With the continuous development of the take-away platform, a new employment model of "platform+food delivery staff" has gradually formed. Compared with the traditional employment mode, the employment mode of "rider" is more flexible and autonomous, and the labor relations involved are more complicated. Then, how to identify the labor relationship of take-away delivery staff when platform enterprises adopt cooperative employment methods such as outsourcing?
01
Brief introduction of the case
In June, 2020, the defendant Xiao Huang went through the entry formalities in a human resources company in Taiyuan, the plaintiff, and signed a one-year Labor Agreement. The company hired Xiao Huang as a take-away food delivery clerk, and asked Xiao Huang to complete the delivery task on time. The salary was paid by the commission, and the labor remuneration was paid monthly by the company according to the quantity of the delivery. In addition, Xiao Huang accepted the company’s work standard management during the delivery process. After that, the human resources company sent Xiao Huang to a distribution service company in Taiyuan, the employer, as a US group rider to be responsible for the distribution work in the designated area.
In 2021, Xiao Huang and the human resources company had a dispute over the confirmation of labor relations, and Xiao Huang applied to the Wanbailin District Labor Arbitration Committee to confirm that there was a factual labor relationship between Xiao Huang and the human resources company since June 21, 2020. Finally, the Committee ruled that there was a labor relationship between the applicant Xiao Huang (defendant) and the respondent human resources company (plaintiff). Because the human resources company refused to accept the above ruling, it appealed to the court in Wanbailin for settlement.
The original told that
The defendant’s mobile phones, vehicles and other tools for his work are self-equipped, and his working hours and workload are freely controlled by him. Our company has no compulsory management, so there is no personal attachment and subordinate relationship between our company and it, which does not meet the constitutive requirements of labor relations. Moreover, since July 2020, the defendant has not taken orders, nor has he contacted the company, and suddenly requested labor arbitration, which is obviously unfair to the enterprise.
The defendant argued that
The labor service agreement signed by the original and the defendant is actually a labor dispatch contract, and all parties perform their contractual obligations according to the contract. As a worker sent to the employer, we are engaged in the business of the employer, which is not part of the plaintiff’s business, but the labor dispatch business is part of the plaintiff’s business, so we cannot deny the labor relationship between the two parties. The defendant’s salary in July was 3,803.1 yuan. It can be confirmed that as of July, the defendant was hospitalized due to a traffic accident and did not leave his job at will, but was unable to continue working due to objective circumstances.
02
Trial result
The Wanbailin Court held that the labor relationship in the labor law refers to the legal relationship formed by the employer paying labor remuneration to the laborer and the laborer providing professional labor. According to the provisions of the Notice on Matters Related to the Establishment of Labor Relations (No.12 [2005] of the Ministry of Labor and Social Affairs): "The labor relationship is established if the employer has not concluded a written labor contract, but at the same time:
(a) the employer and the employee meet the subject qualifications stipulated by laws and regulations;
(2) The labor rules and regulations formulated by the employing unit according to law are applicable to laborers, who are subject to the labor management of the employing unit and engaged in paid labor arranged by the employing unit;
(3) The labor provided by laborers is an integral part of the employer’s business. "
First of all, from the elements of a written contract, the Labor Agreement signed by the original and the defendant clearly stipulates the working period, probation period, working place, remuneration payment and economic compensation, which conforms to the general characteristics of labor dispatch contracts, so the plaintiff is a labor dispatch unit and the defendant should be a dispatched worker.
Secondly, from the perspective of the substantive rights and obligations between the two parties:
(a) the labor provided by the defendant is part of the plaintiff’s dispatch business;
(2) According to the agreement signed by both parties, the defendant must abide by the labor discipline and work norms formulated by the plaintiff, but the defendant’s working hours and forms are more flexible, and the relationship between the two parties is essentially the relationship between management and being managed;
(3) The defendant’s salary is paid to the defendant after being drawn by the plaintiff, so there is a personal and economic subordinate relationship between the two parties, which has obvious characteristics and essence of labor relations, and it can be concluded that there is a labor relationship between the two parties.
