Therefore, the end of each year is also the time node for the state to focus on rectifying the wages owed to migrant workers. Just like cracking down on migrant workers' unpaid wages in winter, with the joint efforts of many departments, we will directly investigate and deal with the enterprises involved with strong administrative means to ensure that migrant workers can receive their wages and go home for the New Year as scheduled and smoothly. Especially at the end of this year, the relevant departments have formulated a clear timetable for clearing debts, which has provided important psychological protection for the vast number of migrant workers.
However, it should be noted that this temporary action led by administrative forces, although "strong and fast", actually did not touch the core of the problem of "arrears of wages for migrant workers", so it could not fundamentally solve the problem of arrears of wages for migrant workers that has long plagued the development of China's construction industry and social and people's livelihood security.
1, administrative rectification and judicial punishment, and the pressure of unpaid wages is concentrated in the direct employer.
The joint rectification action of the four departments is a concentrated expression of China's administrative power and judicial power. In recent years, on the one hand, China has continuously strengthened the administrative supervision of enterprises that owe wages to migrant workers, on the other hand, it has continuously improved and perfected the judicial basis for the treatment and punishment of unpaid wages. For example:
1) 2011May, the Criminal Law Amendment (VIII) criminalized the crime of refusing to pay labor remuneration;
2) From June 2065438 to June 2003, the Supreme Court issued the Interpretation on Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Refusing to Pay Labor Remuneration, which clarified the specific conviction and sentencing standards and related legal issues of the crime of refusing to pay labor remuneration, and set a relatively low threshold for the crime of malicious unpaid wages.
3) On August 3, 2009, 2065438, Ministry of Human Resources and Social Security issued the Regulations on Ensuring the Payment of Wages for Migrant Workers (Draft for Comment), in order to solicit opinions on special legislation to solve the problem of wage arrears for migrant workers.
Among them, the second provision of judicial interpretation is the commonly used legal judgment basis for labor disputes in the construction market at present. At the press conference, Zhou Jiahai, deputy director of the Supreme People's Court Research Office, quoted it as saying:
Contents of punishment: Those who refuse to pay the remuneration of one worker for more than three months and the amount is between 5,000 yuan and 20,000 yuan, or those who refuse to pay the remuneration of more than 10 workers and the total amount is between 30,000 yuan and 100,000 yuan, and still fail to pay after being ordered by the relevant government departments to make corrections, which constitutes a crime, shall be investigated for criminal responsibility according to law. Those who meet the above conditions and pay a large amount of wages in arrears shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and those who refuse to pay shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.
From the above, we can find that both administrative rectification and judicial punishment are mainly aimed at the most direct employers, that is, construction units, labor service companies or contractors. As we all know, the direct cause of the wage arrears of migrant workers is that the employer fails to pay the due wages on time, but the fundamental and main reason actually comes from the arrears of the project funds of the owners and developers.
In the overall construction market environment where the bid is won at a low price and the owner/developer dominates the market, contractors who want to obtain the project are often required to bring capital or advance capital for construction, which leads to a very fragile capital chain. Once the upstream developer defaults on the project payment, the downstream construction party may face the risk of breaking the capital chain, leading to the problem of defaulting on the wages of migrant workers.
Therefore, it can be said that the problem of wage arrears for migrant workers is actually the result of upstream developers transferring the corresponding financial pressure to downstream construction units by paying the arrears of project funds. As mentioned above, at present, the relevant administrative rectification and judicial punishment focus on the downstream buildings, labor services and contractors, and do not touch the root and core of the wage arrears of migrant workers, so it is difficult to completely solve the wage arrears of migrant workers. Of course, from the perspective of protecting the social rights and interests of migrant workers, near the end of the year, the rectification action under the administrative and judicial forces is indeed an effective way to quickly solve the problem of wage arrears for migrant workers in the short term.
2, system construction and system guarantee, fundamentally solve the problem of wage arrears for migrant workers.
Compared with the short-term protection of rights and interests under administrative power, the relevant construction at the institutional level can undoubtedly solve the problem of wage arrears for migrant workers in the long run and fundamentally. For example, the project guarantee system is widely used to effectively prevent and avoid wage arrears for migrant workers from market access, project payment and wage payment guarantee.
Payment guarantee:
The problem of wage arrears for migrant workers involves two kinds of payment guarantees, namely, the contractor's payment guarantee for migrant workers' wages under direct reasons; And the employer's payment guarantee for the contractor's project funds at the source.
The former provides wage payment guarantee to the construction administrative department where the construction project is located through the contractor. Once the contractor fails to pay the wages of migrant workers in accordance with the regulations, the guarantor will perform the obligation of wage payment on his behalf. In the latter case, the developer provides the contractor with the guarantee of the owner's project payment by entrusting the guarantor. Once the employer fails to pay the project payment as agreed in the contract, the guarantor will fulfill the obligation to pay the project payment or compensate the corresponding losses.
The two major payment guarantee functions, on the one hand, ensure that the construction contractor receives the project payment from the developer on time, reduce its financial pressure and avoid the risk of capital chain breakage, thus ensuring the payment of migrant workers' wages; On the other hand, even if the construction contractor has financial problems and cannot pay the wages of migrant workers according to the regulations, the guarantor can also pay them on his behalf, effectively ensuring the wages of migrant workers.
Market access:
Through the development and application of engineering guarantee system in developed countries, we can see more possibilities of engineering guarantee system in market access screening and risk prevention and control of construction activities. For example, in the engineering guarantee system in the United States, whether a contractor can obtain the guarantee provided by an insurance company as a guarantor directly determines whether he can participate in the corresponding market operation activities.
Why is this happening? The answer is that American insurance companies have established an authoritative risk assessment system based on a sound social credit system, thus effectively transferring the right to speak on market business access screening to the industrial chain in the field of engineering construction.
The market access function of American engineering guarantee system has important reference value for the development of China's engineering guarantee system. At present, in China's engineering guarantee market, three types of guarantors, namely banks, insurance companies and guarantee companies, coexist at the same time, and the insurance guarantee is engineering guarantee insurance. In recent years, the rapid development of policies and markets has provided favorable conditions for learning from and developing the functional model of engineering guarantee insurance in the United States.
Take solving the problem of wage arrears of migrant workers as an example: the main reason of wage arrears of migrant workers lies in the arrears of project funds by owners and developers, but it is also inseparable from the lack of sufficient financial risk resistance of construction contractors themselves.
Once the project guarantee system can play an effective role in market access screening:
1) On the one hand, by linking with the examination and approval results of relevant administrative departments, developers who do not have the corresponding financial strength cannot obtain construction permits, thus avoiding the possible risk of project payment default in advance on the market access threshold;
2) On the other hand, by reviewing and evaluating the financial strength, project performance and risk coping ability of the construction contractor, enterprises with high risk of wage arrears for migrant workers are excluded from the market business scope, so as to enhance the overall enterprise strength of the construction contractor in the construction market and prevent and avoid wage arrears for migrant workers.
To sum up, the administrative and judicial rectification activities of construction units, labor service companies and contractors cannot fundamentally solve the important social and livelihood problem of wage arrears for migrant workers. Only at the institutional level, through the corresponding institutional guarantee, can we effectively prevent and avoid the emergence of corresponding risk factors from the root, thus completely solving the problem of wage arrears of migrant workers that has long plagued China.