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Unlicensed welder disabled during the operation of the employer was held liable for compensation of 80%
24-year-old Anhui boy Liu did not have a welding license, but went to work on the ship repair welding work, the results of the incorrect operation of the burns on the back constitutes a grade 8 Disability. A few days ago, Liu will be the employer Dinghai Yongheng ship repair company, was contracted by the contracting unit Zhoushan City, Lekang ship repair limited company told to the Ningbo Maritime Court, requiring the two companies to compensate for the loss of 160,435.7 yuan.
Liu mou in the lawsuit, 3 days before the incident, it was employed in Dinghai eternal ship repair company engaged in welding work, the two sides agreed on a daily salary of 90 yuan. 2007 national day, eternal company arranged for Liu mou holiday overtime, directing it to the repair of the "far east vanguard" wheel of the ship's tip of the hull of the cabin welding. The cabin was filled with rosin flammable items, due to welding sparks splashed on the rosin, resulting in a fire in the cabin, the plaintiff's body was burned extensively. Liu was then sent to the hospital for rescue treatment. After discharge from the hospital was identified as constituting a grade 8 disability.
The two companies have no objection to the fact of Liu's injuries, but that the cause of the fire is due to the plaintiff's gross negligence, Liu should bear most of the responsibility. Dinghai eternal ship repair company application, the court summoned the foreman who rushed to the scene in time after the accident, Zhao Mou and the accident occurred in the lower part of the ship's tip cabin Chen Mou to testify in court. Both witnesses stated that no rosin was stored in the cabin at the time of the accident, and that Liu was not burned except on his back. What was even more strange was that the plaintiff's underwear was burned, but his jacket was unharmed, and there was neither an explosion nor any burning in the cabin. However, Liu fell down to the bottom cabin after being burned, and the oxygen pipe used for welding and cutting fell down with him and was leaking.
Liu argued that this is fleeing from the back of the fire and burned his back, and later argued that the accident occurred, there is a paint bucket without a lid in the cabin, there is a small amount of rosin, is due to the work of the labor will be sitting on the top of the welding, welding sparks splash to the bucket caused by burning, so only the back was burned, it seems to be intentional concealment of the cause of the accident signs.
The court found that after the incident, the oxygen pipe is still leaking and other facts are witnessed, can be recognized. Liu claimed to cause the accident occurred due to his sitting on the paint bucket containing rosin welding, the barrel of rosin burning caused, but according to the facts found in court, the plaintiff only back burns, buttocks were not burned, underwear was burned, the jacket was not burned, Liu's statement of the antecedent cause and the actual consequences of can not be reasonably explained. The court also held that pure oxygen itself does not burn, but under the action of pure oxygen, can increase and accelerate the burning of other items. According to the circumstances of the plaintiff's injuries, the cause of Liu's injuries is very likely to be in the tip of the cabin welding, in violation of the regulations with the torch oxygen tube tied to the back of the trouser belt blowing the wind to cool down the body temperature, by the welding flower ignited by the oxygen and caused the combustion.
The court held that Liu mou does not have the qualification to engage in welding work, and as an adult with normal sanity, should know the welding operation with oxygen pipe to the body of the danger of blowing, but Liu mou negligence to pay attention to their own safety, illegal operation, and eventually caused the accident, so the accident has a major fault. Dinghai everlasting ship repair company before hiring the plaintiff whether the plaintiff has welding qualification did not verify, and after hiring and did not carry out the relevant pre-service training, so the company to Liu's wrong practice also has certain fault, according to the law should bear the responsibility of employer. According to the relevant provisions of the law, in the legal employer no-fault principle of responsibility, the victim of gross negligence, can reduce the liability of the compensation obligation.
Finally, the court finally ruled that Liu Mou bear 20% of the responsibility by himself, Dinghai eternal ship repair company bear 80% of the responsibility of the accident, Liu Mou get compensation for 38304.42 yuan; Zhoushan city lee port ship repair limited company to bear joint and several liability.
