The Chinese government’s revisions to its Work-related Injury Insurance Regulations (工伤保险条例) will go a long way to giving workers the insurance cover and legal protection they urgently need. However, the regulations still lack the necessary penalties and legal liability clauses that would force employers, local governments and trade unions to comply.
China Labour Bulletin, in its submission to the State Council during the government’s public consultation period earlier this month, argues that the proposed revisions will do little to reduce the horrendously high number of work-place accidents in China today, and that workers will still have negotiate numerous bureaucratic hurdles just to claim their due benefits.
CLB proposes that the revised regulations should include clauses that stipulate the establishment of occupational health and safety supervisory committees and teams comprised of enterprise employees that could monitor actual and potential workplace hazards and encourage management to take swift action to remove those hazards. The submission states:
CLB further proposes that the revised regulations stipulate compulsory payment and punitive damages clauses (of up to five times the cost of medical treatment) for employers who have not enrolled in a work-related injury insurance scheme and moreover refuse to pay accident and disease victims the compensation they are legally entitled to.
Employers, government agencies and crucially the trade union should also be made legally liable if they neglect to perform their duties as stipulated in the regulations. CLB notes that, as things stand, trade unions can carry out their workplace safety duties on a discretionary basis, and can avoid all responsibility for the neglect of those duties. Including a legal liability clause for the union would bolster its role within the enterprise and make it take its responsibilities more seriously. In particular, the union should be made legally liable for submitting reports on accidents leading to work-related injuries, as this would, in addition, help prevent employers from failing to disclose such accidents.
Additionally, the regulations should make provision for judicial redress, so that employees, their representatives and concerned social groups can sue the employer, government agency or trade union in a court of law for non-performance of their legal duties.
In its submission to the State Council, CLB further argues that there is a pressing need to ensure that victims of work-related accidents and occupational disease are promptly compensated for their suffering. The cost of medical treatment is one of the greatest burdens faced by workers and ordinary citizens in China today; and the refusal of an employer to pay due compensation can lead to great suffering.
CLB proposes that a system of advance payment be established whereby:
Very often, employers will refuse to provide local government officials with evidence of their employment relationship with the victim, or deliberately drag out arbitration and judicial proceedings until the victim either gives up or in many cases dies of their occupational disease. Currently, victims can be forced to go through up to 19 separate bureaucratic and judicial procedures (listed on pages eight and nine of the submission) before they receive the benefits they are legally entitled to, and as such it is essential that these procedures are either simplified or made more complainant-friendly.
CLB recommends that the regulations clearly state that it is the employer, not the employee, who shoulders the burden of proof as to whether or not an employment relationship exists or existed, and that the current one year deadline for work–related injury certification be extended in cases where the application period has been exceeded because of on-going legal action.
Finally, CLB proposes that the scope of the regulations be expanded to include temporary and sub-contracted workers, in line with the provisions of the 2008 Labour Contract Law.
Click here to read the English translation of “CLB’s opinions and recommendations on the Draft for Comment regarding the State Council's proposed revisions to the Work-related Injury Insurance Regulations” as a PDF.
Click here to read the original Chinese submission.
See also, CLB’s research report Help or Hindrance to Workers: China’s Institutions of Public Redress, which investigates the numerous problems in China’s labyrinthine and often bewildering labour arbitration and court system that confront workers seeking compensation for work-related illness and injury, and suggests ways in which these issues can be resolved.
China Labour Bulletin, in its submission to the State Council during the government’s public consultation period earlier this month, argues that the proposed revisions will do little to reduce the horrendously high number of work-place accidents in China today, and that workers will still have negotiate numerous bureaucratic hurdles just to claim their due benefits.
CLB proposes that the revised regulations should include clauses that stipulate the establishment of occupational health and safety supervisory committees and teams comprised of enterprise employees that could monitor actual and potential workplace hazards and encourage management to take swift action to remove those hazards. The submission states:
It is necessary to mobilise the workers and involve them in the management and supervision of workplace safety at enterprises, and to create a framework of systematic, lawful safeguards with the participation of labour, trade unions and government departments. In this way, it will be possible to transform the currently ineffectual system of top-down supervision and management, initiated from without, into a more effective bottom-up system, with the initiative coming from within.
CLB further proposes that the revised regulations stipulate compulsory payment and punitive damages clauses (of up to five times the cost of medical treatment) for employers who have not enrolled in a work-related injury insurance scheme and moreover refuse to pay accident and disease victims the compensation they are legally entitled to.
Employers, government agencies and crucially the trade union should also be made legally liable if they neglect to perform their duties as stipulated in the regulations. CLB notes that, as things stand, trade unions can carry out their workplace safety duties on a discretionary basis, and can avoid all responsibility for the neglect of those duties. Including a legal liability clause for the union would bolster its role within the enterprise and make it take its responsibilities more seriously. In particular, the union should be made legally liable for submitting reports on accidents leading to work-related injuries, as this would, in addition, help prevent employers from failing to disclose such accidents.
Additionally, the regulations should make provision for judicial redress, so that employees, their representatives and concerned social groups can sue the employer, government agency or trade union in a court of law for non-performance of their legal duties.
In its submission to the State Council, CLB further argues that there is a pressing need to ensure that victims of work-related accidents and occupational disease are promptly compensated for their suffering. The cost of medical treatment is one of the greatest burdens faced by workers and ordinary citizens in China today; and the refusal of an employer to pay due compensation can lead to great suffering.
CLB proposes that a system of advance payment be established whereby:
After a worker who has suffered an industrial accident or occupational disease has received a diagnosis from the hospital or an occupational disease prevention and treatment centre, and has had his injury or illness certified as such, medical expenses should be paid in advance from the work injury insurance fund if the employer is already enrolled in it.
Very often, employers will refuse to provide local government officials with evidence of their employment relationship with the victim, or deliberately drag out arbitration and judicial proceedings until the victim either gives up or in many cases dies of their occupational disease. Currently, victims can be forced to go through up to 19 separate bureaucratic and judicial procedures (listed on pages eight and nine of the submission) before they receive the benefits they are legally entitled to, and as such it is essential that these procedures are either simplified or made more complainant-friendly.
CLB recommends that the regulations clearly state that it is the employer, not the employee, who shoulders the burden of proof as to whether or not an employment relationship exists or existed, and that the current one year deadline for work–related injury certification be extended in cases where the application period has been exceeded because of on-going legal action.
Finally, CLB proposes that the scope of the regulations be expanded to include temporary and sub-contracted workers, in line with the provisions of the 2008 Labour Contract Law.
Click here to read the English translation of “CLB’s opinions and recommendations on the Draft for Comment regarding the State Council's proposed revisions to the Work-related Injury Insurance Regulations” as a PDF.
Click here to read the original Chinese submission.
See also, CLB’s research report Help or Hindrance to Workers: China’s Institutions of Public Redress, which investigates the numerous problems in China’s labyrinthine and often bewildering labour arbitration and court system that confront workers seeking compensation for work-related illness and injury, and suggests ways in which these issues can be resolved.
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