Farmer employees should be careful not to step on land mines. They are not compensated for 300000 in accordance with the Labor Law. Cai Peihui: it is not a single case, but the Ministry of Labor of the Council of Agriculture should negotiate and support i

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There is a serious shortage of jobs in agriculture, and some farmers follow the tradition of "partnering and changing jobs" to find relatives and friends to help them, or hire foreign workers. However, most farmers may not know that these common methods of daily remuneration in rural areas are under the jurisdiction of the Labor Standard Law. Even if they hire only one person to assist in harvesting for one day, they need to take out employment insurance, and if they hire more than five helpers at a time, they need to take out compulsory labor insurance. However, farmers usually do not realize that they are "employers" and often go to the edge of breaking the law because they do not know it.

A few days ago, a case occurred. Farmer Zhang Hongtian hired a helper, Mr. Xiao, to manage the orchard for a short time, but he was hospitalized for one year due to infection caused by surgery due to physical discomfort. During this period, Mr. Xiao was asked to take care of the orchard, which lasted about one and a half years. Unexpectedly, six months after the termination of employment, Xiao filed a civil claim against him, demanding Zhang compensation for "severance pay and advance salary","retirement payment","unemployment payment" and "occupational disaster compensation" totaling 300,000 yuan on the grounds that Zhang did not insure labor health insurance and employment insurance.

Zhang Hongtian was hit hard and submitted an explanation to the Ministry of Labor and the Agricultural Committee, but the Ministry of Labor believed that agriculture was governed by the Labor Standard Law."Just employers who did not draw up labor registers and did not record salary tables can be fined." The Council of Agriculture believes that the competent organ of the Labor Law is in the Ministry of Labor, and the Council of Agriculture can only remind farmers to avoid risks. Former legislator Tsai Pei-hui, who has long been involved in rural activism, says that Chang Hung-tien's situation is not a single case, but affects a wide range of people. The Ministry of Labor and the Council of Agriculture should jointly negotiate and seek long-term solutions.

Zhang Hongtian said that he lost his health and trust in humanity, hoping that no other farmers would suffer the same pain as him. (Photography/Lin Jiyang)

"Helping farmers on a daily basis" has turned into "labor disputes", and farmers have been sued for 300,000 yuan

Chang Hung-tien is 70 years old, and before he retired he began taking classes at the agricultural improvement farm, studying organic farming and natural farming methods. At the age of 60 he "abandoned work and went back to farming," planting virus-free sweet potatoes first and successfully growing wheat. Three years ago he inherited two and a half acres of farmland from his hometown in Chungpu, Chiayi, and planned to turn it into a passion fruit garden.

In the spring of 2018, Zhang Hongtian was scheduled to undergo knee replacement surgery. It was estimated that the surgery would include recovery for about several months. Therefore, through the Chiayi Employment Counseling Station, he found Mr. Xiao, who registered for a job. Both parties said that they would manage the orchard on a daily basis. He was hospitalized for more than a year. After he was discharged, he still had to recuperate and recuperate. During this period, he continued to hire Mr. Xiao to take care of the orchard.

However, due to poor recovery, doctors informed Zhang Hongtian that his physical condition was no longer allowed to engage in agriculture. In June 2019, he proposed to Xiao to terminate the cooperation. At the end of the year, Xiao filed a civil claim against him, claiming compensation for "severance pay and advance salary","retirement payment","unemployment payment" and "occupational disaster compensation" totaling 300,000 yuan on the grounds that he was not insured for labor health insurance and employment insurance.

After the hospital life and death disaster but again face litigation, return to the original employee management passion fruit garden, abandoned miserable situation let him feel a thousand emotions.

"The income from farming is meager. Looking for someone who lacks work is like holding an unscheduled bomb?"

Zhang Hongtian was surprised to suddenly become a defendant. In his impression, farmers hired employees to "hire people to help today and hire them to work tomorrow". It was a very common thing to calculate wages by day. Why did a lawsuit for compensation appear? On the one hand, he asked around, and on the other hand, he asked the Ministry of Labor and the Council of Agriculture for an explanation through Wu Kunyu, then legislator.

On December 31 last year (2019), Wu Kunyu invited the Agriculture Committee and the Ministry of Labor to hold a coordination meeting on Zhang Hongtian's case. Zhang Hongtian heard Ministry of Labor officials mention that "once the Labor Standards Law is applied, employers can be fined simply for failing to draw up labor registers and record salary scales." He couldn't believe the tears on the spot. He marveled at the farmers 'situation: "The income from farming is meager. It's troublesome enough to find people without work. If you find people, you still have to hold an untimely bomb?"

Agriculture Committee: It is difficult to amend the Labor Law. It is suggested that employees find friends and relatives to avoid disputes.

Mr Chiu Ting-cheung, the COA contractor who attended the meeting, explained: "The COA is not the competent authority of the LSL, nor can it contravene the LSL. Zhang Hongtian argued that this case should be exempted from the application of the Labor Basic Law, which is not something the Council of Agriculture can decide."

