we cannot let a piece of paper block the loss of wages for flexible employment personnel
2024-09-21
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li yingfeng
for migrant workers who find flexible employment in cities, how can they prove their loss of work time if there is no work unit to issue them a work loss certificate? li mei, who worked as a kitchen helper at a primary school in dalian, liaoning, used her summer vacation to work as a domestic worker. on her way home, she was hit by a private car and her right shoulder was fractured. the insurance company that insured her private car did not recognize the loss of work time claimed by li mei. the primary school where she worked believed that the car accident was not caused by li mei's helping in the kitchen, so they would not issue her a work loss certificate. (workers' daily, september 20)
after mediation by the court, it was determined that a certain insurance company calculated the loss of work time based on the local per capita disposable income of rural residents, and compensated li mei for more than 97,000 yuan in work time and medical expenses within the limit of compulsory traffic insurance, helping her overcome the obstacle of "no proof of work time loss" and bringing a relatively satisfactory end to the case. however, this is an individual case after all, and how to help more flexible employment workers like li mei get rid of the dilemma of not being able to obtain a proof of work time loss is worthy of deep thought and exploration by all parties.
lost wages is an important item of damages. the infringing party's compensation for the victim's lost wages can make up for the victim's losses and is in line with the "filling principle" of damages. the civil code of the people's republic of china stipulates that if a person infringes upon another person and causes personal injury, he shall compensate for reasonable expenses for treatment and rehabilitation, such as medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospitalization food allowances, and the income lost due to lost wages. the interpretation of the supreme people's court on several issues concerning the application of law in the trial of personal injury compensation cases further clarifies the calculation method and standard of lost wages. if the victim has a fixed income, the lost wages shall be calculated based on the actual loss of income. if the victim has no fixed income, the average income of the last three years shall be used for calculation; if the victim cannot provide evidence to prove his average income in the last three years, the average salary of employees in the same or similar industry in the previous year in the place where the court is located can be used for calculation.
in the job market, there are a large number of flexible workers who do not have stable employers, no labor relations, irregular work, and unstable income. in damages cases, if the victim has no fixed income, it is difficult for the victim to provide complete income evidence for the past three years, and even unable to issue a certificate of lost work, and it is difficult to determine the amount of compensation for lost work. therefore, it is difficult for the victim to reach a consensus with the infringing party or the insurance company on the compensation for lost work, and it is difficult for the courts, arbitration institutions, etc. to support the victim's related claims with reason and evidence. the victim is in a dilemma of defending his rights, and his rights and interests in lost work are difficult to be protected.
the rights and interests of flexible employment personnel in terms of loss of work pay cannot be trapped in a piece of work loss certificate. there are already 200 million flexible employment personnel in my country. aiming at the difficulties and needs of flexible employment personnel, designing a more fair, reasonable, practical and operational method and standard for calculating loss of work pay for them will not only help to improve the mechanism for protecting the rights and interests of flexible employment personnel, but also provide a clearer and more standardized basis and guide for relevant departments. for example, courts, labor dispute arbitration institutions, etc. can improve the rules and standards for calculating loss of work pay in light of the work characteristics of flexible employment personnel, and identify several special reference industries for them. even if the victim cannot provide a work loss certificate, the loss of work pay can be calculated by referring to the average wage of a certain industry in the previous year.
of course, flexible employment personnel should be more careful in their daily work and take care to preserve relevant information such as application, communication, work, and salary payment in case of need to protect their rights in accordance with the law.
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