4700 ten thousand years old migrant workers!
the latest release of the National Bureau of statistics. The rural migrant workers' monitoring and investigation report shows that in 2013, the proportion of migrant workers over 50 years old in China was 15.2%, and the number exceeded 40 million. In 2014, the proportion increased to 17.1%, close to 47 million.
due to the lack of pension insurance for workers, along with the continuous expansion of the group of migrant workers over 50 years old, their pension problem is in a predicament. However, compared with the worry of providing for the aged, the problem of work-related injuries among older workers over the age of 60 seems even more urgent.
over age still work injury is difficult to be compensated
2012 May, the old Zhao, who has been working for many years outside, began to work in a construction site in Shuangluan District, Chengde, Hebei province. Although it is over sixty years old, as a typical "first generation of migrant workers", Lao Zhao, who is physically strong, is willing to come out to do some work instead of staying at home. Unfortunately, unfortunately, it happened.
2012 November 6th, Lao Zhao and the workers on the bench to dismantle the shelf, unexpectedly during the period stool suddenly crooked, Lao Zhao fell on the ground injury, after the identification of 10 levels of disability. During the hospitalization of Lao Zhao, the construction company paid no more money after paying part of the medical expenses.
"the construction company tells us that the company and my father have not signed a labor contract, and there is no labor relationship between the two sides. The specific responsibility is not good enough." Xiao Zhao, the daughter of Lao Zhao, told the Legal Daily reporters that construction companies mean that they want to solve the problem through legal means, "how to judge how to compensate".
2013 in February, Lao Zhao's condition gradually stabilized, so he submitted to the Chengde labor department work injury identification application. At the same time, in order to determine the labor relations with the construction company, Lao Zhao's family found the Chengde labor and personnel dispute arbitration committee. However, they did not get the desired result. Lao Zhao's age exceeds 60 years old, which has not met the conditions of labor arbitration.
helpless, Lao Zhao had to take legal proceedings. In February 26, 2013, Lao Zhao took the construction company to the people's Court of Shuangqiao District, Chengde, and asked the court to confirm the labor relations between the accused and the defendant, so that it could obtain the compensation for the injury.
in the court, Lao Zhao learned that in accordance with the provisions of the labor law, workers are more than 60 years old, and employers will not allow them to sign labor contracts, such as continuing work, labor relations between workers and employers. In case of accidents, workers who are over 60 years old will not be included in the scope of industrial injury insurance.
in the case of deadlock, Lao Chao's attorney Wang Shifeng found a judicial explanation favorable to the plaintiff.
2010 March, the Supreme People's Court issued the reply of the Supreme People's Court of the administrative court of the Supreme People's Court on whether the migrant workers who have exceeded the legal retirement age should apply (the regulations of the industrial injury insurance) for the employment of the migrant workers who have exceeded the legal retirement age. In case of injury or death due to work reasons, the relevant provisions of the regulations on industrial injury insurance shall be applied for the identification of work-related injuries.
"according to this judicial interpretation, Lao Zhao and the defendant company belong to labor relations, and they can make compensation according to the standard of industrial injury." Wang Shifeng said that the premise of the work injury identification is the existence of labor relations, the labor law to achieve the legal retirement age still engaged in the labor of migrant workers, no prohibition. Therefore, those who exceed the statutory retirement age should work with employers as well.
Lao Zhao's joy didn't last long. As soon as the case was about to turn back, the defendant construction company found another judicial explanation. The seventh article of the interpretation (three) of the Supreme People's Court on the application of law in the trial of labor disputes in September 2010 (three) stipulates that the people's court shall press the people's court to bring a lawsuit to the people's court. Handling of labor relations.
the defendant cited this judicial explanation because they found that Lao Zhao had begun to receive a new rural pension insurance in the event of the incident, and the defendant believed that Lao Zhao had enjoyed the pension insurance treatment in accordance with the law.
in this case, there is a certain "time difference" between the age of Lao Zhao and the time of relevant policy introduction and social development, which is difficult to refer to the legal interpretation of Lao Zhao. It is difficult for the court to confirm the specific application of the legal provisions, and the trial of the case is deadlocked.
after more than a year of litigation, in the autumn of 2014, Lao Zhao, who was in urgent need of follow-up treatment costs and living expenses, accepted the mediation of the court, and the construction company gave Lao Zhao a certain compensation. However, whether the relationship between Lao Zhao and construction companies is "labor" or "labor", the court never gave the result.