According to the news of the WeChat public account of the Supreme People's Court on May 5, the Ministry of Human Resources and Social Security and the Supreme People's Court jointly released typical cases of labor disputes in new employment forms, which are of great significance to effectively improve the quality and efficiency of handling labor dispute cases in new employment forms and fully realize the benign development of the platform economy and the mutual promotion of the protection of workers' rights and interests.
In recent years, with the rapid development of the Internet platform economy, the protection of labor security rights and interests of workers in new employment forms has received widespread attention from the society. In this regard, the cases cover the main types of industries and common employment methods of the platform economy, implement the guiding opinions of eight departments, including the Ministry of Human Resources and Social Security and the Supreme People's Court, on safeguarding the labor security rights and interests of workers in new employment forms, adhere to the principle of "facts first" in determining labor relations, and determine the relationship between enterprises and workers based on the facts of employment; Clarify the idea of "subordinate attribute + elemental" labor relationship identification, combine the factors such as the degree of independent determination of working hours and workload by workers in the actual employment of the platform, comprehensively analyze the personality subordination, economic subordination and organizational subordination between workers and enterprises, strengthen the comprehensive consideration of the degree of labor management, and make key specifications for the identification standards that meet the circumstances of establishing labor relations; Illegal employment behaviors such as circumventing employers' obligations through entering into civil cooperation agreements, "fake outsourcing of real employment", and inducing workers to register as individual industrial and commercial enterprises shall be corrected, so as to effectively protect the legitimate rights and interests of employees.
In the next step, the two departments will continue to strengthen joint research on the handling of labor dispute cases in new employment forms, actively promote the improvement of laws and policies on labor protection rights and interests of workers in new employment forms, increase guidance for labor and personnel dispute arbitration institutions and people's courts in handling cases, and standardize employment and rational rights protection of workers through dispute case handling guidance platforms and their cooperative enterprises, so as to better realize the organic unity of political, legal and social effects of labor dispute resolution.
Ministry of Human Resources and Social Security Letter [2023] No. 36
Ministry of Human Resources and Social Security
Supreme People's Court
Regarding the joint release of the third batch of labor and personnel disputes
Notification of typical cases
Human Resources and Social Security Departments (Bureaus), Higher People's Courts, PLA Military Courts, Human Resources and Social Security Bureaus of the Xinjiang Production and Construction Corps, and Production and Construction Corps Branches of the Higher People's Court of Xinjiang Uygur Autonomous Region:
In order to deeply study, publicize and implement the important deployment of the 2021th National Congress of the Communist Party of China on supporting and standardizing the development of new employment forms, strengthening flexible employment and the protection of the rights and interests of workers in new employment forms, promoting the implementation of the Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Employment Forms (Ministry of Human Resources and Social Security Fa [56] No. <>), and fully realizing the benign development of the platform economy and the mutual promotion and progress of the protection of workers' rights and interests, the third batch of typical cases of labor and personnel disputes is hereby released, and local arbitration institutions and people's courts are requested to refer to them in case handling.
Ministry of Human Resources and Social Security Supreme People's Court
April 2023, 4
(This piece is voluntarily disclosed)
(Contact unit: Mediation and Arbitration Department, Ministry of Human Resources and Social Security)
Typical cases of labor and personnel disputes
(Third batch)
Contents
▪ Case 1. How to determine whether there is an employment relationship between the driver of the ride-hailing truck and the platform enterprise?
▪ Case 2. How to determine whether there is an employment relationship between online delivery personnel and platform enterprises?
▪ Case 3. How to determine the labor relationship of a takeaway platform employment cooperative enterprise that recruits online delivery workers through a labor service company?
▪ Case 4. Can an employee's registered individual industrial and commercial enterprise enter into a cooperation agreement with a platform enterprise or its employment cooperative enterprise, and can the employment relationship be recognized?
▪ Case 5. How to determine whether there is an employment relationship between the online anchor and the cultural communication company?
▪ Case 6. How to determine whether there is an employment relationship between online domestic service workers and domestic service companies?
Case 1.
How to determine whether there is an employment relationship between the driver of the ride-hailing truck and the platform enterprise?
