In order to enjoy retirement pension, employees need to submit an application to the head of the non-business unit to continue implementing the labor contract after the retirement age until the full 20 social insurance contributions are paid. If there is a need, the employer can reach an agreement with the elderly employee if he is healthy enough to extend the term of the labor contract.

Mr. Ho Hung would like to request to be answered the following case: Mr. A is a security guard of a school unit. The contract working time is from December 2001, and be paid 21% of the social insurance premium. From January 2004 up to now, Mr. A has participated in paying the social insurance, health insurance and voluntary unemployment insurance from his salary deducted. By June 2019, Mr. A is full retirement age (60 years old), but his time of payment of social insurance premium is less than 20 years. In case of resignation at the age of 60, how are Mr. A's benefits? How can he  get pension?

Lawyer Tran Van Toan, the Khanh Hung Law Office, the Hanoi Bar Association answered this issue as follows:

According to the provisions of the law on social insurance from time to time, such as: Decree No. 12 / CP dated January 26, 1995 of the Government promulgating the Charter of Social Insurance (effective January 1, 1995, expires. January 15, 2007); Decree No. 01/2003 / ND-CP dated January 9, 2003 amending and supplementing a number of articles of the Charter of Social Insurance, issued together with the Government's Decree No. 12 / CP of January 26, 1995 (effective from January 1, 2003, expired January 15, 2007); Law on Social Insurance 2006 ( was effective from January 1, 2007, expired on January 1, 2016); Law on Social Insurance 2014 (has been effective January 1, 2016), Mr. A and the public non-business unit where he works are subject to compulsory social insurance.

Mr. Ho Hung's reflection information is not accompanied by a copy of Mr. A's records, social insurance books, labor contracts to verify that Mr. A participates in compulsory social insurance, or voluntary social insurance, so assuming , the monthly amount the unit deductes from Mr. A's salary to pay the compulsory social insurance, health insurance and unemployment insurance, not to pay the voluntary social insurance.

Assuming that Mr. A is allowed to participate in compulsory social insurance from January 2004, until June 2019, he is 60 years old and has 15 years and 6 months of social insurance payment, then Mr. A is not eligible for the time of payment of social insurance premium to enjoy the benefits. the retirement age is specified at Point a, Clause 1, Article 54 of the Law on social insurance. In this case, Mr. A may request his unit to continue performing the labor contract with him after the retirement age until he has full 20 years of social insurance payment, in order to be eligible for pension entitlement; or Mr. A retires but continues to participate in voluntary social insurance until he has full 20 years of payment of social insurance premium to enjoy his pension; or receive lump-sum social insurance benefits under Article 60 of the Law on Social Insurance.

If the information is correct as Mr. Hung reflects, the unit will deduct from Mr. A's salary to pay the voluntary social insurance for Mr. A (not to pay the compulsory social insurance), in June 2019, Mr. A is 60 years old, the time of payment of new social insurance has 15 years and 6 months. In this case, Mr. A may continue to pay voluntary social insurance until he is full 20 years to enjoy his pension as prescribed in Clause 2 Article 73 of the Law on social insurance; or receive lump-sum social insurance benefits under Article 77 of this Law.

Pursuant to the provisions of the Labor Code in Clause 1, Article 187 (on retirement age), Clause 1, Article 166 (on the elderly employee) and Clause 1 of Article 167 (on the employment of elderly employees), to enjoy his pension when he retires, Mr. A needs to submit an application to the head of the non-business unit to continue implementing the labor contract after the retirement age until the full 20 years of social insurance payment. If there is a need, the employer can reach an agreement with the elderly employee if he is healthy enough to extend the employment contract term.

Regarding the severance allowance, according to Clause 4 Article 36, Clause 1 Article 187 and Clause 1 Article 48 of the Labor Code, the case of termination of the labor contract when the employee is eligible for the time of social insurance payment and age on pension entitlement, the employer is not responsible for paying the severance pay.

Unemployment benefits applicable to compulsory unemployment insurance, as specified in Point b, Clause 1, Article 49 of the Law on Employment, in case of termination of labor contracts with employees to enjoy salary If you are retired, you will not be entitled to unemployment benefits.

Lawyer Tran Van Toan

VPLS Khanh Hung, Hanoi Bar Association