Inspiration from a dispute over the treatment of industrial injury
For a long time, in the process of professional contracting or labor contract awarding in the field of construction engineering, we have always had the understanding and understanding that as long as the general contractor legally contracts out the project to a professional contractor or labor company with corresponding qualifications, the professional contractor or labor company will recruit or employ its own personnel in case of work-related injury or death accident in the construction process The unit shall be responsible for the legal consequences and economic compensation caused, but it has nothing to do with the owner and the general contractor.
However, recently, the legal department of the company received a summons issued by a court in Wuxi City regarding our company as an additional defendant in the case of Ding's industrial injury insurance treatment dispute, which brought a wake-up call to the comrades of the legal department and some useful enlightenment to us.
Case review: in 2015, our company undertook a general construction contract project in Wuxi. Later, our company legally contracted part of the labor work to "Nanjing GangFa Construction Labor Service Co., Ltd." (hereinafter referred to as Nanjing gangfa company) with corresponding labor service qualification, and at the same time, both parties signed a written contract for labor subcontracting. During the construction process, Nanjing gangfa company hired four people, including Ding, to do wall chiseling in September 2015. On May 25, 2016, Ding was injured when his battery car hit a curb on his way to work, and died six months later after being sent to a doctor for treatment. On March 22, 2017, Ding's family members took our company to court for relevant industrial injury treatment disputes, and asked to confirm that Ding had a factual labor relationship with our company. The case opened for the first time on June 6, 2017, and made the first trial decision on April 3, 2018. The court hired Ding Mou from Nanjing United Development Company and paid his living expenses and wages, so Ding Mou had no actual labor relationship with Jiangsu Kai'an company and rejected his claim. After the judgment of the case came into force, in November 2019, Ding's family had no choice but to take Nanjing gangfa company to court. However, in the trial process of the case, the entrusted litigation agent of Nanjing gunfa company, on the basis of the relevant content of the document "HR & s department Fa [2014] No. 103", requested the employer (owner) and the general contractor as additional defendants to participate in the subsequent trial. After examination by the economic cooperation and development chamber, judge Zhao, the chief judge of the case, supported the application and added our company as the defendant according to law.
After receiving the subpoena, the comrades of the legal department attached great importance to it. They thought that the case had already been settled and had nothing to do with our company. However, after careful inquiry of relevant documents, we do find that the Ministry of human resources and Social Security jointly issued the opinions of the Ministry of human resources and social security, the Ministry of housing and urban rural development, the General Administration of safety supervision and the all China Federation of trade unions on further improving the work injury insurance in the construction industry (HS No. [2014] 103) on December 29, 2014. Article 8 of the document clearly stipulates that "for construction projects that do not participate in work-related injury insurance, if the employees have work-related injury accidents, the employer where the employees work shall pay the work-related injury insurance benefits according to law, and the construction general contractor and the construction unit shall bear joint and several liabilities...".
This regulation defines the concept of "the general contractor must take overall responsibility" in the whole construction process of the construction party and the general contractor. That is to say, as the general contractor, although the labor subcontracting is completely legal, if there is no guidance and supervision on relevant professional contractors and labor companies to pay work-related injury insurance for the migrant workers they recruit and employ, or as the construction party and the general contractor, they do not pay local work-related injury insurance If the construction management department pays "all risks insurance of construction project", once the professional contractor or the labor subcontractor's employees have industrial accidents, the employer and the general contractor cannot be fully exempted from liability, but also will be involved, and thus bear the corresponding joint and several liability for compensation.
In view of the enlightenment brought by this case to our general contractor, we should do the following in project management: first, as the general contractor, we must pay "all risks insurance of Construction Engineering" for the project in accordance with the requirements of local construction management and human resources and social security departments; second, whether it is professional contracting or labor subcontracting, the general contractor must legally contract out the relevant work content to the contractor with corresponding resources The quality unit shall sign a written contract; 3. Even after the general contractor has legally contracted or subcontracted, it shall guide and urge the relevant specialized contracting or labor subcontracting units to pay work-related injury insurance for the employees in the daily project management; 4. Strengthen the daily supervision and inspection of the specialized contracting and labor subcontracting companies, especially for the employees recruited in the middle of the process; 1. Require the general contractor to make new The identity information of the personnel in the list shall be reported to the general contractor in time, so as to report to the relevant departments and be included in the list of all risk personnel. Secondly, it is not allowed to have a fluke mentality and pay up. Neither of them can be missed. While protecting the legitimate rights and interests of the migrant workers, the risks of the general contractor shall be scientifically reduced and reasonably avoided.
Although the final judgment result of the industrial injury insurance treatment dispute has not come out, it has completely subverted everyone's original thinking and understanding. We must pay attention to it and immediately find out and fill in the gaps to prevent it. The Ministry of justice will also continue to follow up the trial process and judgment results of the case and share them with Qi'an colleagues in a timely manner. (Wang Furong)
