Some places require the laborer to bear the burden of proof, and some places require the employer to bear the burden of proof
Who should prove the high temperature allowance dispute?
Experts suggest that the employer shall bear the burden of proof for the situation of workers engaged in high-temperature work and the payment of high-temperature allowances.
Our reporter Yang Zhaokui
"Workers Daily" (July 08, 2022 Edition 06)
read tips
Recently, many places have been subjected to high temperature "baking" tests, and whether workers who work in high temperatures can successfully receive high temperature allowances has become one of the hot topics.
Reporters interviewed and found that for disputes arising from high temperature allowances, the standards for who to prove vary from place to place. Some places require workers to bear the burden of proof, while others require employers to bear the burden of proof.
In this regard, experts recommend that all regions unify the standards as soon as possible, and the employer should bear the burden of proof.
Lao Wang is a driver of a Beijing branch of a courier company. Last summer, the courier car he was driving was in a high temperature environment due to the damaged air conditioner, so he asked the courier company for a high temperature allowance, but he was rejected, so he had to pass Legal channels for rights protection.
On June 17 this year, the Beijing No. 3 Intermediate People's Court held that Lao Wang did not submit corresponding evidence to prove that he was eligible for the high temperature allowance for the high temperature allowance he claimed, and the high temperature allowance he claimed was not supported.
Xiaolin is an employee of a plastic bag product company in Shenzhen, Guangdong. Because he could not reach an agreement with the company on the renewal of the labor contract, he had to go to court with the company. Claim the heat allowance from June 1 to August 31, 2020.
In December last year, the Shenzhen Intermediate People's Court of Guangdong Province held that the plastic bag product company did not submit evidence to prove that it had lowered the temperature of Xiaolin's workplace to below 33 °C, and should bear the adverse consequences of failing to prove the evidence, and the plastic bag product company should pay. High temperature allowance.
It is also a dispute over high temperature allowances. Why do some places require workers to bear the burden of proof, while others require employers to bear the burden of proof?
Recently, a reporter from "Workers Daily" conducted an interview.
To receive high temperature allowance, certain conditions must be met
Recently, many places have been subjected to high temperature "baking" tests, and the highest temperature in some places has even reached about 40 °C.
Whether workers who work in high temperature can successfully get high temperature allowance has become one of the hot topics.
In June 2012, Article 17 of the Measures for the Administration of Heatstroke Prevention and Cooling Measures formulated by the former State Administration of Work Safety, the Ministry of Human Resources and Social Security and other four departments stipulates that the employer arranges workers to engage in outdoor open-air operations in high temperature weather above 35°C and cannot take If effective measures are taken to reduce the temperature of the workplace to below 33°C, a high temperature allowance shall be paid to the workers.
"Judging from the above management measures, not every worker has high temperature allowances, only those who work in the open air in high temperature weather (the maximum temperature is above 35°C), or work in indoor workplaces above 33°C, Only then can you get a high temperature allowance." Zhang Zhiyou, a lawyer from Beijing Fumao Law Firm, told reporters.
However, due to the vast territory of our country and a wide range of latitudes from north to south, the heat received by solar radiation varies from place to place.
Therefore, there are also great differences in the issuance time of high temperature allowances.
For example, in Beijing, Shanxi, Henan, Anhui and other places, the distribution time is mainly concentrated in June to August.
Shanghai, Tianjin, Shaanxi, Gansu, Ningxia, Hebei, Jiangsu and other places are mainly distributed from June to September.
The distribution standards of high temperature allowances are also inconsistent in different places. For example, some places stipulate that they are paid on a daily basis, and some places stipulate that they are paid on a monthly basis.
Who will provide evidence, the standards vary from place to place
Although the regulations on high temperature allowances are relatively clear, the situation that workers who meet the conditions for the payment of high temperature allowances cannot receive high temperature allowances is also frequently seen in the media.
"It is not uncommon for workers to fail to receive high-temperature allowances, but in judicial practice, because the amount of high-temperature allowances is not large, there are not many cases where workers have lawsuits against enterprises against high-temperature allowances alone." Zhang Zhiyou said.
