Labour contracts, social security and income tax
When it comes to company compliance with employee management, the Chinese authorities utilise the ‘trinity concept’ which comprises three fundamental pillars: labour contracts, social security contributions and individual income tax (IIT). Jamie Jiang and Cherry Tao of Dezan Shira and Associates explain how companies can navigate the various laws and regulations to ensure compliance.
With the implementation of the Administrative Supervision Measures for Social Insurance Funds (Measures) [1] on 18th March 2022, regulators in China’s major first-tier cities, such as Beijing and Shanghai, have intensified their focus on ensuring the alignment of employees’ labour contracts, social security contributions and the withholding of IIT.
This means that the location of employment specified in the labour contract, the city where the employee is enrolled in China’s social security system and the city where IIT is filed must be consistent. The alignment of contracts, social security and taxes is known as the ‘trinity management method’, and it is something that has become a significant concern for companies operating in China.
In this article, we explore the practical implementation of this policy, discuss the potential implications of non-compliance and examine the professional solutions available.
Over the past few years, the following four characteristics have been observed in the implementation of this policy.
Local jurisdiction, universal coverage
The trinity management method is implemented by local labour authorities across China. It is a common practice in all regions to conduct targeted interviews with companies and issue orders for the timely rectification of any violations. These interviews are not limited to specific types of companies, with both state-owned enterprises (SOEs) and private enterprises affected. Notably, leading companies across various industries have been the initial target for such interviews.
No formal notice
Despite China’s labour laws requiring an employee to work, pay taxes and enrol in social security in the same city, no official document has been released that officially lays out the trinity management method. Instead, local authorities tend to notify businesses in relatively unofficial ways. For instance, in Beijing, notifications from the municipal social security centre were shared through various districts or counties’ official WeChat accounts, reminding companies of the need to ensure employees work and pay social security and IIT in the same city. Similarly, in Hangzhou, instructions related to the trinity requirement are commonly disseminated through sessions or seminars attended by business representatives.
Enhanced supervision
With government services increasingly digitalised, local labour and social security bureaus, as well as tax authorities, have better tools and data to ensure consistency in the reimbursement clauses in labour contracts, social security contributions and IIT payments. Using different base amounts for social security payments and IIT withholdings has become more challenging and risky.
For example, when claiming work-related injury benefits or medical insurance, certain checks are completed. In cities like Shanghai, the base salaries specified in labour contracts, social security contributions and IIT payments are reviewed when examining an employee’s application materials for a residence permit. Additionally, in cities like Beijing, the employer’s name on the labour contract and the name of the company paying social security contributions are reviewed to ensure they match when determining the eligibility of relevant employees’ children for some public schools.
What additional legal consequences are there for violating employee management norms?
In addition to reviews and corrections mandated by relevant authorities, Article 32 of the Measures stipulates that if a person fabricates their eligibility for social insurance participation by providing false personal information or incorrect employment details using forged, altered or embezzled identity certificates, presenting false certification materials, or employing other fraudulent means to illegally obtain social insurance benefits, they will be dealt with under Article 88 of the Social Insurance Law.[2]
According to Article 88, the relevant social insurance administrative department can order the repayment of fraudulently obtained social insurance benefits and impose fines ranging from two to five times the defrauded amount. This is the first time that the Ministry of Human Resources and Social Security has explicitly stated in an official document that “fabricating labour relations” and “fabricating social security eligibility” in order to join social security schemes will be regarded as illegal acts.
How is China’s trinity management method different from other major economies?
China’s trinity management approach is different from that of some other major economies.
In the United States, the location where an employment contract is signed, where social insurance is paid and where taxes are filed can differ. An employment contract can be signed in one state while the employee works in another. This situation is common in interstate employment. Social insurance is typically paid in the state where the employee actually works. The tax filing location usually depends on the employee’s place of residence and work. Employees may need to file taxes in both their state of residence and their state of employment, depending on the regulations of the state where they live and work.
In Germany and France, a company can also pay taxes and social insurance contributions for employees working in a different city to where the company is registered. Social insurance contributions are based on the employee’s place of work. The employer is responsible for deducting contributions from the employee’s salary and paying them to the relevant authorities, regardless of the company’s registered location. Income tax is also deducted from the employee’s salary by the employer and paid to the tax office in the region where the employee is registered as a resident. This means that even if a company is registered in one city, it can handle tax payments for employees working in other cities. This flexibility allows companies to have employees working remotely or in different locations without needing to establish a separate legal entity in each city.
Why do foreign companies find it difficult to comply with trinity management?
If a foreign investor plans to establish a company and hire employees in just one city, there will likely be no major issues with trinity management compliance. However, in practice, foreign investors often set up in one city but want to maintain operations in multiple cities across China, necessitating having local employees in those cities. In such cases, complying with trinity management can be challenging.
Local employees often prefer to enjoy social security and other benefits in the city where they live. However, foreign-invested enterprises cannot create social security accounts or pay IIT in cities where they have no branches.
