It is difficult to identify work-related injuries and to obtain a salary...In recent years, the rights and interests of over-age workers have been damaged frequently
Over-aged workers' rights protection face "old problems" frequently
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Because of the low bargaining prices in the market, in the case of rising labor costs and labor shortages from time to time in various regions, over-age workers have effectively eased the recruitment pressure of some employers. However, while enjoying the benefits of over-age workers, society should also protect their labor rights.
At present, the trend of population aging in our country is developing rapidly, and the employment situation of over-aged people is becoming more and more common. Statistics show that, with the exception of very few high-level workers such as engineers and doctors who are rehired with higher professional skills, the vast majority of over-age workers are concentrated in labor-intensive service industries such as catering, security, and cleaning.
According to relevant laws and regulations, the labor contract is terminated when the employee reaches the legal retirement age, which means that over-age employees are not protected by the Labor Contract Law. In recent years, incidents in which overaged employees have encountered difficulties in seeking salary and defending rights have been repeatedly exposed. Experts said that the rights and interests of this group should be further protected from the legal level so that they can also enjoy the fairness and dignity of legal workers.
Workers are over-aged, making it difficult to recover from accidents
On January 1, 2019, after Zhao retired, he signed a temporary employment contract with a greening company in Liaoyuan City, Jilin Province. The contract period was one year. The two parties agreed in the contract that the Greening Company arranges work according to production needs. Zhao needs to do what he can, and all safety matters should be borne by Zhao himself, such as medical expenses and funerals due to Zhao's illness or death due to illness The company will not bear the expenses such as fees.
On November 18 of that year, when Zhao was clearing the snow, he was found to be unconscious and lying prone in Longshan Park. Zhao was dead when the ambulance arrived at the scene. The resident's medical certificate (inference) issued by the hospital stated that he was dead. The cause was respiratory and circulatory failure, but the cause of death was not identified.
On January 6 this year, Zhao’s family filed a lawsuit against the company to the court, demanding compensation for death compensation, funeral expenses and spiritual comfort money totaling more than 500,000 yuan.
The court held that, in accordance with Article 7 of the "Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (3)", “the employer has a labor dispute with its recruited personnel who have enjoyed pension insurance benefits or received pensions in accordance with the law, Where a people’s court initiates a lawsuit, the people’s court shall deal with it in accordance with the “labor service relationship” and shall determine that there is a labor relationship between the parties. At the same time, although Zhao's death occurred in the workplace, his family failed to provide evidence to prove that Zhao's death was causal with the company's work and the company was at fault, so the plaintiff's claim was rejected.
As can be seen from related reports on the Judgment Written Network and the media, such cases are not uncommon. For example, Liu, a 66-year-old migrant worker from Hebei who obtained "double compensation for work injury and third-party infringement", was the first case of over-age migrant workers in Beijing to receive "double compensation". In this case, Liu went to the market to buy cleaning tools during work. He was hit by a car on the way back and fractured three ribs. At the time of the incident, he was 61 years old and an overage worker.
After more than 5 years of difficult rights protection, Liu was only due to the "Minutes of the Seminar on the Application of Laws in Labor Dispute Cases (2)" which clearly stipulated that "migrant workers over the legal retirement age cannot enjoy work injury insurance benefits. Those claiming compensation for work-related injury insurance benefits should be supported" and finally received "double compensation."
No labor relationship, work-related injury identification is deadlocked
"The "Regulations on Work Injury Insurance" were formulated to ensure that employees receive medical treatment and economic compensation, and to disperse the risk of work-related injuries of employers. However, the prerequisite for determining work-related injuries is that employees must determine the labor legal relationship with the employer." Jilin Chuangyi Law Firm Zheng Ce, the lawyer of the firm, told reporters.