Basic facts of the case
On June 2020, 6, Liu entered into a one-year "Vehicle Management Agreement" with an information technology company, stipulating: Liu established a cooperative relationship with an information technology company; Liu has 14 medium-sized van to provide cargo transportation services, and he must accept the company's dispatch and drive the vehicle in a certain city area through the company's platform, complete at least 1 orders every day, and receive multiple orders to give additional order rewards; An information technology company settled the cargo transportation fee with the customer through the platform, paid Liu a monthly transportation service fee of 1,4 yuan and incentive money, and reimbursed the fuel fee, road toll, parking fee, etc. separately. During the period when Liu was engaged in transportation, he signed in on the company's platform every day and accepted platform dispatches, and the running time was more than 6000 hours. An information technology company tracked the completion of Liu's orders through the platform, and when Liu received more than 8 orders per day, he was rewarded with an additional order of 4 yuan per order, and when the number of orders received was less than 70, unexcused refusal, transportation overtime, cargo damage, etc., part of the service fee was deducted according to the cost settlement method formulated by the company. On March 4, 2021, an information technology company entered into a "Vehicle Management Termination Agreement" with Liu, stating that the company and Liu agreed to terminate the cooperative relationship early due to the adjustment of the operation plan. Liu believes that the labor relationship between him and an information technology company has actually been constituted, and the actual legal consequence of terminating the cooperation is the termination of the labor relationship, and the information technology company should pay economic compensation. An information technology company denied the existence of an employment relationship and refused to pay economic compensation on the grounds that the two parties had agreed in writing to establish a cooperative relationship, and Liu applied to the Labor and Personnel Dispute Arbitration Commission (hereinafter referred to as the Arbitration Commission) for arbitration.
Applicant request
Request for an award that an information technology company should pay economic compensation for terminating the labor contract.
Process the results
The arbitration committee ruled that an information technology company paid Liu economic compensation for terminating the labor contract.
Case study
The focus of the dispute in this case is, whether the relationship between Liu and an information technology company is in line with the circumstances under which an employment relationship is established.
Article 2021 of the Labor Contract Law of the People's Republic of China stipulates that "the employer shall establish a labor relationship with the employee from the date of employment", and Article 56 of the Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Employment Forms (Ministry of Human Resources and Social Security Fa [2005] No. 12) stipulates: "Determine the relationship between the enterprise and the employee based on the facts of employment", the above legal provisions and policy spirit reflect that the principle of giving priority to facts should be adhered to in the determination of labor relations. The relevant provisions of the Notice on Matters Related to the Establishment of Labor Relations (Ministry of Labor and Social Affairs Fa [<>] No. <>) reflect that the core feature of labor relations is "labor management", that is, there are personality, economic and organizational attributes between employees and employers. Under the new employment form, due to the great changes in the production and operation mode of platform enterprises, the embodiment of labor management also has many new characteristics. At present, to determine whether there is a labor relationship between workers in new employment forms and platform enterprises, it is necessary to comprehensively consider the existence and strength of personality attributes, economic attributes, and organizational attributes in light of the relevant elements of labor management. From the perspective of personality attributes, it is mainly reflected in whether the working rules, labor discipline, reward and punishment methods, etc. of the platform enterprise are applicable to workers, and whether the platform enterprise can manage and control the labor process of workers by formulating rules and setting algorithms; Whether workers must complete work tasks in accordance with platform instructions, and whether they can independently determine working hours, workload, etc. From the perspective of economic attributes, it is mainly reflected in whether the platform enterprise has important means of production such as data and information necessary for workers to engage in employment, and whether it allows workers to negotiate service prices; Whether the remuneration received by workers through the platform constitutes an important source of income. From the perspective of organizational attributes, it is mainly reflected in whether workers are included in the organizational system of platform enterprises, become an organic part of the production and operation organization of enterprises, and provide services to the outside world in the name of the platform.
In this case, although an information technology company and Liu entered into a vehicle management agreement stipulating that the two parties were cooperative relations, according to the relevant laws and regulations and the spirit of the policy, the nature of the legal relationship between the two parties should still be determined based on the fact of employment. An information technology company required Liu to drive the vehicle himself, send work instructions to Liu through the platform, monitor Liu's work, and reward and punish Liu in accordance with the company's rules and regulations; Liu must comply with the working hours, workload and other requirements stipulated by an information technology company, which reflects a strong personality subordination. An information technology company occupies the data information of user needs and unilaterally formulates service fee settlement standards; Liu's business behavior has strong continuity and stability, and the service fees obtained through the platform constitute his stable source of income, reflecting obvious economic subordination. An information technology company included Liu into its organizational system for management, Liu was its stable member, and provided services to the outside world in the name of the platform, and the cargo transportation business engaged in was an integral part of the business of an information technology company, reflecting a strong organizational subordination. In summary, an information technology company has obvious labor management behavior towards Liu, which meets the circumstances of establishing a labor relationship, and it should be determined that there is a labor relationship between the two parties. The conclusion of the Vehicle Management Termination Agreement between an information technology company and Liu actually constituted the termination of the labor relationship, so Liu's arbitration request for an information technology company to pay economic compensation should be supported.
