Recently, it has been reported that the ease of use for newcomers, working meal benefits, and the "hourly second settlement" (also known as "daily wage settlement") gig employment method have attracted many young people to join.
A "gig worker" media experiencer in a hotel happily shared her labor remuneration: "According to the check-in at the entrance and the check-in after the end of the table, the experience lasted 26 minutes, and a total of 8.6 yuan was paid in seconds. "The hourly wage in this hotel is $21. Another "gig worker" said that the proximity to his place of residence and the freedom to work are the reasons why he has been "sticking" to working here for more than four months.
The so-called "hourly second settlement" and "daily wage settlement", as the name suggests, means that the employer temporarily recruits some personnel to work for one day and pay one day's wages. So, can these "gig workers" enjoy the company's insurance benefits, rest and vacation, and other benefits? This involves a legal issue: Is the relationship between the "gig workers" and the employing unit a labor relationship or a labor relationship? In reality, related disputes are not uncommon.
After the "gig worker" Master Xu was injured, the company refused to recognize the labor relationship
Master Xu used to be a "gig worker" in Company M. On March 5, 2022, he entered the warehouse contracted by Company M, and the two parties agreed on a daily salary of about 240 yuan per day, and the working hours were from 9 pm to 7 pm the next day. Master Xu went to work for 3 days and received a total salary of 700 yuan.
On March 8, Master Xu was crushed by a container at work and was diagnosed with fractures of the anterior edge of the left calcaneus and the dorsal side of the middle cuneiform, and did not return to work. On August 9, 2022, Master Xu filed a labor arbitration, requesting confirmation of the existence of an employment relationship between the two parties from March 5, 2022 to August 3, 2022, and was supported by labor arbitration in Baoshan District, Shanghai.
Company M filed a lawsuit with the court, seeking confirmation that there was no employment relationship between the two parties, on the grounds that Master Xu was only a temporary worker with a daily salary, and the relationship between the two parties was one of employment.
During the trial, Company M claimed that its company needed a large number of temporary workers, so it often issued announcements to surrounding labor service companies to recruit temporary workers. On March 5, 2022, due to the shortage of temporary workers, I needed to find someone to temporarily replace him for two days, so I found Master Xu. However, Master Xu denied that it was a temporary substitute and believed that it was a normal entry.
The Shanghai Baoshan District People's Court held that Master Xu claimed that he was employed and managed by Company M, and that Company M paid his salary, and accordingly submitted a punch-in record and a screenshot of the salary payment. Company M asserted that the two parties had an employment relationship, and therefore failed to provide evidence to prove it. The fact that Master Xu works for Company M, is managed by Company M at work, and that his salary is paid by Company M is clear, and both parties meet the requirements for the establishment of an employment relationship. The court confirmed the existence of an employment relationship between Company M and Master Xu from 5 March 2022 to 3 August 2022. (Case No.: [2023] Hu 0113 Min Chu No. 900)
The method of payment is not a substantive factor in determining the employment relationship
In labor relations, the form of remuneration is generally paid on a monthly basis, and the payment and calculation of wages are relatively regular. The labor relationship is a one-time payment or a batch of payment in stages, including "daily wage settlement" and "hourly second settlement".
However, the method of payment of labor remuneration is not a substantive factor in determining the employment relationship. The key difference between an employment relationship and a labor relationship, entrustment, contracting, or cooperative relationship is that the employment relationship has a unique personal subordination attribute. Labor relationship refers to the relationship of rights and obligations with economic and personal subordination formed by the two parties through the agreement of the two parties, the labor provided by the employee and the remuneration paid by the employer. In the labor relationship, the employee shall comply with the legal management of the employer and be bound by the rules and regulations of the employer. However, the two parties to the labor relationship are not subordinate to each other, and the party providing the labor services is subordinate to the labor service activities in its own name, and most of them are one-time or temporary work, and independently bear legal responsibility.
