Whether a natural person (laborer) and an enterprise, individual economic organization, private non-enterprise unit and other organizations establish an employment relationship or a labor service relationship is not only a question for many enterprise managers, but also a question for many lawyers who have practiced for many years. Lawyers who do not regularly deal with intra-company disputes, especially labor and personnel disputes, are often unable to fully explain the reasons for this issue. However, the labor relationship and the labor relationship are obviously different from the labor cost and illegal risk of the enterprise. How to correctly determine the employment relationship or labor relationship, Mr. Wang will talk about the misunderstanding of labor relations with the case explanation.
Keywords: labor relations, labor relations, labor
1. Brief case study
Plaintiff A stated that he had joined the defendant's military department expo on December 1, 2007, working as a cook and responsible for cleaning. Working hours are from 5 a.m. to 7 p.m. every day, except for statutory holidays, there are no rests, and no paid annual leave is enjoyed. At the end of September 2017, the defendant informed the plaintiff that the plaintiff requested the defendant to pay severance due to the dissolution of the defendant and the inability to continue to perform the labor contract between the two parties.
It was also ascertained that on December 1, 2007, the defendant and the plaintiff signed an Employment Agreement, stipulating that the defendant was responsible for procurement, the plaintiff prepared three meals a day for all employees, and was responsible for the environmental sanitation of the restaurant, and that the plaintiff's pension and medical insurance were to be taken care of by the plaintiff. On January 1, 2016, the two parties signed the "Labor Contract Agreement" again, with job responsibilities and social security as before, and the agreed salary was 2,700 yuan per month. During and thereafter, the two parties signed the "Labor Contract Agreement" several times, and the content was the same.
On September 27, 2017, the defendant notified the plaintiff that in accordance with the provisions of paragraph 5 of Article 44 of the Labor Contract Law, the agreement between the parties was terminated and the party was to move out within a time limit, resulting in a dispute between the two parties.
The plaintiff sued:
1. Confirm the existence of an employment relationship between the two parties from December 1, 2007 to September 27, 2017;
2. The defendant paid the plaintiff more than 30,000 yuan in lieu of notice and economic compensation;
3. The defendant paid the plaintiff more than 30,000 yuan of overtime wages on statutory holidays, more than 130,000 yuan for overtime on weekends, more than 250,000 yuan for overtime work, and more than 60,000 yuan for unused annual leave.
I can't help but wonder:
1. The defendant not only signed the Labor Contract Agreement, but also used the Labor Contract Law as the basis for dismissal, believing that it belonged to an employment relationship, is there any salvation?
2. Can the plaintiff deny the employment relationship if the plaintiff has been working for a fixed time, a fixed position and providing fixed labor for a long time under the arrangement of the defendant?
3. Although the defendant is an internal organization of the military department, but it is not an establishment post, can the employment relationship be denied?
2. Lawyer's opinion
1. The plaintiff does not meet the establishment of non-combat troops and does not have the qualifications to sign the Labor Contract with the defendant;
2. The position engaged in by the plaintiff is a temporary and auxiliary position, and the plaintiff is paid for completing labor tasks, and his personal actions are not subject to administrative subordination and military regulations, so the plaintiff and the defendant are not in a labor relationship;
3. Whether the two parties have established an employment relationship should be determined through evidence and legal norms that can prove the facts of the case, and the defendant's signing of the Labor Contract Agreement and the use of the Labor Contract Law as the reason for terminating the labor relationship are erroneous understandings, which do not affect the fact that the two parties have an employment relationship, not an employment relationship;
4. The two parties are not in an employment relationship, there is no unused annual leave pay, and there is no agreement on whether to pay additional remuneration for extended working hours. In view of the fact that the plaintiff did not submit any evidence to prove the existence of extended working hours and related agreements, the defendant was not required to pay overtime wages and unused annual leave wages.
3. Judges' views
1. The agreement signed by the two parties is called "Labor Contract", but in terms of the content and performance of the agreement, the content of the position is not clarified, and there is no agreement to establish an employment relationship;
2. Although there are management regulations between the two parties, the management only requires the plaintiff to submit labor service results, which is different from the employer's management of employees in the labor relationship.
3. The Employee Certificate issued by the defendant for the plaintiff cannot change the essence of the employment relationship between the two parties.
In summary, all of the plaintiff's claims were dismissed.
4. The main differences between labor relations and labor relations
1. In labor relations, the employer's use and control of labor force is decisive.
The personal dependence of the worker on the employer is reflected in the domination of the labor force. At the location and position agreed upon by both parties, the employer may arrange specific labor tasks according to the needs of operation and management, and has the right to lead and direct the completion time, completion process, and completion standards of labor tasks. Therefore, even if the labor task is not arranged, the employer still needs to pay the labor remuneration if the employee is in a state of standby.
As far as the labor relationship is concerned, the employer generally only requires the laborer to arrange the work according to the demand, and usually only puts forward requirements for the standards and results of the work, and does not involve the requirements for the procedures, methods and processes of the work. The completion of a specific labor task as the consideration for the payment of labor remuneration is a loose cooperative relationship between the two parties.
2. The position of labor relations is related to the main business of the company or enterprise, rather than auxiliary or temporary positions, and the labor provided by the worker is an integral part of the employer's business, and the value of the labor force is directly reflected in the operating income of the company or enterprise.
The work content or position of the labor relationship is generally unrelated to the main business of the company or enterprise, and the completion of temporary, auxiliary and labor tasks does not directly create profits for the company or enterprise.
3. Workers usually hold work cards, wear clothing, and have the identity of representing the company and enterprise to the outside world, which reflects the social relationship between the worker and the employer.
The personal dependence between the worker and the employer is also reflected in the closeness of the social relationship between the worker and the employer. Workers not only hold work badges, uniforms, and email addresses, but also abide by the rules and regulations of the employer, and have the status of a member of the employer.
As far as the labor relationship is concerned, the provider of labor services has an independent social identity, has an equal and independent subject status with the employer, is not dependent on the employer, and has a strong ability to conclude contracts.
5. Special protection of labor relations
1. Special protection
China's labor law and labor contract law have carried out all-round and multi-angle regulation of the rights and obligations of labor relations, and will not be repeated here. In addition to the mandatory legal obligations such as social insurance (or provident fund) and minimum wage, it is also manifested in rest and vacation, special treatment for female employees, injuries and illnesses sustained in the line of duty, and economic compensation for the labor force.
2. Additional Restrictions
The constraints on employees can be manifested in non-competition restrictions and compliance with enterprise rules and regulations, and at the same time, employees should of course fulfill their duty of loyalty to the employer, which is in line with the principle and spirit of good faith.
[Lawyer Wang Li's WeChat/Phone: 13564319271 19921867328]
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Lawyer Wang Li is a senior lawyer of Shanghai Rongfu Law Firm, with ten years of experience in civil and commercial litigation, long-term agent of various major and difficult civil and commercial litigation cases, has accumulated rich practical experience and litigation skills, is familiar with the litigation business process and dispute resolution strategy of corporate equity disputes, contract disputes, real estate disputes and enterprise labor and personnel disputes, and has served as the legal counsel of Baode Road Street, Zhabei District, Shanghai, Linfen Road Street, Zhabei District, Shanghai, and the legal aid lawyer of Shanghai. Personal legal counsel, as a representative of outstanding young lawyers, shares and exchanges practice experience with young colleagues in the law firm, and has been widely praised and affirmed by the parties and consultants with their sense of responsibility, patience, professionalism and professionalism.
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