Typical significance
In recent years, the platform economy has developed rapidly, creating a large number of jobs. At the same time, safeguarding the labor security rights and interests of workers faces many new situations and problems, among which the nature of the legal relationship between platform enterprises and workers has aroused widespread concern in the society. There are differences in employment patterns between different platforms, and some platform enterprises occupy data and information, which is necessary for workers to engage in new forms of employment, and restrict or exert influence on workers' work opportunities, working conditions, working methods, labor income, freedom to enter and exit the platform, etc. by formulating rules and setting algorithms, and benefit from the labor results of workers. Under such a model, the platform enterprise does not provide services such as information intermediary and transaction matchmaking, but organizes and manages the workers so that they can provide services in the name of the platform in accordance with certain models and standards, so it should bear the corresponding legal obligations and responsibilities as the employing entity or employer. In arbitration and judicial practice, labor and personnel dispute arbitration institutions at all levels and people's courts shall pay attention to reviewing platform operation methods, algorithm rules, etc., to find out whether platform enterprises have labor management behaviors towards workers, and determine the nature of legal relationships based on facts.
Case 2.
How to determine whether there is an employment relationship between online delivery personnel and platform enterprises?
Basic facts of the case
徐某于2019年7月5日从某科技公司餐饮外卖平台众包骑手入口注册成为网约配送员，并在线订立了《网约配送协议》，协议载明：徐某同意按照平台发送的配送信息自主选择接受服务订单，接单后及时完成配送，服务费按照平台统一标准按单结算。从事餐饮外卖配送业务期间，公司未对徐某上线接单时间提出要求，徐某每周实际上线接单天数为3至6天不等，每天上线接单时长为2至5小时不等。平台按照算法规则向一定区域内不特定的多名配送员发送订单信息，徐某通过抢单获得配送机会，平台向其按单结算服务费。出现配送超时、客户差评等情形时，平台核实情况后按照统一标准扣减服务费。2020年1月4日，徐某向平台客服提出订立劳动合同、缴纳社会保险费等要求，被平台客服拒绝，遂向仲裁委员会申请仲裁。
申请人请求
请求确认徐某与某科技公司于2019年7月5日至2020年1月4日期间存在劳动关系，某科技公司支付解除劳动合同经济补偿。
处理结果
仲裁委员会裁决：驳回徐某的仲裁请求。
案例分析
本案争议焦点是，徐某与某科技公司之间是否符合确立劳动关系的情形？
根据《关于发布智能制造工程技术人员等职业信息的通知》(人社厅发〔2020〕17号)相关规定，网约配送员是指通过移动互联网平台等，从事接收、验视客户订单，根据订单需求，按照平台智能规划路线，在一定时间内将订单物品递送至指定地点的服务人员。《关于维护新就业形态劳动者劳动保障权益的指导意见》(人社部发〔2021〕56号)根据平台不同用工形式，在劳动关系情形外，还明确了不完全符合确立劳动关系的情形及相应劳动者的基本权益。
