Legal Risk Prevention of Internship Training... Common legal disputes and handling during students' internship (work injury)
Published:
2021-11-11
Foreword The Ministry of Education and the Ministry of Finance issued the "Administrative Measures for Student Internships in Secondary Vocational Schools" (hereinafter referred to as the "Measures"), which mainly refers to secondary vocational schools in accordance with the requirements of professional training objectives and the arrangement of teaching plans, and organize students to The teaching practice and internship conducted by employers such as enterprises are important contents of professional teaching in secondary vocational schools. For students, internship is the process of applying theoretical knowledge to practice, and it is an important part of learning during school and about to enter the workplace. Through internships, students can accumulate practical experience, increase social experience, adapt to social life early, increase opportunities for future employment, and facilitate the smooth connection between school study and employment. During the internship, students often encounter legal disputes. The common legal disputes mainly include work injury, personal injury, violation of discipline and property safety. The author mainly discusses the problem of work-related injuries in order to give readers some enlightenment. Text A work-related injury is an injury caused by an accident at work or an occupational disease. The following situations shall be recognized as work-related injuries: 1. Accident injury due to work during working hours and in the workplace; 2. Accident injury due to work-related preparatory or finishing work in the workplace before and after working hours; 3. Accidental injury due to violence and other accidents due to the performance of work duties during working hours and in the workplace; 4. Occupational disease; 5. During the period of going out of work, the person is injured due to work reasons or the whereabouts of the accident are unknown; 6. On the way to and from get off work, the person is injured by a motor vehicle accident; 7. Other circumstances that should be recognized as work-related injuries as stipulated by laws and administrative regulations. Whether interns should be protected by labor law is currently the theory of whether there are two views and affirmative. 1. negation says In this view, the intern is still a student at school, not a worker in the legal sense, and there is no factual or legal labor relationship between him and the internship unit. therefore, under the current legal system, the relationship between the intern and the internship unit is not a labor relationship and is not adjusted by the labor law. The main laws and regulations are based on the second article of the Ministry of Labor's Explanation on Certain Provisions of the the People's Republic of China Labor Law, which stipulates that the scope of application of the labor law to workers includes three aspects:(1) workers in state organs, institutions and social organizations;(2) non-workers in institutions that implement enterprise management;(3) Other workers who establish labor relations with state organs, institutions and social organizations through labor contracts (including employment contracts). In addition, issued by the Ministry of Labor on the implementation of<中华人民共和国劳动法>Article 12 of the opinions on several issues also stipulates that students who use their spare time to work-study programs are not regarded as employment and may not sign labor contracts without establishing labor relations. Therefore, it can be seen that the relevant laws and regulations of our country and the relevant judicial interpretations have made clear provisions on the age, educational background and whether they are included in the scope of employment security, while the interns in school do not have these "conditions for workers". Therefore, internship students cannot be regarded as workers in the sense of the "the People's Republic of China Labor Law". They have no labor relationship with the internship unit, so they do not have the main qualification for work-related injuries during the internship period. In legal practice, this view represents the views of most people, especially the staff of the government labor and social security departments, and some places have made this view clear. For example, Article 17 of the "opinions on the implementation of the regulations on Industrial injury Insurance" made by the Chongqing Municipal Bureau of Labor and Social Security stipulates that the regulations on Industrial injury Insurance are not applicable to retirees employed by employers, students from colleges and universities, technical schools and vocational Senior high school. With regard to this provision, lawyer Zhou Litai, who is famous for his labor lawsuits in China, applied to the Chongqing municipal government to revoke the regulation made by the bureau, but it ended in failure. 