您好! 请登录 注册
图片展示

珠江三角洲农民工工伤与职业病的救治问题及其对策建议

作 者:景 祥关注:21发表时间:2018-06-25 15:33:26

众所周知,我国劳动者发生职业病和工伤事故,据以处理的主要是我们国家的《职业病防治法》和《工伤保险条例》两个法律和规章。《职业病防治法》和《工伤保险条例》规定了用人单位在职业病和工伤者预防方面的职责。

但是,这么多年以来,在发展优先的政策思路下,我们忽视了劳动者的利益保护,导致了我国职业病和工伤事故发生率不断攀高。据人力资源和社会保障部工伤保险司的司长陈刚在不久前的一个会议中透露:去年全国工伤认定申请有72万件,99%都认定了工伤,这表明去年全国至少有70万件的工伤事故。而我们估计,有相当数量的发生职业病和工伤事故的劳动者,其中大多数是农民工,在发生职业病和工伤事故以后,由于各种原因并没有向劳动和社会保障部门申请工伤认定。究竟全国每年有多少受职业病和工伤事故伤害的案例,目前实际上是个未知数。在不久前我本人参加的一个有关职业病和工伤的会议上,国家安全生产监督局的一位副司长就是这样认为的。虽然缺乏具体的数字,但是,作为一个从事劳工权益保障事业和开展工伤与职业病者法律援助的NGO,在日常的工作中,深切的感觉到我国工伤与职业病发生之严重(这里要说明的,我们珠江工友服务中心每年直接帮助的职业病和工伤工人达数百人)。我们认为,政府应当在控制职业病和工伤事故发生方面任务艰巨。同时,我们以及其他的一些珠江三角洲的劳工NGO在开展工伤与职业病者法律援助工作过程中,一些具体的案例让我们感到,我国和珠三角地区在工伤与职业病者的救治方面,存在诸多的制度方面、法律方面的问题。本人现将这些问题做一个简要的说明,希望引起社会和政府的关注,使我国的职业安全法律制度能够进一步得到完善。

简要说来,主要存在以下一些问题。

一、职业病和工伤者的职业病和工伤的诊断、认定困难,造成职业病和工伤者在医疗救治保障和康复方面的困难。

职业病和工伤的诊断、认定难又主要在这两个方面:一是职业病的认定期限过短。广东省劳动和社会保障厅的《关于进一步完善我省工伤保险制度有关问题的通知》规定:职业病发生单位(即依法取得的职业病诊断证明书或者职业病诊断鉴定书上所载明的用人单位)属于广东省行政区域内的,职工在离开职业病发生单位两年内,被诊断、鉴定为患职业病的,其在被诊断、鉴定为职业病之日起1年内提出工伤认定申请的,劳动保障行政部门应当受理并作出工伤认定。这个规定把职业病得到确切诊断的时间规定为职工在离开职业病发生单位两年内,完全违背了职业病的发病规律。因为有大量的职业病的潜伏期十分漫长,有些职业病可能在劳动者离开职业病发生单位几年甚至几十年才出现病状。比如惠州的某宝石厂工人刘××,200111月感觉不适,直到200411月才被四川省职业病防治院诊断为矽肺病。而中山大学鲁英教授提供法律援助的200312月发现的某电池厂的镉中毒事件,由于镉中毒在每个中毒工人身上镉指标的不稳定性,长期无法确诊为职业病。甚至有的工人因为镉中毒已经死亡,仍然不能在医学上获得确切的指标而没有能够诊断为职业病。

如果职业病者被确诊为职业病的时间超过了职工在离开职业病发生单位两年而不能被认定为工伤,势必造成职业病者不能依法享受《工伤保险条例》所规定的工伤者的权利,如果用人单位因此拒付医疗费和各种经济补偿,无疑严重妨碍职业病者的医疗、康复和日常生活。就像上面那个电池厂的镉中毒工人,他们至今的医疗费、甚至生活费仍然没有能够解决。因此,广东省劳动和社会保障厅把职工在离开职业病发生单位两年内诊断职业病作为认定工伤的限制条件,显然违背了职业病的发病规律,不利于对劳动者的职业安全保护。

我们的建议:完全取消职工在离开职业病发生单位两年内被诊断为职业病才能被认定为工伤的规定,职业病者一旦被确诊为职业病,都可以在确诊之日起的一年内被认定为工伤,享受工伤待遇。

二是劳动和社会保障部门违背《职业病防治法》第四十条劳动者可以在用人单位所在地或者本人居住地依法承担职业病诊断的医疗卫生机构进行职业病诊断的规定,拒绝在用人单位所在地以外的职业病诊断部门的职业病诊断结论。《职业病防治法》规定劳动者既可以在用人单位所在地进行职业病诊断,也可以在本人居住地进行职业病诊断。根据国家有关部门解释,本人居住地通常是指户籍所在地。《职业病防治法》的这个两地诊断的规定,本来是科学和合理的。因为医学检验诊断常常与检验和诊断的医疗单位和医务人员的诊断素质和能力相关,不同的诊断部门,往往会做出差别很大的诊断结论。例如,广东省海丰县某宝石厂工人蒋××,200510月在四川省某职业病防治院诊断为“I期尘肺病,但是他于20064月在广东省职业病防治院的检查,却作出无尘肺的结论。因此给予劳动者选择诊断部门和进行多诊断单位的诊断,对于准确诊断是有益的。而且,社会上流行的所谓各地存在地方保护的说法,有时也并非空穴来风。让劳动者和用人单位有权利进行职业病诊断选择,有利于诊断的真实性的确定,从而有效化解劳资双方对诊断的疑虑。

但是在实际的工伤认定中,广东省的一些工伤认定部门拒绝用人单位所在地以外的职业病诊断部门的职业病诊断结论。例如:上文提到的宝石厂刘××的工伤认定,刘××因为已经离开原用人单位回家养病,此前他在广东省经过多次职业病检查,都没有诊断有职业病,而在他的家乡职业病防治院检查,就诊断出矽肺病。当他回到惠州市申请工伤认定时,惠州市工伤认定部门以他的职业病诊断书不是惠州市和广东省职业病防治部门诊断为由,拒绝认定其为工伤。这种拒绝认可用人单位所在地以外的职业病诊断部门的职业病诊断结论的现象在珠三角各地是非常普遍的。

我们的建议:加强政府部门依法治国依法行政的理念,劳动和社会保障部门应当严格遵守《职业病防治法》的各项规定,省级劳动和社会保障部门应当严厉监督下级劳动和社会保障部门的行政行为,明确用人单位所在地以外的职业病诊断部门的职业病诊断结论,与用人单位所在地的职业病诊断部门的职业病诊断结论具有同等法律效力。另外,在规章修订方面,应当考虑用人单位所在地以外的职业病诊断部门的职业病诊断结论,与用人单位所在地的职业病诊断部门的职业病诊断结论发生矛盾时,解决的具体办法。

