Câu hỏi 14. NLĐ làm việc theo HĐLĐ có thời hạn dưới 03 tháng có thuộc đối tượng đóng BHXH không?

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  1. Giao kết HĐLĐ có thời hạn dưới 03 tháng với NLĐ

Theo quy định của BLLĐ 2012, HĐLĐ dưới 03 tháng có thể được hiểu là HĐLĐtheo mùa vụ hoặc theo một công việc nhất định có thời hạn dưới 12 tháng[1]. Khi giao kết loại HĐLĐ này, NSDLĐ cần lưu ý rằng trong trường hợp công việc thực hiện mà có tính chất thường xuyên và lâu dài từ 12 tháng trở lên thì NSDLĐ không được giao kết HĐLĐ theo mùa vụ hoặc theo một công việc nhất định có thời hạn dưới 12 tháng với NLĐ, ngoại trừ các trường hợp NSDLĐ phải tạm thời thay thế NLĐ đi làm nghĩa vụ quân sự, nghỉ theo chế độ thai sản, ốm đau, tai nạn lao động hoặc nghỉ việc có tính chất tạm thời khác[2].Như vậy, NSDLĐ có thể giao kết HĐLĐ theo mùa vụ có thời hạn dưới 03 tháng với NLĐ làm việc không trọn thời gian chỉ khi NLĐ đó làm công việc có tính chất không thường xuyên và lâu dài.

Thực tiễn cũng đã xảy ranhiều trường hợp NSDLĐ vàNLĐ làm việc không trọn thời gian đã giao kết “Hợp đồng cộng tác viên” nhưng khi cơ quan quản lý lao động địa phương có thẩm quyền kiểm tra thì được biếtnhững NLĐ này đã làm việc “liên tục” và “thường xuyên” cho NSDLĐ trong nhiều năm theo “hợp đồng cộng tác viên” và cơ quan quản lý lao động địa phương đã yêu cầu NSDLĐ phải ký kết HĐLĐ cho những NLĐ này.

  1. NLĐ làm việc không trọn thời gian có thuộc đối tượng đóng BHXH hay không?

Theo quy định của Luật BHXH 2014, người làm việc theo HĐLĐ có thời hạn từ đủ 01 tháng đến dưới 03 thángthuộc đối tượng tham gia BHXH bắt buộc[3]. Do đó, trường hợp NSDLĐ giao kết HĐLĐ theo mùa vụ có thời hạn dưới 03 tháng với NLĐ làm việc không trọn thời gian thì phải đóng BHXH cho những NLĐ đó.

[1] Điều 22.1(c) BLLĐ 2012

[2]Điều 22.3 BLLĐ 2012

[3] Điều 2.1(b) Luật BHXH 2014

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