本案中，徐某在某科技公司餐饮外卖平台上注册成为网约配送员，其与某科技公司均具备建立劳动关系的主体资格。认定徐某与某科技公司之间是否符合确立劳动关系的情形，需要查明某科技公司是否对徐某进行了较强程度的劳动管理。从用工事实看，徐某须遵守某科技公司制定的餐饮外卖平台配送服务规则，其订单完成时间、客户评价等均作为平台结算服务费的依据，但平台对其上线接单时间、接单量均无要求，徐某能够完全自主决定工作时间及工作量，因此，双方之间人格从属性较标准劳动关系有所弱化。某科技公司掌握徐某从事网约配送业务所必需的数据信息，制定餐饮外卖平台配送服务费结算标准和办法，徐某通过平台获得收入，双方之间具有一定的经济从属性。虽然徐某依托平台从事餐饮外卖配送业务，但某科技公司并未将其纳入平台配送业务组织体系进行管理，未按照传统劳动管理方式要求其承担组织成员义务，因此，双方之间的组织从属性较弱。综上，虽然某科技公司通过平台对徐某进行一定的劳动管理，但其程度不足以认定劳动关系。因此，对徐某提出的确认劳动关系等仲裁请求，仲裁委员会不予支持。
典型意义
近年来，网约配送员成为备受社会关注的群体，如何维护好其劳动保障权益也频频引发舆论热议。在网约配送行业中，平台企业对网约配送员存在多种组织和管理模式。在类似本案的模式中，平台向非特定配送员发送订单信息，不对配送员的上线接单时间和接单量作任何要求，但与此同时，平台企业制定统一的配送服务规则和服务费结算标准，通过设定算法对配送员的配送行为进行控制和管理，并将配送时长、客户评价等作为结算服务费的依据。一方面，劳动者工作时间、工作地点更加自由，不再受限于特定的生产经营组织体系；另一方面，平台企业借助信息技术手段打破了传统用工方式的时空限制，对劳动者实现了更加精细的用工管理。对此，《关于维护新就业形态劳动者劳动保障权益的指导意见》(人社部发〔2021〕56号)明确不完全符合确立劳动关系的情形，并指出相关部门应指导企业与该类劳动者订立书面协议、合理确定双方权利义务，逐步推动将该类劳动者纳入最低工资、休息休假等制度保障范围。在仲裁与司法实践中，应在区分各类情形的基础上分类保障劳动者合法权益，并积极推动完善相关法律政策，进一步畅通劳动者维权渠道，充分实现平台经济良性发展与劳动者权益保护互促共进。
案例3.
外卖平台用工合作企业通过劳务公司招用网约配送员，如何认定劳动关系？
基本案情
某货运代理公司承包经营某外卖平台配送站点，负责该站点网约配送业务。2019年5月27日，某货运代理公司与某劳务公司订立《配送业务承包协议》，约定由某劳务公司负责站点的配送员招募和管理工作。何某于2019年7月28日进入某外卖平台站点工作，并与某劳务公司订立了为期1年的《外卖配送服务协议》，约定：何某同意在某外卖平台注册为网约配送员，并进入某货运代理公司承包的配送站点从事配送业务；何某须遵守某货运代理公司制定的站点工作制度，每周经提前申请可休息1天，每天至少在线接单8小时；何某与某劳务公司之间为劳务合作关系，某劳务公司根据订单完成量向何某按月结算劳务报酬。从事配送工作期间，何某按照某货运代理公司制定的《配送员管理规则》，每天8:30到站点开早会，每周工作6至7天，每天在线接单时长为8至11小时不等。何某请假时，均须通过站长向某货运代理公司提出申请。某货运代理公司按照何某订单完成量向何某按月支付服务费，出现高峰时段不服从平台调配、无故拒接平台派单、超时配送、客户差评等情形时，某货运代理公司均按一定比例扣减服务费，而某劳务公司未对包含何某在内的站点配送员进行管理。2019年11月3日，何某在执行配送任务途中摔倒受伤，其要求某货运代理公司、某劳务公司按照工伤保险待遇标准向其赔偿各项治疗费用，某货运代理公司以未与何某订立任何协议为由拒绝承担责任，某劳务公司以与何某之间系劳务合作关系为由拒绝支付工伤保险待遇。2019年12月19日，何某以某货运代理公司、某劳务公司为共同被申请人向仲裁委员会申请仲裁。
申请人请求
请求确认何某与某货运代理公司、某劳务公司于2019年7月28日至2019年12月19日期间存在劳动关系。
处理结果
仲裁委员会裁决：何某与某货运代理公司于2019年7月28日至2019年12月19日期间存在劳动关系。
案例分析
本案争议焦点是，何某是否与两家公司存在劳动关系？与哪家公司存在劳动关系？
本案中，从某货运代理公司与某劳务公司订立的《配送业务承包协议》内容看，某货运代理公司将配送员招募和管理工作外包给某劳务公司，应当由某劳务公司负责具体的用工组织和管理工作。但从本案用工事实看，某劳务公司并未对何某等站点配送员进行管理，其与某货运代理公司之间的《配送业务承包协议》并未实际履行；某货运代理公司虽然未与何某订立书面协议，却对其进行了劳动管理。因此，应当根据某货运代理公司对何某的劳动管理程度，认定双方之间是否存在劳动关系。何某须遵守某货运代理公司制定的《配送员管理规则》，按时到站点考勤；某货运代理公司对何某执行配送任务的情况进行监督，通过扣减服务费等方式对何某的工作时间、接单行为、服务质量等进行管理，双方之间存在较强的人格从属性。某货运代理公司根据单方制定的服务费结算办法向何某按月结算服务费，双方之间存在明显的经济从属性。何某虽以平台名义从事配送任务，但某货运代理公司将其纳入站点的配送组织体系进行管理，双方之间存在较强的组织从属性。综上，某货运代理公司对何某进行了较强程度的劳动管理，应当认定双方之间存在劳动关系。
典型意义
《关于维护新就业形态劳动者劳动保障权益的指导意见》(人社部发〔2021〕56号)对平台企业采取合作用工方式组织劳动者完成平台工作的情形作出了规定。在新就业形态劳动争议处理中，一些平台用工合作企业也以外包或劳务派遣等灵活方式组织用工。部分配送站点承包经营企业形式上将配送员的招募和管理工作外包给其他企业，但实际上仍直接对配送员进行劳动管理，在劳动者主张相关权益时通常否认与劳动者之间存在劳动关系，将“外包”当成了规避相应法律责任的“挡风板”“防火墙”，增加了劳动者的维权难度。在仲裁和司法实践中，应当谨慎区分劳动关系与各类民事关系，对于此类“隐蔽劳动关系”，不能简单适用“外观主义”审查，应当根据劳动管理事实和从属性特征明确劳动关系主体，依法确定各方权利义务。
案例4.
劳动者注册个体工商户与平台企业或其用工合作企业订立合作协议，能否认定劳动关系？
基本案情