二、雇主拒付和拖欠医疗费,造成一些劳动者得不到有效救治。

据南方日报报道,目前广东省参加工伤保险的农民工为1351万人,而农民工的数量超过2700万人。由于大量的劳动者的雇主没有为雇员购买工伤保险,一旦发生职业病或者工伤事故,用人单位为了自身利益往往在救治方面拖欠医疗费,造成医院因为患者欠费而停止救治,给农民工及其家属带来巨大痛苦。

而一些无良的企业主也常常以停止支付医疗费为手段,要挟逼迫职业病和工伤者同意其提出的法外私了的要求。一些农民工及其家属为了尽快让用人单位缴纳医疗费,使职业病和工伤者得到治疗,常常不得不屈从无良的企业主的黑心条件,放弃很多法定的权益。

2006年,我们机构接待的一位全身90%以上严重烧伤的工伤者黄××。这是广州市一个油脂化学厂的工人,才30岁出头。歹毒的老板对其家属提出私了的要求,也就是不经过工伤认定的程序,而直接给工伤者一些经济补偿。我们对工伤者本人和家属进行了法律讲解,告诉他们工伤事故必须按照国家法律解决才能权益有所保障。在我们的建议下,工伤者家属很快进行了工伤认定申请。但是,企业主立即停止支付医药费,并威胁工伤者家属不撤回工伤认定申请就不支付医疗费。面对躺在医院病床上面痛苦的亲人和开始恶化的伤情,面对漫长的法律程序的过程,工伤者本人和家属不得不背着我们机构撤回了申诉材料,与企业主签订了明显不公平的调解协议,以15万元的补偿金结束了这个案件。这15万元还包含了以后的医疗费。我们估计,这15万元可能连后续医疗费都不够。

像这样以医疗费要挟工伤和职业病者的案例我们平时经常遇到。这种现象严重伤害了职业病和工伤者的救治以及日后的康复,给劳动者和家属造成了巨大的身体和精神上的伤害,应当对这样的无良企业予以惩戒。

我们建议:建立工伤保险基金垫付制度:1、对于尚未认定属于工伤的职业病和工伤者,如果企业主拒绝预交或者支付救治医疗费的,劳动和社会保障部门应当在接到职业病或者工伤者及其家属的垫付申请以后,立即展开事故调查,确认是否符合工伤条件,并进行医疗费垫付;2、已经获得工伤认定的职业病和工伤者,工伤保险基金应当在接到职业病或者工伤者及其家属的垫付申请以后的48小时内对其进行垫付。3、劳动者一旦被认定是职业病或者工伤,国家应当立即对用人单位进行行政、民事或者刑事的处罚,并追讨垫付医疗费及其利息。

三、劳动者在救治过程中基本处于完全的被动状况,基本缺乏医疗救治方案、医疗单位等的选择权。

由于大量的劳动者的雇主没有为雇员购买工伤保险,一旦发生职业病或者工伤事故,用人单位为自身利益考虑,往往把降低医疗费用作为第一考虑,而不是把救治效果作为最重要的考虑。虽然治疗效果与以后的劳动能力和伤残赔偿有关联,但是,经过劳动能力鉴定,根据劳动能力的鉴定等级向企业追索赔偿的劳动者毕竟是少数(他们中的多数不知道如何通过法律途径解决问题)。

很多无良企业相当熟悉农民工缺乏法律知识和依法维权的实际能力的状况,因此他们常常不会过于重视日后的劳动能力鉴定。他们常常是使用各种压力迫使那些受伤害的劳动者接受他们给予的一些低廉的补偿而了事。因此,我们经常看到这样的一幕:医院为了增加业务而竭尽所能让企业满意;企业也为了尽可能减少医疗费支出而把本单位的职业病或工伤者固定在一家医院治疗。医院首先是为企业服务,而不是首先为病人服务。许多医院为了讨好企业,拒绝把医疗资料交给所治疗的职业病或工伤者,而交给企业,造成这些职业病或工伤者因为缺少必要的医疗资料而无法申请工伤认定和劳动能力鉴定。

由于职业病和工伤者常常无权选择救治医院和救治方案,雇主常常选择一家关系比较密切的医院,救治方案也通常以医疗费用为首要考虑,而造成劳动者治疗效果不佳,不能最大可能地恢复职业病和工伤者的劳动能力,患者、伤者也因此常常造成劳动者与医院的矛盾,形成医闹。仅2007年一年,我们机构就接待了10余例因为不满意用人单位选定的治疗医院的医疗质量,而咨询能否由劳动者自由选择转院治疗的案例。而事实上,据我们多年来对所援助的数千名职业病和工伤者的观察,不满意用人单位选定的治疗医院,希望自由转院治疗的职业病和工伤者绝不仅仅这10余例,而是相当普遍。只是他们畏惧用人单位拒绝支付医疗费,而只好放弃他们的利益诉求。例如:一位在一家防盗门生产厂工作的周姓工人被机器噬去了右手拇指,造成6级伤残。用人单位错误地认为如果接上一个指头就可以降低伤残等级,以及为了避免日后支付周某的假肢安装和更换费,要求医院从伤者的脚上移植一个脚趾到拇指部位。周某最初不同意,因为他医生说移植的脚趾可能不能具有实用功能。但是用人单位对周某称如果不接受这个医疗方案就视作他自残,用人单位不仅要拒绝继续支付医疗费,还要周某偿还用人单位已交的医疗费。结果,周某只好接受医疗方案。这样,周某不仅失去假肢安装和更换费的补偿,而且又额外无辜地失去一个脚趾,而移植到手上的脚趾除了填补了原来拇指位置而外,基本没有实际功能。

我们的建议:应当修订《工伤保险条例》、《广东省工伤保险条例》,在上述法规中明确劳动者在事故发生以后,在治疗工伤所需费用符合工伤保险诊疗项目目录、工伤保险药品目录、工伤保险住院服务标准的前提下,有权选择任何统筹地区内的具备一定医疗资质的医疗单位进行医治。让工伤者对于医疗方案有足够的知情权和充分的决定权。

四、工伤与职业病者的康复工作还没有完全受到重视。

我们认为,医疗康复与职业康复是对职业病和工伤者进一步进行身体机能恢复必不可少的环节,是政府、社会和用人单位重视劳动者的价值的人道主义的体现。医疗康复与职业康复对职业病和工伤者的生活自理能力和劳动能力的恢复具有重大价值。但是遗憾的是,本机构每年直接帮助的职业病和工伤工人的人数达数百人,而他们中间除了有人能够安装康复辅助器具以外,几乎没有人能够享受到其他医疗康复与职业康复。

案例一:某印刷厂工人一手被啤机轧伤,医院治疗时从其躯干部位移植3mm左右见方的皮肉组织到手背部位,一、两个月以后受伤部位痊愈。但是,移植组织后的手背移植的皮肉组织高出手面一二公分,严重影响手部功能。工伤者向劳动能力鉴定委员会申请进一步治疗,劳动能力鉴定委员会回复:这已经是痊愈了,已经痊愈就不能再享受工伤保险基金支付医疗费了!