Qiu added,"If there is a situation where the Labor Standard Law does not apply (for example, home care workers are excluded from the scope of application), the Ministry of Labor will explain it in a letter, but in this case, the Ministry of Labor recommends that the employer should negotiate with the workers. If no settlement can be reached, only the court can decide." In other words, the Ministry of Labour considers that the present case cannot be excluded from the employment-employee relationship.

Cai Peijun, executive secretary of the Agricultural Manpower Office of the Council of Agriculture's Guidance Office, said: "It is very difficult to amend the current Labor Standards Law. It is recommended that farmers find close relatives and friends to avoid disputes; or when hiring, both parties must agree on a contract relationship (outsourcing work) to avoid command/subordinate relations, so as to avoid labor disputes afterwards." For example, if the contract farming system is used, the harvester will harvest the harvest, and the farmers will only receive the fruits but will not intervene in the process. There is no command/subordinate relationship between the two sides, which is considered contracting.

Farmer's employees step into the "grey zone of violation of law"

She admitted that most farmers 'employees are small in scale, although less than five people are exempted from compulsory insurance, but regardless of the number of working days, there are still gray areas in the labor law, such as the obligation to allocate labor retirement, compulsory employment insurance, and the occupational disaster risk of employees.

Faced with the problem of shortage of workers and the risk of labor disputes involving self-employed workers, Tsai Pei-chun says that the Council of Agriculture has introduced a labor union system in local farmers 'associations, allowing farmers to assume the role of employers of dispatch companies, so that farmers can have jobs to call on, and avoid self-employed workers to assume employer responsibilities.

In response to the manpower group plan proposed by the Agricultural Committee, it was found that not all farmers 'associations have set up agricultural technical groups, and the manpower scale and technical needs may not meet the needs of farmers.

Lin Shun-ho, director-general of the Pingtung Hengchun Agricultural Association, said that there are currently 40 members of the Agricultural Technology Group. The Agricultural Association is the nominal employer of the Technical Group, but it is actually only responsible for matchmaking. Farmers from all over the country register the number of people who need work, and the Agricultural Association uniformly deploys them. The scope of support covers Manzhou, Checheng and Fangshan. In practice, the problem of shortage of workers has not been completely solved. After all, agriculture is seasonal work, and there will still be rush work during the production season. The technical corps is not enough, and the peasants still have to hire workers themselves.

The Chiayi Liujiao Rural Association currently has 15 agricultural technical groups, mostly young farmers, who will support each other. Director Chen Youhua believes that if we want to solve the problem of lack of work, this scale is still far from enough, especially now that Liujiao Township small tomato busy farming season will still hire their own employees, as for farmers have insurance? Chen Youhua said,"It's customary for everyone to talk well, and there is mutual trust and tacit understanding."

Ministry of Labor: Only hire one person to harvest for one day, compulsory insurance for "employment insurance"

Huang Weichen, director of the Labor Conditions and Employment Equality Department of the Ministry of Labor, who participated in the coordination committee of Zhang Hongtian's case, said that since 1973, the Labor Base Law has been applied to agriculture, forestry, fisheries and animal husbandry, and the situation of farmers employing farmers clearly falls within the scope of the Labor Base Law.

With regard to short-term and seasonal employment, which is common in agriculture, Huang cited the example of "assisting in the harvest period. If more than five people are employed for a short period of time, they must be compulsorily insured against labor insurance". Even if only one person is employed to help harvest for one day, they must be compulsorily insured against "employment insurance". In case of unfortunate occupational disasters, they must bear compensation or compensation liabilities.

Huang Wei-chen believes that in the past there was no shortage of labor disputes between farmers and their employees, and the Ministry of Labor could only persuade and mediate. If labor disputes failed through mediation, the Ministry of Labor's position had always been to submit them to the courts for judgment.

Labor Lawyer: The key to this case lies in the difference between "fixed-term contract" and "indefinite contract", and the employer's liability is large.

After examining the whole case, Liu Yantian, a lawyer specialized in labor of the Legal Aid Foundation, pointed out that the key point of this case lies in: the two parties originally belonged to "short-term contract", because Zhang Hongtian's hospitalization time was extended, and Zhang did not express the termination of the fixed-term contract, and Mr. Xiao automatically became a long-term employment "indefinite contract worker", extending the employer's responsibility conferred by law.

The distinction between fixed-term contracts and indefinite contracts is quite strict in Article 9 of the Labor Standards Law. Liu Yantian explains that when the time comes for a fixed-term contract, the relationship between the two parties ends. However, once it is recognized as an "indefinite long-term employment relationship," according to the Labor Standards Law, labor health insurance, severance pay and advance salary, employment insurance (involuntary unemployment can qualify for unemployment benefits), labor retirement and other employer responsibilities follow.