孙某于2019年6月11日进入某外卖平台配送站点工作，该站点由某物流公司承包经营。某物流公司与孙某订立了自2019年6月11日起至2021年6月10日止的书面劳动合同。从事配送工作期间，孙某按照某物流公司要求在规定时间、指定区域范围内执行某外卖平台派发的配送任务，某物流公司根据孙某出勤及订单完成情况向其按月支付劳动报酬。某物流公司于2020年8月21日与某商务信息咨询公司订立《服务协议》，约定将含孙某在内的部分配送员委托给某商务信息咨询公司管理。在某商务信息咨询公司安排下，孙某注册了名为“某配送服务部”的个体工商户，并于2020年9月6日与某物流公司订立了为期1年的《项目承包协议》，约定：某配送服务部与某物流公司建立合作关系，某配送服务部承接某外卖平台配送站点的部分配送业务，某物流公司按照配送业务完成量向某配送服务部按月结算费用。此后，孙某仍然在某外卖平台站点从事配送工作，接受某物流公司管理，管理方式未发生任何变化。2020年12月10日，某物流公司单方面终止《项目承包协议》，孙某要求某物流公司支付违法解除劳动合同赔偿金。某物流公司认为订立《项目承包协议》后，双方之间已从劳动关系变为合作关系，劳动合同自动终止，并以此为由拒绝支付违法解除劳动合同赔偿金。孙某遂向仲裁委员会申请仲裁。
申请人请求
请求确认孙某与某物流公司于2020年9月6日至2020年12月10日期间存在劳动关系，某物流公司支付违法解除劳动合同赔偿金。
处理结果
仲裁委员会裁决：孙某与某物流公司于2020年9月6日至2020年12月10日期间存在劳动关系，某物流公司向孙某支付违法解除劳动合同赔偿金。
案例分析
本案争议焦点是，在孙某以个体工商户名义订立《项目承包协议》情况下，其与某物流公司之间是否存在劳动关系？
从法律主体资格看，劳动者注册为个体工商户后，既可以作为自然人与其他用人单位建立劳动关系，也有权以个体工商户名义开展市场经营活动。在第一种情形下，劳动者与企业之间存在“管理-从属”关系，即企业对劳动者实施劳动管理，劳动者向企业提供从属性劳动，双方之间市场主体地位不平等，法律关系呈现明显的从属性；在第二种情形下，个体工商户与企业均具有平等的市场主体法律地位，个体工商户可以依照约定向企业提供服务并获取对价，但服务内容和方式、对价形式及多少等事项由双方协商确定，企业与个体工商户背后的自然人之间不具有“管理-从属”关系。
本案中，在某商务信息咨询公司安排下，孙某注册个体工商户，并以个体工商户名义与某物流公司书面约定建立合作关系，但从用工事实看，某物流公司与孙某之间完全延续了此前的劳动管理方式，孙某仍然向某物流公司提供从属性劳动，双方之间并未作为法律地位平等的市场主体开展经营活动。因此，某物流公司关于双方之间由劳动关系变为合作关系、劳动合同自动终止的主张，与事实不符，应当认定在2020年9月6日之后双方之间仍然存在劳动关系，对孙某要求某物流公司支付违法解除劳动合同赔偿金的仲裁请求，应当予以支持。
典型意义
在新就业形态下，劳动关系与合作关系之间的边界更加模糊，劳动者的劳动形式、劳动时间、工作场所、取酬方式等更加灵活多样。一些平台企业及其用工合作企业利用这一特点，一方面诱导或强迫劳动者注册成为个体工商户，并与之订立合作协议；另一方面仍对劳动者进行较强程度的劳动管理，单方确定劳动规则、报酬标准等事项，以合作之名行劳动用工之实，严重损害了劳动者劳动保障权益。对此，国务院印发的《促进个体工商户发展条例》第三十条第二款规定：“任何单位和个人不得诱导、强迫劳动者登记注册为个体工商户。”在仲裁和司法实践中，应当重点审查企业与劳动者之间是否存在劳动管理和从属性劳动，坚决防止“去劳动关系化”规避用工责任，充分保障劳动者各项劳动保障权益。
案例5.
如何认定网络主播与文化传播公司之间是否存在劳动关系？
基本案情
李某于2018年11月29日与某文化传播公司订立为期2年的《艺人独家合作协议》，约定：李某聘请某文化传播公司为其经纪人，某文化传播公司为李某提供网络主播培训及推广宣传，将其培养成为知名的网络主播；在合同期内，某文化传播公司为李某提供整套直播设备和直播室，负责安排李某的全部直播工作及直播之外的商业或非商业公众活动，全权代理李某涉及到直播、出版、演出、广告、录音、录像等与演艺有关的商业或非商业公众活动，可在征得李某同意后作为其委托代理人签署有关合同；李某有权参与某文化传播公司安排的商业活动的策划过程、了解直播收支情况，并对个人形象定位等事项提出建议，但一经双方协商一致，李某必须严格遵守相关约定；李某直播内容和时间均由其自行确定，其每月获得各直播平台后台礼物累计价值5000元，可得基本收入2600元，超过5000元部分由公司和李某进行四六分成，超过9000元部分进行三七分成，超过12000元部分进行二八分成。从事直播活动后，李某按照某文化传播公司要求入驻2家直播平台，双方均严格履行协议约定的权利义务。李某每天直播时长、每月直播天数均不固定，月收入均未超过3500元。2019年3月31日，李某因直播收入较低，单方解除《艺人独家合作协议》，并以公司未缴纳社会保险费为由要求某文化传播公司向其支付解除劳动合同经济补偿。某文化传播公司以双方之间不存在劳动关系为由拒绝支付。李某向仲裁委员会申请仲裁，仲裁委员会裁决双方之间不存在劳动关系。李某不服仲裁裁决，诉至人民法院。
原告诉讼请求
Request confirmation of the existence of an employment relationship with a cultural communication company between November 2018, 11 and March 29, 2019, and a cultural communication company to pay economic compensation for the termination of the labor contract.
Process the results
