With the continuous standardization of the system in the field of building construction, laws and regulations prohibit subcontracting, illegal subcontracting, affiliation and other behaviors, requiring that the main management personnel of the project must be employees of the project contractor. However, due to the high requirements for the qualifications of the contractor, the phenomena of subcontracting, illegal subcontracting, and affiliation are still very common in practice. In order to avoid legal risks, some contractor enterprises regard the employees of the actual construction party company as their own employees, and give the project manager the identity to complete the project, so is the project manager an employee of the contractor or an employee of the actual construction party?
Brief facts of the case
Company A is affiliated with Company B to contract a mountain and lake renovation project, Company B is the contractor of the project involved in the case, and Company A is the actual builder. Since 2013, A has assigned employee Tian X to work in the project involved in the case, responsible for the management of the project, and paid Tian a salary of 8,000 yuan per month, but Tian has been working in the name of employees of Company B. Tian served in the project until the end of October 2015, when the project was completed. After the completion of the project, Tian did not sign a labor contract with Company B, and Company B did not pay Tian or purchase social security for Tian. Tian claimed that he had not received wages since March 15, 2013 until the completion of the work in October 2015, so he filed a lawsuit with the court, demanding that Company B pay 474,000 yuan in wages and compensation for the period from March 15, 2013 to October 31, 2015.
Legal analysis
In this case, There is no labor relationship between Nakata and Company B, and although the project management work is carried out in the name of the employees of Company B, the actual construction party is Company A. Tian Mou did not enter the company through the recruitment procedure of company B, did not fill in the relevant entry information, did not sign a labor contract, and did not purchase social security. In addition, as the actual construction party, Company A has the qualifications of the main body of employment, so the real main body of employment of Tian is Company A.
The actual construction party will usually hire its more trusted personnel as the actual management of the project, the salary is usually paid in cash on a monthly basis (avoiding the payment of individual tax), no social security payment, and no written contract. When the actual construction person fails to pay the salary to the management personnel in a timely manner or the actual construction person has a dispute with the project contractor (the affiliated party), there will be a situation like in this case, where the actual management personnel require the contractor to pay wages and compensation on the grounds that there is a de facto labor relationship.
We should make a judgment in accordance with the provisions of the law on the determination of labor relations, combined with the specific circumstances of the case, especially pay attention to the following points: whether it is recruited by the undertaker, whether it fills in the relevant entry materials, whether it signs a labor contract, whether it pays wages, whether it purchases social security, whether it accepts the contractor's attendance management, etc.
Legal basis
Notice on Matters Related to the Establishment of Labor Relations
1. If the Employer recruits an employee without concluding a written labor contract, but at the same time meets the following circumstances, the labor relationship shall be established.
(1) Employers and workers meet the qualifications of entities provided for by laws and regulations;
(2) The labor rules and regulations formulated by the Employer in accordance with law shall apply to the worker, and the worker shall be subject to the labor management of the Employer and shall engage in paid labor arranged by the Employer;
(3) The labor provided by the employee is an integral part of the employer's business.
4. Construction, mining enterprises and other employers' engineering (business) or management rights are contracted to organizations or natural persons that do not have the qualifications of the main body of employment, and the contracting party with the qualifications of the main body of employment shall bear the main responsibility for the employment of workers recruited by the organization or natural person.