2. must say This view holds that interns belong to the legal "labor subject", "contract subject" or "work injury compensation subject", and have labor relations with the employer during the internship and should be adjusted by the labor law. The main reason is: according to the Labor Law and the Law on the implementation of<中华人民共和国劳动法>The "Opinions on Several Issues" stipulates that there are five kinds of people who are not within the norms of the labor law; the first is the national civil servant; the second is the staff of institutions and social organizations that implement the civil service system; the third is rural workers; the fourth is active military personnel; the fifth is family nanny. These five categories of personnel are strictly restricted to not being regulated by the Labor Law, and school interns are not included. According to the third paragraph of Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, work-related injuries that fall within the scope of labor relations and work-related injury insurance adjusted by the Work-related Injury Insurance Regulations shall be handled in accordance with the Work-related Injury Insurance Regulations. Although the "Work-related Injury Insurance Regulations" do not expressly stipulate that interns are "work-related injury compensation subjects", however, the relevant explanatory clauses in the regulations have included this subject. Article 61 of the regulations stipulates: "The employees referred to in these regulations refer to various labor relations (including de facto labor relations) with the employer. Workers in various forms of employment and various periods of employment." The so-called employees or workers of various forms of employment and various periods of employment are the main body in the regulations on Industrial injury Insurance, and interns are naturally included in it. In addition, the de facto labor relationship is particularly emphasized. There is no labor contract between the students who go to the unit for internship and the internship unit, but there is only a labor agreement, but it also forms a de facto labor relationship with the internship unit. Especially for students who are on-the-job internships, the content of their work is not much different from that of regular employees, so the legal provisions will form de facto labor relations as the scope of adjustment. Author's point of view and reasons Article 61 of the "Trial Measures for Industrial Injury Insurance for Enterprise Employees" piloted by the Ministry of Labor on October 1, 1996 once stipulated that "if a casualty accident occurs to a student of a college, technical school, or vocational Senior high school who has an internship in an enterprise participating in industrial injury insurance, the local industrial injury insurance agency may refer to the relevant treatment standards of these Measures and issue a one-time treatment. The industrial injury insurance agency does not charge insurance fees from the relevant schools and enterprises." In other words, the old industrial injury insurance method is to recognize that interns have the main qualification of workers, so they are included in the scope of industrial injury insurance. Before the promulgation of the regulations on industrial injury insurance, interns may refer to the employees of the unit to enjoy the treatment of industrial injury insurance. However, after the implementation of the "Work Injury Insurance Regulations", interns no longer belong to the scope of work injury insurance protection. Because the prerequisite for the identification of work-related injuries is the existence of labor relations, and interns cannot form labor relations with employers because of their student status, and interns cannot participate in work-related injury insurance, so injuries during work cannot be recognized as work-related injuries. However, the intern has formed an employment relationship with the employer, and the intern can require the employer to bear the compensation liability of the employer according to the judicial interpretation of the Supreme Court on personal injury compensation. The dispute is not a labor dispute and is treated as general personal injury compensation. </中华人民共和国劳动法></中华人民共和国劳动法>
Foreword
The Ministry of Education and the Ministry of Finance issued the "Administrative Measures for Student Internships in Secondary Vocational Schools" (hereinafter referred to as the "Measures"), which mainly refers to secondary vocational schools in accordance with the requirements of professional training objectives and the arrangement of teaching plans, and organize students to The teaching practice and internship conducted by employers such as enterprises are important contents of professional teaching in secondary vocational schools. For students, internship is the process of applying theoretical knowledge to practice, and it is an important part of learning during school and about to enter the workplace. Through internships, students can accumulate practical experience, increase social experience, adapt to social life early, increase opportunities for future employment, and facilitate the smooth connection between school study and employment. During the internship, students often encounter legal disputes. The common legal disputes mainly include work injury, personal injury, violation of discipline and property safety. The author mainly discusses the problem of work-related injuries in order to give readers some enlightenment.
Text
A work-related injury is an injury caused by an accident at work or an occupational disease. The following situations shall be recognized as work-related injuries: 1. Accident injury due to work during working hours and in the workplace; 2. Accident injury due to work-related preparatory or finishing work in the workplace before and after working hours; 3. Accidental injury due to violence and other accidents due to the performance of work duties during working hours and in the workplace; 4. Occupational disease; 5. During the period of going out of work, the person is injured due to work reasons or the whereabouts of the accident are unknown; 6. On the way to and from get off work, the person is injured by a motor vehicle accident; 7. Other circumstances that should be recognized as work-related injuries as stipulated by laws and administrative regulations.
Whether interns should be protected by labor law is currently the theory of whether there are two views and affirmative.
