If I hire someone to repair my house and there is no labor contract, how to make a claim for a work

1. If you are looking for an ordinary worker on the side of the road to decorate the house, and the other party is just an ordinary small worker, and the two parties have not signed a labor contract, after a work-related injury, the decorating family may also have to bear part of the compensation amount.

We often see a lot of maintenance workers holding plumber signs on the roadside, but they are actually ordinary renovation workers, and they don't have any company affiliation. If there is any accident, the owner of the house will definitely bear some responsibility, but the division of responsibility will either be confirmed by law or negotiated between the two parties. This method has a relatively low level of protection for both workers and decorators.

2. If I am looking for a decoration company, and the decoration company arranges a worker to repair me, although there is no labor contract, the decoration company is responsible for the claim.

The decoration company has special workers, so he will also buy work-related injury insurance or accident insurance for workers, that is, to avoid various accidents in the construction process. Therefore, in the event of a work-related accident, his first responsible person must be the company, and the company will bear almost all the responsibility. Because the worker is paid by the company, and the company is undertaking the project, and the employee is doing this according to the company's arrangement, this also shows that the employee has an accident within the working hours and scope, which is a work-related injury regulation.

3. If you are looking for an ordinary contractor and have not signed a labor contract, in the event of a work-related injury, the contractor will generally bear the main responsibility, followed by yourself and the worker.

Ordinary contractor foreman, he is a small group of several people who are spontaneously organized, so he does not have any unit to be attached to. There are some contractors who will buy accident insurance for every worker, but not every contractor will do this. Anything happens, the contractor must be the main responsibility for this matter, and bear a lot of compensation costs.

Of course, it also depends on whether there is a labor relationship between the contractor and the worker, and whether he will be liable for compensation can be resolved through legal proceedings or arbitration.

In the event of a work-related injury, you need to apply for a claim with the company, and take the labor contract you signed to the person in charge of the unit.

If a work-related injury occurs, you must also pay some money, and the other party must also pay some money, and both people will pay 50% each.

It is normal that you should take full responsibility, and you must deal with this situation carefully to prevent the problem from becoming more serious.

First of all, prove the labor relationship: although there is no labor contract, as long as it is proved that there is a de facto labor relationship, the compensation can still be made according to the work-related injury compensation standard

Proof of de facto labor relationship: A de facto labor relationship refers to a labor and employment relationship formed without a written contract or a valid written contract, as well as a labor and employment relationship reached by oral agreement. The confirmation of a de facto employment relationship requires the existence of the de facto existence of hired labor.

In the absence of a contract, if a worker is injured on the construction site, then the compensation will be handled as follows:

1.Proof of employment relationship. Although there is no labor contract, as long as it is proved that there is a de facto labor relationship, the compensation can still be made according to the work-related injury compensation standard;

2. Be clear about the standard of work-related injury compensation. That is, it is necessary to clarify the standard of work-related injury insurance benefits. Generally, it refers to the compensation items and standards that the relatives of injured employees and relatives of work-related deceased employees should enjoy in accordance with the law. During the period when the employee of the employer has not participated in the work-related injury insurance, the employee of the employer suffers a work-related injury.

In any of the following circumstances, it shall be found to be a work-related injury:

1) Being injured in an accident during working hours and in the workplace due to work-related reasons;

2) Being injured in an accident while engaging in work-related preparatory or finishing work in the workplace before or after working hours;

3) Injured by violence or other accidents during working hours and in the workplace due to the performance of work duties;

Extended information: The legal status of "de facto labor relations" confirms that labor relations do not rely on the existence of written contracts, expands the scope of labor protection, has greater constraints on employers who do not sign labor contracts, and protects the legitimate rights and interests of workers.

Legal basis: Article 5 of the Measures for the Determination of Work-related Injuries If the employer fails to submit an application for work-related injury recognition within the prescribed time limit, the injured employee, his close relatives or trade union organizations may directly submit an application for work-related injury recognition in accordance with Article 4 of these Measures within one year from the date of occurrence of the accident injury or the date of diagnosis or appraisal of an occupational disease.