案例二:一面部灼伤工人,痊愈以后申请面部理疗康复,向劳动能力鉴定委员会递交申请以后,劳动能力鉴定委员会告知:面部理疗属于美容,而美容”“不具有实际功能作用,因此以不具备康复价值而拒绝批准其康复治疗。

各地劳动能力鉴定委员会在对工伤者医疗期的认定,和劳动争议仲裁委员会对停工留薪期的裁定,也能从另外一个侧面反映出某些地方政府部门是实际上否定应当给予工伤与职业病者的康复待遇的。《广东省工伤保险条例》第二十三条规定:工伤职工评定伤残等级后,停发原待遇,按照本章的有关规定享受伤残待遇。也就是说工伤者的停工留薪期应当在劳动能力鉴定委员会评定伤残等级后终止。但是,广州市及各区的劳动能力鉴定委员会都是只鉴定医疗期;而广州市及其各区的劳动争议仲裁委员会都是把劳动能力鉴定委员会鉴定的医疗期作为停工留薪期,明显是否定了工伤者的康复权利!本机构在以往的劳动争议援助个案方面,一直坚持工伤者不仅应当享有治疗的权利,而且应当享有医疗康复和职业康复的权利,因此在仲裁实践中一直坚持工伤职工评定伤残等级之日作为停工留薪期终止之日,但是都得不到仲裁的支持。

由于劳动能力鉴定和劳动争议仲裁部门事实上否定工伤者的康复待遇,很多的工伤者尚未完全康复就被用人单位逼迫催促回岗上班。一些工伤者因为虽然受伤部位医学上痊愈,但功能并未完全恢复,甚至仍然存在疼痛而拒绝上班,结果用人单位以工伤者无故旷工为由,非法解除工伤者的劳动关系,给工伤者带来新的痛苦!番禺一家五金厂一位女工在工作中摔伤头部和腰部。医疗期结束以后,虽然伤已经痊愈,但功能受限,用人单位即以其医疗期满拒不工作为由对其作出除名决定。现在此劳动争议案件审理尚未结束。

我们的建议:2006118日,广东省劳动和社会保障厅颁发了《关于工伤康复管理的暂行办法》,后来又配套了《广东省工伤康复介入标准》和《广东省工伤康复诊疗规范》两个文件。我们希望各级劳动和社会保障部门认真执行这几个文件,让工伤康复惠及所有具有康复价值的职业病和工伤者!我们希望人大、政协应当每年检查工伤和职业病的康复工作;工会、妇联和各NGO机构更应当把维护职业病和工伤的康复权利重视起来,积极指导有康复价值的工伤与职业病者申请医疗康复和职业康复。

五、用人单位倒闭、注销引起工伤与职业病者的待遇追讨难,和申请后续治疗、复发治疗困难。

案例一:东莞桥头镇某台资金属构件厂唐姓工友发生工伤事故以后,经过将近两年的法律路程,最终赢得了诉讼。但是,当他请求法院对用人单位申请强制执行后,发现用人单位已经恶意注销,另行成立一个法人公司,法院因此无法对其执行。后来这位工人上演了一出所谓的跳楼秀,惊动了公安、消防和媒体,新成立的公司才不得不支付了所有赔偿金。

案例二:惠州某宝石厂工人刘××,200411月被诊断为职业病;但是就在同年年底,宝石厂歇业,但是实际上是迁往海丰。由于从法律上说这两个宝石厂不是同一法人,因此,惠州市劳动和社会保障部门以用人单位已经不存在为由,拒绝对刘××的工伤认定申请予以认定;而海丰劳动和社会保障部门也以刘××不_______与海丰的宝石厂存在劳动关系为由,拒绝认定海丰的这个宝石厂对刘××应当承担工伤责任。

案例三:番禺某工厂工人在工伤事故中胫、腓骨骨折,后来经法律程序获得赔偿,即返回老家。一年以后,他发现患上骨髓炎,于是回到广州希望企业支付工伤复发治疗费。但是,原用人单位已经倒闭,根本无法申请工伤复发治疗费。

上述案例反映的问题,在《工伤保险条例》以及《广东省工伤保险条例》等法规中都没有对应的条文解决。而企业随市场运作,都肯定会有倒闭、注销、变更法人的可能。而一些无良企业主也会利用法律的漏洞,恶意倒闭、歇业、注销企业。最近一个时期,企业利用搬迁、倒闭、歇业、注销而逃避对于劳动者权益责任的现象几乎成为一种风气。因此,解决用人单位利用恶意倒闭、歇业、注销规避工伤保险待遇保障责任问题,是政府应当亟待重视的!

我们建议:从完善法规上解决这个问题。工伤保险基金在征缴上应当考虑企业有倒闭、歇业、注销的可能,工伤保险基金应当包含对这些企业倒闭、歇业、注销后的劳动者的工伤待遇保障,由国家从工伤保险基金支付工伤者的全部待遇。为了防止无良企业主逃避工伤责任而恶意倒闭、歇业、注销,可以采取明确企业的主要负责人、事实负责人、法人代表在若干年内不得重新开办企业,从而遏制恶意倒闭、歇业、注销风潮。

六、非法用工单位的职业病和工伤待遇缺乏有效保障。

非法用工单位常常是规模非常小的用人单位,通常只有几十个人甚至几个人。一旦出了较为严重一些的工伤事故,经营者常常会采用潜逃的办法应对事故责任。

案例一:广州市海珠区一无证经营的印刷厂,周姓工人被印刷机轧伤右手。经劳动争议仲裁和法院两审,最终法院判决印刷厂经营人以一次性赔偿形式赔偿周某13万余元。判决书生效以后,印刷厂经营人藏匿并悄悄搬走机器设备,周某至今未获得任何赔偿金。

案例二:2005年,梅州市一家汽车焊接修理铺发生汽车油箱爆燃事件,一名13岁学徒工全身75%皮肤严重烧伤。事故发生以后,铺子经营人缴了4万元医疗费以后就声称无力继续支付医疗费,致伤者在医院因缺少医疗费而全身发生严重感染,整个医院楼层臭不可闻。后因为社会关注,靠一些基督徒捐助,才侥幸活命。本机构闻讯随即展开法律援助,却发现铺子的业主迅速藏匿了财产,仅剩下一栋旧楼尚未完成转移过户手续。在我们机构的干预下这栋楼虽然最终被冻结下来,但是经过评估部门评估仅价值4万元左右,离80余万元的医疗费相差甚远。这个孩子已经完全丧失劳动能力,但无从获得任何经济补偿。全家因此也陷入巨大苦难之中。

