Case brief

    On April 10, 2022, Company A signed a labor employment contract with Lao Chen, a retired reemployed person, stipulating that Lao Chen hires service personnel to provide labor services to Company A, and the company has the right to choose the service personnel hired by Lao Chen. In the middle of the month, Lao Chen will pay the salaries of his employees for the previous month, and Lao Chen and his employees' attendance will be entrusted to Company A for unified management.

    In May 2023, Xiao Li joined Company A and was responsible for the delivery work. During the work, Company A paid Lao Chen the labor fee, and Lao Chen paid Xiao Li the salary. Xiao Li's attendance and leave approval are reported in the work group of Company A.

    One day, Xiao Li was injured during the delivery. But Company A denied that there was a labor relationship with Xiao Li. In order to determine the work-related injury, Xiao Li applied for arbitration to confirm the existence of a labor relationship between the two parties. During the arbitration hearing, the agent of Company A signed an employment contract with Xiao Li in court, and then Xiao Li withdrew the arbitration application.

    But two days later, Company A applied for arbitration on the grounds that the arbitration agent signed the employment contract without the authorization of the company and the company did not have a labor relationship with Xiao Li, requesting the order to confirm that Xiao Li did not have a labor relationship with his company.

    The arbitration committee did not accept it, and Company A sued the court.

court hearing

    The court held that the focus of the review of this case is whether Xiao Li is an employee of Company A or an employee hired by Lao Chen. Whether Xiao Li has a labor relationship with Company A should be determined from whether the employer dominates and manages the workers. The labor employment contract signed by Company A and Lao Chen directly stipulates the time and salary standard for Lao Chen to pay Xiao Li to his employees, which obviously goes beyond the scope of labor relations. Lao Chen actually has no right to decide the compensation standard and payment time of Xiao Li, who is employed. As a migrant worker, Xiao Li has reason to believe that he is actually an employee employed by Company A.

    At the same time, Company A organized Xiao Li's attendance clock in actual management of Xiao Li, and Xiao Li's work was part of Company A. Finally, the court ruled that Company A had a labor relationship with Xiao Li.

Judge's statement

    In practice, the situation that the employer recruits laborers in the name of others occurs from time to time. In this case, disputes between the employer and the laborers are prone to arise.

    So, how to judge whether there is a labor relationship between the laborer and the employer? First of all, it is necessary to examine whether there is a subordination between the employer and the laborer, that is, personal subordination and economic subordination. Specifically, whether the laborer is managed by the employer and abides by the rules and regulations of the unit, whether the laborer's income mainly comes from the unit, and whether the labor provided by the laborer is an integral part of the employer's business.

    In this case, although Company A signed a labor contract with Lao Chen, agreeing that Lao Chen would hire laborers and pay wages to avoid labor relations, it was determined after review that Company A determined Xiao Li's salary standards and working hours, and approved the application for leave, that is, Xiao Li was actually managed by Company A, and Xiao Li's delivery business was also an integral part of the company's business. Finally, the court found that Company A and Xiao Li fully met the requirements of labor relations, and both parties had a labor relationship.

    Here, it is necessary to remind the relevant employers that any attempt to circumvent labor relations through covert means not only damages the legitimate rights and interests of workers, but also requires the unit to pay social insurance, pay compensation, and even face fines once it is determined to be a de facto labor relationship. Employers should establish standardized labor relations in accordance with the law to protect the legitimate rights and interests of workers and achieve sustainable development.

     This article is transferred from the "Shandong High Law" WeChat official account, thank you here!