Migrant workers are a huge group of people who are active in all walks of life in China's economic construction, and protecting the rights and interests of migrant workers is related to the national economy and people's livelihood. February 19th to February 25th is the 18th "Migrant Workers Law Study Week", in order to solve the problem of rights protection, better protect the rights and interests of migrant workers, for everyone to sort out the legal knowledge related to rights protection, let's learn together!
1. About wages, you should know:
qIs it possible to pay migrant workers in a form other than currency?
a:No. Article 11 of the Regulations on Guaranteeing the Payment of Wages to Migrant Workers stipulates that the wages of migrant workers shall be paid to the migrant workers themselves in the form of money, bank transfer or cash, and shall not be replaced by other forms such as in-kind or valuable**. In other words, except for currency, employers cannot use products, goods and other forms to deduct the wages of migrant workers.
qIs it possible to request an employer to issue a salary statement?
a: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, ID card number, 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 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.
qCan an employer seize a migrant worker's social security card or bank card while working on a construction site?
a: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.
qIs it still necessary to pay the arrears of wages if the employer goes bankrupt?
a: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 principal 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.
qWhat are the legal liabilities involved in the malicious non-payment of wages by the employer?
a:In addition to civil liability, there may also be suspicion of criminal violations. Article 276-1 of the Criminal Law of the People's Republic of China stipulates that anyone who 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, shall be sentenced to fixed-term imprisonment of not more than three years or short-term 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 the public prosecution is initiated, and the corresponding liability for compensation is borne in accordance with law, the punishment may be commuted or waived.
qMigrant workers are owed wages, what materials should be prepared to protect their rights?
a: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.
2. Regarding injuries in the line of duty, you should know:
qWhat qualifies as a work-related injury?
a:According to Article 14 of the Regulations on Work-related Injury Insurance, an employee shall be deemed to have suffered a work-related injury if he or she has any of the following circumstances: (1) he or she is injured in an accident during working hours and in the workplace due to work-related reasons; (2) Being injured in an accident while engaging in work-related preparatory or finishing work in the workplace before or after working hours; (3) Suffering violence or other accidental injuries during working hours and in the workplace as a result of performing work duties; (4) Suffering from an occupational disease; (5) During the period when they are away for work, they are injured due to work reasons or their whereabouts are unknown in an accident; (6) Injured in a traffic accident or an accident involving urban rail transit, passenger ferry, or train for which they are not primarily responsible while commuting to or from work.
If an employee has any of the following circumstances, it shall be regarded as a work-related injury: (1) During working hours and at work, he or she dies of a sudden illness or dies within 48 hours after rescue fails; (2) Suffering harm in emergency rescue and disaster relief or other activities to preserve the national interest or the public interest; (3) Employees who previously served in the army, were disabled due to injuries sustained in war or in the line of duty, and have obtained a certificate of disabled revolutionary servicemen, but were injured after arriving at the employer.
qWhat are the circumstances that cannot be recognized as work-related injuries and treated as work-related injuries?
a:intentionally committing a crime; drunk or addicted to drugs; Self-harm or suicide.
qIs there a time limit for filing a work-related injury report?
a:Yes. Paragraph 1 of Article 17 of the Regulations on Work-related Injury Insurance stipulates that if an employee is injured in an accident or is diagnosed or appraised as an occupational disease in accordance with the provisions of the Law on the Prevention and Treatment of Occupational Diseases, the unit to which he or she belongs shall, within 30 days from the date of occurrence of the accident injury or the date of diagnosis or appraisal of an occupational disease, submit an application for recognition of work-related injury to the social insurance administrative department of the coordinating region.
Paragraph 2 of Article 17 stipulates that if an employer fails to submit an application for recognition of work-related injury in accordance with the provisions of the preceding paragraph, the injured employee or his close relatives or trade union organization may, within one year from the date of occurrence of the accident injury or the date of diagnosis or appraisal of an occupational disease, directly submit an application for recognition of work-related injury to the social insurance administrative department of the coordinating area where the employer is located.
qWhat materials do I need to provide to apply for a work-related injury determination?
a:1.Application Form for Determination of Work-related Injury. 2.Labor contract or other valid proof of the establishment of labor relations. 3.ID card of the injured person. 4.Medical diagnosis certificate (first outpatient medical record, radiograph report, discharge record), and in the case of death, medical death certificate and public security at the place of the deceased's household registration are also required; Certificate of cancellation of household registration issued by the department. 5.2 copies of the witness's testimony and a copy of the witness's ID card or the accident certificate of the unit. 6.Employees who are hired, borrowed, or exported labor services must submit an agreement between the two parties, an investigation report of the actual employing unit on the accident, and the employer where the labor relationship is located shall declare and submit the text of the labor contract or other valid proof of the establishment of the labor relationship. 7.If a close relative submits an application for work-related injury recognition on behalf of the ** employee, a valid certificate of entrustment and a certificate of identity between the close relatives and the ** employee shall be submitted. 8.If an individual applies for a work-related injury, he or she shall provide the "Enterprise Industrial and Commercial Registration File". 9.Power of attorney from the employer, identity certificate of the person in charge of the unit, and personal power of attorney.
qWhat should I do if I cannot prove the employment relationship with the employer and thus obtain work-related injury insurance benefits?
a: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 the service suffers damage due to the service, it shall bear the corresponding liability according to the fault of both parties. During the period of providing labor services, if the act of a third party causes damage to the party providing labor services, the party providing labor services has the right to request the third party to bear tort liability, and also has the right to request the party receiving labor services to compensate. After receiving compensation from the labor party, it may seek compensation from a third party.
3. You should know about the injury caused by the accident to others:
qWhat should I do if a migrant worker causes damage to others in the process of providing personal services?
a: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.
qIf any damage is caused to others in the process of processing contracting, is all the responsibility borne by the processing contractor?
a: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, it shall bear the corresponding responsibility.
*: Suzhou Popularization of Law
Good news: A number of collectives and individuals in Ganyu Procuratorate won the commendation of the Municipal People's Court New Year blessingsThe Ganyu District Procuratorate wishes you a Happy New Year! Forge ahead and start a new journey Ganyu District People's Procuratorate held the 2023 Annual Summary and Commendation Conference Good news|The youth collectives and individuals of our hospital were commended at the district level, and the procuratorial cadres and police cleared the "safe road" for the masses
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