我们认为,上述案例,政府都对这些非法用工单位负有监管失察之责,具体的在这两个方面:一是这些企业未经注册就公开营业,属于工商行政监管失职;二是劳动和社会保障部门未对这类企业不办理用工登记和办理工伤保险进行及时查处,属于劳动和社会保障部门的行政监管失职。因此,由政府通过工伤保险基金垫付这些企业劳动者的工伤待遇损失,是合情合理的。

七、女性和未成年工人的劳动安全保护亟需加强。

我国的《女职工劳动保护规定》和《未成年人保护法》详细规定了女工和18周岁以下未成年工人在生产劳动中的保护措施。但是,在珠江三角洲地区,仍然有许许多多的企业无视这两个法律对女工和未成年工的保护。比如,在一些有毒害的岗位(如喷油、电镀、有风尘的打磨),使用未成年工的现象十分普遍。而在一些女工非常集中的企业,几乎找不到为女性职工设立了专门的女职工卫生室、孕妇休息室、哺乳室的。许多企业每天8小时工作时间以外还要加班数小时,女工在生理周期不适时,企业也常常拒绝其停止加班。有些工厂甚至无理限制工人的上洗手间的次数和时间,使得女工无法正常处理她们的生理问题,严重危害了女性工人的生理健康。

我们建议:妇联组织应当进一步关心女性姐妹和未成年工人,经常性地开展对企业女工和未成年工的劳动环境和健康安全检查,对那些违反《女职工劳动保护规定》和《未成年人保护法》的用人单位进行诉讼。

八、政府和社会应当增加对劳动者的工伤与职业病防治知识普及的投入,加大对企业违法的惩处力度。

据中国社会科学院最新报告,目前农民工中有54%的劳动者处于不安全的劳动环境之中。我们在日常与农民工打交道的过程中,深深的感到农民工严重缺乏职业安全知识。他们中的绝大多数人缺乏最最起码的劳动安全常识,他们在完全缺乏保护的有毒、有害的环境中刻苦的劳动,却对这些危害一无所知。

无良的企业为了降低生产成本,也正好不想为劳动者们提供必要的、可靠的防护设施。让所有的劳动者懂得劳动保护,让所有的企业不得不注重生产安全和职业健康,这我国《职业病防治法》和《安全生产法》的立法初衷。为了这一目标,

我们建议:一、政府和社会应当增加对劳动者的工伤与职业病防治知识普及的投入,包括资金投入。我们建议政府进一步动员社会的力量,特别是学习发达国家政府购买NGO服务的方式,大力开展工伤与职业病防治知识普及工作,唤起劳动者本身对于劳动安全的普遍重视,有效降低职业病和工伤事故的发生率。二、加大企业违反《职业病防治法》和《安全生产法》以及《工伤保险条例》的违法成本,迫使各企业越来越重视安全生产。我们认为,企业如果忽视劳动者安全保护而导致职业病和工伤事故的发生,除了应当要支付《工伤保险条例》中对劳动者的经济补偿外,还应当承担其它的民事赔偿责任;如果企业在导致劳动者职业病或者工伤事故中存在重大过失,还应当追究其法定代表人或者经营人的刑事责任。而目前,我国的司法制度并没有允许对忽视劳动者安全保护而导致职业病和工伤事故的发生的责任人进行民事诉讼。我们希望《安全生产法》第四十八条因生产安全事故受到损害的从业人员,除依法享有工伤社会保险外,依照有关民事法律尚有获得赔偿的权利的,有权向本单位提出赔偿要求的规定,和《职业病防治法》第五十二条职业病病人除依法享有工伤社会保险外,依照有关民事法律,尚有获得赔偿的权利的,有权向用人单位提出赔偿要求的规定,在司法实践上得到运用,取消与这两个法律相矛盾的《最高人民法院关于审理人身损害赔偿案件适用法律若干问题的解释》第十二条依法应当参加工伤保险统筹的用人单位的劳动者,因工伤事故遭受人身损害,劳动者或者其近亲属向人民法院起诉请求用人单位承担民事赔偿责任的,告知其按《工伤保险条例》的规定处理的规定。三、对于企业缴纳的工伤保险费,除了应当按照行业的风险等级确定缴费率而外,还应当根据各个企业上一年度的职业病和工伤事故发生率确定工伤保险缴费率,从而有效增加企业轻视劳动安全的成本。

 

 

Solutions for the Medical Treatment of Work-Related Injuries andOccupational Diseases of Migrant Workers in the Pearl RiverDelta, China

Author: Jing Xiang

   As everyone knows, workers in China are suffering fromoccupational diseases and work-related injuries. TheChinese Law on Prevention and Control of Occupational Diseasesand theRegulations on the Insurance of Work-Related Injuriesare important sets of rules in this field and regulateemployers' obligations when their employees are affected. Butfor many years economic development has had the highestpolitical priority, and China failed to protect the interests ofthe workers. Subsequently, the number of occupational diseasesand work-related accidents has been constantly on the rise. Thehead of theDepartment of the Insurance of Work-Related Injuriesof theMinistry of Human Resources and Social Security,Chen Gang, said at a recent conference that last year in thewhole of China out of 72,000 applications for the recognition ofa work-related injury 99 per cent were approved. That shows thatwe had at least 70,000 work-related accidents. But we estimatethat there is an equally high number of occupational diseasesand work-related accidents, affecting mostly migrant workers,that, for various reasons, were not reported to the Ministry. Infact, the exact number of cases per year in the whole country isunknown. Recently, I attended a conference on occupationaldiseases and work-related injuries, and the vice-president oftheState Administration of Work Safetystated exactly that. Despite the lack of concrete numbers, fromthe everyday experience of working for an NGO that aims toprotect the interests of and gives legal support to workers withoccupational diseases or work-related injuries, we feel that theoccurrences of both are severe. ThePearl River Delta Workers' Service Centeralone helps several hundred people with occupational diseasesand work-related injuries every year. We think that thegovernment should take on the difficult task of limiting theoccurrence of occupational diseases and work-related injuries.When we look at certain cases, we and other labor NGOs in thePearl River Delta dealing with legal support for peoplesuffering from occupational diseases and work-related injuriesfeel that in the whole country as well as in the Pearl RiverDelta there are problems on the structural as well as the legallevel. I will briefly describe these problems, hoping to catchthe attention of government and society, and hoping that China'slegal system of work protection will improve further.

