62. FAD.com: If the online anchor brings goods to the company, is there a labor relationship between the two parties?
【Q&A】:
This issue involves the identification of labor relations under the new form of employment. According to Article 7 of the Labor Contract Law, Article 18 of the Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Employment Forms (No. 56 [2021] of the Ministry of Human Resources and Social Security) and the relevant provisions of the Notice on Matters Concerning the Establishment of Labor Relations (No. 12 [2005] of the Ministry of Labor and Social Affairs), the core feature of labor relations is "labor management", including the personality subordination, economic subordination and organizational subordination between the employee and the employer. Article 7 of the Opinions of the Supreme People's Court on Providing Judicial Services and Safeguards for Stable Employment (Fa Fa [2022] No. 36) also clarifies the factors to be considered for the reasonable determination of labor relations in new forms of employment in accordance with the law.
Whether there is an employment relationship between a worker and a platform enterprise or a platform employment cooperative enterprise shall be judged on the basis of labor management and employment facts, and by comprehensively considering the existence and strength of personality subordination, economic subordination and organizational subordination. From the perspective of personality subordination, it is mainly reflected in whether the work rules, labor discipline, rewards and punishments of the platform enterprise are applicable to the workers, and whether the platform enterprise can manage and control the labor process by formulating rules and setting algorithms; Whether the worker must complete the work tasks according to the instructions of the platform, and whether the working hours and workload can be determined independently. From the perspective of economic subordination, it is mainly reflected in whether the platform enterprise has the data and information necessary for the employment of workers and other important means of production, and whether it is allowed to negotiate service prices; whether the remuneration received by the worker through the platform constitutes an important source of income, etc. From the perspective of organizational subordination, it is mainly reflected in whether the workers are included in the organizational system of the platform enterprise, become an organic part of the production and operation organization of the enterprise, and whether they provide services in the name of the platform.
If an enterprise hires an online anchor to carry out the business of "live streaming", if the enterprise, as a broker, and the online anchor negotiate on an equal footing to determine the rights and obligations of both parties, and distribute the proceeds in the form of an agreed share, and the legal relationship between the two parties reflects the characteristics of equal consultation, it does not meet the circumstances of establishing an employment relationship. However, if the anchor does not have the right to negotiate on personal packaging, live broadcast content, performance methods, income distribution, etc., and the two parties embody strong personality, economy, and organizational subordination characteristics, and meet the labor management and subordinate characteristics in the sense of the Labor Law, the employment relationship is inclined to be determined. In judicial practice, the analysis of legal relationships on a case-by-case basis should be strengthened, focusing on reviewing the content and methods of determining the rights and obligations between enterprises and online hosts, ascertaining whether platform enterprises have labor management conduct toward online anchors, and comprehensively and truthfully determining the nature of legal relationships.
【Comments】:
The identification of labor relations in the process of platform employment is a difficult problem in current theory and practice. The Q&A opinions answered the question of the determination of the labor relationship between the online anchor with goods and the platform enterprise from three levels: normative basis, legal basis and specific plan. The Q&A opinions summarize the thoughts and positions of the existing judicial policies on the identification of labor relations in new forms of employment, apply the theory of subordination of existing labor relations to the field of new forms of employment according to the three levels of personality subordination, economic subordination and organizational subordination, and put forward specific indicators in line with the identification of labor relations in the digital age in combination with the characteristics of platform employment. In terms of the method of determining the labor relationship of platform employment, special emphasis is placed on the comprehensive judgment and the priority of the employment facts, which are very important in the current theory and practice. The legal and policy basis for answering questions is sufficient, and the theoretical explanations are concise, clear, and operational, which has strong guiding significance for resolving cases of labor relationship determination between online delivery anchors and platform enterprises.
Shen Jianfeng, professor of the Law School of the Central University of Finance and Economics, director of the Academic Committee of the Law School of the China Institute of Labor Relations, and vice president of the Labor and Personnel Dispute Settlement Committee of the China Labor Society
63. Yang Guangxiong v. Tianjin Xuyang Construction Labor Service Co., Ltd., a dispute over labor relations
[Summary of the trial]:
I. In reality, it is not uncommon for employers such as construction and mining enterprises to contract or subcontract projects or businesses to organizations or natural persons that do not have the qualifications of the employing entity, and the relationship between the workers recruited by these subcontracting organizations or natural persons and the construction and mining enterprises and other employers has often become a prominent legal issue.
