● According to the labor law, the signing of a labor contract requires the qualification of the subject of the contract, one of which is the age of the worker. Therefore, people who exceed the statutory retirement age can only sign a labor contract with the employer, which is actually civil employment.
Some elderly people are still working beyond the statutory retirement age, but their rights are not protected by labor laws
● In order to encourage the elderly with suitable conditions to enter the job market according to the law, the employment of the elderly needs to be included in the work-related injury insurance system. The work-related injury insurance system should be specially designed for the employed elderly, and the cost should be shared by the state, employers and elderly workers
● The central government has proposed to “comprehensively clean up the unreasonable regulations that prevent the elderly from continuing to play a role”. On the basis of full research and reference to the basic guarantee of labor relations, it should adapt to the requirements of the aging era and comprehensively clean up the unreasonable regulations that hinder the employment of the elderly. Reasonable regulations, introduction of top-level design for the elderly to enter the workplace, keeping pace with the times to protect the employment rights of the elderly
□ Reporter Chen Lei
Recently, in Ningbo City, Zhejiang Province, a 60-year-old courier died suddenly on the job due to cardiac arrest while sorting express delivery.
Since the courier is over 60 years old, he cannot establish a labor relationship with the courier company, and thus cannot apply for work-related injury identification.
With the deepening of the aging of our country, there are not a few elderly people who are still working beyond the retirement age, and the protection of their labor rights and interests has become increasingly prominent.
Experts interviewed by a reporter from the "Rule of Law Daily" believe that the sudden death of a 60-year-old courier at work, but it is difficult to identify work-related injuries, reflects the conflict between the law and reality.
Some elderly people are still working on the job beyond the statutory retirement age, but their rights are difficult to be protected by labor laws.
Experts offer two ways to solve the problem: one is to loosen the age limit of the subject of labor relations, and include the elderly who continue to work into the category of laborers in the legal sense, establish labor relations with employers and participate in work-related injury insurance; If the statutory retirement age is not reformed, work-related injury insurance will be separated from other social insurance types, and the scope of work-related injury insurance participation will be expanded to include employed elderly people.
Not a worker after overage
conflict between law and reality
After the sudden death of a 60-year-old courier, the courier company responded: "We will negotiate with the family on the aftermath on the basis of legality and reasonableness." Some media quoted relevant local departments as saying that the 60-year-old itself does not belong to the category of laborers. If you pay work-related injury insurance, it cannot be recognized as a work-related injury.
Once the matter was exposed, it quickly aroused heated discussions.
Many netizens believe that there are so many elderly people aged 60 or above who are still working, "If they are not considered laborers, then what do they belong to?"
In this regard, Yang Baoquan, a member of the Labor and Social Security Professional Committee of the Beijing Lawyers Association and a senior partner of Beijing Bank of China Law Firm, told reporters that the sudden death of the elderly at work has aroused social concern because the development trend of the incident does not conform to the general consensus of the public. Know.
Elderly people over the age of 60 are no longer laborers in the sense of labor law, but they are still generally recognized as laborers.
On January 17 this year, data notified by the National Bureau of Statistics showed that by the end of 2022, my country's population aged 60 and over would be 280.04 million.
There are not a few elderly workers who have reached retirement age.
At the end of 2019, the results of a sample survey released by the China Research Center on Aging showed that 10.2% of the elderly were still working with income.
Among them, 9.7% of the urban elderly are still working, and 10.6% of the rural elderly are still working.
However, according to my country's relevant regulations on retirement, men are 60 years old, women are 50 years old, and female cadres are 55 years old, which belongs to the statutory retirement age.
According to the provisions of my country's current labor law, people over 60 years of age cannot sign labor contracts with employers when they are employed. They can only sign labor contracts. Therefore, employers usually cannot pay social insurance for overage personnel.
Yang Baoquan explained that laborers in the legal sense rely on labor relations.
A normal labor relationship is a legal relationship formed between an employer and a worker who has not reached the retirement age, and workers in this legal sense are protected by labor laws.
Once the laborer reaches the statutory retirement age, he forms a labor service relationship with the employer, which is not protected by the labor law, but by the civil code.
In Yang Baoquan's view, according to the provisions of the Labor Contract Law, when a laborer enjoys pension insurance benefits, the labor relationship is terminated. In the job market, labor relations can only be established with employers.
The elderly who have no labor relationship cannot be protected by labor laws, and there is a gap in the protection of the risk of injury they encounter at work.
Wang Tianyu, deputy director of the Social Law Office of the Chinese Academy of Social Sciences Institute of Law, said that according to the labor law, the signing of a labor contract requires the eligibility of the subject of the contract, one of which is the eligibility of the laborer's age. Being able to sign a labor contract with the employer is actually civil employment.
There is a conflict between legal provisions and reality, that is, some elderly people are still working beyond the statutory retirement age, but their rights are not protected by labor laws.
Included in the industrial injury insurance system
Apply for commercial accident insurance
Difficulties in identification of work-related injuries among overage workers occur frequently.
The reporter used keywords such as "exceeding the retirement age", "labor disputes" and "injury at work" to search the Chinese judicial documents online, and found many relevant civil judgments.
For example, on April 8, 2022, in a case uploaded by the People's Court of Wuxing District, Huzhou City, Zhejiang Province, Ruan, a native of Yunnan, accidentally fell off a scaffold and was injured while working on a construction site in Huzhou.
Ruan asked the construction site project company to apply for work-related injury identification for him, but because he was over the retirement age, he could not form a labor relationship with the company and could not enjoy work-related injury insurance.
