Under normal circumstances, the determination of work-related injuries is premised on the existence of an employment relationship. When an employee applies for a work-related injury determination, the work-related injury determination department will, in accordance with its authority, require the employee to provide proof of the existence of an employment relationship with the employer, and review the supporting materials. However, in practice, the work-related injury determination department sometimes requires the employee to initiate labor arbitration, and the arbitration document confirming the labor relationship by the arbitration department is a precondition for determining the work-related injury.
But,The existence of an employment relationship is not a necessary condition for the determination of work-related injuriesOnly if the following three conditions are met at the same time, the work-related injury determination department can require the employee to apply for labor arbitration and request confirmation of the labor relationship
1.The subject is clear, that is, the employer (work) unit and the worker, and the employer (worker) unit has the qualifications of the employing entity;
2.The parties have not signed a written employment contract;
3.The evidence provided by the employee is insufficient, and it is difficult for the work-related injury determination department to determine whether there is an employment relationship;
In the above cases, as long as the employee confirms the existence of an employment relationship through labor arbitration, the work-related injury determination procedure will be relatively smooth.
However, if there is no labor relationship between the worker and the employer, will the rights and interests of the work-related injury not be guaranteed?
Article 4 of the Notice of the former Ministry of Labor on Matters Concerning the Establishment of Labor Relations (No. 12 of 2005 issued by the Ministry of Labor stipulates that if the project (business) or management rights of an employer such as a construction or mining enterprise is contracted to an organization or natural person that does not have the qualifications of an employing entity, the employer with the qualifications of the employing entity shall bear the responsibility of the employing entity for the workers recruited by the organization or natural person. Article 7 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance (Ministry of Human Resources and Social Security Fa 2013 No. 34) stipulates: "If a contractor with the qualifications of an employing entity violates the provisions of laws and regulations by subcontracting or subcontracting the contracting business to an organization or natural person that does not have the qualifications of an employing entity, and the worker recruited by the organization or natural person engages in the contracting business due to work, the contractor with the qualification of the employing entity shall bear the work-related injury insurance liability that the employer shall bear in accordance with the law." Article 3, Item 4 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance stipulates that "if the social insurance administrative department determines that the following units are responsible for work-related injury insurance, the people's court shall support them: "(4) If the employing unit violates the provisions of laws and regulations by subcontracting the contracting business to an organization or natural person that does not have the qualifications of an employing entity, and the employee hired by the organization or natural person engages in the contracting business due to work, the employing unit shall be the unit that bears the work-related injury insurance liability."
Accordingly, when an employer (worker) with the qualifications of an employing entity has illegal subcontracting, subcontracting, or affiliation, it must bear the legal consequences of illegal subcontracting, subcontracting, or affiliation. In other words, at this time, even if there is no labor relationship between the employer (employee) and the employee, it should still bear the responsibility of the employer. In the event of a work-related injury caused by an illegal employee, the employer must be jointly and severally liable for compensation for the loss of the employee's work-related injury benefits. In such a case, even if the employee does not have an employment relationship with the employer (worker) with the qualifications of the employing entity, he or she can still apply to the work-related injury determination department for work-related injury determination.
At this time, if the work-related injury determination department refuses to accept the application for work-related injury determination on the grounds that there is no labor relationship, the labor may "inaction" to file an administrative reconsideration or file an administrative lawsuit with the ** department.