Work-related injury cases account for a large proportion in administrative litigation cases, and there is a big contradiction between the parties, which is difficult to coordinate and takes up a lot of trial resources. This paper analyzes the characteristics and causes of administrative litigation cases of industrial injury identification in recent years, and then puts forward relevant suggestions to reduce the occurrence of such disputes.
First, the main characteristics of administrative disputes on work-related injury identification
1. Migrant workers are the main group of work-related injuries. Migrant workers are the main applicants for work-related injury identification. Because of their relatively low level of knowledge, most of them can only engage in manual labor such as construction and manufacturing, and these industries are industries with frequent industrial accidents and occupational diseases. In addition, because their legal awareness is relatively weak, they are in a weak position compared with enterprises, and rarely sign labor contracts with enterprises. Once an industrial accident occurs, it is easy for enterprises to shirk their responsibilities and cause disputes.
2、? Three jobs and one effort? The work reason is the focus problem that affects the identification of work-related injuries. ? Three jobs? Refers to the accidental injury caused by work during working hours and workplace, is it consistent? Three jobs? Requirements are an important criterion to judge whether the injuries suffered by employees belong to work-related injuries. In the identification of work-related injuries, working hours and workplaces are relatively fixed and easy to judge, and the issue of work reasons has become the focus of controversy between the two sides and the industrial injury identification authority. In addition to on-site investigation, witness testimony is an important evidence to judge whether it is related to work. However, most of the witnesses in industrial injury identification are employees of enterprises, which are inextricably linked with enterprises, so many people refuse to testify or even commit perjury. Even if there are witnesses who have made relevant certificates during the investigation by the industrial injury identification authority, once they enter the proceedings, they will often overturn the previous certificates in court, which will make it difficult to identify industrial injuries.
3. Most of the parties who filed the administrative litigation of work-related injury identification were employers, but the withdrawal rate was high. For enterprises that do not provide employees with work-related injury insurance, once the labor department determines that the work-related injury is established, it will pay a lot of medical expenses, lost time and other expenses. Enterprises often maliciously delay the payment time through litigation, creating conditions for the advantage in mediation with victims in the future. If the administrative litigation of work-related injury identification is concluded, in most cases, enterprises have to pay various fees, and the third party usually has to go through various procedures such as first instance and second instance to get the fees, which prolongs the time for it to accept compensation. Therefore, in the case of work-related injury identification, the plaintiff enterprise and the victim, as the third party, are willing to mediate under the auspices of the court, and the two sides meet each other halfway to reach a mediation agreement, and the case is slightly higher.
Second, the practical reasons for the administrative dispute over the identification of work-related injuries
(1) Enterprise reasons
1. Enterprises have low illegal costs, lack of responsibilities and disregard for employees' personal safety. China's industrial injury insurance is compulsory. Workers themselves do not pay work-related injury insurance premiums, and the employer is responsible for paying them. For units that fail to pay work-related injury insurance according to law, in addition to requiring them to pay relevant work-related injury insurance fees in accordance with regulations, the punishment method is only to impose a fine of less than 1000 yuan on the person in charge and the person directly responsible. This kind of punishment leads to the low illegal cost and lack of sense of responsibility of enterprises that have not participated in work-related injury insurance, and they would rather bear the risk of being punished than take the initiative to pay insurance premiums.
2. Some small and medium-sized enterprises are unwilling to handle industrial injury insurance for employees due to cost pressure. In recent years, small and medium-sized enterprises have developed rapidly with the advantages of less investment and flexible operation, and become an important driving force for regional economic growth. However, due to its small scale and unstable capital chain, the financial pressure of small and medium-sized enterprises is relatively large. At present, the payment method of work-related injury insurance is paid together with the medical and pension insurance expenses in social insurance, and the monthly payment amount is 40% of the monthly salary of employees, of which enterprises have to bear 30%. Therefore, for workers with a monthly income of 3,000 yuan, enterprises must pay insurance fees including medical care and old-age care.
3. In high-risk industries such as construction and manufacturing, the possibility of work-related injuries is high, the turnover of personnel is frequent, and it is difficult to insure. Industrial fields such as construction and shipbuilding are short-term and people are mobile. These people don't sign labor contracts, and often agree with enterprises to complete a project or even a project process and take money and leave. The mobility of personnel makes it more difficult for these personnel to participate in work-related injury insurance. Especially in some outsourcing projects, workers work with the contractor and have no direct contact with the construction unit, so it is more difficult to insure.
