Migrant workers are active in all walks of life in the country's economic construction.
In the process of the country's economic and social development.
plays a pivotal role.
The protection of the rights and interests of migrant workers is also an important livelihood issue.
I'll take you to take stock today.
Tips on migrant workers' rights protection in arrears of wages.
1. What should I do if migrant workers cause damage to others in the process of providing personal labor services?
The party receiving the service is responsible. Article 1192 of the Civil Code stipulates that if a labor relationship is formed between individuals, and the party providing the service causes damage to others due to the service, the party receiving the service shall bear tort liability. After the party receiving the service bears tort liability, it may recover compensation from the party providing the service intentionally or with gross negligence.
2. What should I do if I am injured in the process of providing labor services?
Liability is based on the respective faults of both parties. According to Article 18 of the Regulations on Work-related Injury Insurance, if a migrant worker wants to obtain work-related injury insurance benefits, he must prove that there is an employment relationship between the two parties, but the temporary, periodic and seasonal employment mode of migrant workers makes most of the employment relationships between migrant workers and employers temporary, and the labor relationship is not the labor relationship stipulated in the Regulations on Work-related Injury Insurance. Based on this, Article 1192 of the Civil Code stipulates that if the party providing labor services suffers damage due to labor services, it shall bear corresponding liability according to the respective faults of both parties. During the period of providing labor services, if the third party's behavior causes damage to the party providing the services, the party providing the labor services has the right to request the third party to bear tort liability, and also has the right to request the party receiving the services to compensate. After receiving compensation from the labor party, it may seek compensation from a third party.
3. If any damage is caused to others in the process of processing contracting, will all the responsibilities be borne by the processing contractor?
The person who made the order is also responsible for the fault. Article 1193 of the Civil Code stipulates that if the contractor causes damage to a third party or itself in the process of completing the work, the contractor shall not bear tort liability. However, if the person making the order is at fault for the ordering, instruction or selection, he shall bear the corresponding responsibility.
4. Is it possible to require the employer to issue a detailed statement of wages?
OK. Article 15 of the Regulations on Guaranteeing the Payment of Wages to Migrant Workers stipulates that an employer shall prepare a written wage payment ledger in accordance with the wage payment cycle and keep it for at least three years. The written wage payment ledger shall include the name of the employer, the payment cycle, the date of payment, the name of the payment recipient, the ID card number, the working hours, the items and amounts of wages to be paid, the items and amounts withheld, paid and deducted, the amount of actual wages, and the receipt of wages issued by the bank or the signature of the migrant workers. When an employer pays wages to migrant workers, it shall provide a list of the wages of the migrant workers themselves. Therefore, if a migrant worker requests the employer to provide a detailed statement of his or her salary, the employer shall do so.
5. Can the employing unit seize the social security card or bank card of the migrant worker when working on the construction site?
No. Article 31 of the Regulations on Guaranteeing the Payment of Wages to Migrant Workers stipulates that in the field of engineering construction, the system of entrusting the general contractor of the construction unit to pay the wages of migrant workers by subcontractors shall be implemented. The social security card or bank card of the migrant worker himself bound to the bank account used to pay the migrant worker's wages shall not be seized or indirectly seized by the employer or other personnel for any reason.
6. Does the employer still need to pay the arrears of wages if the employer goes bankrupt?
Need. Where an employer has its business license or registration certificate revoked in accordance with law, is ordered to close down, is revoked, or is dissolved in accordance with law, it shall pay off the arrears of migrant workers' wages in accordance with law before applying for cancellation of registration. The main investor of an employer that fails to pay off the wages of migrant workers in accordance with the provisions of the preceding paragraph shall pay off the arrears of wages of migrant workers before registering a new employer. This provision clarifies that even if the employer goes bankrupt and dissolves, the arrears of wages of migrant workers should still be repaid.