   1. Difficulties in diagnosing occupational diseases orwork-related injuries lead to problems in medical treatment andrecovery of affected workers.

   The diagnosis of occupational diseases and work-related injuriespresents two problems: The first one is the short time frame forthe determination of an occupational disease. TheDepartment of Labor and Social Securityof Guangdong Province stated in itsNotice on Steps to Solve Problems of the Prevention System ofWork-Related Injuries in the Province:"After an occupational disease has occurred in a work-unit(company) belonging to the administrative area of the GuangdongProvince (i.e. the employer that legally obtains the certificateor statement on the diagnosis of an occupational disease),employees leaving the company where the disease has occurredhave to get a diagnosis and recognition of the disease withintwo years. The application for the diagnosis and recognition ofthe occupational disease has to be sent in within one year. Onlythen theDepartments of Labor and Social Securitycan accept the application and make a decision."

   This two year time frame for a definite diagnosis conflicts withthe outbreak pattern of occupational diseases, because in mostcases the incubation period is very long. In some cases symptomsof the disease appear years or even decades after the employeeleaves the company where he or she caught the disease. In aprecious stones factory in Huizhou, for example, a worker namedLiu started to feel ill in November 2001, but only in November2004 theInstitute for the Prevention and Control ofOccupationalDiseasesin Sichuan Province diagnosed him with silicosis. Whileproviding legal assistance in a case of cadmium intoxication ina battery factory in December 2003, Professor Lu Ying of the SunYatsen-University in Guangzhou discovered that the cadmiumconcentration in the bodies of several workers was not stable,and for a long time it was impossible to make a definitediagnosis. Some workers had already died because of the cadmiumintoxication, and it was still neither possible to determine anexact cadmium concentration nor to diagnose an occupationaldisease.

   Employees with occupational diseases seeking a definitediagnosis who surpass the two years and do not get recognized donot enjoy the benefits of theRegulations on the Insurance of Work-Related Injuries.If the employer refuses to pay for any medical expenses orcompensation, this will surely have serious effects on theworker's medical treatment, recovery and everyday life. In thecase of the above mentioned workers who were cadmium intoxicatedin a battery factory, until now no agreement could be made onthe coverage of the workers' medical costs and everydayexpenses. The way theDepartment of Labor and Social Securityin Guangdong Province is using the formulation "employeesleaving the company where the disease has occurred have to get adiagnosis and recognition of the disease within two years" doesclearly not correspond with the outbreak patterns ofoccupational diseases and is not in favor of the protection ofemployees' work safety.

   We propose to eliminate the formulation "employees leaving thecompany where the disease has occurred have to get a diagnosisand recognition of the disease within two years". If employeesare diagnosed with an occupational disease they should get therecognition and enjoy treatment and compensation within oneyear. 

   Thesecond issue is the violation of clause 40 of theLaw on Prevention and Control of Occupational Diseasesby theMinistry of Labor and Social Security:"According to the law employees can get a diagnosis for anoccupational disease at legally accepted medical institutionsfor the diagnosis of such diseases at the location of theemployer or the place of residence of the employee". TheMinistry refuses to accept diagnostic decisions of institutionsother than theDepartment for the Diagnosis of Occupational Diseasesat the location of the company. But the law states thatemployees can get a diagnosis both at the location of thecompany and at the "residence of the employee". For stateagencies, the "residence of the employee" usually refers to thelocation of his or her household registration.

   The statement on the two locations for a diagnosis in the lawmakes sense, rationally and scientifically, because the medicaldiagnosis depends on the quality and capabilities of the medicalinstitution and its personnel. Different departments often comeup with completely different diagnostic conclusions. The workerJiang, for instance, who had worked in a precious stone factoryin Haifeng County, Guangdong Province, was diagnosed with a"first grade dust lung disease" in October 2005 in theInstitute for the Prevention and Control of OccupationalDiseasesinSichuan Province, but in April 2006, after an examination in asimilar institution in Guangdong Province, the result was "nodust lung". If the employee has the possibility to choose theinstitution for the diagnosis and to go to several institutionsfor an examination, he or she has a better chance to get anaccurate diagnosis. Moreover, in all parts of society so-called"regional protectionism" is widespread, sometimes not withoutreason. If employee and employer both have the right to choosethe site of the diagnosis, it is more likely that the validityof the diagnosis is recognized, effectively resolving doubts ofboth employee and employer. But someDepartments for the Affirmation of Work-Related Injuriesonly accept findings on occupational diseases made by diagnosticinstitutions at the location of the company and refuse those byinstitutions elsewhere.  

   Let us look at the case of the above mentioned worker Liu whoworked in a precious stone factory. Several examinations inGuangdong Province resulted in the diagnosis that he did notsuffer from an occupational disease. Liu had already left thecompany and returned home for recovery. In his hometown he wentto an examination at the localInstitute for the Prevention and Control of OccupationalDiseases,and there he was indeed diagnosed with silicosis. After drivingback to Huizhou in Guangdong he applied for the recognition ofthe occupational disease, but the HuizhouDepartment for the Affirmation of Work-Related Injuriesrefused to accept it because the diagnostic certificate was notissued in Huizhou or Guangdong Province. This refusal to approvethe diagnosis of an occupational disease in departments for thediagnosis of occupational diseases outside the location of thecompany is common practice in all parts of the Pearl RiverDelta.

Our proposal:Strengthen the government's concepts of "rule according to thelaw" and "administration according to the law". TheMinistry of Labor and Social Securityshould strictly comply with each clauseof the Law on Prevention and Control of Occupational Diseases.TheDepartments of Labor and Social Securityon the provincial level should strictly control theadministrative actions of the departments on lower levels andapprove the decisions on occupational diseases of departmentsoutside the location of the company. Their decisions should havethe same legal effect as those of the departments at thelocation of the company. Moreover, looking at the revision ofregulations, the diagnostic decisions of the departments for thediagnosis of occupational diseases outside the location of thecompany should be considered. If there are conflicts with thedecisions of departments at the location of the company, thereshould be a concrete method to resolve that conflict.

   2. Employers refuse to pay or are in arrears with paymentsfor the medical expenses so that employees cannot get theappropriate medical treatment.