(2) The reasons of the administrative department
1. There are defects in labor market management, and the phenomenon of not signing labor contracts is more prominent. Whether the labor contract is signed or not is of great significance for determining whether it is a work-related injury. Since the implementation of the Labor Contract Law, the signing rate of labor contracts in various enterprises in China has been greatly improved. However, some enterprises still have irregular labor behaviors and do not sign labor contracts with employees. For such enterprises, once an industrial accident occurs, they often refuse to recognize the labor relationship with the injured employees, which increases the difficulty of industrial injury identification, increases the process of industrial injury identification and prolongs the time of industrial injury identification. At present, some functional departments have the phenomenon of lack of functions in the supervision of labor contract signing. First of all, with the rapid increase in the number of enterprises, the number of personnel in the labor and social security departments is becoming more and more insufficient. So what is the basic supervision of labor contracts by the labor and social security departments at present? Key supervision? And then what? Don't tell me? Principle, so it is impossible to achieve comprehensive supervision of all enterprises; Secondly, in order to protect the interests of local enterprises, the labor and social security departments have relatively low penalties for enterprises that do not sign labor contracts with employees as required, and passive law enforcement is also an important reason why many enterprises do not sign labor contracts. Finally, the relevant departments have not paid enough attention to the construction of trade unions in enterprises in recent years, resulting in the disappearance or existence of trade unions that play an important role in the signing of labor contracts in enterprises.
2. The payment method of work-related injury insurance premium is single, and the operability is not strong. At present, the payment of work-related injury insurance premiums is paid together with social insurance such as endowment insurance and medical insurance, that is, enterprises must pay all insurance premiums under social insurance. The original intention of this payment method is to protect the interests of employees to the maximum extent. However, the expenses paid by the five types of insurance together account for 30% of employees' wages, which is much higher than the industrial injury insurance expenses that only account for 0.5% of employees' wages. It is easy to cause some enterprises willing to handle industrial injury insurance for employees, because they need to pay all the expenses including medical care and old-age care, but they are lazy to handle industrial injury insurance for employees. Moreover, this payment method is not suitable for industries with strong liquidity such as construction and shipbuilding.
3. The pressure of attracting investment leads to inadequate supervision by the regulatory authorities, and the relevant departments fail to coordinate economic development with the protection of employees' interests. In order to attract more enterprises to invest in the local area and serve the local economy, local governments often promise various preferential measures to foreign enterprises in the process of attracting investment, relax supervision and create a more relaxed development environment for enterprises, resulting in incomplete and in-depth supervision, and enterprises fail to pay insurance fees for employees, which harms the interests of employees.
4. Unclear functions lead to poor supervision and potential safety hazards. According to China's laws, the labor department is responsible for industrial injury insurance and the safety supervision department is responsible for production safety. The functions of labor and social security departments and safety production supervision departments overlap, and their responsibilities are unclear, which easily leads to regulatory loopholes, which leads to ineffective supervision at ordinary times and failure to find out the safety hazards of enterprises in time, resulting in frequent industrial accidents. In the event of an accident, both the Labor Bureau and the Safety Supervision Bureau will pass the buck.
(3) The reasons of the workers.
Workers have weak legal awareness, poor awareness of rights protection and poor ability to preserve evidence. Due to the relatively low cultural quality and weak legal awareness of workers who suffered from work-related injuries, most of them did not realize the importance of work-related injury insurance before the work-related accidents, and their willingness to participate in insurance and awareness of rights protection were not strong. After the industrial accident, due to the complicated procedures and high cost of safeguarding rights, most people choose to settle privately with the enterprise, and then apply for industrial injury identification after failure, which often misses the best opportunity for industrial injury identification, leading to the disappearance of some evidence and increasing the difficulty of industrial injury identification.
Three, the legal causes of administrative disputes caused by work-related injuries
1. The legal provisions are simple and cannot cover all work-related injuries, which makes it more difficult to identify work-related injuries. Article 14 of the Regulations on Work-related Injury Insurance stipulates seven situations that can be recognized as work-related injuries, and article 15 stipulates three situations that can be recognized as work-related injuries. Due to the limitation of law and the complexity of practice, these ten provisions cannot cover all cases of work-related injuries. Moreover, these regulations are too simple, which gives the industrial injury identification organs great discretion to a certain extent, and it is easy for people to have disputes because of different understandings. If it is stipulated in the provisions, motor vehicle accidents suffered on the way to and from work belong to work-related injuries. However, this clause does not explain in detail what is the mode of commuting and how to determine a reasonable mode of commuting. Therefore, this clause has been repeatedly controversial because of its high identification standard and poor operability.
