Asked by: Manufacturing Industry HR
If a worker is transferred from Company A to Company B, and the tripartite agreement states that 'Company B will generally inherit all the relevant rights and obligations of Company A agreed in the labor contract', should the worker claim against Company B for the unpaid social insurance fees during his working period at Company A? If the worker still claims against Company A, does Company A need to take responsibility?
Answered by : RDL· Shanghai Attorney Weiyan Shao
Because the unpaid behavior occurred during the period in which Company A and the worker established a labor relationship, the social insurance compensation should be borne by Company A. The worker cannot directly claim against Company B for repaying social insurance fees. As for whether Company A can request Company B to finally compensate for the corresponding expenses after Company A bearing the responsibility, it depends on the written agreement between the two companies.
According to the clause "Company B will generally inherit all the relevant rights and obligations of Company A agreed in the labor contract" , the risk is whether compensating for unpaid social insurance shall be considered as one of the "relevant rights and obligations". From lawyer's point of view, the clause is too general. It is unreasonable to transfer all responsibilities to Company B only based on this general clause. Since the unpaid social insurance liability was caused by Company A's violation of law, it will go against legal principles of fairness and justice if all the responsibility is roughly transferred to Company B.