The reporter also found that many workers claimed high temperature allowances while claiming compensation for illegal termination of labor contracts.
However, regarding the burden of proof in the high temperature allowance dispute, the requirements of the courts in various places are not consistent.
The reporter noticed that at present, Guangdong, Jiangsu and other places have made it clear that the employers bear the burden of proof on the conditions of workers engaged in high-temperature operations and the payment of high-temperature allowances.
Article 11 of the "Guangdong Province Administrative Measures for the Distribution of High Temperature Allowances", which will be implemented in June 2021, stipulates that employers should truthfully record the conditions of workers engaged in high temperature operations and the payment of high temperature allowances, and keep them for at least two years.
Employers shall bear the burden of proof for the conditions of workers engaged in high-temperature operations and the payment of high-temperature allowances.
In May 2018, the "Notice on Doing a Good Job in the Payment of High Temperature Allowance" issued by the Jiangsu Provincial Department of Human Resources and Social Security also pointed out that if the employer fails to pay the high temperature allowance as required, the laborer can report a complaint to the Human Resources and Social Security Department, or Apply for mediation, arbitration, or file a lawsuit in accordance with the law.
Employers shall bear the burden of proof for workers engaged in high-temperature weather operations and payment of high-temperature allowances.
However, in many places, due to the lack of clear regulations, judicial organs still follow the principle of "whoever claims, whoever gives evidence", requiring workers who claim high temperature allowances to give evidence.
Experts pointed out that for outdoor workers, they only need to prove that they are engaged in outdoor work and provide relevant weather forecasts to complete the burden of proof.
For workers who work indoors, due to the complicated indoor temperature measurement and the large temperature difference between different areas, it is not easy to prove that the temperature of their working environment reaches the high temperature allowance payment standard.
Experts suggest unifying standards as soon as possible
In this regard, Shen Jianfeng, a professor at the Law School of the Central University of Finance and Economics and dean of the Law School of the China Institute of Labor Relations, said that the standards should be unified as soon as possible.
The reporter noticed that Article 44 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (I), which will take effect on January 1, 2021, stipulates that due to the dismissal, removal, dismissal, For labor disputes arising from decisions such as termination of labor contracts, reduction of labor remuneration, and calculation of workers' working years, the employer shall bear the burden of proof.
In the opinion of many lawyers, the high temperature allowance is included in the total salary according to the regulations and is part of the labor remuneration. If the high temperature allowance is not issued, it is equivalent to reducing the labor remuneration. Labor disputes arise, and the employer should provide evidence.
"If the high-temperature allowance dispute is brought to bear by the employer, it can force the employer to adopt relevant supporting systems and settings to improve the distribution of high-temperature allowances, and it can also force the employer to better fulfill the obligation to issue high-temperature allowances and reduce disputes. It happened." Shen Jianfeng said.
The reporter noticed that some places have asked labor dispute arbitration institutions to open a "green channel" in response to disputes over high temperature allowances.
For example, the "Notice on Further Doing a Good Job in Protecting the Rights and Interests of Workers During High Summer Temperatures" issued by the Human Resources and Social Security Bureau of Zhenjiang City, Jiangsu Province in August 2020 pointed out that if workers and employers have disputes over the payment of high temperature allowances, labor at all levels Dispute arbitration institutions should start a "green channel", strictly follow the requirements of employers to bear the burden of proof for workers engaged in high-temperature weather operations and the payment of high-temperature allowances, simplify and optimize the case-handling process, and achieve quick establishment, quick adjustment, quick review, and quick to effectively safeguard the legitimate rights and interests of workers.
Some experts pointed out that to avoid disputes over high temperature allowances, the human resources and social sector departments should also unblock the channels for workers to protect their rights in hot weather in summer.
Relying on the basic information of labor security supervision grid management and the case information of the linkage reporting and complaint platform, strengthen the early warning and monitoring of the implementation of labor protection in high temperature weather and the payment of high temperature allowances by employers, and effectively realize the early detection, early intervention and early resolution of problems.