For a variety of reasons, although the state requires full coverage for migrant workers entering the construction field to participate in work-related injury insurance, in fact, many migrant workers are still prevaricated by all parties after being injured due to work during the construction process, resulting in many obstacles in safeguarding their rights.
If the employer fails to apply for the identification of work-related injury as required, the migrant workers can directly apply for the identification of work-related injury to the social insurance administrative department of the overall planning area where the employer is located within one year from the date of the accident injury according to the provisions of paragraph 2 of Article 17 of the regulations on work-related injury insurance.
Peasant workers are often employed by organizations or natural persons to provide labor for the project.
1、 If migrant workers are injured during construction, whether they can be handled as industrial injury cases and request the contractor with the qualification of employment subject to bear the liability of industrial injury insurance.
From the perspective of protecting the legitimate rights and interests of employees, the above provisions supplement the general provisions of the regulations on industrial injury insurance that takes labor relations as the premise of industrial injury identification, that is, when there is illegal subcontracting and subcontracting, the employer’s responsibility for industrial injury insurance of employees is not based on the existence of labor relations.
In case of industrial accidents when the employees employed by the organization or natural person engage in the contracting business, the employing unit that illegally subcontracts or subcontracts shall bear the liability for industrial injury insurance.
Whether the injuries of migrant workers during construction can be handled as general personal injury compensation cases; 3.
It fully embodies the new judgment concept of “separation of identification of industrial injury and confirmation of labor relationship”.
Contents contents 1.
After obtaining the written decision on the identification of work-related injury, migrant workers may, after treatment or rehabilitation, apply to the municipal labor ability appraisal committee divided into districts for labor ability appraisal in a timely manner when the injury is relatively stable or the period of suspension and salary retention expires..
For migrant workers, the common situation is that after the project is generally contracted by qualified construction companies, some of the work is contracted by qualified units, and then subcontracted to organizations or natural persons who do not have the qualification of employment subjects.
Even if the worker does not have labor relationship with the employer and the worker is identified as industrial injury by the industrial injury management department, he can still claim industrial injury insurance treatment from the responsible unit.
The Subcontractor is prohibited from subcontracting the contracted project”.
Only then do they know that the construction enterprises are not insured for themselves.
(IV) If the employing unit subcontracts the contracting business to an organization or natural person that does not have the qualification of the employing subject in violation of laws and regulations, and the employees employed by the organization or natural person are injured or killed due to work when engaging in the contracting business, the employing unit is the unit that bears the liability of industrial injury insurance;…
Article 7 of the opinions of the Ministry of human resources and social security on Several Issues concerning the implementation of the regulations on industrial injury insurance stipulates: “If a contractor with the qualification of employment subject subcontracts or subcontracts the contracting business to an organization or natural person without the qualification of employment subject in violation of laws and regulations, if the workers recruited by the organization or natural person are injured or killed at work when engaging in the contracting business, the contractor with the qualification of employment subject shall bear the industrial injury insurance liability that the employer shall bear according to law”.
There are various forms of employment on construction sites.
If an accident injury occurs to a migrant worker, the unit to which he belongs shall, within 30 days from the date of the accident injury or the date of being diagnosed and identified as an occupational disease, apply to the administrative department of social insurance in the overall planning area for the identification of work-related injury.
The state establishes an industrial injury insurance system, which aims to ensure that employees who suffer from accidents or occupational diseases at work receive medical treatment and economic compensation.
This shows that the identification of the employer’s liability for work-related injury insurance does not have to be based on the actual labor relationship between the worker and the employer.
The first paragraph of Article 3 of the provisions of the Supreme People’s Court on Several Issues concerning the trial of administrative cases of work-related injury insurance (FSH [2014] No.
Its fundamental purpose is to ensure that the worker does not lose the corresponding work-related injury insurance benefits due to illegal employment, and to avoid the Employer from evading its liability for work-related injury insurance through illegal subcontracting.
Article 4 of the notice of the Ministry of labor and social security on matters related to the establishment of labor relations (LSBF [2005] No.
2.
In this case, how can migrant workers protect their legitimate rights and interests to the greatest extent.
151 administrative judgment.
According to the third paragraph of Article 29 of the construction law of the people’s Republic of China, “the general contractor is prohibited from subcontracting the project to units without corresponding qualifications.
The employer has the obligation to pay industrial injury insurance premiums for all its employees, and employees have the right to enjoy industrial injury insurance benefits.
1.
Advocating industrial injury insurance benefits and personal injury compensation are two different dimensions of rights protection, Which of the two treatment methods can protect the legitimate rights and interests of migrant workers to the greatest extent.
Whether the injuries of migrant workers during construction can be handled as industrial injury cases, and the contractor with the qualification of employment subject can be requested to bear the liability of industrial injury insurance; 2.
For the workers recruited by the organization or natural person, the employer with the qualification of employment subject shall bear the responsibility of employment subject “.
Steps for migrant workers to request the contractor with the qualification of employment subject to bear the liability of industrial injury insurance.
9) stipulates: “if the administrative department of social insurance determines that the following units are responsible for work-related injury insurance, the people’s court shall support:…
“.
The evidence materials are sufficient and comply with the provisions of paragraph 1 of Article 14 of the regulations on work-related injury insurance, If it falls within the scope of industrial injury identification, the human resources and Social Security Bureau will identify (or treat) it as an industrial injury according to the application, and issue a decision on the identification of industrial injury.
The Supreme People’s court also confirmed this in its (2018) supreme law Xing Zai No.
12) stipulates: “construction, mining enterprises and other employing units will Or the management right is contracted out to an organization or natural person who does not have the qualification of employment subject.
According to the above provisions, the employing unit subcontracts or subcontracts the contracting business to an organization or natural person who does not have the qualification of the employing subject in violation of laws and regulations.
