The ACFTU released 10 typical cases of labor relations confirmation disputes for new employment forms. When the same profession encounters a dispute, the court hearings have completely different results——

  What pits need to be avoided when confirming labor relations

  Our reporter Zheng Li Hao He

  "Worker's Daily" (07 December 09, 2021)

  On December 1, the Legal Work Department of the All-China Federation of Trade Unions released 10 typical cases of labor relations confirmation disputes for new employment forms to the public, and invited outstanding lawyers nationwide to protect the rights and interests of employees to analyze and comment one by one, hoping to give new employment forms to the society. They are guided by laws and policies.

Among them, there are groups such as takeaway delivery staff, online car-hailing drivers, truck drivers, online anchors, online chefs, etc. The content of disputes covers the identification of work-related injuries, wages and compensation payments, post-retirement social insurance and economic compensation payments, and online After the platform resigns, salary payment and many other aspects.

  The relevant person in charge of the Legal Affairs Department of the ACFTU told the "Worker Daily" reporter that in recent years, compared with the traditional employment mode, the new employment mode has changed in terms of working hours, working location, and management mode. The legal relationship of labor is often separated from the labor relationship, which leads to the problems of no social insurance and no safety guarantee.

  In the published typical cases, workers from the same industry have obtained different judgment results. What are the reasons?

How should workers avoid the "pits" that are difficult to confirm the labor relationship?

  Takeaway courier

  If an accident occurs during work, can it be regarded as a work-related injury?

  【Replay of the case】

  Liu went to a distribution center as a takeaway food delivery rider on the E platform in February 2018, and the two parties did not sign a labor contract.

In September 2019, Liu was injured in a traffic accident during the delivery.

To apply for a work-related injury, the first step is to confirm the labor relationship.

However, the distribution center believes that Liu's job is to provide food delivery services for the takeaway platform, and denies the existence of labor relations.

  In October 2020, Liu applied for labor arbitration, and the arbitration award confirmed the existence of a labor relationship between the two parties.

The distribution center refused to accept it and filed a lawsuit to the court.

  Liu submitted to the court a screenshot of the distribution center's schedule, employee absences and early leave fines information, morning meeting schedules, and lateness and absence fines; pay slips, payrolls, and monthly bank transfer records.

The most powerful evidence is that he provided the "Proof of Work" and "Certificate of Lost Time and Wages" that the distribution center issued to him after the accident.

The court finally determined that Liu had a labor relationship with the distribution center.

  Similar demands, Hu and Zhou, who are both take-out delivery staff, are not so lucky.

  In Hu XX's case, a courier company signed a distribution agency cooperation agreement with a certain information company, and the courier company operated the distribution business, while Hu XX was engaged in food delivery at the outsourced M company's distribution point without signing a labor contract.

During a meal delivery, Hu was injured in a traffic accident.

Later, he asked the information company to identify a work injury, but was rejected.

Hu Moumou applied for arbitration and later brought a lawsuit to the court, but the labor relationship was not confirmed.

  In another case, Zhou registered as a rider on two platforms A and B developed and operated by an information company.

In 2018, Zhou was injured in a traffic accident on the way to deliver meals and asked the information company to identify a work injury.

However, the "B Platform User Agreement" clearly "only provides information matching services" and "no labor/employment relationship of any kind"; it does not limit the working area, does not provide labor tools, does not pay the basic salary, only calculates the commission, and the registered riders are free to grab orders .

After arbitration and court trials, the labor relationship was not confirmed.

  [Lawyer's statement]

  Liu's luck is that he retains sufficient evidence.

According to Du Wei, a lawyer from Sichuan Weixu Law Firm, the court of second instance focused on the review of the "Work Certificate" and the "Proof of Lost Time and Suspension of Wages" issued by the distribution center.

These two certificates show that Liu and the distribution center comply with the provisions of Article 1 [2005] No. 12 issued by the Ministry of Labor and Social Security.

  The "Notice on Matters Concerning the Establishment of Labor Relations" issued by the former Ministry of Labor and Social Security in 2005 is the main policy basis for the current determination of factual labor relations.

