To Participate in Social Insurance in Mainland China – Now the Residents of Hong Kong, Macao and Taiwan Have Rules to Follow

On 29 November 2019, the Ministry of Human Resources and Social Security of the People’s Republic of China and the National Healthcare Security Administration jointly announced the “Interim Measures for Residents of Hong Kong, Macao and Taiwan to Participate in Social Insurance in Mainland China” (“the Measures”, http://www.gov.cn/xinwen/2019-12/02/content_5457637.htm). The Measures shall come into effect on 1 January 2020. The Measures not only serve as detailed rules further refining the Social Insurance Law of the People’s Republic of China, but also as supporting measures issued by relevant competent authorities on the social security matters for Hong Kong, Macao and Taiwan (“HMT”) residents after the cancellation of the Employment Permit of HMT residents by State Council on 3 August 2018.

1. Main Contents of the Measures

2. Relevant Issues

1 ) Local Practice

In most cities, such as Beijing and Shenzhen, the social security agencies require employers to make social insurance contributions for HMT employees. To our knowledge, previously, in Shanghai, if the employer has reached an agreement with HMT employees on not participating in social insurance in the Mainland, generally the local social security agency would not require the employer to make social insurance contributions for these employees. However, according to our latest telephone enquiries with Shanghai 12333, in order to facilitate employment of HMT employees and to promote the same employment treatment of these employees as the Mainland residents, the aforementioned practice has been changed accordingly since October 2018 after the cancellation of Employment Permits for HMT employees. It is anticipated that employers in Shanghai would also be required to make social insurance contributions for HMT employees once the Measures are formally implemented.

2 ) Housing Fund Payment for HMT Employees

As regards the housing fund payment, currently there is neither law nor regulation at state level that explicitly requires employers to make housing fund contributions for HMT employees. The local requirements on this matter vary from region to region. According to our telephone enquiries with the competent authority of housing fund (hotline 12329), in Beijing, an employer shall make housing fund contributions if so requested by its HMT employee. However, in Shanghai, if requested by the HMT employee and agreed by the employer, an employer may make housing fund contributions for its HMT employee after both parties have reached the consensus through consultation.

3）Employment Relationship of HMT Residents

The implementation of the Measures will further promote the equal treatment between the Mainland employees and HMT residents when they are employed in Mainland China. In the past, due to the special status of HMT employees, certain regional arbitration commissions and courts (such as some arbitration commissions and courts in Shanghai) referred to relevant provisions concerning foreigners when dealing with labour disputes between these employees and employers in the Mainland. Subject to the principles guaranteeing the basic employment rights of these employees (e.g. the minimum wages, rest, vacation, labour safety and hygiene, etc.), the employers in Shanghai were allowed to reach flexible agreements in favour of the employer on other matters (e.g. the period of the employment contract, the reason and compensation for termination of the employment, and the participation in social insurance etc.). It is highly possible that the aforementioned situation will be changed after the cancellation of the Employment Permits and the mandatory requirement on participation in social insurance for HMT employees. Therefore, based on the actual needs of individuals and enterprises and the specific conditions in different locations, a review and/or adjustment of the forms of employment of HMT residents (such as employment relationship, service relationship, flexible employment), as well as the contents and performance of respective employment contracts or service contracts become necessary, so as to achieve an effective control of employment risks and costs under the premise of compliance.