7. What are the civil and administrative legal liabilities faced by the employer for maliciously defaulting on wages?
Article 91 of the Labor Law Where an employer infringes upon the lawful rights and interests of a worker in any of the following circumstances, the labor administrative department shall order the employer to pay the worker's wages and remuneration and economic compensation, and may also order the payment of compensation: (1) deducting or defaulting on the worker's wages without reason;(2) Refusal to pay wages and remuneration for extended working hours to workers;
Article 85 of the Labor Contract Law If an employer falls under any of the following circumstances, the labor administrative department shall order it to pay labor remuneration, overtime pay or economic compensation within a specified period of timeIf the labor remuneration is lower than the local minimum wage standard, the difference shall be paid;If the employer fails to pay within the time limit, the employer shall be ordered to pay additional compensation to the employee at the rate of not less than 50% but not more than 100% of the amount payable: (1) Failure to pay the employee's labor remuneration in full and in a timely manner in accordance with the provisions of the labor contract or the provisions of the state;
Article 26 of the Regulations on the Supervision of Labor and Social Security If an employer commits any of the following acts, the administrative department for labor and social security shall order the employer to pay the employee's wages and remuneration, the difference between the worker's salary and the local minimum wage standard, or the economic compensation for the termination of the labor contract within a specified period of timeIf the employer fails to pay within the time limit, the employer shall be ordered to pay additional compensation to the employee according to the standard of 50 to 1 time of the amount payable: (1) deducting or arrears of wages and remuneration of the employee without reason;
Article 30 of the Regulations on the Supervision of Labor and Social Security shall be ordered by the administrative department for labor and social security to make corrections in any of the following acts;For those who have the conduct provided for in item (1), (2) or (3), a fine of between 2,000 and 20,000 yuan shall be imposed
1) Unreasonably resisting or obstructing the implementation of labor security inspections by the administrative departments for labor and social security in accordance with the provisions of these Regulations;
2) Failing to submit written materials in accordance with the requirements of the administrative department for labor and social security, concealing the truth, issuing false testimony, or concealing or destroying evidence;
3) Refusal to make corrections after being ordered to do so by the administrative department for labor and social security, or refusal to perform on the administrative decision of the administrative department for labor and social security;
4) Retaliation against informants or complainants.
Where the provisions of the preceding paragraph are violated and constitute a violation of the administration of public security, the public security organs shall give public security administrative sanctions in accordance with law;where a crime is constituted, criminal responsibility is pursued in accordance with law.
8. What criminal liability will be involved in the malicious arrears of wages by the employing unit?
Article 276-1 of the Criminal Law of the People's Republic of China stipulates that if a person evades the payment of a laborer's labor remuneration by means of transferring property, escaping, etc., or has the ability to pay but fails to pay the laborer's labor remuneration, and the amount is relatively large, and the relevant department still fails to pay it, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and/or a fine;where serious consequences are caused, a sentence of between three and seven years imprisonment and a concurrent fine is to be given. Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punished in accordance with the provisions of the preceding paragraph. Where there are acts in the preceding two paragraphs, but serious consequences have not yet been caused, and the laborer's labor remuneration is paid before a public prosecution is initiated, and the corresponding liability for compensation is borne in accordance with law, the punishment may be commuted or waived.
9. What materials should be prepared for migrant workers who are owed wages to protect their rights?
It is necessary to collect as much evidence as possible of the employment with the employer. Such as labor contracts, labor contracts, salary schedules or details, bank card salary flows, work permits, attendance sheets, work **, work group chat records, etc. Article 6 of the Law on Mediation and Arbitration of Labor Disputes stipulates that in the event of a labor dispute, the parties have the responsibility to provide evidence for their own claims. If the evidence related to the disputed matter is in the possession and management of the employer, the employer shall provide it, and if the employer does not provide it, it shall bear the adverse consequences. Therefore, it is necessary to have an awareness of evidence and keep relevant materials as much as possible so as not to be unable to provide them when defending rights.
10. When migrant workers encounter wage arrears from their employers, they may adopt the following methods to protect their rights in accordance with law:
Report or complain to the Labor and Social Security Inspectorate
According to the Regulations on the Supervision of Labor and Social Security, any organization or individual has the right to report to the administrative department of labor security any violation of laws, regulations or rules on labor security. If a worker believes that the employer has infringed upon his or her legitimate rights and interests in labor security, he or she has the right to lodge a complaint with the labor security administrative department.
The investigation of violations of labor security laws, regulations or rules by the administrative department for labor security shall begin on the date on which the case is filedIt will be completed within 60 working daysThen, based on the results of the investigation and inspection, a correction order, administrative disposition or administrative punishment decision shall be made within 15 working days in accordance with law.
Apply to the Labor and Personnel Dispute Arbitration Commission for arbitration
According to the Labor Dispute Mediation and Arbitration Law, the parties concerned shall know or should know that their rights have been infringed from the date on which they know or should know that their rights have been infringedSubmit an arbitration application to the Labor Dispute Arbitration Commission within one year.
Claims for labor remuneration, medical expenses for work-related injuries, economic compensation or compensationIn disputes where the amount does not exceed the local monthly minimum wage standard for 12 months, the arbitral award shall be final.
Cases of recourse to labor remuneration, medical expenses for work-related injuries, economic compensation or compensationOn the application of the parties, the arbitral tribunal may award the award for enforcement in advance and transfer it to the people's court for enforcement.
Filing a lawsuit in court or applying for a payment order
According to the "Regulations on Guaranteeing the Payment of Wages to Migrant Workers".Migrant workers who are owed wages have the right to file a complaint in accordance with the lawor apply for labor dispute mediation and arbitration and file a lawsuit.
An order for payment may be applied for if the evidence is substantiated. According to the Labor Contract Law, if an employer is in arrears or fails to pay labor remuneration in full, the employee may apply to the local people's court for a payment order in accordance with the law, and the people's court shall issue a payment order in accordance with the law.
Tianjin High Court, Chengdu Labor InspectionSuzhou popularization of law
*: Wuhan Pufa).
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