The Labor Contract Law stipulates that an employer shall establish an employment relationship with an employee from the date of employment. According to the opinions of the former Ministry of Labor and the Shanghai High People's Court, if an employer and an employee should have entered into a labor contract but did not conclude a labor contract, as long as both parties have in fact exercised their labor rights and fulfilled their labor obligations, the existence of a de facto employment relationship between the two parties should be determined. Judges Liu Li and Zhong Yanran of the Shanghai No. 1 Intermediate People's Court held that "the court should judge whether there is actual employment based on the evidence, and if it does not, it should exclude the employment relationship; if there is actual employment, it should examine whether it conforms to the form of exchange and the subordinate characteristics of the employment relationship." (Essentials of Adjudication of Similar Cases, Volume I, p. 154)
In this case, Master Xu and Company M did not sign a written employment contract, and although the parties agreed on a daily wage settlement, they met the qualifications of the subject of the employment relationship, and the labor provided by Master Xu was assigned by Company M, was managed by the company, and was also an integral part of Company M's business, so the court found that the two parties had formed a de facto employment relationship.
In another labor dispute case, Master Liu, a "gig worker", also provided labor on the same day and settled it after the end of the next day's work, but he returned to his hometown several times within two months, and was not subject to any deductions and other penalties if he did not come to work, so the court found that he was able to decide whether to provide labor services independently and was not subject to the management and constraints of the employer, and there was no employment relationship between the two parties. (Case No.: [2022] Hu 01 Min Zhong No. 12343)
Accurately discover and determine the true intentions of both parties
Of course, if an employee asserts the existence of an employment relationship with the employer, he or she should bear the burden of proof on the basic facts that gave rise to the legal relationship. In practice, if a "gig worker" has signed a Labor Service Agreement with the employer, and then requests confirmation of the existence of an employment relationship between the two parties, will it be supported by the law?
The establishment of an employment relationship must be based on the consent of both parties. In a market economy, units and individuals enjoy the freedom of legal relations with each other. On the basis of equality, voluntariness and consensus, both parties can choose to establish labor relations, including full-time and part-time labor relations, or they can choose to establish labor relations or entrust, contract, or cooperate with each other.
In judicial practice, the adjudication organ should accurately discover and determine the true expression of intent of the parties based on the principle of autonomy of will. Judges Cai Jianhui and Xu Wenjin of the Shanghai No. 1 Intermediate People's Court held that: "As to whether the intention of the expression of intent is consistent with the expression at that time, we cannot determine that there is an inconsistency between the intention and the expression at the time of the expression just because one party unilaterally denies the expression after the fact. When the two parties sign an employment contract, it is not only recognized as an employment relationship due to the negation of the employer, but also as an employment relationship due to the negation of the employee. We should make a comprehensive judgment based on the context and transaction environment of the corresponding expression of intent, and should take into account the transaction habits of both parties. (Typical Cases of Labor Disputes and Adjudication Opinions, p. 19)
On the other hand, when there is a written agreement, the court cannot stick to the name of the contract in the process of determining the agreement between the parties, and should conduct a substantive review of the written agreement. If the two parties have signed an agreement called the Labor Agreement, it is difficult to rule out that the agreement does not contain the relevant content of the employment relationship, including some necessary terms of the employment contract, such as working hours, work content, wage standards and labor discipline, and the two parties meet the requirements for establishing an employment relationship, it can still be determined that the two parties have an employment relationship. If an employer only shortens the payment period of labor remuneration or changes the name of the Labor Contract, it will obviously violate the principles of legality, fairness and good faith by "packaging" the essential employment relationship as a non-labor relationship.
From this point of view, there is no agreement between the "gig worker" who worked for 26 minutes at the beginning of this article and the hotel to establish an employment relationship, so the two parties are not in an employment relationship, but whether the "gig worker" who has been working here for more than four months has formed an employment relationship with the hotel should also be comprehensively judged in light of whether the subject of the labor relationship is qualified, whether the two parties have reached an agreement to establish an employment relationship, and the actual performance of both parties.