Among the requirements: employers and workers meet the subject qualifications stipulated by laws and regulations; various labor rules and regulations formulated by the employer according to law are applicable to workers, and workers are subject to the labor management of the employer and engage in paid labor arranged by the employer ; The labor provided by the laborer is an integral part of the employer’s business.

  According to Lu Jingbo, a lawyer at the Shanghai Jiang Triangle Law Firm, in Hu XX's case, whether it is the cooperative relationship between the information company and the courier company or the contracting relationship between the courier company and M company, it is impossible to determine that Hu XX has established a labor relationship with the information company. .

Zhou has been aware of the "no labor relationship with the rider" clearly stated in the "B Platform User Agreement".

The information company's management of rider customer satisfaction, complaints and other issues belongs to business quality and efficiency management, which is a necessary measure for business operations, and it is fundamentally different from the employment management in the labor law.

  At present, the most common models of platform companies are direct sales, agents, and crowdsourcing.

The first model directly signs labor contracts to establish labor relations; the second and third models do not have a clear legal relationship with the delivery staff, or constitute a contracting relationship or a business cooperation relationship.

  "Workers with new forms of employment need to increase their risk awareness and self-protection capabilities." Du Wei and Lu Jingbo believe that workers must be clear about the type of employment mode they enter on the platform, and sign labor contracts or other forms of written agreements in a timely manner , And pay attention to collecting evidence that can prove the actual work situation, and protect rights and interests through legal channels.

  Ride-hailing driver

  Can the service or lease agreement prove the labor relationship?

  【Replay of the case】

  In 2017, Liu XX registered on the online car-hailing platform operated by a technology company, and provided his own vehicle to provide car driver services. The "Express Car Service Agreement" stipulates that the company only has an affiliated cooperative relationship with all drivers who provide online car-hailing services. There is no labor relationship.

In 2019, Liu XX died of a sudden illness in a registered vehicle he drove.

His relatives believe that Liu XX has a de facto labor relationship with the technology company.

After the trial, neither the arbitration nor the court affirmed the labor relationship.

  The court of second instance held that Liu XX provided special car services to customers by taking orders, and he could decide by himself whether and when he would log in to the network platform software to take orders. The remuneration he received was determined based on the amount of orders he chose.

The uniform dress code required by the technology company, reporting on time, receiving training, being late after receiving an order or being complained during the service process will be punished, etc., should be regarded as the performance requirements and standards put forward by the online car-hailing driver, and it does not meet the labor The degree of management cannot be used to determine the existence of a labor relationship between the two parties.

  Xu Moumou, the online car-hailing driver, has not been confirmed to have a labor relationship after undergoing labor arbitration and two court trials.

  Xu XX became an online car-hailing driver through a recruitment advertisement issued by a company. The two parties signed an "Online-hailing Car Rental Agreement", agreeing to lease the company's car to Xu XX, and clarified the rent, lease period, etc.

In the meantime, the company purchased social insurance for Xu XX, and the expenses were shared by both parties in proportion.

  After more than four months, Xu XX terminated the lease relationship with the company, requesting the company to pay the wages in arrears on the grounds that the two parties had a labor relationship, and did not sign a written labor contract twice the wage difference and issued a labor relationship termination certificate for him.

  After the trial, the court held that to determine whether it meets the criteria for determining labor relations, attention should be paid to the employer's labor management and control over laborers.

In this case, Xu Moumou signed the "Online Car Rental Agreement" with the company. Xu Moumou can know whether to take orders and working hours by himself. The method of obtaining labor remuneration is not from the company. In terms of personality, economics and organization The above degree of dependence on the company is slight, so it is not a labor relationship.

  [Lawyer's statement]

  Dong Mei, a lawyer from Beijing Weiheng Law Firm, believes that the "Notice on Matters Concerning the Establishment of Labor Relations" issued by the former Ministry of Labor and Social Security in 2005 is relatively lagging behind the determination of labor relations under new employment forms.