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17-year-old migrant workers for five consecutive days of work was fell disabled Shanghai rights to win the "work-related injuries recognized" lawsuit
Because of the intensity of five consecutive days of overtime, Henan Electrician Yang in the early hours of operation, the unfortunate fall from the three-meter-high ladder, resulting in a serious brain injury, paralyzed. This morning, Shanghai Pudong New Area People's Court on the fall of Yang triggered by the construction company sued the Bureau of Labor Insurance to "revoke the work injury determination" case was held in open court, three and a half hours later, the court made the court sentencing, to maintain the Pudong New Area Bureau of Labor Insurance to make the conclusion of the work injury determination.
Five days and five nights of non-stop overtime
In March 2006, under the introduction of his brother, Yang came to Shanghai Yi Fu Construction and Installation Engineering Company Limited (hereinafter referred to as Yi Fu) contracted Yangzhou project engaged in the work of the electrician, when Yang and the workers are accepted "foreman" Gao Mou's direct management. Gao paid wages to Yang and others.
Three months later, Yang moved to Yi Fu company contracted another in Changshu, "Blue Thai project" site. early morning of September 1, has been working for five days and five nights, Yang and other electricians, according to Gao's arrangements for overtime in the equipment room to set up cables. Around 00:50 in the morning, small Yang in the ladder operation, hand on the air duct support, in the force of cable pulling when the loss of gravity from the ladder fell, due to the screw is not firmly fixed, the safety belt did not work. More fatal is that the small Yang himself helmet cap strap is not buckled, when it fell from a height of 3 meters when the helmet fell off, small Yang head directly on the ground, immediately unconscious ear and nose bleeding. In the local hospital rescue treatment for three months, Yang transferred to Shanghai Changzheng Hospital treatment, after diagnosis, Yang for the extraordinarily heavy closed craniocerebral injury, traumatic left frontotemporal bone skull defect.
Fishy "private" agreement
On November 24, 2006, Gao Mou opened his own Shanghai Wangjia Construction Engineering Services Company Limited (hereinafter referred to as Wangjia, the company was established in August 2006) and Yang's father signed an "accident handling agreement", which stipulates that. Wangjia paid Xiao Yang's medical expenses, wage subsidies, follow-up treatment costs, family subsidies, etc. *** amounting to more than 440,000 yuan, but Xiao Yang's parents had to promise that Xiao Yang's future recovery treatment costs, living expenses and family subsidies, etc. had "nothing to do" with Wangjia, and that "no disputes of any kind" existed between the two parties, and that "no disputes of any kind existed". There is no dispute of any kind between the two parties", and Xiao Yang "shall not ask for any kind of expenses from other third parties in any form".
However, the high cost of medical care is still too much for the Yang family to bear. Looking at the delirious Yang, in February 2007, Yang's family to the Labor Arbitration Commission to apply for arbitration, requiring SEED to pay for Yang's March 2006 to September of the Shanghai Municipal Comprehensive Insurance for Foreign Workers, the arbitration supported Yang's request. Yi Fu company is not convinced, to the court, and has gone through the first trial, the second trial. 2007 August 29, Yang and to the Pudong New Area Bureau of Labor Protection to apply for the recognition of work injuries, in September, the Bureau of Labor Protection formally accepted the case, on April 11, 2008 the Bureau of Labor Protection to make the certificate of injury, that Yang constitutes a work-related injuries.
A "dead" a "rush to recognize"
In today's hearing, the court president Ding Shouxing personally acted as the case of the presiding judge, Pudong New Area Labor Bureau Wang Jiazhen, director of the court.
During the hearing, the agent of Yi Fu said that Yang was not employed by Yi Fu, but had a labor contract with Gao Mou's Wangjia, and that Yang was "assigned by Wangjia to work in the place where the accident occurred," and that it was "wrong" for the Bureau to take Yi Fu as the entity involved in the workplace injuries. "wrong".
SEED also argued that the LAB's procedures for determining workplace injuries were flawed, as the LAB did not give SEED "sufficient time to respond to the situation" in accordance with the relevant regulations, let alone conduct the necessary review, before blindly determining that Yang was an employee of SEED. In particular, SEED pointed out that the second-instance judgment in Yang's previous foreign comprehensive insurance lawsuit was issued only in November 2007, and the Bureau of Labor and Social Security made the decision to accept SEED as the employer in September, which was clearly a complete violation of the procedure and a "biased" decision.