If the two parties negotiate and the compensation fails, the employer shall apply for arbitration or litigation of labor disputes at the place where the accident occurred. First of all, it should be determined which unit to apply for the determination of work-related injury, and if the labor contract is signed, the employer that signed the labor contract can be directly contacted. However, the general situation is that the contractor has contracted some projects in the contractor, and the contractor directly finds some workers to carry out on-site construction, without signing a labor contract, nor providing labor uniforms and certificates, and many wages are paid in cash, and it is difficult to form written evidence such as bank records for wage payment, and it is difficult for the injured workers to obtain full compensation directly through the contractor, and more often it is a hasty negotiation in private, which is seriously insufficient to protect the rights of migrant workers and other workers on the construction site. So how should this be handled?

According to Article 4 of the Circular of the Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations, "if an employer such as a construction or mining enterprise contracts out a project (business) or management right to an organization or natural person that does not have the qualifications of an employing entity, the employer with the qualifications of an employing entity shall bear the responsibility of the employing entity for the workers recruited by the organization or natural person." ”

Article 7 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance stipulates that: "If a contractor with the qualifications of an employing entity violates the provisions of laws and regulations by subcontracting or subcontracting the contracting business to an organization or natural person that does not have the qualifications of an employing entity, and the worker recruited by the organization or natural person engages in the contracting business due to work, the contractor with the qualification of the employing entity shall bear the work-related injury insurance liability that the employer shall bear in accordance with the law." ”

Article 29 of the Construction Law of the People's Republic of China The general contractor of a construction project may contract part of the contracted project to a subcontractor with corresponding qualifications; However, except for the subcontract agreed in the general contract, it must be approved by the construction unit. The general contractor and the subcontractor shall be jointly and severally liable to the construction unit for the subcontracted project.

According to the above provisions, it is not difficult to see that if a worker directly recruited by the contractor is injured on the construction site, he can directly find the subcontractor of the project subcontracted to the contractor to bear the work-related injury insurance liability.

If the compensation is not negotiated, the employer or the place where the accident occurred shall apply for labor dispute arbitration and litigation.

If a worker is injured on a construction site, he or she should first determine which unit to apply to for a work-related injury determination, and if a labor contract has been signed, he or she can directly find the employer that signed the labor contract accordingly.

However, the general situation is that the contractor has contracted some projects in the contractor, and the contractor directly finds some workers to carry out on-site construction, without signing a labor contract, nor providing labor clothes and certificates, and many wages are paid in cash.

It is difficult to form documentary evidence such as payroll bank records, and it is also difficult for injured workers to obtain full compensation directly through the contractor, and more often than not, private negotiations have no results, which is seriously insufficient to protect the rights of migrant workers and other workers on the construction site.

Legal basis

Regulations on Work-related Injury Insurance

Article 16: Where an employee meets the requirements of Articles 14 and 15 of these Regulations, but in any of the following circumstances, it shall not be recognized as a work-related injury or treated as a work-related injury:

1) Intentionally committing a crime;

2) Drunk or drug addiction;

3) Self-harm or suicide. Article 17 If an employee is injured in an accident or is diagnosed or appraised as an occupational disease in accordance with the provisions of the Law on the Prevention and Treatment of Occupational Diseases, the unit to which he belongs shall, within 30 days from the date of occurrence of the accident injury or the date of diagnosis or appraisal of an occupational disease, submit an application for recognition of work-related injury to the social insurance administrative department of the coordinating region. In case of special circumstances, the time limit for application may be appropriately extended with the consent of the social insurance administrative department.

If the employer fails to submit an application for recognition of work-related injury in accordance with the provisions of the preceding paragraph, the injured employee, his close relatives or the trade union organization may directly submit an application for recognition of work-related injury to the social insurance administrative department of the co-ordinating area where the employer is located within one year from the date of occurrence of the accident injury or the date of diagnosis or appraisal of the occupational disease in the area where the employer is located.

