Construction Workers' Rights Protection After Injury

According to the data released by the Ministry of human resources and social affairs, there are nearly 45 million employees in the field of construction, of whom 36 million are migrant workers.

In the field of construction, there are frequent cases of industrial injury.

Most of the migrant workers in the construction field have not signed a written labor contract. After the injury, there are many difficulties in safeguarding their rights. Many migrant workers have no choice but to "privately" with their boss.

Migrant workers who are unwilling to "selfish" choose to safeguard their rights and interests through legal procedures.

However, even in the legal process, construction workers will face a dilemma.

"A lot of construction workers are led by contractors and work at various construction sites, and contractors are usually contracted by a labor company.

As a result, there is no direct labor relationship between labor companies and construction workers. "

Shi Fumao, executive director of the legal aid and research center of the sincere migrant worker in Beijing, told reporters that "it is precisely because of the existence of contractor, that the construction workers are in a state of chaos after the work-related injuries, and the referees of the judicial departments are not unified in practice, which makes the workers' rights protection time-consuming and laborious."

On July 2012, Wang Biao, a 28 year old migrant worker from Hebei, was injured in the right eye when he was working on a construction site in Beijing.

The right retinal detachment and vitreous hemorrhage in the right eye were diagnosed by Beijing Tongren Hospital.

The contractor only paid a medical fee of 10 thousand yuan on the day of the accident.

Wang Biao spent about 100000 yuan on medical treatment.

After discharge from hospital, Wang Biao began to seek Zhang's request for medical expenses.

However, Zhang only said on the phone that he was also working for a labor service company. He had no obligation to lose money and asked him to find a labor company.

Labor companies said that no workers were injured in their contracted projects, nor did Wang Biao have any legal relationship with their company.

Since then, Wang Biao has repeatedly found the contracting unit of the project. The employer replied that they had already contracted the project to the labor company, and that all responsibilities should be held by the labor company. They had no obligation to pay compensation.

"I am obviously injured at the construction site, but I can not keep the relationship between the foreman, the labor company and the contracting unit. I have to file a lawsuit against them for industrial injury compensation."

Wang Biao told reporters.

First, it is necessary to confirm the labor relations, but after the two trials, Wang Biao's claim to confirm the existence of labor relations with the labor companies was rejected, and the process lasted for two and a half years.

The reason for the court is that Wang Biao and labor companies do not have the intention of forming labor relations, so there is no labor relationship between them.

After that, the lawyer changed his strategy and went through the procedure of compensation for personal injury. He took the contractor, Zhang Mou and the labor company as the defendant to provide the court with the dispute of the victim's liability for the labor, and asked the two party to compensate Wang Biao for all the losses.

In the trial, the labor company pointed out that Wang Biao belonged to private construction, and Wang Biao was injured on the same day because he did not wear safety protection equipment. Therefore, Wang Biao should take full responsibility for his right eye injury.

The lawyer suggested that Wang Biao's work was injured when he was assigned by the chief contractor Zhang. Wang Biao did not wear safety protection equipment because the labor company had never issued safety protection equipment to the workers, and the labor company had a serious fault.

In June 2016, the court decided to hire a contractor and a labor company.

Wang Biao lost more than 18 yuan.

At this time, Wang Biao has been injured for nearly 4 years.

In December 2012, Li Jun, 25, came to a construction site in Beijing to carry out the work of loading and unloading cement with his village fellow townsman.

In June of next year, Li Jun was blown down by the gas in the cement tanker during his homework and fell from the height of 3 meters, resulting in an open comminuted fracture of the right femoral shaft.

For more than two months, Li Jun spent about 200000 yuan on medical expenses.

"I went to work on this site and I was introduced by a fellow townsman. The usual wages were paid by a contractor in the same village. After the injury, I didn't know who to pay for it.

Later, I saw that a brand of Beijing building material cement company was found on the construction site, and the company was found, but they said they had outsourced the cement work to a labor company.

Li Jun told reporters.

But Li Jun did not find the service company according to the registered address registered in the trade and Industry Bureau.

Li Jun can only resort to legal settlement.

Li Jun did not sign a labor contract, and the wages were settled by the contractor on a daily basis. The lawyer believed that Li Jun belonged to the labor service company and belonged to the labor relations. He should take the procedure of personal injury compensation.

In December 2013, Li Jun brought the labor company and the Beijing construction cement company to the Daxing District people's Court of Beijing Municipality on the basis of the dispute of the liability for providing a service worker, and asked the two party to bear joint and several liability for compensation.

First instance was supported.

The court of second instance ruled in October 2014 that Li Jun accepted the management and attendance of the labor company, and the labor company also recognized the existence of labor relations with Li Jun. Therefore, the labor relations between the labor company and Li Jun should be labor relations. The case should be dealt with according to the labor law, that is, the road of industrial injury compensation.

Li Jun's attorney told reporters that the labor company recognized the existence of labor relations with Li Jun. The purpose was to delay the compensation time through a lawsuit for industrial injury compensation.

After Li Jun's work injury identification and labor capability rating, the labor company still refused to pay for work-related injuries.

Finally, in July 2016, Li Jun received 160 thousand yuan of compensation for work-related injuries through labor arbitration.

"In practice, the judiciary has a different understanding of the relationship between construction workers and labor companies, leading to similar results in similar cases."

Shi Fumao said that if labor relations between construction workers and contractors are difficult to determine due to the involvement of contractors, they should be allowed to skip work-related injury identification procedures and directly refer to arbitration contractors and labor companies for arbitration and litigation for work-related injury insurance benefits.

According to the reporter, in June 2014, the Supreme Court's judicial interpretation "about trial."

In the provisions of certain questions on insurance administrative cases, it is clear that the employing units violate the laws and regulations and subcontract the contracted business to organizations or natural persons who do not possess the qualification of the employment subject. The employees employed by the organization or natural persons are engaged in the contract business because of the casualties, and the employing units shall be the units that bear the liability for work-related injury insurance.

The unit that bears the liability for work-related injury insurance shall bear the liability for compensation or the social insurance agency shall have the right to recover relevant compensation from the relevant organizations, units and individuals after paying the industrial injury insurance benefits from the industrial injury insurance fund.

"The above judicial interpretation emphasizes the main problem of the liability for work-related injury insurance, and at the same time, it clearly defines the right of recourse for units undertaking industrial injury insurance responsibilities, so that contractors can pay the price.

This will not only guarantee the right of the injured workers to claim, but also warn the contractors who are responsible for employing the main responsibility to rely on them carefully, which is a compromise.

Shen Jianfeng, an associate professor of China Institute of Industrial Relations, told reporters.

However, Shi Fu Mao said that in the judicial practice, the injured worker must first have to ask for industrial injury treatment, and first of all, he has to identify the work-related injury.

In the case of industrial injury identification, people's and social sectors will require workers to confirm labor relations through arbitration.

According to the press, it is often time-consuming to confirm labor relations through arbitration.

In the reply of the administrative court of the Supreme Court on the request for confirmation of the right to confirm labor relations in the process of determining the work-related injury by the labor administrative department, it is pointed out that the labor administrative department has the existence of the workers and enterprises that are identified to be injured in the process of determining the injury.

Functions.

Zhang Shiqian, a lawyer from Hebei Hou Zheng law firm, told reporters that in order to avoid being accused as an accused in the administrative litigation, the staff and social departments have left the dispute of the confirmation labor relationship to the arbitration procedure.

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