In fact, as early as in the previous lawsuit, Yi Fu also put forward the "Yang is not my company's employees" point of view, and submitted with the Wang Jia company signed a subcontract, safety management agreement, and Wang Jia company's "situation statement". Wangjia company in the note a mouth that Xiao Yang "was originally my company's temporary recruitment of employees, in the event of his injury, and my company has a labor relationship", and intriguing is that Xiao Yang was injured in September 2006, Wangjia company was established in August before, the project subcontract and safety management agreement was signed in July, the contract was signed. The subcontract and safety management agreement were signed in July. When the court asked whether the subcontract was filed, Yi Fu company said "we are a Shanghai company, the site in Changshu, there is no clear provision for filing in the field, whether or not to go back to verify the record."
Workers testified
In the face of Yi Fu's questioning, the Bureau of Labor Insurance submitted a series of evidence, which strikingly proved that the employment relationship between Yang and Yi Fu materials, that is, Yang and Yi Fu signed a labor agreement between the labor agreement, labor contracts, time sheets, construction personnel identification, which is only a copy of the labor agreement and labor contracts, Yang side had before the court The labor agreement and labor contract were only photocopies, and Yang had said before the court that "the original contract was taken back by the company". Asked why the company signed a "private agreement" with a high Wangjia, Yang's lawyer said "Yang's father was in his son's life in danger, was coerced to sign, and Yang's father on the subject is not clear." The reporter found that about this accident agreement, Yi Fu company also once in the case of foreign comprehensive insurance, said they out of humanity to Wang Jia company 260000 yuan, bear part of the cost, "because Wang Jia is a high one person company, he did not have the money to deal with the accident at that time."
The LAB additionally provided witness statements from Yang's workers and the LAB's investigative transcripts, in which one worker said, "We only know about SEED, and we wear helmets and overalls with SEED's name on them."
Court decision
After a tense two-hour trial, the panel made a first-instance decision after a short deliberation. The court held that, first of all, whether the need to pay comprehensive insurance for foreign labor and whether the labor relationship is established belong to two categories. In this case, the evidence submitted by Yang in his application for recognition of work-related injuries combined with the effective legal documents to form a chain of evidence, and the defendant Labor Insurance Bureau relied on this evidence to determine that Yang and YiFu had a labor relationship, which was a correct determination of the facts.
Secondly, the labor relationship should be agreed upon by the employer and the worker. Yi rich company has no evidence to prove that it and Yang has been negotiated between the two sides of the labor relationship, Yang's family and Wangjia company signed the accident agreement can not change Yang and Yi rich company has long existed in the fact of the labor relationship, so Yi rich company and Yang does not have a labor relationship between the claim lack of factual evidence, the reason can not be established.
Finally, the court pointed out that the Bureau of labor insurance in the acceptance of the application for injury before the consultation letter sent to the plaintiff Yi Fu, indeed improper, but the behavior does not affect the legality of the work injury determination, the Bureau of labor insurance should be strengthened in the future work of procedural awareness.
In summary, the court ruled to maintain the defendant labor insurance bureau made the conclusion of the work injury.
Ding Shouxing, president of the special reminder: the employment of standardized letters to be improved
Why do migrant workers frequently have workplace accidents? The trial judge Ding Shouxing said, in recent years, the construction market, some construction units do not strictly fulfill the legal construction procedures, illegal construction and construction without a license, some construction companies illegal subcontracting or subcontracting, unqualified construction, the project manager to rely on the phenomenon exists, resulting in the construction site safety violations are more serious. In addition, due to the blind price pressure of some owners and the vicious competition of construction enterprises, objectively resulting in a serious shortage of funds for building construction safety, construction safety and technical measures and safety protection facilities can not be effectively implemented, coupled with the construction of the neglect of safety management and the rectification of hidden dangers of accidents, resulting in a high number of safety accidents occurring in the unauthorized works. Therefore, as a business, we must pay attention to standardize the employment of labor, the establishment of a safe production system, education and training of employees for production safety, and strictly eliminate fatigue overtime situation, but also on time to pay the comprehensive insurance for foreign workers, from the social security point of view of the migrant workers to create a safe production environment.