  On July 16, 2021, the "Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Employment Forms" jointly issued by eight departments including the Ministry of Human Resources and Social Security and the ACFTU stated that companies should be Circumstances, but the enterprise assumes corresponding responsibilities for the protection of the rights and interests of the workers in the new employment form of labor management.

  Huang Leping, director of Beijing Yilian Labor Law Aid and Research Center, said that the “Guiding Opinions” conveyed the country’s encouragement and support for new forms of employment, but at the same time it also put forward clear and specific rectification directions and normative opinions. It provides strong support to solve the problem of labor rights protection of laborers in new employment forms.

  truck driver

  Is there no labor relationship without signing a labor contract?

  【Replay of the case】

  Since February 2020, Mr. Wu has driven a logistics company's truck to deliver goods on a fixed route, and the two parties have not entered into a labor contract.

In May 2020, Wu had a traffic accident and requested a logistics company to identify a work injury.

Wu applied for arbitration and then went to court.

Neither the arbitration nor the court affirmed the labor relationship.

  After hearing the court, the court held that the evidence in this case shows that Wu and the logistics company distribute income proportionally, and Wu does not need to accept the daily attendance and rules and regulations of the logistics company, so it is difficult to determine that the two parties have economic and personal aspects of the labor relationship. Dependency.

  On the contrary, the truck driver Xie Mou's request for confirmation of labor relations was supported by the court.

  Xie drove a vehicle under the name of a group company to transport chickens. During work, he was required to wear the "Flotilla Driver Pass" issued by the company and abide by the company's regulations and employee regulations, but the two parties did not sign a labor contract.

At the end of 2019, Xie Mou reached the statutory retirement age and resigned, requiring the company to pay social insurance and economic compensation.

The group company denied the labor relationship on the grounds that the transportation of livestock and poultry was not in its business scope and that Xie was hired by the outsourcing party to manage the transportation business.

The case did not confirm the labor relationship in the labor arbitration and the first instance, and the second instance was revised to confirm that the two parties had a factual labor relationship.

  The key points of Xie’s victory can be seen from the second-instance judgment: First, Xie drove a car under the company’s name to work as a transport driver. During work, he wore the fleet driver pass issued by the group company, accepted the group company’s management, and abide by the company. The relevant regulations formulated are in line with the main qualifications for establishing labor relations as required by laws and regulations; the second is that Xie’s transportation work is an integral part of the group company’s business, and the two parties have established a de facto labor relationship.

  [Lawyer's statement]

  At present, there are different types of employers and labor providers in the logistics industry, including e-commerce platform self-operated transportation companies, professional logistics companies, flexible labor personnel, affiliated operating fleets (self-employed), self-contracted car drivers, etc. The legal relationship between different subjects often has different characteristics.

  Shi Fumao, a lawyer at Beijing Fumao Law Firm, said that some employers will use shell companies, layered subcontracting and other forms to make the real labor relationship difficult to detect. If the traditional labor law continues to judge whether the labor relationship is established or not. Standards, it is easy to appear inconsistent with water and soil.

Therefore, in practice, we should have the courage to break through the judging method of the existence of general labor relations, and grasp the core standards of the existence of labor relations to make substantive judgments.

  Webcaster

  What is the routine behind the signed agreement?

  【Replay of the case】

  A jewelry company and a technology company signed the "E-commerce Platform Live Broadcast Cooperation Agreement", agreeing that the technology company will open a live broadcast room for the jewelry company on the F platform, and the jewelry company will provide goods and hire people to live broadcast the explanation and sales.

Cen Moumou, the legal representative of the jewelry company, notified Wang Moumou to interview the anchor of the F platform. The two parties agreed on the basic salary, commission ratio and working hours through WeChat. The monthly income was paid by Cen Moumou via WeChat or Alipay. There was no labor contract.

At the same time, Wang Moumou signed the "Anchor Confidentiality Agreement" with the technology company.

After Wang Moumou resigned and asked for a commission, the jewelry company denied the labor relationship.

