These 17 types of laborers, demanding double wages will not be supported!
Author: Cai Fei, Guangzhou Jinpeng Law Firm
Source: Fly Labor Law
First of all, it should be explained that this is not inevitable, but a common and defensible reason, and different adjudicators will have different views. In addition, different persons, in addition to one of the identities listed, may have other identities, and the other identity may constitute an employment relationship.
1. Partner
The labor provided by a partner is not based on an employment contract, but on a partnership agreement, and the employment relationship cannot be determined because of the provision of labor.
2. Legal representative
Article 10 of the Company Law stipulates that the legal representative of a company shall be a director or manager who performs the company's affairs on behalf of the company in accordance with the provisions of the company's articles of association. If the legal representative does not work for the company, then it is not an employment relationship. Even if the labor is provided, it is an employment relationship, and it itself represents the enterprise, and it should not be entitled to double the wage.
3. Chairman
From the perspective of the Company Law, the chairman of the board of directors is prescribed by the articles of association of the company (a limited liability company), elected by the board of directors by a majority of all directors (limited liability company) or designated by the state-owned assets supervision and administration agency from the board of directors (wholly state-owned), and the company and the chairman of the board of directors form an appointment relationship (from the perspective of the legal acts of both parties, it is an entrustment contract relationship). However, the appointment relationship does not exclude the existence of the labor contract relationship, and when it has the characteristics of an employment relationship, it can also constitute an employment relationship)
4. General Manager
As both an employee and a representative of the employer, he is responsible for the overall management of the company, and it is also one of his responsibilities to sign a contract, and the reason for not signing a labor contract lies with him.
5. Head of Human Resources
It is responsible for the overall management of human resources, and it is also one of its responsibilities to sign contracts, and many places stipulate that unless they make a corresponding request to the company and are denied, they do not need to pay double the salary.
6. Those whose age does not meet the requirements
Persons who are minors or have reached the statutory retirement age, of course, the latter is more controversial in judicial practice.
7. Those who enjoy retirement benefits
Those who retire normally or retire early enjoy retirement benefits, which generally does not constitute an employment relationship.
8. Students participating in internships
Generally, it does not constitute an employment relationship, but it is not absolute. If the internship is for the purpose of education and training, it should not be recognized as an employment relationship, but if it is an internship for the purpose of establishing an employment relationship, the existence of the employment relationship should be recognized based on the clear definition of the nature of the internship itself.
9. Work-study students
Article 12 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China clearly stipulates that "the use of spare time to work and study is not regarded as employment, and labor relations have not been established, and labor contracts may not be signed." ”
10. Persons who have enjoyed the first-level to fourth-level work-related injury disability allowance or disability allowance
However, it is not absolute, and it is argued that the law does not prohibit workers who are entitled to work-related injury insurance benefits from doing work within their capabilities, nor does it stipulate that the relationship between such workers and the new employer is not regulated by the labor law.
11. Foreigners who have not obtained an employment permit
According to the Regulations on the Administration of Employment of Foreigners in China, except for some special circumstances (special talents, not entering the country, etc.), when recruiting foreigners, they should apply for an employment permit.
12. Workers privately recruited by the resident representative offices of foreign enterprises
The resident representative office of a foreign enterprise cannot be recruited directly, but must be recruited through a foreign-related employment service unit, otherwise, even if it is recruited, it will not be an employment relationship.
Article 11 of the Interim Provisions of the State Council of the People's Republic of China on the Administration of Resident Representative Offices of Foreign Enterprises stipulates that a permanent representative office shall entrust the local foreign affairs service unit or other unit designated by the Chinese Government to rent a house or hire staff.
13. Affiliated employees
The Supreme People's Court's Reply on Whether a de facto labor relationship has been formed between the driver employed by the actual owner of the vehicle and the affiliated unit [(2013) Min Yi Ta Zi No. 16] "If the vehicle purchased by an individual is attached to another unit and operated externally in the name of the affiliated unit, according to the spirit of the Labor Contract Law implemented on January 1, 2008, the driver hired by the driver and the affiliated unit does not have the basic characteristics of an employment relationship, and it is not appropriate to determine that a de facto labor relationship has been formed." "In fact, not only the driver who is attached, but also other types of affiliation cannot be identified.
14. Non-full-time
It is not necessary to sign an employment contract.
15. Platform employment (online car-hailing drivers, anchors, delivery workers, etc.)
The Guiding Opinions of the Ministry of Human Resources and Social Security, the National Development and Reform Commission, the Ministry of Transport, the Ministry of Emergency Response, the State Administration for Market Regulation, the National Health Insurance Administration, the Supreme People's Court and the All-China Federation of Trade Unions on Safeguarding the Labor Protection Rights and Interests of Workers in New Employment Forms clearly stipulates that "if the circumstances of establishing an employment relationship are not fully complied with but the enterprise conducts labor management of the employee, the enterprise shall be guided to enter into a written agreement with the employee to reasonably determine the rights and obligations of the enterprise and the employee." Individuals rely on the platform to independently carry out business activities, engage in freelance professions, etc., and adjust the rights and obligations of both parties in accordance with civil law."
16. Taxi drivers
The Regulations on the Administration of Taxi Business Services promulgated by the Ministry of Transport clearly states that both parties can choose to sign a labor contract or a business contract. The Guiding Opinions of the General Office of the State Council on Deepening Reform and Promoting the Healthy Development of the Taxi Automobile Industry also stipulate that taxi operators must sign labor contracts or business contracts with drivers in accordance with the law.
17. Villagers who provide labor in their own villages
Although Article 101 of the General Provisions of the Civil Law of the People's Republic of China provides that "residents' committees and villagers' committees have the legal personality of grass-roots mass autonomous organizations and may engage in civil activities necessary for the performance of their functions." However, for those who serve the village, it is generally considered to be a model of self-management, not a labor relationship.
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