The court of first instance ruled that there was no labor relationship between Li and a cultural communication company. Li appealed against the first-instance judgment. The court of second instance ruled that the appeal was dismissed and the original judgment was upheld.
Case study
The focus of the dispute in this case is whether the management of Li by a cultural communication company is labor management.
In the field of traditional performing arts, the contracts concluded between an enterprise and an artist as an agent usually have the nature of a commission contract, an intermediary contract, a disciplinary contract, etc., and the "management" behavior of the enterprise to the artist is generated due to the contract, but there are obvious differences between such management and labor management: from the main purpose of "management", in addition to arranging artists to engage in performing arts activities to create economic benefits for them, enterprises must also train, package, publicize and promote artists, so that they can obtain relatively independent public visibility and market value; In labor relations, enterprises organize workers to carry out production and business activities through labor management, and do not aim to enhance the independent public visibility and market value of workers. From the determination of "management" matters, the content and degree of management of artists by enterprises are usually agreed upon by both parties independently, and artists can also negotiate with enterprises on matters such as their own image design, development planning and income sharing; However, when concluding a labor contract, the space for individualized negotiation between individual workers and enterprises is generally limited, and rules and regulations such as labor discipline, remuneration standards, and reward and punishment measures are usually formulated by the enterprise and generally applied to the workers within the enterprise. In addition, from the perspective of the distribution of labor results, enterprises, as brokers, generally obtain the economic benefits created by artists in the agreed sharing method; In labor relations, the enterprise directly owns the labor fruits of the workers, pays remuneration and benefits to the workers according to the unified standard, and does not use the agreed share as the main distribution method. In summary, the legal relationship between an enterprise as an agent and an artist reflects the characteristics of equal negotiation, while the employer and the employee who have a labor relationship reflect a strong subordinate characteristic, which can be used to distinguish between the two legal relationships.