Article 94 of the Labor Contract Law of the People's Republic of China, Paragraph 4 of Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance, and Article 4 of the Notice of the former Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations are intended to more effectively protect the legitimate rights and interests of employees, rather than changing the substantive elements for determining the existence of labor relations, nor can they be used as a basis for reverse presumption of the existence of labor relations between the two parties.
Case Number: :(2016) Jin Min Shen No. 667
64. Jiangsu Aojier Ecological Agriculture Technology Co., Ltd. v. Zeng Guangfeng, a dispute over confirmation of labor relations
[Summary of the trial]:
If the worker provides labor in accordance with the requirements of the employer's position, is managed by the employer, and receives labor remuneration for his own labor, it is in line with the legal characteristics of the labor relationship, and it shall be deemed that there is an employment relationship between the worker and the employer. That is, if the employee has a personnel relationship with another employer, but the employee does not perform the personnel relationship normally due to reasons not attributable to the employee, and the remuneration received by the employee from other units is insufficient to maintain the basic livelihood, the employer denies the existence of an employment relationship between the employer and the employee on the grounds that the employee has a personnel relationship with other units, the people's court will not support it.
[Case source]: Jiangsu Court [2019] refer to Case No. 25
65. Can the labor relationship between the delivery rider and the company undertaking the food delivery platform business be recognized?
【Focus of controversy】:
1. Is there an employment relationship between a delivery rider and a delivery platform or a company undertaking the platform business?
2. How to determine the relationship between the management and the managed by the delivery rider and the employer?
[Summary of the trial]:
Whether there is an employment relationship between Yu XX and a blockchain management company. First, on the employment relationship. After joining the company, Yu XX did not fill in the employment "registration form" or entered into a written labor contract and any other agreement, and a blockchain management company did not issue a work permit to Yu XX or provide relevant identity certificates in the name of a blockchain management company, and did not pay social insurance to Yu XX. The personal information of mobile phone software such as "Hummingbird Team" and "Hungry" used by Yu XX is collected by a blockchain management company and registered in the background of the above software, and the above software is displayed in the enterprise of XX as a blockchain management Co., Ltd., and Yu XX has its own work number, and there is a unified personnel roster, WeChat group and duty schedule in the site, as well as relevant station data rankings. Yu XX should belong to a blockchain management company and use the food delivery platform as the medium to actually employ employees, and there is a considerable personality subordination between Yu XX and a blockchain management company.
Second, whether labor is part of the employer's business. A blockchain management company admits that Yu XX works as a business component of a blockchain management company, and a blockchain management company provides a fixed site for Yu XX to charge and rest, which meets the labor conditions and labor supporting resources required by Yu XX.
Third, on whether Yu XX is under the management of a blockchain management company. The information released by Yu Moumou through the food delivery network platform, after receiving the order information, provides labor to serve customers. After completing the corresponding number of orders, a blockchain management company will have additional rewards for XX. Yu XX accepted the work arrangement of a blockchain management company through the network platform, and was required by the site management personnel for the duty arrangement of a certain food delivery personnel offline, although this arrangement enhanced the autonomy and freedom of Yu XX's work, but a blockchain management company did not lose the right to dispose of XX's labor behavior. All of the above shows that Yu XX and a certain blockchain management company are organizational and economic subordination.
Fourth, on the payment of labor remuneration. Yu XX's salary payment is paid by a third party through bank transfer, but the third-party software shows that the wage payer is the name of a blockchain management company, which shows that the software is only used as a medium and channel for salary payment, and is not the subject of payment to a certain person's salary, and there is no relationship between Yu XX and the third-party software and its company that can form a capital exchange, so it can be determined that the payment is the labor remuneration paid by a blockchain management company to Yu XX. To sum up, according to the Notice on Matters Concerning the Establishment of Labor Relations (Lao She Bu Fa [2005] No. 12), there is a de facto labor relationship between Yu XX and a blockchain management company, so the Commission supports XX's arbitration request.
