Lao Wang, a native of Xinyang, Henan Province, was introduced by his hometown to work at a construction site in Wujiang, Suzhou. The foreman in the carpentry industry promised to work for 100 yuan a day. However, he fell from the second floor and broke his leg on the 10th day, causing fracture. Lin, the foreman, sent him to the first people's Hospital of Wujiang City, where he spent more than 7000 yuan for medical treatment. After a period of treatment, he refused the resident advice of the attending physician and received Lao Wang to the construction site. Lao Wang was also left unattended at the construction site. Due to his broken leg, it was very inconvenient to move, so he could only move slowly with his double crutches. Every day, he ate the meals of ordinary workers on the construction site. The foreman is not very friendly to him now. His idea is that it's very good to pay for Lao Wang's treatment. When Lao Wang's injury is almost cured, he will go back to his hometown and pay thousands of yuan at most. But Lao Wang was worried all day long. He had expected to earn some money by working. Unexpectedly, he broke his leg. This year, he didn't do anything. He became a waste man. He had to be cared by his family not only because he couldn't earn money, but also because the foreman didn't want to lose money. For the honest old Wang, it seems that he has no choice but to admit his misfortune. This can be done.
But Lao Wang is lucky. Things are turning around at the critical moment. Because Xiao Li, Lao Wang's nephew, happened to work in Suzhou. Since he graduated from University, he has been in Suzhou for a long time, and he has mixed well. Now he is the Department Manager of a real estate company. He heard that the old uncle was angry. He thought of using legal means to protect the legitimate rights and interests of the old uncle. So out of trust in me, Xiao Li found me. Out of trust in me, he decided to entrust me to get justice for his old uncle. We talked for a long time. After I had a detailed understanding of the situation, I decided to find evidence first, and then
When I arrived at Laowang's construction site, the name of a water conservancy company in Wujiang City was prominently written on the gate of the construction site, and then I arrived at the site where Laowang had an accident. It is found that there are no safety measures, and the consequences will be very serious. But because Lao Wang was introduced by his fellow villagers, he is a man, and his workmates and contractors are fellow villagers. Therefore, there are no workmates to testify for him. However, through careful collection of evidence step by step, we finally feel that the evidence constitutes a chain.
The rest is to prepare materials for labor arbitration. But who should we sue? In this case, there are direct small foremen. There are big foremen on the small foremen. There are bosses on the big foremen. There are also construction companies. It's complicated. But we chose the company to be built as the respondent. Since no contract has been signed by both parties, the labor relationship must be confirmed before determining the work-related injury. Then identify the work-related injury, identify the disability after the work-related injury, and claim from the boss after the disability results come out. If the procedure is fast, it will take five or six months, if it is slow, it may take more than two years.
This lawyer believes that the applicant Lao Wang and a water conservancy company in Wujiang City have formed a de facto labor relationship. The analysis is as follows: the sub project contract between the respondent and the contractor tou Lin is illegal and invalid. Because Lin is a natural person, without business license and corresponding construction qualification. Article 8 of the measures for the management of construction subcontracting of housing construction and municipal infrastructure projects clearly stipulates that the subcontractors must have corresponding qualifications and undertake business within the scope of their qualification level permission. It is strictly prohibited for individuals to undertake the business of subcontracted projects. Article 14 stipulates that it is illegal for the employer of a subcontract project to subcontract a professional project or labor operation to a subcontractor who does not have the corresponding qualifications. According to the third item of the opinions of the Ministry of construction on the establishment and improvement of the labor subcontracting system and the development of construction labor enterprises (Jian Shi  No. 131), it is necessary to crack down on illegal subcontracting and forbid the "contractors" to undertake the subcontracting project business. The first paragraph of the fourth paragraph stipulates that the acts of directly employing migrant workers, not signing labor contracts, only signing labor contracts and not handling social insurance, or only signing labor contracts with "contractors" shall be regarded as illegal subcontracting. Wang Suqing, director of the construction market management department of the Ministry of construction of the people's Republic of China, once made it clear: "in view of the small number of qualified labor enterprises at this stage, subcontracting projects to teams that do not have the legal wage standard or using scattered labor behaviors is regarded as the direct employment of the contract awarding enterprises. The enterprises must sign labor contracts with each worker according to law, otherwise the contract awarding enterprises shall bear corresponding labor contracts according to law Responsibility. "
In this case, the contract leader Lin belongs to a natural person, who has no business license and corresponding construction qualification, and does not have the qualification of the employer. In this case, the contract between the defendant and the contract leader is invalid due to violation of the construction law and other legal provisions, but the contract has been actually performed, the plaintiff has carried out the actual work, carried out the labor, and the contract leader does not have the employer Qualification, and only Wujiang Municipal Water Conservancy Engineering Co., Ltd. Although the defendant does not directly control and manage the plaintiff, it is indirectly managed and controlled by the contractor. In consequence, the plaintiff is still subject to the labor management system of the company, and the labor provided by the plaintiff is also an integral part of the defendant's business. Therefore, the defendant company should bear the responsibility of the labor subject, and its relationship with the plaintiff is also in line with the labor contract legal relationship. Therefore, the plaintiff and the defendant should have a labor relationship.
Ministry of labor and social security document No. 12, 2005