If the actual construction contractor claims rights with the employer as the defendant, the people’s court may add a subcontractor or illegal subcontractor as the party to the case.
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After Xie paid part of his wages to more than 20 migrant workers, the rest was paid to Gu
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After hearing, the court held that: in this case, a construction company in Zhejiang subcontracted the project to unqualified Xie, and Xie subcontracted the project layer by layer to unqualified and useless natural person Gu
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Xu is injured at work, the construction enterprise and Mr
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For the apportionment proportion of joint and several liability, the Court confirmed it according to the fault, profit and loss and discretion of both parties
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The case instructed a construction company in Zhejiang to subcontract part of the project to Xie who did not have the construction qualification after contracting a construction project, and Xie subcontracted the project labor services to Gu
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After hearing, the court determined that the construction company and Liang should bear the industrial and commercial compensation liability in the proportion of 64 according to the responsibility for the invalidity of the contract agreement and the actual project benefits obtained by the contractor
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The above acts are illegal subcontracting
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Construction enterprises are economic organizations engaged in construction, equipment installation and other production activities of construction projects
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After the labor service, a construction company in Zhejiang paid the project funds directly to Xie
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According to Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases of construction projects, “if the actual construction contractor sues with the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept it according to law
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The lawyer commented that this case is a dispute caused by the employer’s illegal subcontracting of a construction enterprise in Anhui
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The particularity and diversity of employment forms of construction enterprises determine the difficulty of management
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According to the provisions of the Interim Measures for the administration of wage payment of migrant workers in the construction field issued by the Ministry of labor and social security and the Ministry of construction, “the general contracting enterprise shall not contract or subcontract the project in violation of the regulations to organizations and individuals who do not have the qualification of employment subject, otherwise it shall bear the joint and several liability for paying off the arrears of wages”, the court decided that Gu should pay the arrears of wages of migrant workers, Xie and a construction company in Zhejiang are jointly and severally liable for repayment
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There are three main forms of labor employment in construction enterprises
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In this case, the contractor, Mr
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Due to the phased nature of construction enterprises and the characteristics of interspersed operation and flow operation, the flow of migrant workers brings great difficulties to the signing and management of labor contracts; In addition, the owner keeps down the project cost, and the construction enterprise can get little profit
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In August 2011, Xu, an employee, had an industrial accident while working on the construction site, and was later identified as grade 8 industrial injury
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The main risks of employment of construction enterprises are as follows: 1
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Subsequently, Liang hired several migrant workers to form a construction team
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Due to the different characteristics of engineering projects and working areas, the biggest characteristic of construction enterprises is mobility, which shows the characteristics of mobility, dispersion, short-term, stage, cross flow operation and multi type cooperation in labor employment
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This situation is mostly the backbone of construction enterprises and project managers, such as project managers, engineers, etc
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In many cases, they subcontract part of the project labor services or even all the projects to the contractor
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The construction enterprise shall be deemed to have fulfilled its obligations after distributing the project funds and labor costs to the sub contractor or subcontractor according to the sub subcontract; However, many subcontractors or “contractors” do not distribute the project funds to migrant workers on time after receiving the project funds, and may even abscond with the funds, which eventually leads to migrant workers making trouble at the construction enterprises, which is not only prone to project suspension and delay, but also common for construction enterprises to involve in litigation or advance payment
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Liang, Mr
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As a worker recruited by Mr
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Liang shall bear joint and several liability for compensation
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These people generally sign formal labor contracts with construction enterprises, or generally speaking, these people are the internal “formal workers” of construction enterprises
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Lawyers commented on the bad behavior of subcontractors in arrears of wages, which not only made many migrant workers unable to get hard money, but also wronged some construction enterprises as the employer
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However, after Gu did not pay any money to migrant workers, he absconded with the money and his whereabouts were unknown
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According to the investigation and statistics of labor employment in the construction industry by relevant departments, the labor employment in the construction industry can be roughly divided into three types: first, the “own employees” of the enterprise, that is, the labor directly employed by the construction enterprise
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The third is the scattered labor brought to the construction site by the “Contractor” or directly used by the enterprise
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How to improve the employment system of construction enterprises according to law, avoid disputes and reduce employment risks is a problem that human resources management departments must consider
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” According to Article 94 of the labor contract law of the people’s Republic of China, if an individual contractor recruits workers in violation of the provisions of this Law and causes damage to workers, the contracting organization and the individual contractor shall bear joint and several liability for compensation
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According to Article 4 of the notice on matters related to the establishment of labor relations (LSBF (2005) No
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It is reasonable that the construction enterprise, as the employer, does not bear the obligation of wage management for the migrant workers employed by the subcontractor
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Because there was no agreement on the amount of industrial injury compensation, Xu took Liang and the construction company to court at the same time
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The subcontracting enterprises that subcontract labor operations from general construction contracting or professional contracting enterprises directly recruit, manage and use migrant workers
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This kind of employment is mainly temporary employment for a specific project, which is a common phenomenon in the construction field in China, but there is basically no labor contract
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Risk 2: sub contractors, illegal subcontractors and affiliated persons default on wages, so construction enterprises are involved
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The second is the establishment of subcontracting labor services
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12) issued by the Ministry of labor and social security, “employers such as construction and mining enterprises contract the project (business) or management right to organizations or natural persons who do not have the qualification of employment subject, and recruit workers to such organizations or natural persons, The employer with the qualification of employment subject shall bear the responsibility of employment subject
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Liang, is a useless worker
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For profit reasons, the foreman will not pay relevant industrial injury and commercial insurance for migrant workers, which brings huge employment risks to construction enterprises
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Case guidance in 2011, a construction company in Anhui subcontracted the plant construction project of a thermal power plant to a contractor named touliang who did not have construction qualification and employment subject qualification
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Neither the Construction Company nor Liang has handled industrial injury or commercial insurance for the members of the construction team
After it was decided not to accept it, they sued to the court in June 2010, asking Gu, Xie and a construction company in Zhejiang to bear joint and several liability for the payment of wages
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Subsequently, Gu hired more than 20 migrant workers to work in the project
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Construction enterprises should be reminded that due to the high mobility of contractors, migrant workers are likely to sue construction enterprises only after work-related injuries; Even if the court ruled that the construction enterprise and the contractor should bear joint and several liability, it is difficult for the enterprise to recover from the contractor after assuming all the liability
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Few construction enterprises have their own employees, and most of them subcontract labor work or even the whole project to other units and individuals
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The construction labor subcontracting enterprises that have emerged since the qualification of construction enterprises was re established in 2001 are in the form of independent enterprise legal persons
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Therefore, Construction enterprises rarely sign labor contracts with migrant workers and pay social security according to the requirements of labor development
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Even if the social security expenses involved in signing the labor contract are paid according to the local minimum standard, it is also a relatively huge expense
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However, the number of project employees is relatively large, and the construction period is often counted by years
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Due to insufficient labor remuneration, more than 20 migrant workers filed an arbitration application with the local labor dispute arbitration committee
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If the insurance is not paid, the enterprise and the Contractor shall bear joint and several liability in case of industrial injury
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