Is assuming the responsibility of the employment subject equivalent to establishing labor relations?

Labor relations are labor relations established or existing between employers and workers according to law, and have the main responsibility of employers. Whether there is a labor relationship must be inferred and judged according to law. If the employer's main responsibility is established and the employee pays the labor expenses and accepts its management, it can be considered that there is a labor relationship.

This is a precedent:

Is assuming the responsibility of the main body of employment equivalent to establishing labor relations?

(Shen Meiping, Second Intermediate People's Court of Hainan Province)

I. Basic information

Appellant (plaintiff in the original trial) Henan Guoan Construction Group Co., Ltd. ..

Appellee (defendant in the first instance) Wu.

Guoan Construction Company contracted the new rural construction project of Shandao Village, Jianfeng Town, Ledong Li Autonomous County to Chen Fubing for construction. 2065438+March, 2003 1 day, Wu was hired as a concrete worker in the new rural construction project of Shandao Village, Jianfeng Town. Verbally agreed on the daily wage of 130 yuan, and overtime will be counted separately, including room and board, but did not sign a written labor contract with Wu. On May 5, 20 13, at around 4: 30/kloc-0, Wu cong fell from the corridor on the second floor and was injured. After being sent to the Second People's Hospital of Ledong Li Autonomous County for treatment, he was transferred to Sanya People's Hospital for treatment due to severe craniocerebral injury, and was diagnosed as severe craniocerebral injury by the hospital. After the incident, Wu paid all the medical expenses.

It was also found out that after the accident, Wu applied to the Labor and Personnel Dispute Arbitration Committee of Ledong Li Autonomous County for arbitration, and the Labor and Personnel Dispute Arbitration Committee of Ledong Li Autonomous County made an arbitration award of Le Lao Ren Zhong Zi [20 14] No.2 on February 27, 2004, confirming that there was a factual labor relationship between Wu and Guoan Construction Company. Guoan Construction Company refused to accept the decision and filed a lawsuit in the court of first instance, requesting to confirm that there was no labor relationship between Wu and Guoan Construction Company.

Second, the trial

The People's Court of Ledong Li Autonomous County, Hainan Province believes that the focus of the dispute in this case is whether there is a labor relationship between Wu and Guoan Construction Company. Article 7 of the Labor Contract Law of People's Republic of China (PRC) stipulates: "The employer shall establish labor relations with the laborer from the date of employment. The employer shall establish a roster of employees for future reference. " Article 4 of the Notice on Determining Matters Related to Labor Relations (formerly issued by the Labor Department of the Ministry of Labor and Social Security [2005]12) stipulates: "If an employer such as a construction enterprise or a mining enterprise contracts out the engineering business or management right to an organization or a natural person who does not have the qualification as the employer, the employer with the qualification as the employer shall bear the responsibility as the employer." In this case, Chen Fubing is a natural person and does not have the qualification of employment subject. When hiring Wu, Guoan Construction Company should assume the main responsibility of hiring. Therefore, there is a labor relationship between Wu and Guoan Construction Company. The arbitration award of Lelaorenzhongzi (20 14) No.2 of the Labor and Personnel Dispute Arbitration Commission of Ledong Li Autonomous County is well-founded in law and should be maintained. Guoan Construction Company's request to confirm that there is no labor relationship between it and Wu cannot be established and will not be supported. According to Article 7 of the Labor Contract Law of People's Republic of China (PRC), the claim of Henan Guoan Construction Group Co., Ltd. was rejected. The case acceptance fee 10 yuan shall be borne by Henan Guoan Construction Group Co., Ltd. ..

The appellant Guoan Construction Company refused to accept the first-instance judgment and appealed to the Second Intermediate People's Court of Hainan Province, requesting the second-instance court to cancel the first-instance judgment and confirm that there was no labor relationship between Wu and Guoan Construction Company.

The Second Intermediate People's Court of Hainan Province held that the focus of the dispute in the second instance of this case was whether there was a labor relationship between Wu and Guoan Construction Company. Judging from the facts ascertained in this case, the engineering department involved engaged Wu Wei as a concrete worker and paid his wages. Wu is not subject to the management and constraints of the labor rules and regulations of Guoan Construction Company during the provision of labor services. In Guoan Construction Company, there are no recruitment registration records, attendance registration records, wage payment vouchers and collection records, and the two sides do not form labor relations. The court of first instance held that Guoan Construction Company should bear the responsibility of employing the main body on the grounds that Guoan Construction Company contracted the project to a natural person who did not have the qualification of employing the main body, and confirmed that there was a labor relationship between Guoan Construction Company and Wu. In our court's view, assuming the responsibility of the employer is not the same as confirming the labor relationship. Article 4 of the Minutes of the Joint Meeting on Issues Related to the Trial of Labor Dispute Cases jointly issued by Hainan Higher People's Court and Hainan Labor and Personnel Dispute Arbitration Committee stipulates: "In the subcontracting and subcontracting of construction projects, if there is a dispute between the natural person who is the actual construction party and the laborer employed, and the laborer requests to confirm that there is a labor relationship with the employer or subcontractor with the qualification of employment subject, it will not be supported. However, according to Article 94 of the Labor Contract Law, the Measures for One-time Compensation for Casualties in Illegal Employment Units and the conclusion of labor ability appraisal, if the employer or contractor or the actual constructor bears legal responsibilities related to work-related injuries or occupational diseases, it should be supported. " Accordingly, the reason why Guoan Construction Company requested to confirm that there was no labor relationship between Wu and Guoan Construction Company was established, and our hospital supported it. The first-instance judgment found that the facts were basically clear, but the application of law was wrong and should be corrected according to law. According to Article 170, Paragraph 1 (2) of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows: 1. The civil judgment of the People's Court of Ledong Li Autonomous County, Hainan Province (20 14) Le Min Zi Chu Di 184 was revoked.