In this case, it can be seen from the content and performance of the "Artist Exclusive Cooperation Agreement" that although a cultural communication company, as Li's agent, also arranged for Li to engage in live broadcast activities that created direct economic benefits for him, its main purpose was to make Li a well-known online anchor through training, packaging, publicity, promotion and other means; Li's live broadcast time and content are determined by him independently, other relevant activity requirements are determined by both parties through negotiation, Li has the right to negotiate on matters such as his personal packaging and activity participation, and has the right to know the economic benefits he creates; The two parties took the economic benefits created by Li as the standard and agreed on a "ladder" revenue sharing method. Therefore, the legal relationship between the two parties reflects the characteristics of equal consultation, and does not reflect the characteristics of labor management and subordination stipulated in the Notice on Matters Related to the Establishment of Labor Relations (Ministry of Labor and Social Affairs Fa [2005] No. 12), and should be recognized as a civil relationship. Li's claim to confirm the labor relationship and pay economic compensation for the termination of the labor contract is inconsistent with the facts and is not supported.
Typical significance
In recent years, with the rapid development of the Internet celebrity economy, a large number of online anchor brokerage companies have also emerged. Compared with the traditional entertainment industry, the online anchor industry has greater flexibility, interactivity, accessibility and value diversity, and the "star-making" cycle and "investment-return" cycle of brokerage companies are also shortened accordingly. Some brokerage companies follow the traditional method of establishing civil cooperative relations with anchors, with the main business of cultivating well-known anchors and organizing anchors to participate in various commercial or non-commercial public activities, determining the rights and obligations of both parties through equal consultation, and distributing profits in the agreed sharing method; However, at the same time, the main purpose of some enterprises to recruit online anchors is to carry out "live streaming goods" business, using online live streaming to promote various products, and the anchors do not have the right to negotiate personal packaging, live broadcast content, performing arts methods, income distribution, etc., and the two parties reflect strong subordinate characteristics, which is more in line with the situation of establishing labor relations. Therefore, in arbitration and judicial practice, it is necessary to strengthen the analysis of legal relationships on a case-by-case basis, focusing on reviewing the content and determination of rights and obligations between enterprises and online anchors, and comprehensively determining the nature of the legal relationship between the two parties.
Case 6.
How to determine whether there is an employment relationship between online domestic service workers and domestic service companies?
Basic facts of the case
Song, born on October 1976, 10, went to an employee-based housekeeping company on October 7, 2019 to apply for a housekeeping cleaner, and the two parties entered into a "Housekeeping Service Agreement", stipulating: a housekeeping company arranges cleaning business on-the-job training (primary) for Song, the training cost is borne by the company, and Song must provide customers with household cleaning services according to the company's arrangement after passing the training, and the cooperation period is 10 years; Song must abide by the "Code of Conduct for Domestic Service Personnel" uniformly formulated by the company, and shall not engage in domestic service work through other platforms during the cooperation period; A housekeeping company equipped Song with tooling and cleaning tools, and purchased accident insurance, all at the expense of which was borne by the company; Song must work 26 days a week, during the working period, a housekeeping company receives customer orders through the company's housekeeping service platform, and distributes cleaning orders to Song according to the matching degree of customer demand information, and when there is no order task on working days, Song must engage in other work according to the company's arrangement; A housekeeping company pays Song a monthly remuneration, and the remuneration calculation standard is 2 yuan/month for basic salary, 6 yuan/hour for cleaning services, and 1600 yuan/month for full attendance; If Song refuses to accept the order or receives a bad review from a customer for no reason, a housekeeping company will deduct part of the service fee after verifying the situation. On November 15, 200, Song took up his post after passing the training. During his cleaning work, Song worked 2019 days a week and served 11 to 1 hours a day. On January 6, 6, Song was injured at work and demanded that a housekeeping company compensate him for various treatment expenses in accordance with the work-related injury insurance treatment standards, but a housekeeping company refused to pay on the grounds that there was no labor relationship between the two parties. On January 8, 2020, Song applied to the arbitration commission for arbitration, requesting confirmation of the existence of an employment relationship with a domestic service company from November 1, 10 to January 2020, 1. The arbitration committee ruled that there was an employment relationship between Song and a domestic service company, and a domestic service company was not satisfied with the arbitration award and sued the people's court.