   According to a report by theSouthern Daily,currently 13.51 million migrant workers are insured againstwork-related injuries in Guangdong Province, but the totalnumber of migrant workers is more than 27 million. Numerousemployers do not pay the insurance, and in case of awork-related accident of an occupational disease the employeroften just sees his own material interests and does not pay forthe medical expenses in time. Therefore, hospitals stop themedical treatment because their patients cannot pay for thecosts themselves, causing great pain for the migrant workers andtheir families. Furthermore, some enterprise owners stop payingfor the medical expenses, threaten the workers and force them toaccept their selfish and illegal demands. Some migrant workersand their families give in to the conditions set by theenterprise owners and give up legal rights and benefits becausethey want the employer to contribute to the medical expenses andthe worker to get medical treatment as quickly as possible 

   In 2006, our organization was visited by a worker called Huang.His body was burned 90 percent. He was just 30 years old andworked for an oil and chemistry plant in Guangzhou. His ruthlessboss had made "private" settlement offers to his family, so thecase did not go through the process for the recognition ofwork-related injuries. The boss just gave Huang some financialcompensation. We explained the legal situation to his family,and told them that a work-related accident has to be settled inaccordance with Chinese law so that rights and benefits can beguaranteed. Following our recommendation, Huang and his familyquickly applied for the recognition of a work-related injury,but the factory owner immediately stopped the medical paymentsand threatened Huang's family that if they did not withdraw theapplication for the recognition of a work-related injury hewould not pay for the medical expenses anymore. Seeing theirrelative suffering in the hospital and his medical conditionbeginning to worsen, and considering the potentially endlesslegal procedures, the injured Huang himself and his familyturned their back on our organization, withdrew the informationfor the appeal and signed a clearly unfair agreement with theenterprise owner, accepting a compensation of 150,000 Yuan. Thatsum included the follow-up medical expenses. We estimated thatthe 150,000 Yuan would not be enough to cover the whole medicalexpenses.

   We regularly come across these kind of cases, where medicalexpenses are used to threaten the employees who suffer fromoccupational diseases and work-related injuries. This phenomenonseriously effects the medical treatment and final recovery ofworkers and brings great physical and mental injury to theworker as well as his or her family. These companies should bepunished. 

   Our proposals: 1) Create a system of advance payments out of theInsurance Fund for Work-Related Injuriesfor those employees with occupational diseases or work-relatedinjuries who have not yet been classified as such. If anenterprise owner refuses to deliver or pay first aid and medicalexpenses in advance, theDepartment of Labor and Social Securityshould immediately launch an investigation into the accident,confirm whether it is fulfilling the conditions of awork-related injury and use the fund to pay for medical expensesafter receiving the application for financial support by theaffected employee or one of his family members. 2) If employeesalready got the recognition of an occupational disease or awork-related injury, theInsurance Fund for Work-Related Injuriesshould, after receiving the application for financial support,make payments soon. 3) If the case of the worker is recognizedas an occupational disease or work-related injury, thegovernment should immediately penalize the employer byadministrative means or use civil or criminal law as well asdemand the reimbursement of medical expenses includinginterest. 

   3. During medical treatment the workers are in a precarioussituation, because they do not have the power to choose themedical treatment plan, the medical institution, etc.  

   Many employers do not pay theInsurance for Work-Related Injuriesfor their employees, and in case of an occupational disease orwork-related accident they follow their own interests. Theirfirst consideration is the reduction of medical expenses, notthe quality of the medical treatment. The quality of medicaltreatment determines the subsequent ability to work anddisability compensation, but, after all, the number of workersdemanding compensation after the appraisal of their workcapability and disability grade is low. (Most do not know how touse the law to deal with this problem.) Many companies are awareof the fact that migrant workers lack knowledge about the lawand the possibilities to defend themselves on legal grounds,thus they are not very eager to evaluate the work capability atany point. They frequently use all kinds of pressures to forceinjured workers to accept low compensations and close the case.

   As a result, we often see this game: The hospital wants to makebusiness and please the employer; the employer wants to reducemedical expenses and sends its workers to one particularhospital for treatment. So the hospital serves the employer'sinterests first, not the patient's. As a favor to the companies,many hospitals refuse to give any information on the medicaltreatment to the patients but just give it to the employer.Thus, the worker does not have the necessary information for anapplication of the appraisal of a work-related injury and thedisability grade. 

   Workers with occupational diseases and work-related injuriesoften cannot choose the hospital and the medical treatment plan,and employers often choose a hospital with close ties. Theirmain consideration is usually reducing costs, with the effectthat the results of the medical treatment are not good and donot lead to the best possible recovery of the affected worker'swork capability. This often creates a conflict between thepatient and the hospital which can take the form of a "hospitaldisturbance". In the year 2007 alone our organization saw morethan ten cases of workers who were not satisfied with thequality of the medical treatment by a hospital chosen by theemployer and asked whether we knew of cases where workers couldchange the hospital and medical treatment. But it was not justthose ten cases. Among the several thousand cases ofoccupational diseases and work-related injuries we supported itwas very common that workers were not satisfied with the choiceof the hospital and medical treatment by the employer and hopedfor the possibility to choose the medical treatment. But theyfeared the employer would not pay for the medical expenses andwere forced to stop pursuing their own interests. 

   For example, the thumb of the right hand of a worker named Zhouwho worked for a door factory was cut off, producing a six gradedisability. The employer presumed that by sewing on areplacement thumb the disability grade would be lower. In orderto avoid any costs for implanting an artificial limb later, thecompany asked the hospital to transplant a toe from the injuredworker as a replacement for the thumb. Zhou did not agree atfirst because the doctors told him that the transplanted toemight not be functional. But the employer told him that if hedid not accept the toe they would treat his injury as"self-inflicted". The company not only refused to continuepaying for medical treatment, it also asked Zhou to reimbursethe medical expenses already paid. As a result, Zhou was forcedto accept the transplant, and he lost not only compensation forimplanting and replacing an artificial limb but also one of histoes. The transplanted toe did fill the gap left by the thumb,but there it had, in fact, no real function. 

   Our proposal: TheRegulations on the Insurance of Work-Related Injuriesand theGuangdong Regulations on the Insurance of Work-Related Injuriesshould be revised and should specify that after an accident theaffected worker has the authority to select any medicalinstitution in the region with the necessary medical treatmentequipment to carry out the treatment, in accordance with theinsurance'sDiagnosis Catalog for Work-Related Injuries,theMedication Catalog for Work-Related Injuriesand theStandard Cost Frame for the Treatment of Work-Related Injuriesin Hospital.The workers should have the right to get sufficient informationon the medical treatment plan and the full right to make theirown decision. 

   4. Not enough attention is paid to the worker's full recoveryand regaining of work capability after suffering from anoccupational disease or work-related injury. 

   We believe that for the medical recovery of a worker whosuffered from an occupational disease or work-related injury theregaining all body functions should have the highest priority.This is a reflection of the value the government, the societyand the employer want to attach to the worker as a human being.Medical recovery and regaining work capability is very importantfor workers and their chances to support themselves throughlabor. Unfortunately, every year our organization has to supportseveral hundred workers who suffered from an occupationaldisease or work-related injury. Among them some received medicalimplements, but hardly anyone enjoyed other treatments formedical and occupational recovery.

