Festivals and holidays are peak periods for migrant workers to claim their remuneration. However, under the operation mode of multi-level subcontracting in the construction industry, involving numerous subjects such as migrant workers, team leaders, contractors, subcontracting enterprises, general contracting enterprises, and construction units, determining the litigation subject during a lawsuit often puzzles migrant workers.

I. Doubts about Legal Provisions

Article 1 of the Interim Measures for the Administration of Wage Payment to Migrant Workers in the Construction Field (hereinafter referred to as the Interim Measures) and Article 2 of the Measures for the Administration of Payment of Labor Remuneration to Migrant Workers in the Construction Field of Hunan Province (hereinafter referred to as the Administrative Measures) both stipulate that these laws apply to construction enterprises and migrant workers who have established labor relations with them. If no labor relationship is formed, the provisions of Article 12 of the Interim Measures and Article 8 of the Administrative Measures shall not apply, i.e., if the project owner or contractor contracts or subcontracts the project to an organization or individual that does not have the corresponding qualification conditions, it shall bear joint and several liability for the payment of labor remuneration.

Whereas the Supreme People's Court stipulates in Article 59 of the Summary of the National Civil Trial Work Symposium:

Where a worker recruited by an actual constructor requests confirmation of the existence of a labor relationship with the project owner who has the qualification for employing entities, such request shall not be supported.

And in Article 26 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Construction Project Construction Contracts, it is stipulated that:

Where an actual constructor claims rights against the project owner as the defendant, the people's court may add the subcontractor or the illegal subcontractor as a party to the case. The project owner shall be liable to the actual constructor only within the scope of the unpaid project price.

This gives rise to three questions:

1. If a labor relationship cannot be identified between a migrant worker and an enterprise, can the migrant worker only be identified as an actual constructor?
2. There are a large number of migrant workers, who often elect a team leader to sue on their behalf. Is the team leader a migrant worker or an actual constructor?

3. Can a lawsuit be filed against the general contracting enterprise or subcontracting enterprise only in the limited circumstance where they have not fully paid the project funds to the contractor?

II. Case Comparison

(I) Judgment of Hunan Provincial Higher People's Court (2014) Xiang Gao Fa Min Zai Zhong Zi No. 181

Tang, the team leader, signed a labor service contract with Yue, the contractor, agreeing that the labor service fee would be calculated at 400 yuan per ton of steel bars, and paid a quality deposit of 100,000 yuan. Due to Yue's failure to fully pay the labor service fee, Tang sued Yue, as well as the subcontracting enterprise and general contracting enterprise that subcontracted the project to Yue, to the court.

Court Ruling:

• Tang was identified as the actual constructor of the labor service project, rather than a laborer
• The claim he made was for labor service contracting fees, which could not be applied to the Interim Measures and the Administrative Measures
• Since the subcontracting enterprise and general contracting enterprise did not owe Yue project funds, only Yue was ordered to be liable to Tang

(II) Judgment of Hunan Provincial Higher People's Court (2016) Xiang Min Zai No. 180

Wei and 3 other persons led migrant workers to engage in labor service projects. Due to Li, the contractor's failure to fully pay the remuneration, Wei and others sued Li to claim payment of migrant workers' wages, and demanded that the subcontracting enterprise and general contracting enterprise bear joint and several liability.

Court Ruling:

• With reference to the Interim Measures, the court ruled that the subcontracting enterprise and the contractor shall bear joint and several liability for payment
• The general contracting enterprise shall be liable within the scope of unpaid project funds

Comparative Analysis

In the above two cases, the subjects seem to be similar: the plaintiffs were all team leaders leading migrant workers, and the defendants were all contractors, subcontracting enterprises, and general contracting enterprises. Why was the former characterized as a dispute over a labor service contract, while the latter as a dispute over claiming labor remuneration, resulting in vastly different handling outcomes?

III. Analysis

Migrant workers recruited by contractors do not have the characteristics of a labor relationship with enterprises. Under special circumstances, the employing entity liability as stipulated in Article 4 of the Notice on Matters Concerning the Determination of Labor Relations shall be established. The employing entity liability includes both industrial injury insurance liability and the payment of remuneration to migrant workers, which the author has discussed in the article "Whether a Labor Relationship is Established Between Construction Enterprises and Migrant Workers".

However, the scope of application is limited to workers who exchange their own labor for remuneration. An actual constructor who signs a contract with a subcontracting enterprise or other contractors and obtains benefits in addition to the work remuneration of the migrant workers under them by means of pricing based on project quantity, area, etc., has no legal right to pursue the employing entity liability of the subcontracting enterprise.

Therefore, seemingly identical subjects differ due to their different positions in the project benefit distribution structure.

IV. Choice of Litigation Path for Migrant Workers to Claim Remuneration

Migrant workers should select the litigation subject according to different situations when claiming remuneration:

First, when the number of migrant workers is small, or the team leader/contractor refuses to pay the remuneration and is unwilling to file a lawsuit for various reasons

• May personally file a lawsuit for claiming labor remuneration
• Name the subcontracting enterprise as the defendant bearing joint and several liability

Second, when there are a large number of migrant workers and the team leader agrees

• The team leader may collect the work records of all migrant workers and the settlement statement of payable remuneration
• File a lawsuit for claiming labor remuneration on behalf of the migrant workers
• Name the subcontracting enterprise as the defendant bearing joint and several liability

Third, when the subcontracting enterprise/general contracting enterprise fails to pay the project funds to the team leader/contractor, resulting in their inability to pay the migrant workers

• The team leader or contractor may act as the plaintiff
• File a lawsuit for labor service contract dispute against the defendant subcontracting enterprise and general contracting enterprise
• After obtaining the project funds including their personal income, pay the remuneration to each migrant worker