When the labor contract was signed, the employer's place was blank; after a work-related injury, the employer's name was secretly changed...
Key information is blank, this labor contract hurts migrant workers
reading tips
The labor contract is one of the key pieces of evidence for workers to protect their rights, and it should be in duplicate. However, the employer "makes a fuss" on the labor contract, and leaves the key information blank and does not allow workers to keep it. Rights protection buries hidden dangers.
Lawyers reminded that when migrant workers sign labor contracts, they must read them carefully and sign them after verification.
Do not sign a labor contract with blank key information.
"Seriously, it's better not to have this labor contract in this lawsuit. The contract I signed really hurts me!" Say.
The labor contract is one of the most important evidences for workers to protect their rights after a work-related accident.
If there is no labor contract, the cost and difficulty of rights protection will increase a lot.
But why did Wu Qiang say that the labor contract he signed hurt him?
Wu Qiang is a truck driver of a construction engineering company (hereinafter referred to as the construction company) in Fengtai District, Beijing. When he was defending his rights after being injured, the construction company took out the labor contract he signed with him.
The employer in this labor contract is not a construction company, but a labor subcontracting company in Tangshan City, Hebei Province (hereinafter referred to as the labor service company).
It turned out that when Wu Qiang signed a labor contract with the construction company, the "Party A" (employer) was blank. Since only one labor contract was taken away by the construction company, it was only after he had a work-related injury that he discovered that the employer had become a Labor company.
Both the construction company and the labor service company stated that Wu Qiang had a labor relationship with the labor service company, which made Wu Qiang difficult.
The key information of the labor contract was "manipulated"
In February 2021, Wu Qiang was introduced by an acquaintance and worked in a construction company from February 27 to July 10 that year as a truck driver with a monthly salary of 5,000 yuan.
Wu Qiang said that he signed a labor contract with a construction company when he joined the company, but the "Party A" (employer) was blank when he signed the labor contract.
At that time, he felt that the person who signed the labor contract with him was from a construction company, and he also worked in the company contracted by the construction company after he joined, so he didn't care.
On June 20, 2021, Wu Qiang was injured at work. After he was discharged from the hospital, he learned that the name of the labor service company had been filled in the blank of the labor contract signed at that time.
The relevant person in charge of the construction company said that after Wu Qiang was injured, he already knew that the employer was a labor service company, his company and the labor service company were legal labor service subcontractors, and the labor service company had the qualifications for labor service subcontracting, and the labor relationship could not be broken.
Therefore, the company should not be liable for compensation.
To successfully defend rights, two hurdles need to be overcome
After that, on August 26, 2021, Wu Qiang applied to the Beijing Fengtai District Labor and Personnel Dispute Arbitration Commission (hereinafter referred to as the Fengtai Arbitration Commission) for labor arbitration, requesting confirmation of the period between February 27, 2021 and July 10, 2021 and the construction The company has a labor relationship, and the construction company should pay about 170,000 yuan in total for hospitalization and medical expenses, accompanying expenses, transportation expenses, lost work expenses, and post-treatment expenses.
On December 3, 2021, Fengtai Arbitration Commission made an arbitral award rejecting Wu Qiang's various arbitration claims.
Wu Qiang refused to accept the ruling and sued to the Fengtai District People's Court of Beijing.
Zhang Zhiyou, a lawyer from Beijing Fumao Law Firm, said: "Now the construction company holds the labor contract signed by Wu Qiang and the labor service company. Therefore, Wu Qiang wants to prove that there is a labor relationship with the construction company. There are two hurdles. One is to Meet the three conditions stipulated in Article 1 of the original Ministry of Labor and Social Security's "Notice on Matters Related to Establishing Labor Relations"; the second is to prove that the labor contract signed between it and the labor service company has not actually been performed." Zhang Zhiyou said .