Thirdly, from the perspective of protecting workers’ rights, although the establishment of labor dispatch companies is beneficial to enterprises to reduce the cost of employing people, it cannot ignore the protection of workers. The plaintiff can’t deny the labor relationship between the two parties by neglecting the management of the defendant, and the plaintiff, as a labor dispatch unit, can’t just collect relevant benefits without taking any responsibility for employing people. Finally, under the premise of confirming the existence of labor relations between the two parties, the plaintiff, as an employer, should provide evidence on the working period, resignation and termination of labor relations of the workers. Now the plaintiff fails to provide evidence and should bear the legal consequences of unfavorable evidence.
Therefore, Wanbailin Court found that there was a labor relationship between the plaintiff Shanxi Human Resources Co., Ltd. and the defendant Huang Zi Jr. from June 2020 to June 2021.
At present, the judgment has produced legal effect.
03
Judge’s statement
Whether there is a labor relationship between the employee and the employer is mainly determined by examining whether the employee accepts the daily management of the employer, whether he accepts labor remuneration, whether it is the main business scope of the employer, and other factors. For a new product similar to the takeaway rider, which was born in the era of big data on the Internet, it should also be identified and identified according to the above basic principles in line with the principle of regulating the legitimate employment of enterprises and protecting the legitimate rights and interests of employees according to law.
Dependency is the key feature of identifying labor relations. It can be judged from two aspects: personal dependency and economic dependency whether workers and dispatching companies have formed a subordinate relationship. The stronger the subordinate relationship between the two parties, the more inclined they are to identify labor relations. If the laborer can provide the preliminary evidence of subordination to the dispatching company, and the dispatching company denies it and claims that there are other relations between the two parties, it should provide evidence to prove it, otherwise it will bear the legal consequences of unfavorable proof.
04
Law link
01
Article 464 of the Civil Code of People’s Republic of China (PRC)
A contract is an agreement between civil subjects to establish, change and terminate a civil legal relationship. Agreements on identity relations such as marriage, adoption and guardianship shall be governed by the legal provisions on such identity relations; If there are no provisions, the provisions of this part can be applied according to their nature.
02
Article 465 of the Civil Code of People’s Republic of China (PRC)
Contracts established according to law are protected by law. A legally established contract is legally binding only on the parties, except as otherwise provided by law.
03
Notice on Establishing Labor Relations (No.12 [2005] of the Ministry of Labor and Social Affairs)
1. A labor relationship is established when an employer recruits a worker without concluding a written labor contract, but under the following circumstances:
(a) the employer and the employee meet the subject qualifications stipulated by laws and regulations;
(2) The labor rules and regulations formulated by the employing unit according to law are applicable to laborers, who are subject to the labor management of the employing unit and engaged in paid labor arranged by the employing unit;
(3) The labor provided by laborers is an integral part of the employer’s business.
Two, the employer has not signed a labor contract with the employee, and can refer to the following documents when determining the existence of labor relations between the two parties:
(a) payment vouchers or records (payroll roster), payment of various social insurance premiums;
(2) The "work permit" and "service certificate" issued by the employer to the laborer and other documents that can prove the identity;
(3) Employment records such as "Registration Form" and "Application Form" filled out by the employee;
(4) Attendance records;
(5) Testimonies of other workers, etc.
Among them, the relevant documents in items (1), (3) and (4) shall be borne by the employer.
Three, the employing unit to recruit workers in accordance with the provisions of Article 1, the employing unit shall sign a labor contract with the workers, and the term of the labor contract shall be determined by both parties through consultation. If the negotiation fails, either party may propose to terminate the labor relationship. However, if the laborer meets the conditions for signing an open-ended labor contract, the employer shall conclude it. Where the employing unit proposes to terminate the labor relationship, it shall pay the economic compensation of one month’s salary according to the employee’s working years in the unit.
Four, construction, mining enterprises and other employers will contract out the project (business) or management right to organizations or natural persons who do not have the qualification of employment subject, and the employer who has the qualification of employment subject shall bear the responsibility of employment subject.
Five, workers and employers on the existence of labor relations caused by disputes, can apply to the competent labor dispute arbitration committee for arbitration.
Original title: "Who is the takeaway rider" working for "? The judge sentenced! 》
Read the original text