Some agricultural workers are employed on fixed-term contracts, but once the employment period exceeds the specified period, the employer does not indicate the termination of the contract at the end of the agreed period, or the employment is continued, it is possible to convert the short-term employment relationship into a long-term indefinite contract relationship. From Ministry of Labor

Short-term contract workers and indefinite contract workers. (from Ministry of Labour)

Lawyer suggested that farmers find a third party to act as the employer's dispatch manpower

"Simply put, the significance of applying the LSL lies in the legal establishment of the employer-employee relationship, and once the employer's responsibility is recognized, it is very important. The labor base law regards labor as the weak party protected by law, and since the profit is also earned by the employer, all risks and costs of the production process should be borne by the employer." he said.

He is very sympathetic to the risk of farmers violating the law. In order to avoid asymmetric employer responsibilities borne by vulnerable farmers, there are several ways to suggest: first, if there is a long-term labor exchange relationship, they can also form their own labor cooperatives. If there is a need for work, they can be called cooperatives to dispatch workers. Members are both bosses and employees and there is no significant labor-employment relationship; Second, the procurement of dispatched manpower by a third party as an employer, such as agricultural masters and agricultural technical groups provided by farmers 'associations, is a way to protect small farmers from mistakenly touching the legal employer's responsibilities.

Liu Yantian has reservations about the proposal of the Council of Agriculture to allocate labor services by contract because it may lead to new problems.

Farmers 'groups: In order to protect farmers from the risk of violating the law, the Agriculture Committee is requested to establish a supporting mechanism from the policy.

Former legislator Tsai Pei-hui, who has long been involved in rural activities, says that farmers have a long tradition of partnering and changing jobs, and that the Ministry of Labor and the Council of Agriculture must work together to find a solution. This is not a single case, and the impact is extensive. However, at this stage, I am quite sympathetic to the situation faced by Mr. CHEUNG Hong-tien and suggest that we find a lawyer to have a good talk.

Wu Dongjie, who has long been concerned about agriculture and assisted Zhang Hongtian in convening coordination meetings, says that the difficulties Zhang Hongtian faces are quite common problems. There is a serious shortage of agricultural workers, and farmers who hire themselves will always encounter the employer's responsibility under the labor base law, resulting in the risk of violating the law. In the face of labor dispute litigation, most can only choose to settle.

"The Council of Agriculture pushed the problem to the Ministry of Labor, the competent organ of the Labor Law, but the Council of Agriculture is the competent organ of agriculture and must propose a policy measure, otherwise it will trap the peasants in injustice and the peasants will be at risk of violating the law without realizing it." Wu Dongjie suggested that agricultural insurance occupational disaster insurance should include this seasonal, temporary employment relationship, otherwise the problem will continue to occur.

Farmer friend: hiring short-term helpers has never thought of insurance, and you don't know where to go in the countryside?

Lin Maosheng, a farmer who grows garlic, sweet potatoes and potatoes in Yunlin, employs more than ten people during busy farming season. After hearing Zhang Hongtian's case, he felt incredible. He said that in addition to farming by himself, he would hire workers everywhere during busy farming season. He would laugh if he could hire workers. He never thought about insurance and thought that labor laws and regulations did not apply to rural reality at all.

Su Jung-tsan, a farmer who grows miscellaneous grains in Tainan, believes that it is impossible not to hire workers during busy farming seasons. If farmers are required to follow the Labor Law, they simply do not know where to go for insurance. Labor laws protecting labor are good, but agriculture is already a fragile industry. If labor laws are too demanding on farmers, they will only stifle this industry or force farmers to break the law, which will eventually lead to the collapse of agriculture.

Employee: rights injured, dignity injured, angry and pursuing judicial channels

The Plaintiff, Mr. Xiao, stated that he had been employed by Zhang Hongtian for more than one year without complaint, but he fell and injured his bones from inspecting the water tower. Beekeeping in the garden was also stung by bees. Zhang Hongtian ignored it and did not give proper treatment. After he was fired, he found that his rights and interests were not insured and wanted to seek private settlement, but Zhang Hongtian refused to reconcile. After the first lawsuit against Zhang Hongtian for "negligent injury" was not prosecuted, Zhang disclosed his personal information and criticized him on the Internet, making him feel humiliated and humiliated before he could seek compensation through judicial channels.

Zhang Hongtian said that Xiao did not file a lawsuit until half a year after leaving office, and he was hospitalized after life and death disaster and could not attend to affairs. He heard about Mr. Xiao's job disaster only after he left office, and did not agree with Xiao's statement.

Zhang Hongtian lamented that retired farmers originally wanted to realize their dreams, but he did not know how many small farmers hired helpers like him. He mistakenly touched the legal trap and lost his trust in people."There is no place to cry injustice" is quite painful and helpless. He hoped that through his own painful price, he would appeal to agricultural government units to establish supporting policies as soon as possible to avoid more innocent farmers from suffering disasters.