Law on Arrears of Wages for Migrant Workers

The annual Spring Festival is coming. With the influence of the global financial crisis, the topic of "peasant workers' wages" has attracted the attention of the whole society and set off a storm of "paying off debts" in various places. Although the government attaches great importance to intervention and has achieved good results, the phenomenon of wage arrears for migrant workers is still very common in the country, and some enterprises owe wages to migrant workers for as long as 10 years. What are the causes of such a serious social problem? How should the law respond? First, the reasons for the arrears of wages for migrant workers (1) The awareness of migrant workers' rights protection is weak. Migrant workers are vulnerable groups in society, and many people lack corresponding legal knowledge. Migrant workers are eager to find a job, and they don't know that they need to sign a written contract with their boss, so they often verbally agree with their boss. In the event of a dispute, there is nothing to say, and finally the migrant workers are injured. When their rights and interests are infringed, because they are alone in the field, their information is relatively blocked, they don't know how to safeguard their rights and interests, and there is no organization to guide them how to safeguard their rights and interests. (II) Insufficient enforcement of laws Although Article 50 of China's "Labor Law" clearly stipulates that "wages should be paid to the workers themselves on a monthly basis in the form of money, and wages of workers shall not be deducted or delayed without reason", the labor law enforcement departments and social security departments have not fully assumed their responsibilities. In addition, the current level of economic development in China has not yet reached the level of establishing corresponding measures and institutions to safeguard the rights and interests of migrant workers (such as establishing free legal aid institutions for migrant workers). When the rights and interests of migrant workers are infringed, the corresponding institutions are far from the actual needs of migrant workers. In addition, due to the procedural requirements of the court to hear cases, both parties should be given sufficient time limit for proof and appropriate time limit for trial and appeal. This is also the reason why the wages owed to migrant workers cannot be solved in time. Moreover, most migrant workers are foreigners, so the construction unit can't afford to delay. Migrant workers live and eat in cities, so they can't afford to delay. (C) The failure to withdraw funds in time to pay the wages owed to migrant workers has exposed some problems in the real estate sector in the process of establishing and improving the market economy in China. After the developer gets the land, it will be used to make a large mortgage loan in the bank. Once the property market is depressed and the funds cannot be withdrawn in time, the developer's capital chain will have problems. Developers will face various pressures, namely, project payment, bank interest, management fees, wages of migrant workers, and advertising planning fees. In this case, it is difficult for developers to solve the problem of wage arrears for migrant workers. (d) Different levels of subcontracting failed to ban the current construction market. In the process of subcontracting at different levels, there are many "tricks". Some related people get the project from the developer and give it to the contractor, who then distributes the project to the migrant workers. Such a project can be quadrupled. Most of the people who change hands in the middle are "leather bag companies", which make huge profits through subcontracting and leave when problems arise. Migrant workers are the bottom of the "engineering pyramid". Once the contractor has financial difficulties or runs away with money, it is the migrant workers who are ultimately unlucky. Some contractors still refuse to pay when the project has been completed or is about to be completed, and maliciously default on the project payment, resulting in the inability of the contractor to pay the wages of migrant workers. Second, how to deal with the problem of wage arrears (1) To improve the legal system, we must improve the system of laws and regulations and curb the problem of wage arrears from the source. At present, in addition to the Interim Measures for the Administration of Wage Payment for Migrant Workers in the Construction Field jointly issued by the Ministry of Labor and Social Security and the Ministry of Construction, and the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Contract Disputes (Fa Shi [2004]14) issued by the Supreme People's Court on October 25th, 2004, supporting laws such as the Construction Law should be strengthened. In addition, the labor law should be revised to protect the legitimate rights and interests of migrant workers, and the corresponding responsibilities of the government should be strictly regulated according to the administrative licensing law that has been promulgated and implemented, which will help solve the problem of wage arrears for migrant workers. At the same time, central departments and local governments at all levels (according to their actual economic conditions) should also formulate corresponding local legislation. For example, in view of the default behavior of real estate development enterprises, the Ministry of Construction has formulated and issued a payment guarantee system for real estate development projects. Now both contractors and developers are required to provide performance guarantees to curb default at the source. (2) Establishing a credit system By establishing a credit system network, enterprises that violate regulations and are dishonest will be announced to the public. Local governments at all levels should make relevant regulations according to their own actual conditions, including that construction enterprises must sign labor contracts with migrant workers in accordance with the Labor Contract Law and other relevant laws and regulations, and the labor contracts must clearly stipulate the labor contract term, wage payment standards and time, labor protection and working conditions, and liability for breach of contract. All construction units should strictly implement the provisions of the Regulations on Qualification Management of Construction Enterprises, subcontract labor services in accordance with the qualification grades and standards stipulated by the state, and may not subcontract construction projects to enterprises that do not meet the qualification grade standards and individuals, organizations and "contractors" without employment qualifications. Labor security supervision institutions at all levels and construction administrative departments at all levels should carry out a special law enforcement inspection on the wage payment of migrant workers in construction enterprises within their respective jurisdictions before the "New Year's Day" and "Spring Festival" every year, and achieve tangible results. Construction enterprises maliciously default on the wages of migrant workers, causing social impact, and implement a one-vote veto system to repel the local construction market. In addition, fines can also be used to punish those who are in arrears