How To Distinguish Between Labor Relations And Employment Relations?

After the promulgation of the new "industrial injury insurance Ordinance", this practice was challenged because the sixty-third rule of the Ordinance expanded the extension of employers and labourers, and incorporated illegal workers into the category of labor disputes. Therefore, it is necessary to re-examine labor relations and employment relations.

According to the author's learning and understanding of the relevant articles, I believe that the distinction between labor relations and employment relations can be started from the following steps:

The first step is to see whether the employer has a business license or has fulfilled the registration and filing procedures in accordance with the law.

If the employer has a business license issued by the administrative department for Industry and commerce or the registration and filing formalities of the relevant departments in accordance with the law, the existence of the employment relationship is basically eliminated, because in the employment relationship the subject of the employer can only be the employer of the individual employer or the natural person of the natural person.

In addition, we need to pay special attention to the provisions of article sixty-third of the industrial injury insurance Ordinance. If the employer's business license is revoked or revoked and filed for record, the disputes between workers and workers still belong to the category of labor relations. They can not be handled as employment relations. There is inherent truth in making such regulations in law. After all, this is different from the fact that employers do not have any business licenses or have fulfilled their registration and filing procedures.

The second step is to see whether employers need to handle business licenses or fulfill registration and filing procedures.

The proposition is based on the premise that the employer has no business license or fails to fulfill the registration and filing procedures.

If the employer is required to handle business license according to law or fulfill registration and filing procedures according to law, and the employer fails to handle or fulfill it, according to the sixty-third provision of the industrial injury insurance Ordinance, the industrial injury dispute between employers and workers also belongs to the adjustment range of labor relations.

In past judicial practice, such cases were handled in accordance with the employment relationship. However, since January 1, 2004, when the industrial injury insurance Ordinance was implemented, such cases should be filed by the parties to the labor arbitration institutions for arbitration applications. In other words, the original arbitration principle should be followed, and no direct appeal should be made to the courts.

The question now is how to judge the employer's need to handle business license according to law or to fulfill registration and filing procedures according to law, which is probably the most difficult problem for labor arbitration institutions and court filing departments.

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As for the issue of business license, the author believes that it depends on whether the employing unit is engaged in production, distribution or services, because in accordance with the relevant provisions of the industrial and commercial regulations, units and individuals engaged in production, distribution or service activities shall apply for registration to the administrative department for Industry and commerce according to law and obtain business licenses before engaging in business activities.

For example: Lin (no business license) owned several machines, and invited Li and other 10 people to produce steel pipes for him. One day, when Lee worked, he was hurt by a punch press.

In this case, because Lin is engaged in the production and operation of commodities, he should handle his business license in accordance with the law.

Another example: Jiangmou contracted a low storefront shop demolition project, hired Chen and others to remove, the reward is 50 yuan per person per day, during the fourth day construction process, Chen on the scaffolding because of unstable standing was hurt, the two sides for the amount of compensation dispute.

In this case, the demolition of a shop by Jiangmou is not a business activity of production, distribution or service, and no business license is required. Therefore, the legal nature between Jiang and Chen should belong to the employment relationship.

For registration and filing.

The author thinks that this is mainly for all kinds of private non enterprise units.

The private non enterprise unit is a relatively new concept of legal subject. According to the Provisional Regulations on Registration Administration of private non enterprise units, it refers to the social organizations that engage in non profit social service activities by enterprises, institutions, social organizations and other social forces and citizens.

Such units have a wide range of social services, mainly in education, research, culture, health, sports, pportation, press and publication, information consulting, intellectual property, legal services, social welfare and other fields, such as private schools, out-patient departments, art galleries, foundations, clubs, employment agencies, nursing homes, partnership law firms, etc.

Although the services provided by private non enterprise units have the characteristics of public welfare undertakings, their establishment shall be examined and agreed by their competent business units, and the registration and filing procedures shall be carried out according to law.

The following is a specific case analysis: Kim and Zhu two partners opened a legal service center (no registration procedures), with a number of employees, including Kuo Mou as director of the office, one day, Guo was injured in a motor vehicle accident on his way to work.

In this case, labor relations have been formed between the two sides, because the so-called legal service centers of Kim and Zhu should fulfill their registration procedures in accordance with the law without registration.

The third step is to look at the rights and obligations and the degree of personal dependence between employers and workers.

The reason for this problem lies in the fact that the employing unit has a business license or has fulfilled the registration and filing procedures, or should have handled the business license or fulfilled the registration and filing procedures. It has not been processed or fulfilled.

Although the employment relationship is a generalized employment relationship, it still has something special in comparison with the narrow sense, namely the general employment relationship.

(1) labor relations must be based on national statutory wages, labor hours, labor protection and other provisions. In other words, the determination of many rights and obligations between employers and workers should be subject to state intervention.

For example, if workers perform normal labor obligations within the statutory working hours, the wages paid by the employing units must not be lower than the local minimum wage standards. Otherwise, they are illegal and subject to interference by state public power. In the employment relationship, the rights and obligations such as labor remuneration are established through free consultation between the two sides, and the spirit of "freedom of contract" in private law is implemented.

(2) in the labor relations, the laborers should participate in the employing units and become a member of the unit, and must obey all the rules and regulations of the unit. In the employment relationship, the laborers lack the heart of joining the employing unit and become one of them. The rules and regulations of the employing units are not binding on the laborers.

(3) in the labor relations, the work of the laborers must be subordinated to the employing units. There is an administrative affiliation between them. In the employment relationship, although the workers have to accept the supervision, management and control of the employers, to some extent, the degree of attachment is not as strong as the former, and the workers sometimes have relatively independent aspects in their work.

For example, an enterprise used to flatten the park site, with a daily wage of 40 yuan, 8 hours of work for the condition of hiring four migrant workers, a migrant worker was carelessly injured by the bulldozer on the site, causing nine grade disability.

In this case, the wage agreement is free from state interference. Although the laborers are required to accept the command and supervision of the employer, they do not become members of the unit, nor do they have to abide by the rules and regulations of the unit. There is no administrative subordinate relationship between them. Therefore, the two sides form an employment relationship rather than a labor relationship.

There are many legal problems involved in the distinction between labor relations and employment relations. These are just the author's views.