Zhang Zhiyou further said: "As for the three conditions in the first hurdle, the first and the third are very well satisfied, and the key is the second. To meet this point, it must be proved that Wu Qiang's salary is paid by the construction company, and Good Wu Qiang has a transfer record of the construction company's salary payment to him. Regarding the second hurdle, if Wu Qiang can prove that the construction company has actually managed him and paid him salary, then the labor service company must also provide evidence to prove that it has paid Wu Qiang. If the labor service company cannot provide evidence, it should bear adverse consequences.”
During the trial, the two companies gradually revealed flaws
During the trial, the construction company submitted to the court the "Labor Contract" signed by Wu Qiang and the labor service company.
The contract shows that Party A is a labor service company and Party B is Wu Qiang.
But Wu Qiang said that although the word of the "Labor Contract" was signed by himself, the "Party A" was blank at that time. He believed that "Party A" was a construction company, and the "Labor Service Company Name" on the "Labor Contract" was filled later.
Regarding the issue of wage payment, the construction company argued that it paid Wu Qiang wages because the labor service company failed to pay wages in time, and his company, as the contracting unit, paid the wages for the labor service company in order to protect the interests of migrant workers and avoid gathering incidents of wage demands. .
However, the labor service company first stated that Wu Qiang's wages were paid by him in cash, and then recognized the construction company to pay wages on his behalf.
However, both parties failed to submit relevant evidence on the payment of wages on behalf of others, and there were contradictions in the statement of the labor service company on the payment of wages.
Regarding whether there is a factual labor relationship between the labor service company and Wu Qiang, during the court hearing, the labor service company failed to provide evidence to the court on Wu Qiang's salary payment, employment record and management of Wu Qiang.
In addition, according to the court, Wu Qiang acted as a driver for several projects of the construction company, and used vehicles under the name of the construction company during his work.
However, both the construction company and the labor service company claimed that there was a labor subcontracting relationship between the two parties, and submitted a labor service subcontracting contract, but the contract only involved one project, which was inconsistent with the actual situation of Wu Qiang's labor provision.
Enterprises should be prevented from evading obligations by using related relationships
On June 28 this year, the People's Court of Fengtai District, Beijing held that although Wu Qiang signed a labor contract with the labor service company, the labor service company failed to provide evidence to prove Wu Qiang's actual employment situation and the actual performance of the labor contract by both parties. The evidence given by Wu Qiang can prove that he and the construction company are more in line with the employment relationship between the employer and the laborer.
Therefore, the court ruled that Wu Qiang had a labor relationship with the construction company from February 27, 2021 to July 10, 2021.
Wu Qiang's other claims should be made after the work-related injury is confirmed, and will not be dealt with for the time being.
The construction company refused to accept the first-instance judgment and filed an appeal.
At the end of September this year, the Beijing No. 2 Intermediate People's Court rejected the appeal and upheld the original judgment.
The court held that, considering the fact that Wu Qiang had signed a labor contract with a blank employer name, and the fact that Wu Qiang had actually provided labor as revealed by the court, considering that the labor service company had not conducted labor management and salary payment for Wu Qiang. , work arrangements, etc. to provide evidence to the court, and the court of first instance found that it was reasonable that Wu Qiang could not confirm that Wu Qiang actually had a labor relationship with the labor service company based on the "Labor Contract" alone.
Considering that the laborer lacked autonomy in the conclusion of the labor contract in the process of establishing the labor relationship, in order to prevent the employers from using the convenience of the mutual relationship to evade their statutory obligations to the laborer, the court of first instance determined based on the actual situation identified in this case. Wu Qiang has a labor relationship with the construction company, which is fair and reasonable.
"This case also reminds migrant workers that they must read carefully when signing labor contracts, especially key information such as the employer's name and salary, and sign it after verification. Do not sign the blank part of the key information. In addition, the labor contract should be in duplicate, with the employer and the employee each holding one copy. If the employer withdraws his own labor contract or signs only one copy, the employee can go to the local labor inspection brigade to file a complaint.” Zhang Zhiyou Say.
(Wu Qiang is a pseudonym in Worker's Daily reporter Yang Zhaokui's article)