is different. In this way, the proportion of cash payment, equity payment and creditor's rights payment is not the same, which should be determined reasonably by professionals in combination with the characteristics of enterprises. It should be pointed out that the payment method of employees' economic compensation should also be adopted by the enterprise employees' congress or the employees' congress. Therefore, the restructured enterprises should do their best to do a good job of employees, put facts and reason, take the long-term development of the restructured enterprises as the primary goal, and gain the understanding and support of employees. Three. Personal income tax payable by employees due to economic compensation.
In the restructuring of state-owned enterprises, employees should also pay personal income tax in accordance with the provisions of the People's Republic of China (PRC) Tax Law and the national tax law for the economic compensation obtained by dissolving the labor contract. To this end, State Taxation Administration of The People's Republic of China issued the "Notice of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on Exemption of Individual Income Tax from One-time Compensation Income of Employees of State-owned Enterprises Due to the Termination of Labor Contracts". The circular stipulates that "employees of state-owned enterprises are declared bankrupt according to the Bankruptcy Law of People's Republic of China (PRC) (for Trial Implementation), and the income from one-time resettlement fees obtained from bankrupt enterprises shall be exempted from personal income tax", and "the one-time compensation income obtained by employees of state-owned enterprises and enterprises from the termination of labor contracts may be exempted from personal income tax within three times of the average annual salary of employees of enterprises in the previous year". Specific exemption standards shall be formulated by the local taxation bureaus of all provinces, autonomous regions, municipalities directly under the Central Government and cities under separate state planning. For the one-time compensation income exceeding this standard, the individual income tax shall be calculated and levied in full according to the relevant provisions of Several Provisions of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Individual Income Tax for Economic Compensation Obtained by Termination of Labor Contract (Guo Shui Fa [1999] 178).
Four, a one-time solution to the problems left over from history in the restructuring of state-owned enterprises.
Many problems left over from history will be exposed in the restructuring of state-owned enterprises, such as wage arrears, welfare funds, social pooling and fund-raising, resettlement of disabled employees, and disposal of retired employees. These problems should be solved once in the enterprise restructuring, so as not to leave a tail for the restructured enterprises and drag down their development.
Arrears of employees' wages and welfare.
According to the relevant provisions of document No.313 of Caiqi [2002], the original payable welfare funds of enterprises are still converted into current liabilities of restructured enterprises, and the part of the original payable wages owed to employees can be paid to employees or converted into personal investment after deducting personal income tax.
(two) workers who are in arrears or have not yet established social pooling.
Document No.313 of Caiqi [2002] stipulates that when an enterprise that has not yet established social pooling is restructured, it shall pay the social insurance premium paid to the social security agency for the employees in one lump sum, and deduct it from the net assets of the restructured enterprise or give priority to the payment from the proceeds from the sale of assets by the restructured enterprise. For enterprises that have established social pooling but have not paid social insurance premiums, priority should be given to paying off the existing assets of restructured enterprises.
(3) Handling of fund-raising by employees
There are two forms of unpaid employee fund-raising in restructured enterprises, one is long-term liabilities, and the other is shares. For these two forms of employee fund-raising, they can be paid off with existing assets, or they can be converted into individual employees' investment in restructured enterprises on the premise of voluntary employees.
(four) the housing treatment of workers who have not been reformed.
For the employee housing of the restructured enterprise, if the contract has not been signed, the house price has been paid and the housing reform has been carried out, it shall apply to the relevant departments for housing reform and sell it to the employees according to the relevant regulations. For employees who have not purchased housing in the housing reform, it shall be handled in accordance with relevant regulations.
(five) medical expenses and pension benefits for retired workers.
The medical expenses and pensions of retired workers who are not included in the overall social planning can be deducted from the state-owned net assets of the restructured enterprises according to the standards at that time or referring to the standards promulgated by the local government for a certain period of time, and special accounts can be set up for management and regular payment.
(6) Handling of injured and disabled employees
With regard to the treatment of disabled employees, according to No.481of the Measures for Economic Compensation for Violating and Dissolving Labor Contracts [1994], "If an employee is sick or injured at work, and the labor contract is dissolved after being confirmed by the labor appraisal committee that he can't do the original work or the work arranged by the employer, the employer shall pay compensation equivalent to one year for each full year. Those suffering from serious illness or terminal illness should also increase Medicaid, and the increase of serious illness should not be less than 50% of Medicaid, and the increase of terminal illness should not be less than 100% of Medicaid, or the labor contracts of these employees should be terminated at one time according to the standards issued by the local government, so that these employees can be effectively and reliably resettled.
(7) Handling of retired employees of the Company.
For employees who have gone through retirement procedures before the restructuring, retirement fees and other salary expenses payable from the time of restructuring to the formal retirement age should be calculated, deducted from the state-owned net assets at one time, and a special account should be set up for management and regular payment. In addition, these employees can also be disposed of in the form of economic compensation by dissolving their labor contracts.
(eight) the treatment of employees who leave their jobs without pay or take long holidays.
For employees who leave their jobs without pay or take long holidays, they should be treated as economic compensation by dissolving the labor contract. The determination of the specific length of service should be based on the length of service recognized by the labor department, and the labor contracts of these employees should be terminated at one time to reduce the burden on the restructured enterprises.
Verb (abbreviation of verb) pays economic compensation to public enterprises and scientific research institutions.
Some public enterprises and scientific research institutions often ask how to determine the economic compensation of employees during the reform of these types of enterprises and institutions. In fact, such enterprises and institutions are also applicable to the methods and standards of economic compensation for employees discussed above. In the Notice on Further Clarifying the Issues Concerning the Separation of Main and Auxiliary Enterprises of Large and Medium-sized State-owned Enterprises (State-owned Assets Allocation [2003]2 1No.), large and medium-sized State-owned enterprises can be reorganized with reference to the relevant provisions of State-owned Economic and Trade Enterprise Reform [2002] No.859 and State-owned Assets Allocation [2003]2 1 No.,The reorganized and diverted auxiliary assets mainly include ".