1. negation says
In this view, the intern is still a student at school, not a worker in the legal sense, and there is no factual or legal labor relationship between him and the internship unit. therefore, under the current legal system, the relationship between the intern and the internship unit is not a labor relationship and is not adjusted by the labor law. The main laws and regulations are based on the second article of the Ministry of Labor's Explanation on Certain Provisions of the the People's Republic of China Labor Law, which stipulates that the scope of application of the labor law to workers includes three aspects:(1) workers in state organs, institutions and social organizations;(2) non-workers in institutions that implement enterprise management;(3) Other workers who establish labor relations with state organs, institutions and social organizations through labor contracts (including employment contracts). In addition, issued by the Ministry of Labor on the implementation of<中华人民共和国劳动法>Article 12 of the opinions on several issues also stipulates that students who use their spare time to work-study programs are not regarded as employment and may not sign labor contracts without establishing labor relations. Therefore, it can be seen that the relevant laws and regulations of our country and the relevant judicial interpretations have made clear provisions on the age, educational background and whether they are included in the scope of employment security, while the interns in school do not have these "conditions for workers". Therefore, internship students cannot be regarded as workers in the sense of the "the People's Republic of China Labor Law". They have no labor relationship with the internship unit, so they do not have the main qualification for work-related injuries during the internship period.
In legal practice, this view represents the views of most people, especially the staff of the government labor and social security departments, and some places have made this view clear. For example, Article 17 of the "opinions on the implementation of the regulations on Industrial injury Insurance" made by the Chongqing Municipal Bureau of Labor and Social Security stipulates that the regulations on Industrial injury Insurance are not applicable to retirees employed by employers, students from colleges and universities, technical schools and vocational Senior high school. With regard to this provision, lawyer Zhou Litai, who is famous for his labor lawsuits in China, applied to the Chongqing municipal government to revoke the regulation made by the bureau, but it ended in failure.
2. must say
This view holds that interns belong to the legal "labor subject", "contract subject" or "work injury compensation subject", and have labor relations with the employer during the internship and should be adjusted by the labor law. The main reason is: according to the Labor Law and the Law on the implementation of<中华人民共和国劳动法>The "Opinions on Several Issues" stipulates that there are five kinds of people who are not within the norms of the labor law; the first is the national civil servant; the second is the staff of institutions and social organizations that implement the civil service system; the third is rural workers; the fourth is active military personnel; the fifth is family nanny. These five categories of personnel are strictly restricted to not being regulated by the Labor Law, and school interns are not included.
According to the third paragraph of Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, work-related injuries that fall within the scope of labor relations and work-related injury insurance adjusted by the Work-related Injury Insurance Regulations shall be handled in accordance with the Work-related Injury Insurance Regulations. Although the "Work-related Injury Insurance Regulations" do not expressly stipulate that interns are "work-related injury compensation subjects", however, the relevant explanatory clauses in the regulations have included this subject. Article 61 of the regulations stipulates: "The employees referred to in these regulations refer to various labor relations (including de facto labor relations) with the employer. Workers in various forms of employment and various periods of employment." The so-called employees or workers of various forms of employment and various periods of employment are the main body in the regulations on Industrial injury Insurance, and interns are naturally included in it. In addition, the de facto labor relationship is particularly emphasized. There is no labor contract between the students who go to the unit for internship and the internship unit, but there is only a labor agreement, but it also forms a de facto labor relationship with the internship unit. Especially for students who are on-the-job internships, the content of their work is not much different from that of regular employees, so the legal provisions will form de facto labor relations as the scope of adjustment.
Author's point of view and reasons
Article 61 of the "Trial Measures for Industrial Injury Insurance for Enterprise Employees" piloted by the Ministry of Labor on October 1, 1996 once stipulated that "if a casualty accident occurs to a student of a college, technical school, or vocational Senior high school who has an internship in an enterprise participating in industrial injury insurance, the local industrial injury insurance agency may refer to the relevant treatment standards of these Measures and issue a one-time treatment. The industrial injury insurance agency does not charge insurance fees from the relevant schools and enterprises." In other words, the old industrial injury insurance method is to recognize that interns have the main qualification of workers, so they are included in the scope of industrial injury insurance. Before the promulgation of the regulations on industrial injury insurance, interns may refer to the employees of the unit to enjoy the treatment of industrial injury insurance. However, after the implementation of the "Work Injury Insurance Regulations", interns no longer belong to the scope of work injury insurance protection. Because the prerequisite for the identification of work-related injuries is the existence of labor relations, and interns cannot form labor relations with employers because of their student status, and interns cannot participate in work-related injury insurance, so injuries during work cannot be recognized as work-related injuries. However, the intern has formed an employment relationship with the employer, and the intern can require the employer to bear the compensation liability of the employer according to the judicial interpretation of the Supreme Court on personal injury compensation. The dispute is not a labor dispute and is treated as general personal injury compensation.
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