【Risk Warning】:
The company undertaking the food delivery business of the food delivery platform shall sign a formal written employment contract with the food delivery rider. Compared with traditional industries, the identification of labor relations in emerging industries such as the Internet has great particularity and complexity. Practitioners and enterprises in the new business form do not pay enough attention to employment management, and even believe that they are not subject to the "Labor Contract Law" and other laws and regulations, which can easily bring legal risks to units and individuals. The undertaking company has strict requirements for the delivery time and odd number of food delivery riders, which leads to various ways for delivery riders to seize time, and even risk running red lights. This also leads to the fact that we often hear about accidents involving riders outside, and because the management of the industry is not yet mature, this leads to obstacles for many food delivery riders to report their work-related injuries. Therefore, enterprises in new forms of business and their employees should actively fulfill their obligations to sign labor contracts, and cannot use labor contracts, cooperation agreements and other agreements between the two parties to circumvent the scope of application of labor laws or the obligation to sign labor contracts.
The identification of the relationship between the employment management and the managed of enterprises in the new business format should be adapted to the current situation of the information age. Since the delivery rider receives orders through the delivery platform, the relationship with the management of the company that undertakes the business is not obvious. The case handling department should adopt a new thinking on the determination of labor relations, which is essentially a relationship between the labor force of the worker and the means of production of the employer, and at this level, the labor relationship is a personal relationship. The company generally provides fixed stations for food delivery riders to charge and rest, which meets the required labor conditions and labor supporting resources. Delivery riders take a break at the site, and the department company will also conduct rankings and rewards and punishments in the site in order to enhance their enthusiasm, which is a kind of suppression of the right to freedom of personality, and it is also an inner compulsion to make it occur, which belongs to personal dependence, and should also fall within the scope of the determination of management and management. In addition, the business undertaking company generally has clear business components such as warehousing and cargo transportation in its business scope, the labor provided by the worker is an integral part of the employer's business and is the embodiment of economic subordination, the provision of labor and the receipt of wages in the company with labor relations are typical economic subordination, and the takeaway business undertaking company pays wages through a third party in a timely manner, but the root cause is still the labor remuneration paid by the company, indicating a clear economic subordination relationship. Therefore, the determination of the employment relationship between the delivery rider and the company undertaking the business should focus on the review of "subordination".
Various new business platforms and undertaking business companies should assess legal risks and set them up in advance. When undertaking the business of various takeaway, taxi-hailing and product-sharing platforms, the new business format company should agree on the rights and obligations in advance, and make specific settings for the assumption of corresponding legal liabilities and the handling of legal disputes, so as to avoid a vacuum in the supervision of new business enterprises.
[Case source]: In January 2020, the Ningbo Labor and Personnel Dispute Arbitration Court released the top ten typical cases of labor and personnel dispute arbitration in 2019
66. Henan Court's reference case: Fang Junping v. Shangqiu Transportation Group Co., Ltd., a labor dispute dispute (Yu Gao Fa [2014] No. 222)
[Summary of the trial]:
The people's court will not support the request of the driver hired by the owner or other relevant interested parties to confirm the existence of an employment relationship between the automobile transportation company and the driver hired by the vehicle owner.
The effective judgment of the court held that the labor relationship has the characteristics of the subordination of the employee's identity and the exclusivity of the labor behavior, and its subordination refers to the relationship between the employer and the employee in terms of personality, economy and organization after the establishment of the labor relationship. Its exclusivity is manifested in the fact that labor acts (including the labor acts provided by the employee and the labor act of the employer being transferred) must be "performed in person", cannot be transferred, and the entrustment agency is not applicable.
Case No.: :(2011) Shang Min Zhong Zi No. 514
67. A labor relationship is constituted between online anchors and units with strict employment management
[Summary of the trial]:
On the surface, this case is a claim for arrears of wages from the respondent, but its essence is a factual analysis of whether there is an employment relationship between Xiao and Company A. At present, in arbitration practice, most online anchors lack the attributes of management and being managed between online anchors and their employers, and it is difficult to be recognized as an employment relationship. Although Xiao, the applicant in this case, is also an ordinary online anchor with goods, the nature of his work is not consistent with that of ordinary online anchors with goods. It is common for online anchors to sign promotion agreements with manufacturers of different products to recommend and promote different products to their fan groups. However, the applicant in this case, Mr. Xiao, was employed by the respondent Company A and managed by Company A, clocking in and out of work, improving the content of the live broadcast according to the requirements of Company A, and only promoting Company A's products during the live broadcast.