   Case 1: A worker in a print shop had crushed his hand in a diecutter. During the treatment in hospital a three millimeterpiece of skin from his trunk was transplanted onto the back ofhis hand. One or two months later the wound had healed up, butafter the transplanting the skin on the back of the hand wasbetween one and two centimeters higher, seriously affecting theusage of the hand. The injured worker applied for furthertreatment at the Board for the Evaluation of Work Capability.The board replied that the wound had already healed completely,and, therefore, theInsurance Fund for Work-Related Injurieswould not pay for further medical expenses. 

   Case 2: A worker had suffered facial burns. After the wounds hadhealed up he applied for further treatment to fully recover.After presenting his application to theBoard for the Evaluation of Work Capabilityhe got this reply from the board: The treatment of facialinjuries is classified as "cosmetic surgery" and "cosmeticsurgery has no impact on the actual function". Since "it is notnecessary for medical recovery" the approval of the applicationwas denied. 

   Boards for the Evaluation of Work Capabilityin all parts of the country, deciding on the "treatment period"for victims of work-related accidents, andLabor Dispute Arbitration Committees,deciding on the "period of suspension with pay", could use adifferent perspective when considering whether local governmentbranches should pay the recovery wage to workers suffering froman occupational disease or work-related injury. Provision 23 oftheGuangdong Regulations on the Insurance of Work-Related Injuriesstates: "After the evaluation of the disability grade of theworker who suffered a work-related injury the payment of theformer wage stops, and the worker receives disability paymentsin accordance with the regulations on the issue in thissection." In other words, the period of suspension with pay forworkers with work-related injuries should stop after thedecision on the disability grade by theBoard for the Evaluation of Work Capability.Nevertheless, theWork Capability Appraisal Committeeof Guangzhou as well as all districts are only making decisionson the period of medical treatment; and theLabor Dispute Arbitration Committeesidentify the "period of medical treatment" as "period ofsuspension with pay", clearly negating the right to recover ofworkers who suffered from work-related injuries.  

   In the past, our organization has supported many workers inlabor disputes. We insisted not only that the injured workersshould have the right to get medical treatment but also theright to fully regain health and work capability. Therefore,during arbitration we insisted that the day of the "assessmentof the disability grade" should be the last day of the "periodof suspension with pay", but we could not win these arbitrationcases.  

   Since theBoards for the Evaluation of Work Capabilityand theLabor Dispute Arbitration Committeesrefuse the injured workers' recovery payments, many injuredworkers, though not yet fully recovered, are being forced by theemployer to start working again. Some wounds might have healed,but they have not fully regained their work capability, andsince they still feel pain they refuse to go back to work. As aresult, the employer sees that as unjustified absence from workand illegally fires the injured worker, causing new hardship.For example, a female worker in a metal factory in Panyi county,Guangdong Province, suffered injuries to her head and back.After the medical treatment had ended the wounds had completelyhealed, but her work capability were limited. When she refusedto return to work the employer decided to fire her. The hearingon this dispute is still not finished. 

Our proposal: OnNovember 8, 2006, theDepartment of Labor and Social Securityof Guangdong Province issuedProvisional Measures for the Handling of Cases of Work-RelatedInjuries.Afterwards it formulated two documents, theGuangdong Norms for the Intervention in Cases of Work-RelatedInjuriesandtheGuangdong Standards for the Diagnosis and Treatment of Cases ofWork-Related Injuries.We hope thatDepartments of Labor and Social Securityon all levels make serious efforts to implement these documents,allowing all workers who suffered from occupational diseases orwork-related injuries to recover. We hope theNational People's Congress(NPC) and theChinese People's Political Consultative Committee(CPPCC) will investigate the situation every year. Labor unions,theChinese Women's Associationand all NGOs should defend the right to recover fromoccupational diseases and work-related injuries and activelyguide and support those workers affected when they apply formedical treatment and recovery plans. 

   5. Employers go bankrupt or stop their business, making it hardfor workers who suffered from occupational diseases orwork-related injuries to get their wages and creating problemsfor follow-up applications for medical treatment and duringre-appearances of diseases.

   Case 1: Tang, who worked in a Taiwanese metal parts factory inQiaotou, Dongguan, had an accident. After almost two years oflegal battle the worker won the case in court, but when askingthe court to force the employer to follow the ruling, Tang foundout that the owner had closed down the company and established anew business. Thus the court was unable to enforce its ruling.Afterwards the worker staged a so-called "jump off abuilding-show", bringing police, firefighters and media to thescene, and thereby forcing the newly found company to finallypay full compensation. 

   Case 2: A worker named Liu from a precious stone factory inHuizhou was diagnosed with an occupational disease in November2004. At the end of the same year the factory closed down, but,in fact, relocated in Haifeng county. By law the two companiesare not the same legal entity, and since the original employerdid not exist anymore, theDepartment of Labor and Social Securityin Huizhou refused Liu's application for the approval of awork-related injury. TheDepartment of Labor and Social Securityin Haifeng refused to determine that the precious stone factoryin Haifeng had to take the responsibility for the work-relatedinjury because Liu had no work relations with that factory. 

   Case 3: A worker from a factory in Panyu had an accident andbroke his calf bone. Later, after legal procedures, the workergot compensation and returned to his hometown. One year later hediscovered he suffered from bone inflammation. He returned toGuangzhou, hoping the company would pay for the medicaltreatment. However, the employer he had worked for had gonebankrupt, and he was unable to ask him to cover his medicalexpenses. 

   These cases show the problem. Legislation, like theRegulations on the Insurance of Work-Related Injuriesor theGuangdong Regulations on the Insurance of Work-Related Injuries,include no clauses that resolve these problems. Companies followthe rules of the market and have the option to go bankrupt,close down or change legal ownership. Some enterprise owners useholes in the legislation, viciously go bankrupt, close down thefactory or sell the business. In recent times this has becomecommon practice when it comes to taking responsibility forworkers' benefits. As a result, the government needs to focus onthis issue of companies using fraudulent bankruptcy,closing-down and disappearance to avoid payments for theprevention and insurance of work-related injuries. 

   Our proposal: Use the complete legislation to solve thisproblem. TheInsurance Fund for Work-Related Injurieshas to take the possibility of bankruptcy, closure ordisappearance of a company into account. Payments for workerswith work-related injuries after bankruptcies, factory closuresand disappearances need to be included so that the state can payall expenses for workers with work-related injuries from thatfund. In order to prevent enterprise owners escaping theirduties after a work-related injury, people in charge andrepresentatives of legal persons should not be able to openanother business for a couple of years. Thereby the wave ofbankruptcies, closures and disappearances could be contained. 