Then, employers are usually unable to pay social insurance for overage personnel, but they are at risk of injury or death at work. In this case, how to protect the labor rights of overage personnel?
In Yang Baoquan’s view, regarding the injury risks encountered by employed elderly people at work, the mainstream view in society believes that they should not be treated as work-related injuries, but as labor service relations. In case of injury or accidental injury by a third party, the employer shall be liable for compensation.
However, the protection of this provision cannot be compared with the work-related injury system.
According to Wang Tianyu's analysis, under the current legal framework, as long as workers who have exceeded the retirement age and receive pension insurance benefits are still working, the labor law regulations are no longer applicable, and they are included in the scope of civil law adjustments, that is, through the signing of labor contracts and adjustments with employers. Once the two parties have not signed a labor contract, or the relevant content is unclear in the labor contract, there will be a vacuum in the protection of the rights and interests of workers, and the risk of the above-mentioned disputes is very high.
Yang Baoquan believes that in order to encourage the elderly with suitable conditions to enter the job market in accordance with the law, the employment of the elderly needs to be included in the work-related injury insurance system, and the work-related injury insurance system should be specially designed for the employed elderly, and the state, employers and elderly workers should share the burden. cost, but does not need to be linked to the current social insurance, which not only reduces the labor burden of the employer, but also provides institutional protection for the employed elderly, and also disperses the work risks encountered by the employed elderly.
"Before the system is perfected, the relevant state agencies can jointly issue a judicial interpretation to break the binding relationship between labor relations and work-related injury insurance for employed elderly people, and refer to the provisions of the "Regulations on Work-related Injury Insurance" to determine that the elderly who are injured at work constitute work-related injuries. Protect their rights and interests. At the same time, employers should also keep pace with the times. In addition to providing safe labor security conditions, they should actively purchase commercial accident insurance for the employed elderly, and compensate the injured employed elderly through the commercial insurance mechanism. Reduce the relevant risks of employers." Yang Baoquan appealed.
Wang Tianyu believes that for the employed elderly, their jobs and work content are the same as those of other non-retired workers, and the labor risks they encounter are also the same, so they should be covered by work-related injury insurance.
"After all, labor behavior is the basis of work-related injury insurance, not age."
"After my country entered an aging society, one way of thinking is that the age limit of the subject of labor relations should be relaxed. In this case, under the framework of the current labor law, the elderly are still laborers and can establish labor relations with employers and participate in work-related injuries. Insurance. Another way of thinking is that, without changing the statutory retirement age, we can consider expanding the coverage of work-related injury insurance, and on the basis of local practice, include employed elderly people in work-related injury insurance, such as combining work-related injury insurance with other types of insurance When the elderly who enjoy pension insurance benefits are employed, they will separately participate in work-related injury insurance." Wang Tianyu said.
Reform the Labor Law System
Introduce the top-level design as soon as possible
In November 2021, the Central Committee of the Communist Party of China and the State Council issued the "Opinions on Strengthening the Aging Work in the New Era", which mentioned "encouraging the elderly to continue to play their roles" and "comprehensively clearing up unreasonable regulations that hinder the elderly from continuing to play their roles."
It is worth noting that as early as November 2012, the Administrative Tribunal of the Supreme People's Court clarified in the "Reply on Whether Migrant Farmers Who Exceeded the Statutory Retirement Age Are Injured on Duty During Working Hours Can Be Deemed Work-related Injuries" If a migrant farmer hired over the statutory retirement age is injured or killed due to work-related reasons during working hours, the relevant provisions of the "Regulations on Work-related Injury Insurance" should be applied to determine the work-related injury.
Since then, relevant departments and local governments have successively issued relevant documents to explore linking those who have reached the retirement age and are still working with the work-related injury insurance system.
In March 2016, the Ministry of Human Resources and Social Security issued relevant opinions stating that if an employer recruits personnel who have reached or exceeded the statutory retirement age or have received basic pension insurance benefits for urban employees, if they are injured or suffer from accidents due to work reasons during the employment period For occupational diseases, if the recruiting unit has paid work-related injury insurance premiums in the form of project participation and other methods, the "Regulations on Work-related Injury Insurance" shall apply.
In April 2019, Quzhou City, Zhejiang Province issued the "Trial Measures for the Participation of Work-related Injury Insurance for Retired and Rehired Personnel", and employers can apply for work-related injury insurance separately during the period when the employer employs retired rehired personnel aged 65 and under for males and 60 and below for females.
As of the end of November that year, nearly 5,000 people participated in this work-related injury insurance.
In December 2020, Guangdong Province issued regulations to include those who have and have not enjoyed basic pension insurance benefits for government agencies, institutions or urban employees into work-related injury insurance.
In Wang Tianyu's view, in the long run, based on these practical explorations, the current labor legal system should be reformed, especially the retirement system, and the employed elderly should be included in the scope of labor law adjustments.
Yang Baoquan believes that the central government has proposed to "comprehensively clean up the unreasonable regulations that hinder the elderly from continuing to play a role." Therefore, on the basis of full research and reference to the basic guarantee of labor relations, we should adapt to the requirements of the aging era and comprehensively Clean up unreasonable regulations that hinder the employment of the elderly, introduce top-level design for the elderly to enter the workplace, and keep pace with the times to protect the employment rights of the elderly.
Wang Tianyu suggested that the fundamental way to solve this problem is to compile the labor code as soon as possible based on the practice of the current labor laws and regulations. Solve the conflicts in current labor laws and regulations at the same level, and build a new system of labor laws and regulations.
"Rule of Law Daily" February 24, 2023, Page 04