According to Article 1 of the Notice on Matters Concerning the Establishment of Labor Relations (Lao She Bu [2005] No. 12), if an employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances, the labor relationship shall be established: 1. The employer and the worker meet the subject qualifications stipulated by laws and regulations; 2. The labor rules and regulations formulated by the employer in accordance with the law shall apply to the laborers, and the laborers shall be subject to the labor management of the employer and engage in paid labor arranged by the employer; 3. The labor provided by the worker is an integral part of the employer's business.
According to the facts examined by the court, firstly, both parties have qualified subject qualifications. Secondly, Xiao worked for Company A and accepted the attendance management of Company A, so there was a relatively clear relationship between Company A and Xiao to manage and be managed. Finally, the business scope of Company A's business license is "General Items:... Internet sales of food...; Licensed items: performance management; Commercial performances...", Xiao's online live broadcast sales of dried seafood are part of Company A's business, and he obtains labor remuneration for this. Therefore, although the two parties did not enter into a written labor contract, it met the legal characteristics of labor relations, and the arbitration commission found that there was a de facto labor relationship between Xiao and Company A, thereby supporting He's arbitration claim. With the vigorous development of the sharing economy, a number of new forms of digital economy such as online education, employee sharing, and live streaming have emerged, and the new forms of employment have posed challenges to protect the legitimate rights and interests of workers and the current employment security system. Some new business enterprises try to evade their main responsibilities by not signing labor contracts or signing "labor agreements" and "employment agreements" with employees. The arbitration commission reminds employers that they should actively abide by the current labor laws and regulations, and do not "be greedy for small things and lose big things"!
[Case source]: In 2023, the Ningbo Labor and Personnel Dispute Arbitration Commission released the top ten typical cases of labor disputes in 2022
68. Determination of the labor relationship between the online anchor and the employing unit
[Summary of the trial]:
The determination of the employment relationship of online anchor personnel shall be judged from aspects such as the entity's qualifications, personal affiliation, and economic subordination, and attention should be paid to comprehensively considering factors such as the parties' agreement, the anchor's employment status, the employing unit's degree of management of the anchor, and the anchor's income distribution method, to correctly determine the relationship between the online anchor and the employing unit.
Case document number: :(2022) Lu 1191 Min Chu No. 198, (2022) Lu 11 Min Zhong No. 1556
69. The development company cannot evade its main responsibility for employment through the form of individual contracted sales business
[Summary of the trial]:
Although the development company contracts its sales business to an individual, but has the right to determine the number and salary standard of the sales personnel recruited by the individual, and directly manages the sales personnel, the relationship between the employer and the sales personnel recruited by the individual meets the basic characteristics of labor relations. The employer shall bear the main responsibility for the employment of the sales personnel recruited by the individual.
[Typical significance]:
Article 1 of the Notice of the former Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations stipulates that an employment relationship shall be established if an employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances: (1) The employer and the worker meet the entity qualifications provided for by laws and regulations; (2) The labor rules and regulations formulated by the employer in accordance with the law are applicable to the laborers, and the laborers are subject to the labor management of the employer and engage in paid labor arranged by the employer; (3) The labor provided by the worker is an integral part of the employer's business.
In judicial practice, in the absence of a written employment contract between the two parties, it is common to determine whether there is an employment relationship between the two parties based on the following aspects:
1. Whether the employer has the qualifications of an employing entity. To establish an employment relationship between an employee and an employer, the employee shall have the qualifications stipulated by the current labor law system in mainland China for the employer and the employee. In this case, a construction company was registered and established by the industrial and commercial department and had the legal qualifications to be an employing entity, and although Gu and others were directly recruited by Shen to work in a construction company, Shen was an individual who did not have employment qualifications and could not establish an employment relationship with Gu and others.
2. The labor provided by the worker is an integral part of the employer's business. This part of the facts is usually analyzed in conjunction with the business scope of the employer, and whether the labor provided by the employee is an act of performing duties according to the content of the employee's work and the business scope of the employer. In this case, the business scope of a construction company was real estate development and sales, and Gu's house sales were an important part of the company's business.