"In our country, although there are some conflicts in legislation and different opinions in practice, in most cases, once workers reach the retirement age and cannot establish labor relations, they cannot continue to pay social insurance, including work injury insurance. Therefore, over-age labor After being injured in the course of work, they can only seek relief through civil damages." said Shen Jianfeng, a professor at the Central University of Finance and Economics and the dean of the Law School of the China Institute of Labor Relations. However, the basic premise of civil damages liability is mostly based on the fault of the infringer. As a result, over-age workers cannot get compensation in many cases.
Shen Jianfeng told reporters that in recent years, relevant departments in China have hoped to solve the problem of over-age workers’ work injury insurance through various policy documents and explanations. For example, migrant workers in the construction field have implemented a project-based work-related injury insurance system, and no longer take labor relations as their participation in work-related injuries. The prerequisites of insurance and certified work injury insurance have solved the work injury problem of workers reaching retirement age in the construction field.
"These systems have played a certain role, but their normative effectiveness is low, and they only target specific situations or special labor groups rather than general rules. More importantly, some rules have great difficulties in practice." Shen Jianfeng said For example, the rule of assuming work-related injury insurance liability without labor relations as the premise, on the surface, solves the problem that over-age workers cannot be recognized as work-related injuries and cannot enjoy work-related injury insurance benefits, but in fact, if work-related injuries are not recognized, work-related injury levels are not The appraisal will not be able to bear the liability for work-related injury insurance in accordance with the treatment standards of work-related injury insurance; while the work-related injury must be determined, and it cannot be determined because there is no labor relationship, and it will eventually be deadlocked.
Zheng Ce said that at present, because employees cannot continue to pay work injury insurance after retirement, she generally recommends that companies purchase employer liability insurance for over-age employees. The scope of compensation for this type of commercial insurance is basically the same as work injury insurance. Once an employee has an accident in the workplace In case of accidents, the insurance can share the relevant risks for the enterprise. Some companies with strong strength and humanized management will buy an extra accident insurance as a benefit for over-age employees.
How to protect the labor rights of over-age workers
In fact, it is not only the problem of compensation for work-related injuries, but over-age workers also face many other problems in various labor rights. According to media reports, in 2014, the environmental sanitation department of the Chengguan District of Lanzhou City required sanitation workers over the retirement age to sign a so-called "Life and Death Commitment", promising that all personal damages incurred during the work period would be borne by themselves, which was later stopped by relevant local authorities. . In 2018, Xue Chunqin, an 81-year-old man in Funing County, Yancheng City, Jiangsu Province, had no results for a year of wages. The local labor inspection team rejected his request for wages on the grounds that he was over the retirement age. After media reports intervened, the company would default on the 1 The 10,000 yuan salary was returned to the elderly.
It is not difficult to see that over-age workers are often disadvantaged in the labor market. They are mainly concentrated in labor-intensive service industries such as catering, security, and cleaning, and most of them come from low-income families. Because of the low bargaining prices in the market, this group has effectively eased the recruitment pressure of some employers when labor costs continue to increase and labor shortages occur from time to time in various places. However, while enjoying the benefits of over-age workers, society should also protect their labor rights.
Tang Hongmiao, an associate professor at the School of Law of Liaoning University, told reporters that in practice, the work rights of over-age workers cannot be fully protected mainly in two situations: One is employment discrimination against over-age workers. Employers abuse the right of dismissal or forced resignation in disguise. The second is systemic reasons. Reaching the retirement age or enjoying pension insurance benefits will lose the qualifications of workers. The agreement signed with the employer is recognized as a labor service agreement and is excluded from the scope of application of the "Labor Law", "Labor Contract Law", "Work Injury Insurance Regulations" and other laws. Resulting in damage to its rights.
"In the context of aging society, treating over-age workers reasonably and fairly not only involves the protection of the rights and interests of this group, but also the protection of over-age workers’ willingness to work, the protection of labor supply, and the reverse discrimination of other workers. Therefore, we must From the perspective of the entire labor market, understand the protection of over-age workers." Tang Hongmiao said.
Reporter: Liu Shanshan