Is the heat allowance the same thing as the heatstroke prevention and cooling fee? Can the court uphold the claim for a separate heat allowance? Asking for a time limit for a high temperature allowance? Who bears the burden of proof?
"Every June, wages are bound to rise." Mr. Ding, a courier at Shenzhen SF Express, took out his mobile phone, opened last month's payslip, pointed to the item, and said with a smile that there would be an additional item soon - a high temperature allowance of 300 yuan/month.
The summer solstice has arrived, the temperature is rising day by day, and the topic of "high temperature rights" of workers is also "hot".
The so-called high temperature allowance refers to the fact that workers who are engaged in high temperature work are entitled to post allowance in accordance with the law. According to the Measures for the Administration of Heatstroke Prevention and Cooling Measures, if an employer arranges an employee to work outdoors in a hot weather above 35°C and fails to take effective measures to reduce the temperature of the workplace to below 33°C, it shall pay the employee a high temperature allowance and include it in the total salary.
However, in practice, some employers "cold treat" the high-temperature allowance that workers with high-temperature work are legally entitled to, and do not issue it, or replace it with heatstroke prevention and cooling "benefits" such as cool drinks, watermelon, and heatstroke prevention drugs.
Can the high temperature allowance be replaced by heatstroke prevention and cooling "welfare"?
"The high temperature allowance is a subsidy project stipulated by the state, and the heatstroke prevention and cooling fee is a corporate welfare." Judge Huang Zhenguang of the Labor Dispute Division of the Shenzhen Intermediate People's Court suggested that employers should strictly protect the legitimate rights and interests of employees in accordance with the law, and that the nature of the payment should be clarified in the wage slip when issuing the high temperature allowance, so as to avoid the inability to prove that it has paid the high temperature allowance to the employee in the event of a dispute.
Some workers don't know what the high temperature allowance is
"I didn't have a high temperature allowance, and I didn't mention it to my boss." Mr. Yi, from Yueyang, Hunan Province, is a construction worker.
When asked why he did not ask the "contractor" for a high-temperature allowance, Mr. Yi bluntly said that most construction workers do not have a high-temperature allowance. "I came out with my fellow villagers to do it, and if I send it to one person, I have to send it to all the workers."
Recently, when the reporter interviewed outdoor workers such as construction workers and online delivery workers, it was found that many workers had not received high temperature allowances, and some were still unaware of this "heat right". Taking construction workers as an example, after inquiring about a number of construction companies and project sites under construction, the reporter of "Workers' Daily" learned that most of the "labor workers" have not received high temperature allowances. "We will carry out summer cooling activities, and send mung bean soup, Huoxiang Zhengqi water and other heatstroke prevention products at the construction site." A staff member of a construction group in South China said.
"The heat allowance is not the same thing as the heatstroke prevention and cooling fee." Huang Zhenguang introduced that the high temperature allowance is an allowance that the employer should pay to the worker in accordance with the law, and there are corresponding administrative rules to regulate and restrict. If the employer fails to pay the employee the high temperature allowance in accordance with the law, the employee may seek relief in accordance with the law. The heat allowance needs to be paid in monetary form (cash). The heatstroke prevention and cooling fee is part of the company's welfare expenses, and there is no mandatory provision in the current laws and regulations.
"The two are also distributed in different ways." Tan Zicheng, a lawyer at Guangdong Penghao Law Firm, added that the high temperature allowance is included in the total salary, and the heatstroke prevention and cooling allowance can be paid in cash, or in kind such as cold drinks and heatstroke prevention supplies.
"The litigation claims of labor disputes are complex, so employees generally claim high temperature allowance together when they have other labor disputes with the employer." Huang Zhenguang told reporters that in the cases encountered in practice, there are almost no employees who claim their rights against the employer for the high temperature allowance alone. He explained that the amount of the heat allowance is not high and is only available for a certain number of months each year. It is more expensive for workers to sue for heat allowance alone.