3. Whether the worker and the employer have a personal and economic subordinate relationship. On the one hand, in the process of providing labor, the worker obeys the management of the employer, abides by the rules and regulations of the employer, and accepts the work arrangement and assessment of the employer. On the other hand, the main source of income of a worker comes from the remuneration paid by the employer.
In this case, Gu sold houses in the name of a construction company, and the construction company had the right to arrange for Gu to work overtime and be on duty, and to supervise Gu's work; The wage standards of Gu and others were determined by a construction company and paid by the company to Gu through Shen, and Gu's actual source of wages was still the construction company, so there was a personal and economic affiliation between Gu and the company.
[Case source]: Zhenjiang Intermediate People's Court and Zhenjiang Municipal Human Resources and Social Security Bureau released the "2021 Typical Cases of Labor Disputes in Municipal Courts" on April 29, 2022
70. Labor dispute case between Liao and a plastic company - how to determine the nature of employment exceeding the statutory retirement age?
【Trial Reason】:
The focus of the dispute in this case is whether the relationship between the parties is an employment relationship or an employment relationship. According to Article 21 of the Regulations for the Implementation of the Labor Contract Law of the People's Republic of China, "the labor contract shall be terminated if the employee reaches the statutory retirement age." "In this case, Liao had reached the statutory retirement age, and the plastic company signed a Retirement and Re-employment Agreement with Liao for this purpose, clearly stipulating the retirement and re-employment relationship and related rights and obligations, that is, the two parties actually terminated the previous employment relationship by entering into an agreement. Therefore, the nature of the legal relationship established between the parties thereafter should be an employment contract relationship, not an employment relationship. Under these circumstances, Liao's request for the plastic company to pay compensation for the illegal termination of the labor contract lacked factual and legal basis, and the court did not support it.
[Typical significance]:
In recent years, with the development of social economy and the improvement of people's health, there are a large number of cases in which retirees from some units are rehired by their original units or hired by new units, and there are controversies over the ways to protect their rights and interests, and the core issue is whether such employment constitutes an employment relationship. The re-employment of an employee after he or she has reached the statutory retirement age shall not constitute an employment relationship in accordance with the law, but shall be a labor relationship. For the employment of "retired without rest", it is recommended that special attention be paid to the safety of the work content, as well as the protection of salary payment, welfare benefits, insurance purchase, etc., when signing the employment agreement, so as to better protect their legitimate rights and interests.
[Source of the case]: In May 2021, the Xiamen Intermediate People's Court released the top 10 typical cases of labor disputes
71. The lawful rights and interests of workers in new industries such as food delivery riders are also protected by law
[Summary of the trial]:
In issues related to the confirmation of labor relations involving internet platform enterprises, attention should be paid to grasping the balance between protecting the rights and interests of workers and promoting the flexibility of the labor market, and comprehensively consider factors such as the operation form of the online platform of the employing unit, the employment status of the workers, the degree of management of the platform over the workers, the income distribution method of the workers, and whether the workers independently bear the business risks, and so on, to distinguish between the labor relationship and the labor service relationship in accordance with the law.
[Typical significance]:
In recent years, with the rapid development of Internet platforms, the number of new forms of employment such as food delivery riders, online car-hailing drivers, truck drivers, and Internet marketers who rely on Internet platforms for employment has increased significantly. To this end, eight departments, including the Jiangsu Provincial Department of Human Resources and Social Security, have issued the Guiding Opinions on Safeguarding the Labor Protection Rights and Interests of Workers in New Forms of Employment, which stipulates that platform enterprises shall bear the main responsibility for employment, employ workers in accordance with laws and regulations, reasonably formulate platform rules and algorithms, fulfill employment reporting obligations, and protect the interests of workers in new forms of employment; If the conditions for establishing an employment relationship are met, a labor contract shall be concluded with the employee in accordance with the law; For those who do not fully comply with the circumstances of establishing an employment relationship, but the enterprise manages the labor process of the employee, the enterprise shall negotiate and enter into a written agreement with the employee to reasonably determine the rights and obligations of both parties in accordance with the regulations; It is expressly forbidden to make whether or not it is registered as an individual industrial and commercial household as a condition for recruitment. The promulgation of the Opinions will form a classified protection mechanism for workers in the field of new business forms, and will promote the healthier development of new business industries.
