If the construction project is subcontracted and the wages of migrant workers are in arrears, the general construction contractor shall pay off the arrears first, and then recover the arrears according to law.
The employing unit shall sign labor contracts with the construction workers recruited in accordance with the law.
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The general contractor and the subcontractor shall be jointly and severally liable for the safety production of the subcontracted project.
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Article 3 (9) of the Guiding Opinions on Accelerating the Cultivation of Construction Industry Workers in the New Era stipulates that the labor employment system in the construction industry should be standardized.
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On the one hand, the enterprise needs to urge the labor dispatching unit to sign the labor contract and pay the social security with the labor dispatching personnel in a timely manner.
It is strictly prohibited to replace labor contracts with labor contracts, and regulate the labor dispatch and employment in accordance with the law.
In the practice of labor dispatch, some construction enterprises have dispatched non-management and professional technical posts.
In terms of production safety, Article 24 of the Regulations on the Administration of Work Safety of Construction Projects stipulates that if the general contractor subcontracts the construction project to other units according to law, the subcontract shall specify their respective rights and obligations in terms of production safety.
These characteristics have led to many legal risks in employment.
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For construction workers who cannot participate in the industrial injury insurance according to the employer, the general construction contractor shall be responsible for participating in the industrial injury insurance according to the project to ensure that the industrial injury insurance covers all construction workers on the construction site.
Article 55 of the Regulations on the Protection of the Wage Payment of Migrant Workers stipulates that in case of any of the following circumstances, the administrative department of human resources and social security and the competent department of engineering construction in relevant industries shall order correction within a time limit according to their duties; If it fails to correct within the time limit, it shall be ordered to stop the project and fined not less than 50000 yuan but not more than 100000 yuan; If the circumstances are serious, the construction unit shall be punished by restricting the undertaking of new projects, lowering the qualification level, revoking the qualification certificate, etc.: (1) the general construction contractor fails to open or use the special account for migrant workers’ wages as required; （2） The general construction contractor fails to deposit the wage deposit or provide the guarantee from the financial institution as required; （3） The construction general contractor and subcontractor did not implement the real-name management of labor.
Article 28 of the Regulations on the Protection of the Wage Payment of Migrant Workers in the labor contract system stipulates that the construction general contractor or subcontractor shall sign a labor contract with the employed migrant workers and register their real names in accordance with the law.
The construction industry is a labor-intensive industry, and its main patterns of employment are diversified, including labor contract workers, labor dispatching workers, special types of workers, and subcontracting forms of employment, which are characterized by strong mobility and multiple types of work.
For industrial injury insurance liability, it is required in Article 3 (10) of the Guiding Opinions on Accelerating the Cultivation of Construction Industry Workers in the New Era to improve the social insurance payment mechanism.
Article 4 of the Notice of the Ministry of Labor and Social Security on Matters Related to the Establishment of Labor Relations stipulates that employers such as construction and mining enterprises will contract the project (business) or management right to organizations or natural persons without the qualification of employment subject, and the employer with the qualification of employment subject shall bear the responsibility of employment subject for the workers recruited by such organizations or natural persons.
Personnel who have not signed a labor contract with the construction general contractor or subcontractor and registered their real names shall not enter the project site for construction.
If the construction unit allows other units and individuals to contract construction projects in the name of the construction unit, resulting in the arrears of migrant workers’ wages, the construction unit shall pay off.
According to Article 12 of the Administrative Measures for the Identification and Investigation of Illegal Acts of Contract Issuing and Contracting of Construction Projects, any of the following circumstances shall be deemed as illegal subcontracting: (1) the contractor subcontracts its contracted works to individuals （5） The professional operation contractor subcontracts its contracted labor.
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2、 In terms of administrative responsibility, 1.
The employer shall pay social insurance for construction workers according to law.
On the other hand, if the construction enterprise is in the management position, it will lead to the formation of a de facto labor relationship with the labor dispatching personnel.
Article 36 stipulates that if the construction unit or the general construction contractor contracts or subcontracts the construction project to individuals or units without legal business qualifications, resulting in arrears of migrant workers’ wages, the construction unit or the general construction contractor shall pay off.
Failure to establish or use the special account system for migrant workers’ wages to ensure that the payment of migrant workers’ wages has been included in the main responsibility assessment of enterprises, and enterprises will face severe punishment from the regulatory authorities in case of wage arrears.
Illegal subcontracting construction enterprises subcontract to contractors or internal contractors, and the construction enterprises bear the main responsibility of employment, that is, they are responsible for signing labor contracts, issuing wages on behalf of others, paying social security, safety management and other legal employment responsibilities.
According to Article 30 of the Regulations on the Guarantee of the Wage Payment of Migrant Workers, the wage payment system of the general contractor enterprise, if the subcontractor defaults on the wages of migrant workers, the construction general contractor shall pay off the wages first and then recover them according to law.
1、 In terms of civil liability, 1.
However, this method can minimize the labor cost, but there are also potential legal risks.
Article 7 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Industrial Injury Insurance stipulates that the contractor with the qualification of employment subject violates the provisions of laws and regulations, and subcontracts or subcontracts the contracting business to an organization or natural person without the qualification of employment subject, and the workers recruited by the organization or natural person are injured or injured due to work while engaging in the contracting business, The contractor with the qualification of employment subject shall bear the employment injury insurance liability that the employer should bear according to law.
If no subcontract is signed with the contractor, the contractor and the migrant workers under his leadership are all direct employees of the construction enterprise.