There is also a "shelf life" for the right to ask for a high temperature allowance
On June 9, 2015, Ms. Hu joined a children's bedding company in Shenzhen as a flat car lathe. On February 28, 2022, Ms. Hu had a labor dispute with the company due to the company's failure to pay overtime wages and high temperature allowances.
Regarding the high temperature allowance, Ms. Hu believes that the company should pay a high temperature subsidy of 4,500 yuan in 2015~2020 and a high temperature subsidy of 1,500 yuan in 2021. "If the company fails to provide evidence to prove the existence of cooling equipment in the employee's workplace and the temperature in the workplace does not exceed 33°C, it shall bear the legal consequences of failing to provide evidence." The People's Court of Guangming District, Shenzhen, held that the company should pay Ms. Hu a high temperature allowance of 1,500 yuan in accordance with the law.
"Regarding the request for high temperature subsidy from 2015 to 2020, the court did not support it because the statute of limitations for arbitration had expired." Talk about self-containedness. The reporter learned that from June 1, 2021, the high temperature allowance standard stipulated by Guangdong Province will be adjusted from 150 yuan per person per month to 300 yuan per person per month. Article 27 of the Law on Mediation and Arbitration of Labor Disputes stipulates that the limitation period for applying for arbitration of labor disputes is one year. "The high temperature allowance is an ordinary labor dispute claim, and the limitation period for applying for arbitration is one year." Huang Zhenguang said.
"The key to evidence collection is whether the burden of proof belongs to the worker or the employer." Talking about the difficulties of workers in protecting their rights regarding the high temperature allowance, Tan Zicheng said that at present, in Guangdong, when the employer fails to provide evidence to prove that the employee has paid the high temperature allowance for the employee to engage in outdoor work and cannot take effective measures to reduce the temperature of the workplace to below 33°C, the employee's claim for the high temperature allowance should be supported. In other places, due to the lack of clear provisions, there are situations where the judicial authorities still follow the principle of "whoever asserts the claim, who shall present the evidence".
"In this case, there is a risk that the employee's claim for high temperature allowance will not be supported because the evidence cannot be adduced." Tan Zicheng believes that workers need to provide evidence to prove that the temperature of their working environment does meet the high temperature allowance standard stipulated by law, which may require professional temperature measurement equipment and records; Second, the worker needs to provide evidence to prove the specific period of time he or she worked in the hot environment. Workers do not have temperature measurement equipment and a specific time period record for working in a high-temperature environment.
Whether there is a high temperature allowance or not is related to the labor relationship
In recent years, with the rapid development of the Internet economy, a large number of online delivery workers have emerged among the employed population, and their high-temperature rights and interests have also attracted attention.
On June 14, 2021, Mr. Li joined a freight forwarding company and registered as a rider of a delivery platform, and left on June 30 of the following year. On January 4 last year, Mr. Li applied for labor arbitration. The company asserts that there is a cooperative relationship between the two parties. On April 25 of the same year, the Arbitration Commission ordered the company to pay Mr. Li a lump sum of RMB 300 for the period from June 1 to June 30, 2022.
At the trial, the Guangzhou Huangpu District People's Court held that whether there was an employment relationship between the employee and the employer was a prerequisite for whether the claim for high temperature allowance could be supported. Based on the evidence on record, the court found that an employment relationship had been formed between Mr. Li and the freight company.
On the issue of the high temperature subsidy, the court held that the company did not take cooling measures against Mr. Li, who was basically working outdoors as a rider. From June 1 to June 30, 2022, the temperature in Guangzhou has been above 33°C, and the company should pay its high temperature subsidy of 300 yuan.
"For workers in the new form of employment who work outdoors, the key point of protecting the rights of high temperature allowance is whether there is an employment relationship. If it can be determined that there is an employment relationship and that it is an outdoor operation, the employee's claim for high temperature allowance can basically be supported. "That's what I said.
Source: Beijing Daily client
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