[Case source]: Zhenjiang Intermediate People's Court and Zhenjiang Municipal Human Resources and Social Security Bureau released the "2021 Typical Cases of Labor Disputes in Municipal Courts" on April 29, 2022
72. A Shanghai Human Resources Company v. Long and 15 Other Defendants Labor Dispute Series - Determination of Labor Relations under Internet Conditions
[Summary of the trial]:
Labor relationship refers to the relationship of rights and obligations arising from the employer's recruitment of workers as its members, and the workers provide labor paid by the employer under the management of the employer. According to the principle of "whoever asserts the claim shall present the evidence" in civil litigation, the employee shall bear the corresponding burden of proof if he claims that there is an employment relationship with the employer, that is, the employee shall prove that he or she accepts the labor management of the employer, engages in the work arranged by the employer, and pays the labor remuneration to the employer, otherwise he shall bear the adverse consequences of failing to provide evidence. On the contrary, if the employer claims that there is no employment relationship with the employee, it should provide evidence on the existence of the legal relationship between the two parties, and clarify the nature of the legal relationship between the two parties, and if it is unable to do so, it shall bear the legal consequences of failing to provide evidence.
[Reasons for the trial]:
The effective judgment of the court held that the plaintiff was an employer with the qualifications of an employing entity, and the defendant was a natural person with the ability to work, and both parties met the qualifications of the entity for establishing labor relations as stipulated by laws and regulations. According to the "labor service agreement" provided by the defendant, the defendant shall abide by the rules and regulations and business procedures of the plaintiff's office, and shall provide labor at the time and place required by the plaintiff, and the calculation standard, method and time of its remuneration shall be subject to the rules of the plaintiff or the plaintiff's partner; At the same time, the defendant should also participate in the training and study arranged by the plaintiff. It can be seen that the rules and regulations of the plaintiff's office are directly applicable to the defendant, and the plaintiff has carried out substantial management of the defendant, the defendant is engaged in paid labor arranged by the plaintiff, and the defendant's work content is to provide food delivery services for "Meituan", which has a cooperative relationship with the plaintiff, so the relationship between the plaintiff and the defendant is in line with the characteristics of labor relations, and the fact of an employment relationship between the plaintiff and the defendant should be determined in accordance with the law. With regard to the plaintiff's claim to confirm that there is no labor relationship between the plaintiff and the 15 defendants including Long, there is no basis in law, and this court does not support it.
[Typical significance]:
With the rise and development of the Internet economy, the new type of employment relationship in multiple forms and types has also developed rapidly, and how to determine the employment relationship under this new form, especially in the case of a sluggish economic environment and a large number of labor dispute cases, the identification of labor relations in the context of the Internet is an urgent problem to be solved in judicial practice. Whether an employment relationship is established shall be determined based on subjective and objective elements, i.e., whether both parties have the qualifications of legal entities, whether the rules and regulations of the employer apply to the employee, whether the employee actually accepts the management, command or supervision of the employer, whether the labor provided by the employee is an integral part of the employer's business, whether the employer provides basic working conditions to the employee, and whether the remuneration is paid to the employee. The determination of the legal relationship between the parties and whether an employment relationship is established shall be made by the arbitration institution or the people's court according to the specific circumstances of the case, and if the agreement between the parties on the legal relationship itself is inconsistent with the real relationship between the parties, it will not affect the determination of the people's court.
Case Number: :(2019) Yue 0310 Min Chu No. 4929-4943 (2020) Yue 03 Min Zhong No. 2528-2542
Source of the case: Shenzhen Intermediate People's Court issued the White Paper on Labor Dispute Adjudication in Shenzhen Courts (2005-2020) on January 20, 2021
73. The platform subcontractor, as the actual employing entity, shall bear the employment responsibility
[Summary of the trial]:
If the subcontractor of the platform changes the employment relationship to a cooperative relationship through labor dispatch or registration as a freelancer without informing the worker, and if the worker's work content and place of work have not changed, but the employee is still subject to the employment management of the subcontractor, it shall be deemed that the employee and the platform subcontractor still have a de facto employment relationship.