While a company can meet the rules by setting up branches or subsidiaries in each city, this approach is often too costly for small and medium-sized businesses, especially those in the early stages of development. This is particularly true when the number of local employees is very small.
Even if a company is willing to bear the cost of setting up local branches, it takes time. The company still needs to make corresponding arrangements for the transitional period.
Additionally, managing labour contracts, social insurance, and IIT payments across multiple cities in China is complex. China’s labour regulations are handled at the local level and can vary significantly from city to city. This presents a significant challenge for foreign companies that are new to China or have a comparatively small human resources (HR) team.
How can businesses ensure compliance with the trinity management method?
Based on the above, it is evident that an increasing number of cities are imposing stricter scrutiny on the alignment of labour contracts, social security payments and IIT withholdings. The proper implementation of the trinity management method is now closely linked to eligibility for various benefits. Relevant authorities have developed more technical methods to enforce compliance, resulting in intensified legal consequences for violations. It is of utmost importance for companies and HR departments to prioritise and actively plan for compliance in this aspect.
For businesses that do not have a physical entity registered in corresponding local jurisdictions to handle local employees’ social security and IIT payments, we have identified three possible solutions.
Solution 1: Mutual agreement with employee to re-sign their labour contracts
In this approach, no new entity will be established in the corresponding local jurisdiction. Instead, companies are encouraged to negotiate with relevant employees to amend their labour contracts. A new labour contract will be signed between a company’s headquarters and the employee, with headquarters responsible for managing the employee’s social security and IIT at its location. The primary advantage of this solution is that it incurs minimal additional costs for the business. However, it may be challenging to convince employees to accept this arrangement, as they might be seeking access to specific social benefits available by complying with the trinity management method.
Solution 2: Setting up new entities in various local jurisdictions
In this approach, companies will need to register new entities in the jurisdictions where their employees are operating on the ground. These new entities will then be responsible for managing employees’ social security and IIT payments. This solution prioritises employees’ demands to participate in social security and pay IIT locally. However, setting up new local entities is likely to substantially increase overall compliance costs for businesses.
Solution 3: Using professional HR services
In addition to the previous solutions, there is another approach that allows businesses to have employees enrolled in social security schemes and pay taxes in jurisdictions other than where the business is registered: companies can make use of professional HR services such as professional employer organisations (PEOs).
Under this solution, businesses enter into an agreement with a PEO that has branches in the cities where their employees are located. The PEO will manage employees’ labour contracts, social security contributions and payroll through their local branches. This centralised management offers a streamlined and efficient solution that simplifies HR management, ensures compliance, saves costs, reduces legal risk and ensures scalability and flexibility.
For instance, if a foreign investor establishes a company in Shanghai but needs to base some employees in Beijing, the investor can utilise a one-year PEO service. Employees would sign labour contracts with a PEO operating in Beijing, ensuring that social security, IIT and payroll are managed locally. Once the business concludes, the employment relationship with the PEO can be terminated. Alternatively, if the investor decides to establish a physical presence in Beijing, labour contracts can be re-signed between the local entity and the employees.
In essence, using PEO services allows companies to test the market at minimal cost. If successful, the company can establish a local entity and continue independently; if not, the complexities of setting up and deregistering a company have been avoided.
Summary
The trinity management approach to labour contracts, social security contributions and IIT is an increasingly prominent trend across China, particularly in first-tier cities. In this new context, businesses can no longer sign labour contracts with their employees while managing their social security contributions and IIT payments through separate local entities. Companies are advised to carefully study the new requirements and explore suitable solutions promptly to avoid increased scrutiny from relevant authorities.
This article has been expanded from a previous article published by Dezan Shira and Associates.
Cherry Tao is assistant manager on the Human Resources Administration and Payroll Services team at Dezan Shira & Associates’ Dalian office.
Jamie Jiang is a senior associate on the Human Resources Administration and Payroll Services team at Dezan Shira & Associates’ Dalian office.
Dezan Shira & Associates assists foreign investors in China and has done so since 1992 through offices in Beijing, Tianjin, Dalian, Qingdao, Shanghai, Hangzhou, Ningbo, Suzhou, Guangzhou, Dongguan, Zhongshan, Shenzhen and Hong Kong.
The company has offices in Vietnam, Indonesia, Singapore,
the United States, Germany, Italy, India and Dubai (UAE), as well as partner
firms assisting foreign investors in the Philippines, Malaysia, Thailand and
Bangladesh.
[1] Administrative Supervision Measures for Social Insurance Funds, Ministry of Human Resources and Social Security, 18th March 2022, viewed 19th September 2024, <https://www.mohrss.gov.cn/xxgk2020/gzk/gz/202202/t20220221_436454.html>
[2] See Article 88: Social Insurance Law, Ministry of Human Resources and Social Security, 29th December 2018, viewed 19th September 2024, <https://www.mohrss.gov.cn/xxgk2020/fdzdgknr/zcfg/fl/202011/t20201102_394629.html>
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