Second, there is no labor relationship between Wu and Henan Guoan Construction Group Co., Ltd.

Third, the case analysis

Regarding this case, Article 4 of the Notice on Determining Related Matters of Labor Relations issued by the Labor Department of the former Ministry of Labor and Social Security (No.KLOC-0/2 issued by the Labor Department [2005]) (hereinafter referred to as the "Notice") only stipulates that the employer shall bear the main responsibility of the laborer, but it is not clear that there is a factual labor relationship between the employer and the laborer. Therefore, there are different opinions in the theoretical circle, and there are two main viewpoints: First, affirmation. There should be a labor relationship between the employer, contractor or subcontractor of an individual contractor and the employee. The "main responsibility of the employer" stipulated in Article 4 of the Notice should be understood as the legal responsibility of the employer in the Labor Law. Second, whether it is conclusive. It is considered that the relationship between individual contractors and workers should be regarded as employment relationship, and there is no employment relationship or labor relationship between their previous employers, contractors or subcontractors and workers. The reason is that the relationship between construction enterprises and individual contractors is only contracting and subcontracting, and the workers are employed by individual contractors, and there is no agreement to establish labor relations or employment relations with construction enterprises. Construction enterprises also do not undertake the management and payment of workers' wages. Therefore, there is no labor relationship between construction enterprises and workers.

In my opinion, the first view is based on protecting the interests of workers, and there is no direct labor relationship between employers and workers. However, workers are vulnerable groups, and once they are hurt, employers should bear corresponding responsibilities. This view ignores that the premise of establishing labor relations is mutual consent. In practice, employers often don't know whether laborers actually provide labor services. Workers only know that they work for individual contractors and don't know who the employers are. In this case, it is not consistent with the fact that the construction enterprise directly acts as the employer and there is a labor relationship between the workers. Moreover, if a construction enterprise establishes a labor relationship with laborers, the individual contractor who actually hires laborers and pays labor remuneration does not need to bear any legal responsibility. This is also not conducive to standardizing the construction market and reducing the illegal employment of individual contractors. Although the second view also requires construction enterprises to bear joint and several liability for the losses of workers employed by individual contractors, this is only the nature of civil liability. The legal responsibilities of employers in the sense of labor law advocated by workers, such as industrial injury insurance benefits and handling social insurance procedures, are difficult to be supported because they do not belong to the scope of civil liability compensation. In this way, the rights claimed by workers and the compensation obtained are very limited.

Conclusion: Labor relations and taking the responsibility of the employer are two different concepts, and taking the responsibility of the employer is not the same as the establishment of labor relations. The assumption of the responsibility of the employer as stipulated in Article 4 of the Notice is not to confirm the existence of labor relations between the two parties. This clause is a special protection for workers, a provision of vicarious liability, and a relief measure based on the employer's risk transfer. Whether there is a labor relationship between the employee and the employer depends on whether the two parties meet the conditions that constitute a labor relationship, that is, whether there is an agreement and whether a written labor contract has been signed. Factual labor relations are also a kind of labor relations. In view of the fact that some employers have not concluded written labor contracts with employees in practice, Articles 1 and 2 of the Notice also stipulate the conditions for the establishment of factual labor relations, that is, the basis for judging whether there is a factual labor relationship between employers and employees is as follows. First, the employer has not signed a written labor contract, but in any of the following circumstances, that is, the establishment of labor relations: the employee is under the labor management of the employer and engaged in paid labor arranged by the employer; The labor provided by laborers is an integral part of the employer's business. Second, the employer has not signed a labor contract with the employee, and when it is found that there is a labor relationship between the two parties, it can refer to the wage payment voucher or record (the payroll roster of employees) and the record of paying various social insurance premiums; The work permit and service certificate issued by the employer to the laborer and other documents that can prove their identity; Employment records such as Registration Form and Registration Form filled out by employees; Attendance records, etc. According to the theory of logical constitution of legal norms, the responsibility of the employer as the main body of employment stipulated in Article 4 of the Notice is only a provision of legal responsibility, that is, this provision is a legal consequence, not a legal provision that defines the composition of labor relations, nor does it confirm the existence of labor relations between workers and employers.

Article 4 of the Minutes of the Joint Meeting on Issues Related to the Trial of Labor Dispute Cases jointly issued by Hainan Higher People's Court and Hainan Labor and Personnel Dispute Arbitration Committee clearly stipulates: "In the subcontracting and subcontracting of construction projects, if there is a dispute between the natural person who is the actual construction party and the laborer employed, and the laborer requests to confirm that there is a labor relationship with the employer or subcontractor with the qualification of employment subject, it shall not be given. However, according to Article 94 of the Labor Contract Law, the Measures for One-time Compensation for Casualties in Illegal Employment Units and the conclusion of labor ability appraisal, if the employer or contractor or the actual constructor bears legal responsibilities related to work-related injuries or occupational diseases, it should be supported. " Therefore, if a worker sues for confirmation of the existence of a labor relationship with the construction enterprise, it will not be supported if it does not have the constitutive requirements of a labor relationship. In practice, individual contractors often do not have enough ability to bear civil liability. In order to protect the rights and interests of laborers, various civil compensations advocated by laborers can be based on Article 94 of the Labor Contract Law of People's Republic of China (PRC): "If individual contractors recruit laborers in violation of the provisions of this Law and cause damage to laborers, the contractors and individual contractors shall bear joint and several liability for compensation." The provisions of the order, construction enterprises and individual contractors shall bear joint and several liability for compensation.

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