Do internally retired personnel establish labor relations with the company?

Relevant knowledge: In trial practice, since the internally retired personnel signed a labor contract with the new employer, it is a labor relationship rather than a labor relationship. New employers generally do not require internally retired personnel to fill out recruitment "registration forms" and "application forms", do not issue "work certificates" and "service certificates", and do not pay various social insurance premiums. There is a clear agreement between internally retired personnel and the new employer. In the event of a dispute, the relevant provisions of the Contract Law shall apply. When the labor provided by a retired employee is an integral part of the business of the new employer, and a labor dispute arises due to the fact that the retired employee claims that he and the new employer have a labor relationship, whether the various labor rules and regulations formulated by the employer in accordance with the law apply to him or not, whether It is difficult to prove the labor management of the employer. Article 39 of the Labor Contract Law stipulates that if an employee establishes a labor relationship with another employer at the same time, which seriously affects the completion of the work tasks of the employer, or if the employer refuses to make corrections upon request, the employer may terminate the labor contract. From the provisions of this article, it can be understood that the law does not prohibit workers from establishing multiple labor relationships, but only stipulates restrictive conditions. The establishment of multiple labor relationships of workers depends on the impact of the workers on the completion of the work tasks of the unit and the consent of the employer. Article 91 of the Labor Contract Law stipulates that if an employer recruits workers whose labor contracts have not been terminated or terminated with other employers and causes losses to other employers, it shall bear joint liability for compensation. Internal retirement means internal retirement. Article 12 of the "Notice of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System" stipulates that the employer shall sign a labor contract with the original permanent employee who has gone through the formalities for recuperation or retirement within the factory. The rights and obligations relationship, and the relevant documents regarding leaving work for recuperation or retirement shall be included as attachments to the labor contract. It can be seen that the labor relationship between the internally retired personnel and the original employer has not been terminated or terminated. Due to different understandings of legal provisions, in practice, when new employers recruit retired personnel, some adopt the form of hiring and signing labor contracts to avoid liability for compensation stipulated in Article 91 of the Labor Contract Law. Both labor service contracts and labor contracts are contracts with the provision of labor as the subject matter, and the identification of the two contracts is easily confused. In the practice of labor disputes, disputes often arise between retired employees and their new employers as to whether there is indeed a labor relationship, and it is difficult to determine. The "Notice of the Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations" stipulates that a labor relationship is established if the following circumstances are met at the same time. 1. The employer and workers meet the subject qualifications stipulated in laws and regulations; 2. Various labor rules and regulations formulated by the employer in accordance with the law apply to workers, and workers are subject to the labor management of the employer and engage in paid work arranged by the employer. Labor; 3. The labor provided by workers is an integral part of the employer's business. Refer to the following documents to determine the existence of a labor relationship between the two parties: 1. Wage payment vouchers or records (employee wage payment roster), records of payment of various social insurance premiums; 2. "Work certificate" and "service certificate" issued by the employer to the employee and other documents that can prove identity; 3. Recruitment records such as the "Registration Form" and "Registration Form" filled out by the employer; 4. Attendance records; 5. Testimonies of other workers, etc. Although the Labor Contract Law does not prohibit workers from establishing multiple labor relationships, it does not stipulate whether workers should sign a written labor contract with a new employer when establishing multiple labor relationships, the terms that the labor contract should have, and the cancellation and termination of the labor contract. If a dispute arises in the labor relationship established after specific provisions are made, it will be difficult to handle because the legal provisions are unclear. Therefore, it is not recommended that workers have multiple labor relationships, and workers should only have one labor relationship. When recruiting workers, employers should carefully understand the workers' employment status and carefully sign labor contracts. When it is really necessary to recruit workers whose labor relations have not been terminated, the workers should be required to provide written opinions from the original employer to avoid labor disputes. If it is necessary to temporarily hire employees for certain positions due to a specific matter, both parties can sign an employment (labor service) contract, but the content of the contract should be clearly agreed, and efforts should be made to resolve conflicts as much as possible and avoid or reduce disputes.

We have some understanding of the above issues. Internally retired personnel have an internal retirement relationship with their original units. Therefore, when signing a contract with the enterprise, it is a labor service contract, not a labor contract. The relationship between the two is a labor service relationship. It is contrary to the relevant provisions of the "Notice of the Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations", so it does not belong to a labor relationship.