Use social security depressions to reduce costs and transfer assets ...... to avoid work-related injury claimsSome employers play tricks when it comes to work-related injury compensation
Identification of work-related injuries in different places Who is the backbone of the worker.
The local social security department determined that Ming's injury was a work-related injury, but the employer raised ......an objection on the grounds that "the work-related injury should be determined by the labor administrative department of the place where the company is registered".
In recent years, it is not uncommon for non-local business, non-local employment, and non-local construction to occur. With the frequent occurrence of work-related injury cases in other places, contradictions and disputes such as social security depressions, the identification of work-related injury time and place, and the work-related injury rights and interests of retired personnel under the co-insurance have become increasingly prominent. How should workers protect their legitimate rights and interests in the face of various complex situations?The reporter of "Worker**" conducted an interview.
The social security depression needs to be solved urgently.
Ming's household registration and the registered place of a construction company of the employer are both Weifang City, Shandong Province, and the place of the incident is a construction site in Qingdao. Although the construction company filed a lawsuit with the court, arguing that the determination of work-related injuries should be made by the labor administrative department of the place where the company was registered, the court held that a construction site in Qingdao was the actual production and operation place of the construction company, and that the work-related accident occurred in Ming, and the Qingdao human resources and social security department had jurisdiction over the determination of work-related injuries. Zhang Jie, a lawyer at Shandong Qingda Zehui Law Firm, said.
According to Zhang Jie, China's non-local work-related injuries are mainly divided into three types: labor dispatch, non-local dispatch and migrant workers. "Ming's case is a typical labor dispatch model, and they generally have a labor contract with the employer and have purchased social insurance. After a work-related accident, the employer usually takes a positive attitude to resolve the problem, and the relatively concentrated dispute point is the social security depression. Zhang Jie introduced that most labor dispatch companies are privately operated, and in order to reduce employment costs, they often choose to register in cities with low social security payment bases and send workers to high-income places. In the event of a work-related injury, compensation based on the place where the company is registered or the place where the work-related injury occurred has become a point of contention for this type of work-related injury.
The household registration and employer registration place of employee Xiao Wang are both in Handan, Hebei Province. In an accident in the workshop of a state-owned enterprise in Qingdao and the amputation of his right forearm, Xiao Wang can receive a one-time compensation of 300,000 yuan according to the social security policy of Handan City, and according to the social security policy of Qingdao City, the compensation standard for regular employees of Xiao Wang's workshop is 500,000 yuan. For this reason, Xiao Wang put forward the claim that "compensation should be based on the standard compensation for work-related injuries at the workplace".
In the year in which the case arose, there was no clear provision for this dispute. Zhang Jie said that considering that Xiao Wang is only in his 20s and the family burden is also very heavy, after more than a year of legal rights protection, from the perspective of protecting vulnerable groups, the court finally ruled that the employer should pay a one-time compensation of 200,000 yuan for the difference in accordance with the Qingdao work-related injury compensation standard.
It is understood that in 2015, the Shandong Provincial Department of Human Resources and Social Security issued the "Notice on Several Issues Concerning the Standardization of Labor Dispatch and Employment", which clearly stipulates that "if a labor dispatch unit dispatches workers across regions, it shall participate in social insurance for the dispatched workers at the location of the employer and pay social insurance premiums in accordance with the regulations of the location of the employer", and requires the labor dispatch unit to establish a branch in the local area in order to engage in labor dispatch business. However, this policy has not yet been rolled out nationwide.
Work-related injury insurance** is the cover for workers.
Migrant workers are mostly scattered workers, and usually lack basic guarantees such as labor contracts and social insurance, and it is difficult to protect their personal rights and interests in the event of a work-related accident.
Sun, a native of Linyi, Shandong Province, was engaged in cleaning work in a sanitation company in Qingdao, and fainted with a sudden cerebral hemorrhage during work, and died after being sent to the hospital. Because the sanitation company did not pay social security for Sun, he was responsible for all the compensation totaling 370,000 yuan.
The sanitation company appealed, arguing that Sun may have a physical illness and that the two parties did not sign a labor contract, so they should not be liable for all compensation. Zhang Jie said that there was a de facto labor relationship between Sun and the sanitation company, and he was working at the time of the illness, and these key elements were in accordance with relevant laws and regulations, so the sanitation company should bear all the compensation.
In the process of enforcement, in order to evade responsibility, the sanitation company transferred all the assets under its name, and the court took various compulsory measures such as including the legal person in the list of dishonest people to no avail, and finally paid 370,000 yuan in advance to Sun's relatives by applying for work-related injury insurance ** to the Human Resources and Social Security Bureau.
According to the relevant person in charge of the Qingdao Municipal Human Resources and Social Security Bureau, the work-related injury insurance agency raises funds from employers to solve the problem of economic compensation after the disability or death of workers due to work-related injuries.
To apply for advance compensation by work-related injury insurance**, it is necessary to meet the prerequisites that the amount of work-related injury compensation has been confirmed by effective legal documents and all other means of recourse have not been paid, and the items applying for advance compensation should also fall within the scope of compensation that should be paid by work-related injury insurance** as stipulated in the regulations on work-related injury insurance**. According to the person in charge, as a catch-up policy for work-related injury compensation, the local social security department will file a lawsuit with the court to compel the employer to repay the work-related injury compensation after paying the employee first.
Employees stationed in other places must clarify the labor rules.
In 2022, Xiao, a middle-level cadre of a state-owned enterprise in Qingdao, was sent to Jiangsu to explore the market, and the company provided Xiao with office and living space respectively, because he needed to go out to inspect the market and work overtime, Xiao's working hours and workplace were not fixed.
On the afternoon of a working day, Xiao, who had finished the investigation, returned to his residence to sort out the information, and suddenly suffered a heart attack, and died on the spot because there was no one around him to treat him, and the identification of work-related injuries was once in trouble.
This is a common point of contention in the remote assignment model," said Zhang Jie, adding that most of these assignments are managerial and middle-level personnel, and the company does not have relatively clear employment location and time constraints for them, so it is difficult to define whether they are in working hours and the workplace in the event of a work-related accident.
Because neither the employer nor Xiao's relatives could provide valid evidence, the human resources and social security department determined that Xiao was not a work-related accident and could not obtain relevant compensation. For such stationed personnel, Zhang Jie said that employers should formulate relevant rules and regulations, clarify job responsibilities, content, time, place and other detailed rules, flexible form of attendance abroad, and employees should report to leaders or colleagues through WeChat, text messages and other ways that can leave traces, as evidence of working hours and workplaces, so as to protect their legitimate rights and interests.
Zhang Jie reminded that after the occurrence of a work-related accident, the worker should declare it in a timely manner within the one-year validity period, and once the time limit is exceeded, he will not be able to protect his rights through the labor injury procedure, but will turn into a dispute over the liability of the worker, which not only needs to determine the fault party, but also the disability appraisal standard is relatively strict, which is very unfavorable to the protection of the rights of the worker and the payment of compensation.
*:Worker** Reporter Zhang Chang.
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