Case Number: :(2023) Jing 0101 Min Chu No. 2493, (2023) Jing 02 Min Zhong No. 9644
74. When an employer and an employee sign an agreement to circumvent the labor relationship, the nature of the relationship between the two parties shall be determined by the actual performance content
[Summary of the trial]:
Mr. Li signed the "Hourly Employee Agreement" with a sales company, although the name is not a labor contract, but the subject of the contract is qualified, and the term, position, working hours, labor remuneration and labor protection are clarified, and the relevant elements of the labor contract are met. Judging from the actual performance of both parties, Li needs to abide by the company's rules and regulations, accept the company's supervision and management, complete the work tasks arranged by the company, and the company pays Li a monthly remuneration, and the two parties meet the characteristics of establishing a labor relationship.
[Typical significance]:
Labor relations refer to the relationship of rights and obligations arising from the employment of workers as its members by an employer, and the provision of paid labor by the workers under the management, direction and supervision of the employer. A labor relationship is a social relationship in which an employee provides one-time or specific labor services to the employer and the employer pays the agreed remuneration for labor services based on an oral or written agreement. In the labor relationship, the worker and the employer are equal in the relationship of civil rights and obligations. The determination of the employment relationship is not only based on the name of the agreement, but also on the content of the actual performance by both parties. Whether an employer has established an employment relationship with an employee shall be determined based on whether the employer has the qualifications prescribed by laws and regulations, whether the employer pays labor remuneration to the employee, whether the employee obeys and accepts the supervision and management of the employer in the course of work, and whether the labor provided by the employee is an integral part of the employer's business. This case reminds employers that they can neither shirk their employment responsibilities nor avoid employment risks by signing labor agreements, part-time agreements, cooperation agreements, etc.
[Case source]: Yangzhou Intermediate People's Court released the "2023 Yangzhou Court Labor Dispute Typical Cases" on April 28, 2024
75. Whether there is an employment relationship between an online anchor and a live broadcast platform company should be substantively reviewed - a labor contract dispute between Ren and an online culture company
[Summary of the trial]:
The court held that the focus of the dispute in this case was whether an employment relationship was constituted between Ren and an online culture company. In the content of the artist management contract signed by the two parties, the two parties agreed on the rights and obligations of carrying out online live broadcast activities, and the income came from the live broadcast platform, which was divided and distributed proportionally, although it was directly paid by an online culture company to Ren, but it was different from the labor remuneration paid by the employer to the employee in the labor relationship. The agreement between the two parties on the working hours and leave system is based on the obligations agreed in the contract, not on the management in the labor relationship. The agreement is an agreement on the rights and obligations of the two parties to carry out performing arts activities, provide brokerage services and other civil activities, and is not an agreement on labor rights and obligations. The evidence submitted by Ren was insufficient to prove that he was an employee of an online culture company, and could not prove that he was under his management and engaged in paid labor arranged by an online culture company, and should bear the adverse consequences of failing to provide evidence, so Ren asserted that there was an employment relationship with an online culture company and demanded payment of corresponding economic losses, which had no factual and legal basis, and the court of first instance ruled to reject Ren's litigation claim.
Ren appealed against the first-instance judgment, and the second-instance court rejected the appeal and upheld the original judgment.
Online live streaming is an emerging industry that has emerged in recent years, and there is an increasing number of labor disputes between anchors and live streaming platforms. In judicial practice, there are roughly two types of legal relationships between the parties: the signing mode is to sign a labor contract, the anchor serves the platform and accepts the management of the platform, and the platform pays labor remuneration to him, and the labor contract law applies; The partnership sharing model is recognized as an ordinary commercial cooperative relationship, and the anchor cannot enjoy the protection given by the Labor Law and the Labor Contract Law. When hearing similar cases, courts shall follow the principle of good faith, review the basic elements of the construction of labor relations, and adhere to the principles of respecting freedom of contract, advocating honesty and trustworthiness, unifying rights, obligations, and responsibilities, and unifying procedural fairness with substantive justice, so as to better protect the lawful rights and interests of workers and employers.
Transferred from the same judgment rule for similar cases