Plaintiff's claim
Request confirmation that there is no labor relationship between a domestic service company and Song.
Process the results
The court of first instance ruled that Song had an employment relationship with a domestic service company between November 2019, 11 and January 1, 2020. A domestic service company appealed against the first-instance judgment. The court of second instance ruled that the appeal was dismissed and the original judgment was upheld.
Case study
The focus of the dispute in this case is, whether the situation between Song and a domestic service company is in line with the conclusion of an employment contract?
To determine whether a domestic service enterprise and a domestic service worker meet the circumstances of concluding a labor contract, it shall, in accordance with Article 2005 of the Notice on Matters Related to the Establishment of Labor Relations (Ministry of Labor and Social Affairs Fa [12] No. <>), focus on examining whether both parties are legal subjects in establishing labor relations and whether there is a strong degree of labor management between the two parties.
In this case, Song had not reached the legal retirement age, and both he and a domestic service company were legal subjects establishing labor relations. In terms of labor management, a housekeeping company required Song to abide by the work rules formulated by it, arrange work to Song through the platform, and control and manage Song's working hours, order taking behavior, service quality, etc. by issuing attendance awards, deducting service fees, etc., and there are strong personality subordinations between the two parties. A housekeeping company grasped the user demand information necessary for Song to engage in the housekeeping service industry, uniformly equipped Song with cleaning tools, and paid Song monthly remuneration in a fixed salary structure, and there was a strong economic subordination between the two parties. Song provided housekeeping services in the name of a housekeeping company, and a housekeeping company included Song in its domestic service organization system for management, and restricted Song's entry into other organizations by prohibiting multi-platform employment, and there was obvious organizational subordination between the two parties. In summary, a domestic service company has a strong degree of labor management over Song, which is in line with the situation of concluding a labor contract, and although the two parties enter into a written agreement in the name of cooperation, according to the principle of priority of facts, it should be determined that there is an employment relationship between the two parties.
Typical significance
In the traditional housekeeping enterprise operation model, housekeeping enterprises mainly play an intermediary role between housekeeping service personnel and customers, and collect intermediary fees for providing housekeeping services to customers by introducing service personnel; A civil cooperative relationship is established between a domestic service enterprise and service personnel, the enterprise does not train and manage service personnel, does not pay labor remuneration, and the content and service fee of domestic service work are determined by the service personnel and the customer through consultation. In order to effectively solve the problems of irregular development of the traditional domestic service industry, the Opinions on Promoting the Quality and Expansion of the Domestic Service Industry (Guo Ban Fa [2019] No. 30) pointed out that employee-based domestic service enterprises should sign labor contracts with the hired domestic service personnel in accordance with the law, and pay the social insurance premiums of urban employees in full and on a monthly basis; If domestic service personnel do not meet the circumstances of signing a labor contract, the employee-based domestic service enterprise shall sign a service agreement with them, and domestic service personnel may voluntarily participate in urban employee social insurance or urban and rural residents' social insurance as flexible employment personnel in accordance with regulations. All localities implement the requirements of the Opinions and actively support the development of employee-based domestic enterprises. In such enterprises, domestic service enterprises directly conclude service contracts with customers, sign labor contracts or service agreements with domestic service personnel in accordance with the law, uniformly arrange service personnel to provide services to customers, directly pay or pay labor remuneration of service personnel not lower than the local minimum wage standard, and carry out continuous training and management of service personnel. In arbitration and judicial practice, for disputes between domestic service enterprises and domestic service personnel that confirm labor relations, full consideration should be given to the particularities of the domestic service industry, the operation mode of the enterprise should be clarified, whether the enterprise and the domestic service personnel have the legal subject qualifications to establish labor relations, and whether there is a strong degree of labor management between the two parties, so as to distinguish between the signing of labor contracts and the signing of service agreements, and determine labor relations according to facts.