   6. Illegal company's handling of occupational diseases andwork-related injuries and the lack of effective protection. 

   Illegal companies are often very small scale. They usually onlyhave a few dozen workers, many even less than ten. When a moreserious work-related accident happens, managers often usemethods to avoid taking responsibility. 

   Case 1: In an unlicensed print shop in Haizhu district,Guangzhou, a worker called Zhou crushed his right hand in aprinting machine. After two investigations by theLabor Dispute Arbitration Committeeand the court, the court decided that the owner of the printshop had to pay Zhou a one-time compensation of more than130,000 Yuan. When the court ruling took effect the owner of theprint shop went into hiding and secretly took machines andequipment with him. Until now, Zhou has not received anycompensation.

   Case 2: In 2005, a car oil tank exploded in an automobile repairand welding shop in Meizhou. A thirteen year old apprenticesuffered severe injuries: 75 percent of his body was burned.After the accident, the manager of the work shop gave him 40,000Yuan for medical expenses and declared that he was unable to paymore. Without money for medical treatment, the injured boy camedown with a serious infection over his whole body, causing anunbearable stench affecting the whole hospital department. Thecase attracted public attention, and after some donations byChristians he luckily survived. When our organization heardabout it, we immediately provided legal support and discoveredthat the owner of the work-shop had quickly hidden his property,leaving just an old building which had not changed ownershipyet. After our intervention, the building was assessed by theresponsible department and valued with just about 40,000 Yuan,not much compared to the 800,000 Yuan needed for the medicaltreatment of the injured boy. He had already completely lost hiswork capability but had no chance to get any compensation. Thewhole family suffered tremendously. 

   The described cases show how the government failed to supervisethe illegal companies in two aspects: 1) TheAdministration for Industry and Commercefailed to do its job, so these companies could start theirbusiness without official registration. 2) TheDepartment of Labor and Social Securityfailed to do its job because it did not start investigations intime, and did not do anything about these companies notregistering their workers and not getting theInsurance for Work-Related Injuriesfor them. Therefore, it is only reasonable and fair if thegovernment uses itsInsurance Funds for Work-Related Injuriesto cover the expenses of the workers who suffered work-relatedinjuries. 

   7. The work safety of female workers and minors needs to beimproved. 

   China'sRegulations on Female Workers' Labor Protectionand theLaw on the Protection of Minorsdescribe in detail measures to protect female workers and minors(under 18 years old) in manufacturing industries. Nevertheless,in the Pearl River Delta a vast number of companies still ignorethe protective provisions of the two laws. For example, it isvery common to employ minors in toxic work environments (likepaint shops, galvanization and dust-laden polishing). And incompanies with a high number of female workers special sanitaryrooms for them (e.g. for pregnant women and nursing) are rare.Apart from the daily eight hour shift, many companies ask theirfemale workers to do several hours of overtime. Even if femaleworkers do not feel well during their menstruation period,employers often refuse to let them leave during overtime hours.Some employers unreasonably restrict how often and how long aworker can go to the toilet, so female workers are unable todeal with their menstruation regularly, with serious effects ontheir health. 

   Our proposal: TheWomens' Associationshould further protect the interests of women and minors,frequently check the development of the work environment andhealth protection for women workers and minors and startlawsuits against companies violating theRegulations on Female Workers' Labor Protectionand theLaw on the Protection of Minors

   8. Government and society should make efforts to increase publicawareness about the prevention of work-related injuries andoccupational diseases and increase the punishment for companiesthat do not comply with the laws.

   According to the latest report of theChinese Academy of Social Science,54 percent of migrant workers currently work under unsafeworking conditions. Dealing with migrant workers on a dailybasis, we strongly feel that migrant workers lack informationabout work safety, and most of them know hardly anything aboutit. They work in poisonous and harmful environments without anyprotection but are unaware of all the dangers. In order toreduce production costs, employers do not install necessary andreliable protective facilities. The original intention of theLaw on Prevention and Control of Occupational Diseasesand theWork Safety Lawis promoting workers' understanding of work safety and forcingemployers to ensure a safe work environment and protect thehealth of their employees. To reach that goal we propose: 

   1) Government and society should make efforts to increase publicawareness about the prevention of work-related injuries andoccupational diseases, including raising financial funds. Wepropose that the government takes steps to mobilize socialforces, especially learning from the governments of developedcountries and how they secure services from NGOs, vigorouslypromoting the awareness about the prevention of work-relatedinjuries and occupational diseases, evoking the workersthemselves to pay more attention to work safety and effectivelyreducing the rate of occupational diseases and work-relatedinjuries. 

   2) Increase the costs for companies that break theLaw on Prevention and Control of Occupational Diseases,theWork Safety Lawand theRegulations on the Insurance of Work-Related Injuriesin order to force them to give more importance to work safety.Companies neglecting work safety protection, leading to theoccurrence of occupational diseases and work-related injuries,should not only pay the worker a financial compensation undertheRegulations on the Insurance of Work-Related Injuries,but also assume responsibility for other forms of civilcompensation. If the incidents leading to a worker'soccupational disease of work-related injury involve majormisbehavior or faults, the legal responsibility of therepresentative or manager should be investigated, too. That isbecause our judicial system does not allow to file civil lawsuits against those responsible for the neglect of work safetyleading to occupational diseases or work-related injuries. Wehope the 48th clause of theWork Safety Lawand the 52nd clause ofLaw on Prevention and Control of Occupational Diseaseswill be used in legal practice. The first one reads: "Employeeswho are injured in work safety accidents, according to the law,do not just fall under theInsurance for Work-Related Injuries,they also have the right to obtain compensation under civil lawand are able to demand compensation from their employer." Thesecond one says: "Patients with occupational diseases, accordingto the law, do not just fall under theInsurance for Work-Related Injuries,they also have the right to obtain compensation under civil lawand are able to demand compensation from their employer." Wehope these two clauses will nullify the opposed 12th clause ofthePeople's Supreme Court Interpretation Regarding Certain LegalProblems Hearing Cases on the Compensation for Injuries:"When an employee of a company which, according to the law, hasto participate in theInsurance Plan for Work-Related Injuries,due to a work-related accident suffers bodily harm, thisemployee or family members can file a law suit at thePeople's Court,asking the employer to assume responsibility for civilcompensation, according to provisions in theRegulations for the Insurance of Work-Related Injuries". 

   3) Concerning the contributions of companies to theInsurance for Work-Related Injuries,besides paying a rate according to the risk degree in aparticular industry, the contribution to the insurance should bedetermined following the occurrence rate of occupationaldiseases and work-related injuries in a particular companywithin one year, thereby effectively raising the costs ofneglecting work safety.

    


文章推荐

声明:此网站系景祥个人网站    转载景祥所写文章,须保持文章完整,并注明作者和来自本网站