Wang Jiazhen, director of the labor insurance bureau, said migrant workers should be more aware of their rights
Where is the difficulty in protecting the rights of migrant workers? The defendant in this case, Wang Jiazhen, director of the Bureau of Labor Protection, believes that not signing labor contracts and not saving evidence is the biggest difficulty for migrant workers to defend their rights. Workers should strengthen their awareness of self-protection, try to ensure that they sign labor contracts with their employers, and require their employers to pay social insurance or comprehensive insurance for foreign workers. In the event of a workplace accident, workers should keep work permits, attendance cards and other relevant evidence that can prove the fact of labor relations. On the basis of paying attention to the preservation of their own existing evidence, they should also collect other evidence in a timely manner, such as medical records, medical bills and other vouchers. In addition, if workers find that the employer has changed its name or refused to issue relevant certificates, they can complain to the local labor administrative supervision department, and if they find that the employer is suspected of cheating on the insurance, they can also report it to the public security organs.
Related links: "Young migrant workers" status quo worrying
According to a survey by the relevant departments, young migrant workers with low education, low skills and low abilities have increasingly appeared in the construction and renovation industry, road building, transportation, manpower handling, catering and service industries, where the working environment is difficult and the income is low. However, their working environment is worrying. As for the vocational inspection of electricians, at present, large enterprises have basically implemented a licensed system, while in some small and medium-sized enterprises and even in large-scale renovation industries, migrant workers who work as electricians basically do not have any qualification certificate for employment, their education level is basically below junior high school, and they have never been in contact with the knowledge of electricity and technical training before employment, and they just follow the work in the process of employment, and they operate independently in less than one month, in which they do not have any idea of the working principles. working principle is not clear at all.
Fatigue on the job has also gradually become the main cause of accidents, almost every laborer has overtime, many people work two shifts a day, no rest day adjustment, sometimes even a few days and nights of continuous overtime. 2004, Wujiang City, an iron casting factory, a laborer in fatigue, has been burning red iron pliers mistakenly inserted into the body of his companion, resulting in the companion was killed on the spot. Overtime work, super-intensive labor, neither labor contract protection, no one to pay for their corresponding insurance, and so on these are for the survival of migrant workers buried hidden dangers.
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Working after the boss "evaporated" 70 workers to recover wages to be supported
November 28, 2007, the plaintiff Zhang Xujun, Liu Huajian and other 70 workers have been recruited to the defendant Chongqing Taishun Garment Co. After work, the defendant did not sign a written labor contract with the plaintiffs and others, only verbal agreement on the monthly wages and remuneration to the plaintiffs and others with a work plate. Unexpectedly, the day there are unpredictable, due to the defendant negligent management, mismanagement, resulting in high debt, on June 8, 2008 to stop production and business. Successively owed the plaintiffs and others wages ranging from $65 to $8,850. Just when the 70 plaintiffs are ready to the defendant to claim their hard-earned money, internal and external problems of the company's boss Liu Mou but no news, played the "evaporation", the plaintiffs and others have no choice but to sue to the court for a solution.
Chongqing yunyang court after hearing that the plaintiff Zhang Xujun, Liu Huajian and others to the defendant chongqing tai shun clothing limited company, the two sides did not sign a written labor contract, but the plaintiff and the defendant agreed to the wage standard and issued the work number plate, has formed a de facto labor relations, the defendant should pay the plaintiff's labor compensation according to the agreement. The plaintiff and others request the defendant to pay the wages owed to the court in accordance with the provisions of the law, the court shall support.
Accordingly, the court ordered the defendant Chongqing Taishun Garment Co., Ltd. to pay the plaintiff Zhang Xujun, Liu Huajian and other 70 people within ten days after the judgment came into effect, the wages of 131821 yuan.