Wang Moumou applied for arbitration and then filed a lawsuit in the court.

Both the arbitration and the court found that Wang had a labor relationship with the jewelry company.

  In another case, also in the field of webcasting, a brokerage contract closed the door to confirm labor relations.

  The network anchor Xu XX signed the "Anchor Brokerage Contract" with a media company, stipulating the relationship between the contracted artist and the brokerage company. The media company pays the anchor's labor income in proportion to each month (mainly obtained through fan rewards), and has the right to supervise and review Xu XX's behavior.

Xu XX broadcasts live on a third-party platform, and the live broadcast room is registered by a media company.

Later, Xu Moumou resigned on the grounds that the media company did not pay labor remuneration, and applied for arbitration to demand economic compensation. The media company claimed that the two parties were in a cooperative relationship, and then both parties filed a lawsuit in the court.

Neither the arbitration nor the court affirmed the labor relationship.

  [Lawyer's statement]

  One confirmed the labor relationship, but the other was not confirmed. What is the difference between the two cases?

  Regarding Wang Moumou's case, Huang Jiayan, a lawyer at Fujian Jinlei Law Firm, believes that whether the labor relationship is established cannot be presumed based on the content of the written agreement alone.

Although Wang Moumou signed the "Anchor Confidentiality Agreement" with the technology company, it was actually the legal representative of the jewelry company who recruited Wang Moumou, arranged for him to work in the live broadcast room, and paid monthly labor remuneration, proving that Wang Moumou accepted jewelry The company’s labor management constitutes a labor relationship.

  Regarding Xu Moumou's case, Wu Shengli, a lawyer from Hubei Weili Law Firm, said that the acting brokerage relationship is different from the labor relationship and has characteristics different from the traditional labor relationship.

In this case, the income from live broadcasting of the performing arts was mainly obtained through webcasting to attract fans to give rewards. The brokerage company and the anchor distribute the income according to the proportion agreed in the cooperation agreement, which is different from the direct payment of labor remuneration by the employer to the laborer.

  Internet chef

  Can a labor relationship be denied by signing a cooperation agreement?

  【Replay of the case】

  The "G Chef" APP operated by an information company is a platform for online appointment of chefs to provide cooking services.

Mr. Zhang was introduced to work as a chef in the "G Chef" APP, and the two parties signed a "cooperation agreement" without signing a labor contract.

A few months later, Zhang claimed that the information company illegally terminated the labor relationship and demanded payment of wages, economic compensation, and compensation.

The information company advocates that the two parties are in a cooperative relationship and denies the labor relationship.

Zhang applied for arbitration and then went to the court to provide proofs such as a detailed list of bank card account history, deposit receipts, work clothes and backpacks.

The court found that there is a labor relationship.

  [Lawyer's statement]

  Shi Fumao said that the information company assigns, dispatches, rewards and punishes Zhang, and pays a relatively fixed remuneration on a monthly basis. Zhang is subject to the labor management of the information company, and the work content and workplace are subject to the work arrangement; both parties meet the requirements of the employer and the worker. Subject qualifications, Zhang mainly provides chef skills services, which is the main business of the information company.

Therefore, the relationship between the two parties conforms to the essential characteristics of labor relations.

  After analyzing 10 typical cases, several national outstanding lawyers in safeguarding the rights and interests of employees believe that confirming the labor relationship is the best and most basic protection for workers.

Under the Internet, new employment models emerge in endlessly. Even if the performance of the labor contract changes, the nature of the labor relationship has not changed.

But at the same time, it should be noted that when some concepts appear in the field of new employment forms in the identification standards, the interpretation and understanding should keep pace with the times.

  From a fixed office location to today's uncertain workplace; from an 8-hour work system to task completion as the standard; from manual labor to system allocation, and practitioners grab orders; from on-site supervision to "algorithmic" statistics... when the Internet Technology runs through the entire labor process, and how to put more workers in new forms of employment under the "protective umbrella" of the law has become an important issue that needs to be resolved urgently.

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