Supreme Court: Work-related Injury Insurance Benefits and Third-party Tort Compensation Both Available
The Supreme People’s Court released the Provisions of the Supreme People’s Court on Certain Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance (“Provisions”). The Provisions take effect on September 1, 2014 with the following key contents:
Work-related Injury Caused by a Third-party Tort
The Provisions clarifies that where the work-related injury is caused by a third-party tort, the work-related injury insurance benefits and the compensations for civil torts can both be obtained, provided that the medical costs are excluded. Article 8 of the Provisions provides 3 approaches to this matter:
- Where an employee is injured for the reason of a third-party, and he/she or his/her close relative has brought a civil action or has obtained civil compensations, the social insurance administrative department shall also accept the application for work-related injury identification and may not make the decision denying its identification as a work-related injury on this sole basis.
- Where the social insurance administrative department has made the work-related injury identification, and the employee or his/her close relative has not brought a civil action or has obtained civil compensations, they may claim for work-related injury insurance benefits from the social insurance agency.
- Where the employee or his/her close relative has brought a civil action against the third party, and the social insurance agency refuses to pay the work-related injury insurance benefits consequently, the people’s court will not support the social insurance agency, except the medical costs already compensated by the third party.
Undertaker of Work-related Injury Insurance Liabilities under Some Particular Circumstances
Article 3 of the Provisions specifies the corresponding undertaker of work-related injury insurance liabilities in respect of five particular circumstances, including dual employment, labor dispatching, designating, subcontracting and affiliating relationships. In case of a work-related injury accident under such five circumstances, the unit which the employee works for, the labor dispatching unit, the unit making designation, the illegally subcontracting unit or the affiliated unit, respectively, shall be the party undertaking the work-related injury insurance liabilities.
After the illegal subcontracting unit or the affiliated unit assumes the compensation liability, or after the social insurance agency pays the work-related injury insurance benefits from the work-related injury insurance fund, they are entitled to claim for recovery from the relevant organizations, units and individuals.
Defining Working Hours, Workplace and Working Reasons
Working hours, workplace and working reasons are three factors accounts for the work-related injury identification, which are well defined by the Provisions through listing circumstances.
The Provisions qualify the following circumstances as the work-related injuries where:
- The employee is injured both during working hours and at workplace, and the employer or the social insurance administrative department has no evidence to prove that the injury is caused by any non-work-related reason;
- The employee gets injured in an activity held by the employer, or injured in an activity held by other units where the participation is designated by the employer
- During working hours, the employee is injured within a reasonable area when commuting between a couple of workplaces related to his/her job duty
- Other circumstances where the employee is injured in the course related to performing his/her job duty, during the working hours and within a reasonable area
The Provisions define “work-related travel period” as：
- The period during which the employee participates in activities related to his/her job duty outside the workplace at the employer’s designation or due to working needs
- The period during which the employee is designated by the employer to attend an outside training or conference
- Other periods during which the employee travels out for working needs
The work-related travel period is a special circumstance falling in the scope of working hours. The injury during this period could be identified as the work-related injury. However, the Provisions stipulate that, during the work-related travel period, where the employee is injured in personal activities unrelated to work, training or conference arranged by the employer, and where the social insurance administrative department does not identify it as a work-related injury subsequently, the people’s court shall sustain such decision.
The Provisions define “the route to and from work” of an employee as:
- Within a reasonable period, the reasonable route to and from work connecting his/her workplace and his/her domicile, habitual residence or the unit dorm
- Within a reasonable period, the reasonable route to and from work connecting his/her workplace and the domicile of his/her spouse, parents or children
- Within a reasonable period and following the reasonable route to and from work, the travel due to his/her needs related to daily work or life
- Within a reasonable period, other reasonable routes to and from work
KWM Comments: Dispute over the work-related injury is a hot issue in the field of social security law and administrative law. The Supreme People’s Court recently released relevant provisions on this issue, providing judicial interpretations of the overlapping of the third-party tort liability and work-related injury insurance liability, the undertaker of the work-related injury insurance liability and the definitions of working hour, workplace and work-related reasons. The Provisions are of guiding significance for resolving disputes over work-related injury insurance.
Trade Union Fund Prohibited to Purchase Shopping Cards
On July 29, the Administrative Office of the All-China Federation of Trade Union (“ACFTU”) released the Notice on Strengthening the Administration of the Revenues and Expenditures of the Fund of the Local Trade Unions (“Notice”), stipulating that the Trade Union Fund may be used for employees' training, recreation and sports, propagandas, etc..
In addition, the Notice lists circumstances where the Trade Union Fund shall not be employed, including:
- Trade Union Fund shall not be used to purchase shopping cards or vouchers, or to treat guests with dinners or gifts
- Trade Union Fund shall not be used for distributing allowance, subsidy or bonus in an abuse way
- Trade Union Fund shall not be used to pay for high-consumption recreations or fitness
- The administration department shall not fund a hidden coffer with the Trade Union Fund
- The trade union account shall not be incorporated into the unit’s administration account
- Trade Union Fund shall not be held back or misappropriated
- Trade Union Fund shall not be used in illegal fund-raising or any guaranty for such practice
- Trade Union Fund shall not be used for expenditure reimbursement unrelated to trade union activities
KWM Comments: The administration of collection and expenditures of the Trade Union Fund has become a key area supervised by the ACFTU and the Ministry of Finance. When employers are tailoring their employee welfare programs, they should also pay attention to the legality of relevant policies and the compliance of correspondent financial operation.