Matters that shall be determined by the provincial-level social insurance administrative department in accordance with the provisions of the first paragraph of this Article shall be handled by the social insurance administrative department at the districted-city level where the employer is located in accordance with the principle of territoriality.

If an employer fails to submit an application for determination of work-related injury within the time limit specified in the first paragraph of this Article, the employer shall bear the relevant expenses such as work-related injury benefits incurred during this period that comply with the provisions of these Regulations. Article 18 The following materials shall be submitted to submit an application for determination of work-related injury:

1) Application form for determination of work-related injury;

2) Proof of the existence of an employment relationship with the employer, including a de facto employment relationship;

3) Medical diagnosis certificate or occupational disease diagnosis certificate or occupational disease diagnosis and identification certificate.

The application form for determination of work-related injury shall include basic information such as the time, place, and cause of the accident, as well as the degree of injury of the employee.

Where the materials provided by the applicant for work-related injury determination are incomplete, the social insurance administrative department shall inform the applicant of all the materials that need to be supplemented and corrected in writing at one time. After the applicant requests to supplement and correct the materials in accordance with the written notice, Bizhaomen of the Social Insurance Administration Department shall accept it.

If there is no employment contract on the construction site, the employer will also need to pay compensation for the work-related injury. If an employee is injured at work and the employer fails to report the work-related injury in time, the employee needs to apply for work-related injury recognition within one year of the accident. The employee does not have an employment contract, but as long as it can prove the existence of an actual labor relationship, such as salary flow and co-worker certificates, it is also feasible.

Employees can first apply for labor arbitration to prove the existence of the labor relationship, and then apply for a work-related injury determination to determine that it is a work-related injury. As long as the hail bureau determines that it is a work-related injury, the employee can enjoy work-related injury benefits. If the employee finds that the employer has not signed a contract of remorse with him/her, he/she should pay attention to collecting the following evidence in case of emergency.

1) Wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums. (2) The "work permit", "service certificate" and other documents that can prove the identity issued by the employer to the worker. (3) Recruitment records such as the "registration form" and "registration form" of the employer's recruitment filled in by the worker.

4) Attendance records. (5) Testimony of other workers, etc. Article 14 of the Regulations on Work-related Injury Insurance stipulates that an employee shall be deemed to have suffered a work-related injury if he or she has any of the following circumstances:

1) Being injured in an accident during working hours and in the workplace due to work-related reasons; 2) Being injured in an accident while engaging in work-related preparatory or finishing work in the workplace before or after working hours; 3) Injured by violence or other accidents during working hours and in the workplace due to the performance of work duties; (4) Suffering from an occupational disease; (5) During the period when they are away for work, they are injured due to work reasons or their whereabouts are unknown in an accident; (6) Being injured in a traffic accident or an urban rail transit, passenger ferry, or train accident for which they are not primarily responsible while commuting to or from work; (7) Other circumstances that laws and administrative regulations provide shall be recognized as work-related injuries.

Legal analysis: An employee can first apply for labor arbitration to prove the existence of the labor relationship, and then apply for a work-related injury determination to determine that it is a work-related injury. As long as it is recognized as a work-related injury, the employee can enjoy the treatment of work-related injury suppression.

Legal basis: According to Article 1 of the Notice on Matters Concerning the Establishment of Labor Relations, if an employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances, the employment relationship shall be established:

1) The employer and the worker meet the entity qualifications prescribed by laws and regulations;

2) The labor rules and regulations formulated by the employer in accordance with the law shall apply to the workers, and the workers shall be subject to the labor management of the employer and engage in paid labor arranged by the employer;

3) The sail work provided by the worker is an integral part of the employer's business.

Article 2 stipulates that if the employer has not signed a labor contract with the employee, the following documents may be referred to when determining the existence of an employment relationship between the two parties:

1) Wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums.

(2) The "work permit", "service certificate" and other documents that can prove the identity issued by the employer to the worker.

(3) Recruitment records such as the "registration form" and "registration form" of the employer's recruitment filled in by the worker.

4) Attendance records.

(5) Testimony of other workers, etc.