2、? The employer bears the burden of proof? It is not conducive to better identification of work-related injuries. Compared with employers, workers are in a weak position, and a lot of evidence is in the hands of employers. According to the provisions of Article 19 of the Regulations on Industrial Injury Insurance? If the employee or his immediate family members think that it is a work-related injury, and the employer does not think it is a work-related injury, the employer shall bear the burden of proof? . The main body of proof in industrial injury cases is the employer, but in practice, employers who have not applied for industrial injury insurance often destroy, conceal or refuse to provide evidence in order to avoid the liability for compensation for industrial injury damage. Although the employer does not provide evidence, the labor department can make a work-related injury conclusion according to the evidence provided by the injured employee, but if the employer files an administrative lawsuit against the work-related injury conclusion of the labor department, according to the provisions of China's administrative procedure law, the burden of proof originally borne by the employer will be transferred to the labor department, which will easily lead to the labor department losing the case, thus fundamentally damaging the interests of the injured employee.
Fourth, reduce administrative disputes related to work-related injuries.
1. Clarify the supervisory responsibilities of different departments, do a good job in work-related injury prevention, and increase the key supervision of high-risk industries. Preventing industrial accidents is the primary task of industrial injury insurance. Doing a good job in work-related injury prevention can fundamentally improve the working environment, reduce the possibility of work-related injury accidents, and be conducive to the healthy development of enterprises and social harmony and stability. The government should clarify the respective functions of the labor department and the safety supervision department in the supervision of industrial accidents, divide their functions and powers, improve the supervision responsibility system and administrative accountability system, and implement the responsibility for production safety to units and individuals. For high-risk industries prone to industrial accidents, it is necessary to change passive acceptance of reports into active strengthening of supervision measures, take regular inspections and spot checks at any time to ensure labor safety protection measures in these industries, prevent industrial accidents from the source, and urge enterprises whose safety protection measures do not meet the requirements to improve in time.
2, the implementation of industrial injury insurance single insurance system, improve the premium payment rate. Although the social insurance premium payment system with five insurances can protect the interests of enterprise employees to the maximum extent, it is not flexible and is not suitable for all industries. For short-term projects with strong liquidity, such as construction and shipbuilding, industrial injury insurance can be established. In order to better protect the legitimate interests of migrant workers and other people with strong mobility, the amount of work-related injury insurance premium should be determined with the project cost as the goal before the project starts, combined with the construction period, personnel and other factors.
3. Strengthen legal publicity and enhance employees' awareness of rights protection. It is necessary to widely publicize the relevant laws, regulations and policies of work-related injury insurance and labor contract law by visiting enterprises, distributing publicity materials, holding seminars for enterprise employees, and publicizing on government websites, so as to raise workers' awareness of work-related injury insurance and create a benign social atmosphere in which workers dare to defend their rights, know how to defend their rights and can defend their rights.
4, the labor department should change from passive to active, and actively safeguard the legitimate rights and interests of workers. First of all, it is necessary to strengthen the supervision of enterprises signing labor contracts to prevent enterprises from not signing or signing unqualified labor contracts in the process of employment. Secondly, in the process of work-related injury identification, the labor department should actively exercise its functions and powers, in addition to reviewing and verifying the relevant evidence provided by the employer, it should also take the initiative to investigate and try to restore the truth and provide solid and powerful evidence for work-related injury identification. Finally, we should take the initiative to communicate with relevant departments, timely contact with courts, labor arbitration committees and other relevant departments, and find out the best solution to the problems in the process of industrial injury identification.
5. The court should strengthen communication and coordination with the labor and social security departments, give full play to their respective advantages, and conduct exchanges and consultations on issues related to the identification of work-related injuries. The lag and limitation of law make it impossible to cover all the problems in real life. The court and the labor department should communicate in time and hold case discussions regularly and irregularly. In view of the controversial and difficult issues in the process of work-related injury identification, the two sides should exchange and discuss, give full play to the advantages of their respective departments, and try their best to reach an understanding. The court shall share information in the trial, summarize the problems existing in the administrative litigation cases of work-related injury identification in time, and provide judicial advice to the labor and social security department on a regular basis.
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