with the wages of migrant workers, and this kind of serious social harm can be stopped and eliminated through severe punishment. (3) The government should perform corresponding functions according to law, strengthen the examination and approval of new projects and project management, standardize the behavior of enterprises in areas with serious arrears, and stop new projects. Strictly in accordance with the Measures for the Administration of Subcontracting Construction of Housing Construction and Municipal Infrastructure Projects, it is forbidden to subcontract contracted projects or illegally subcontract them. Subcontract Project The employer subcontracts professional projects or services to subcontractors who do not have corresponding qualifications, or it is not stipulated in the general construction contract and is not approved by the construction unit, and the employer subcontracts some professional projects in the contracted projects to others. Found illegal behavior, should be given administrative punishment or clean up the local construction market. Local labor inspection departments at all levels promptly accept reports and complaints that violate the rights and interests of migrant workers, such as arrears and deduction of wages, and publicize policies and regulations on employment, wage payment, social insurance and labor dispute arbitration of migrant workers. Enterprises that are seriously in arrears of wages and refuse to rectify will be punished in accordance with relevant regulations, and will also be exposed through the news media to give play to the supervisory role of the news media. Around New Year's Day and Spring Festival, local governments at all levels can organize key inspections of construction enterprises where migrant workers are concentrated. The main content of the inspection is that the employer pays the wages of migrant workers in full and on time and signs labor contracts with migrant workers according to law. At the same time, the construction administration bureaus of governments at all levels can establish "personal files" for migrant workers and regulate the management of migrant workers in cities. Relevant departments regularly inspect the construction unit. To establish the practical function of "migrant workers' files", we should establish an interactive and binding mechanism including government departments, society and enterprises. (4) Enhance the awareness of rights protection and establish a free legal aid institution for migrant workers' rights protection. Governments at all levels should increase investment in education, organize various forms of employment training and law popularization training for migrant workers, and improve their legal quality and awareness of rights protection. At the same time, we should also collect relevant employment and work information as much as possible, as well as the measures to deal with various problems that may be encountered in employment, especially when wages are in arrears, we must find relevant trade unions or labor departments to solve them in time. If you can't get the wages you deserve in time, you should bring a lawsuit to the people's court in time to safeguard your legitimate rights and interests. At the same time, guide migrant workers to sign labor contracts in time, and establish and improve the corresponding labor system guarantee and wage prepayment fund system. Through training and guidance, the legal quality of migrant workers is further improved. Prevent migrant workers from illegally using illegal means to safeguard their legitimate rights and interests, such as kidnapping contractors without paying wages. At the same time, prevent migrant workers from committing suicide again because of their weak legal awareness. (5) Improve the coordination mechanism and give full play to the role of trade unions. With the help of the government, migrant workers can set up their own rights protection trade unions or join local trade union organizations. The government should strengthen the guiding role of trade unions. On the one hand, the government, trade associations represent enterprises, and trade unions represent workers. The three parties coordinate and hold regular meetings to discuss some major issues. At present, the tripartite coordination system has been gradually implemented in industries prone to wage disputes such as construction. The tripartite coordination system brings together departments that may have contradictions and prevarications, and exchanges information regularly, which can "minimize the problems and minimize them". In addition to the tripartite coordination system, China Mainland can also set up a bankruptcy wage fund with reference to the Hong Kong Special Administrative Region. Business owners contribute to the fund according to a certain proportion of operating income, and workers can get salary compensation from the fund in case of bankruptcy. On the other hand, the government guarantees the bankrupt wage fund to ensure its normal operation. Bankruptcy wage fund increases the operating cost of enterprises and prevents business owners from refusing to pay workers' wages in advance in the name of bankruptcy. (VI) Improving the efficiency of litigation The people's courts should strengthen the trial of cases in which migrant workers safeguard their legitimate rights and interests, and sanction professional intermediary fraud and employers' wage arrears. For labor dispute cases that fall within the scope of the adjustment of the labor law, it is necessary to "quickly file a case, quickly judge and quickly execute" to protect the legitimate rights and interests of the parties in time. Civil disputes between migrant workers and employers that should be under the jurisdiction of the people's courts according to law and are not within the scope of adjustment of the labor law should be "accepted, judged and executed in time". The principle of "three priorities" can be implemented for such cases: First, priority should be given to filing a case. Set up civil litigation guidance to facilitate wage litigation of migrant workers, and implement one-stop service from filing approval to completing filing procedures. In addition to filing a complaint, you can also file an oral lawsuit; For those who are really unable to pay the litigation fees due to economic difficulties, they can postpone or reduce the litigation fees so that the case can enter the trial procedure as soon as possible. The second is the priority trial. When the civil court is established, all cases of wage arrears for migrant workers will be tried by the court first. Cases of wage arrears for migrant workers with clear facts, little controversy and operators' willingness to appear in court immediately will be put on file for trial on the same day. The third is to give priority to implementation. For cases involving the wages of migrant workers, compulsory measures such as seizure, seizure and freezing can be taken before, during and after the lawsuit, laying a material foundation for implementation; If it meets the conditions for prior execution, it shall be executed first; If the effective legal document enters the execution procedure, priority shall be given to execution. Recover the wages of migrant workers in time, safeguard the legitimate rights and interests of migrant workers and maintain social stability.