The need for workers to have a choice in work-related injury compensation payments

The Chinese government last month invited public comment on its proposals to improve the implementation of the Work-related Injury Insurance Regulations (工伤保险条例). The proposals issued by the Ministry of Human Resources and Social Security (MOHRSS) are on the whole constructive and should help better protect the rights of victims of occupational injury and illness. However, China Labour Bulletin has noted a few potential problems in the proposals, which we outlined in a detailed submission to the MOHRSS in mid-February.

CLB’s main concern is Clause 16 of the Draft for Comment which seeks to prevent long-term payment schedules being disbursed as a one-off payment. The rationale for phasing out one-off payments is understandable in that, once the money is gone, the recipient has nothing to fall back on and no legal rights to additional compensation.

However, CLB argues in its submission that workers should be given a choice. Moreover, it should be the worker and not the authorities or the employer who decide whether the disbursement should be in a one-off payment or in monthly instalments. The worker is, after all, in the best position to assess whether or not a one-off payment is the most appropriate for their needs.

Many victims of pneumoconiosis, China’s most prevalent occupational disease by far, only get compensation after they have been ill for many years and need to pay of tens of thousands of yuan in medical debts. Moreover, many feel they will not live much longer and want to ensure their family has some financial security after they have gone.

CLB notes that the Work-related Injury Insurance Regulations specifically states that workers with less severe injuries can accept a one-off payment but only on condition that their labour relationship with the employer is terminated. CLB argues however that workers should be able to retain their employment relationship even after a one-off payment is made in order to provide further security for the worker and their family.

In addition, CLB notes in the submission that there are vast numbers of elderly workers in China who fell ill or who were injured prior to the implementation of the Work-related Injury Insurance Regulations in 2004 and as a result are currently not eligible for benefits.  Many of these workers were former employees of state-owned enterprises (SOEs) who lost their jobs during the reforms and restructuring of the late 1990s. Many of these workers only discovered that they had contracted pneumoconiosis long after they had been laid off, by which time they had effectively lost all their former entitlements to work-related injury benefits. Many SOEs had been closed down, merged or sold off to private corporations that refused to accept any liability for the illness of former employees. Likewise there are probably just as many elderly workers who were employed in the private sector in the 1990s who had absolutely no insurance coverage at the time because the government failed to extend such coverage to private enterprises until the early 2000s.

CLB argues that the Chinese government should conduct a comprehensive survey to ascertain the exact numbers of elderly workers who have contacted occupational disease and, once the severity of their illness has been determined, ensure that all of them receive the benefits they are entitled to.

On a related issue, CLB reiterates the argument that because pneumoconiosis can only be caused by the long-term inhalation of mineral dust at the workplace, it should be automatically confirmed as an occupational disease. Workers should not have to prove an employment relationship with a particular enterprise before being granted work-related injury benefits, as is currently the case. Rather, once a worker has been diagnosed with pneumoconiosis, their level of disability should be assessed straight away and the appropriate benefits disbursed by the government. If a particular employer is found to be at fault and has not provided its employees with insurance, the government can reclaim those payments at later date.

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