It'S Wrong To Mistake The Self-Employed Person For Not Employing A Unit.

The labor law and the labor contract law stipulate that the individual economic organization is the unit of Employment referred to in this Law and shall be governed by this law.

The individual economic organization refers to the individual industrial and commercial households approved by the industry and Commerce Department for registration and the business license. The employees are generally less than 7 employees.

In this case, the individual industrial and commercial workers who employ female workers shall, in accordance with the law, extend their contracts to the corresponding circumstances when the female workers are in the period of pregnancy, childbirth and lactation, if the labor contract expires.

During the period, the unit shall not terminate its labor contract in accordance with the provisions of the fortieth and forty-first articles of the labor contract law.

Liu Jinshui did not believe this. He said, "I am not a employing unit, or a self-employed person.

Accountant Ma Xiaohui has a second child. I have the right to dismiss her. "

What Liu Jinshui did not expect was that after he dismissed Ma Xiaohui from his own mind, the court of second instance recently decided that it would continue to fulfil the labor contract with Ma Xiaohui, and to pay maternity allowances, wages during pregnancy and lactation, totaling 21 thousand yuan.

Liu Jinshui is a merchant in a wholesale market in the city.

With the expansion of business, he wants to hire an accountant to help manage business affairs.

In August 1, 2014, Ma Xiaohui, a 27 year old girl from Shandong, came to apply.

After a month's trial, Liu Jinshui was satisfied with her, so the two sides signed a labor contract from September 1, 2014 to August 31, 2015.

Ma Xiaohui was married and had a boy of over 4 years old. When the labor contract expired at the end of August 2015, she had a second child.

Liu Jinshui didn't expect her to have a second child.

But she did not renew her labor contract with her.

"In November 30, 2015, when the expected date of delivery was approaching, I was very uncomfortable and asked for leave from department director Zhao.

The other person said, "you don't have to come to work," so I went home to be born.

Ma Xiaohui said.

"We pay the salary of last month 10 days per month, but since December 1, 2015, boss Liu Jinshui has not paid me wages again."

Ma Xiaohui said that she called Liu Jinshui, and the other side said she had a continuous absenteeism in November 2015. In November 30, 2015, Zhao told her and dismissed her.

Ma Xiaohui did not understand: "because of the serious reaction of pregnancy, I did ask for a few days' leave in November 2015, but every time I applied to Zhao's supervisor, I got a vacation after being approved, and there was no such thing as absenteeism."

Liu Jinshui insisted that there was no labor relationship between the two sides, so they did not pay wages.

In December 31, 2015, Ma Xiaohui gave birth to a girl.

By the end of June 2016, Liu Jinshui had not paid her wages and maternity allowances.

In July 1st of that year, she applied for arbitration at the labor and personnel dispute arbitration commission, and demanded that there should be labor relations with Liu Jinshui from August 1, 2014 to July 1, 2016. The two sides continued to perform their labor contracts. Liu Jinshui paid the salaries from December 1, 2015 to December 30th, May 2016 to May 2016, and the maternity allowance from the period of December 1, 2015 to December 30th.

After accepting the Arbitration Commission, Ma Xiaohui waited for the arrival of the court every day.

However, when she was about to hear a court session, she was in trouble again.

Children who are still in their infancy need to breast feed every day. She can't leave their children alone, and they go to court alone.

Let her husband Tian Jun take the place of himself, and Tian Jun has never done such a thing.

"What should I do if I lose?" Ma Xiaohui said that she knew that the trade union could help the workers for lawsuits, so they applied for legal aid to the union.

After reviewing the legal service center of the Beijing Federation of trade unions, Ma Xiaohui considered that she was a registered permanent residence in rural areas and was eligible for assistance. He appointed a trade union lawyer, Hu Jianxin, to represent her.

After receiving the assignment, Hu Jianxin's lawyer immediately interviewed Ma Xiaohui, detailed understanding of the case, guiding her to collect and select evidence materials, and then elaborately wrote proxy opinions to prepare for the court.

During the court trial, Tian Jun replaced Ma Xiaohui with Ma Xiaohui's request for arbitration, Liu Jinshui said: "my shop has dismissed Ma Xiaohui in November 30, 2015, so it only recognizes the existence of labor relations between August 1, 2014 and November 30, 2015."

From December 1, 2015 to June 30, 2016, Ma Xiaohui did not go to work in our shop, and of course she had no pay for her absence.

In addition, Ma Xiaohui volunteered to ask my shop not to pay her social insurance, so she paid her maternity allowance with different intentions.

Liu Jinshui submitted a copy to the arbitration tribunal.

To prove his own opinion.

The content of this note is: I have participated in social insurance in my old home in Shandong, so I can not participate in the enterprise social insurance of my employer Liu Jinshui because I can not repeat the insured.

At the last "declarant", it is signed as "Ma Xiaohui".

Liu Jinshui said, "this statement can prove that Ma Xiaohui has offered to pay no social insurance to my shop, so I do not have to pay her maternity allowance."

Tian Jun said, "we recognize the authenticity of this statement. The signature above is indeed written by Ma Xiaohui, but this is Liu Jinshui's printing request for Ma Xiaohui's signature. If it is not signed, it will not be recruited."

Next, Hu Jianxin submitted a birth medical certificate to prove that Ma Xiaohui delivered time in December 31, 2015.

Liu Jinshui recognized the authenticity and purpose of the evidence.

After Hu Jianxin's lawyers argued, the Arbitration Commission ruled that Ma Xiaohui supported all requests: there was a labor relationship between Liu Jinshui and Liu Jinshui from August 1, 2014 to July 1, 2016, and both sides continued to perform the labor contract. Liu Jinshui paid 21 thousand yuan for pregnancy and lactation wages and maternity allowances between December 1, 2015 and June 2016.

Liu Jinshui refused to accept the arbitration award and prosecuted the court.

During the court hearing, Liu Jinshui's claim was: the court affirms that there is no labor relationship between Ma Xiaohui and Ma Xiaohui from 21 thousand to June 30, 2016, and does not pay maternity allowances and wages.

But in presenting the facts and reasons, Liu Jinshui also said that Ma Xiaohui entered the post in August 1, 2014 to become an accountant, and the two sides signed a one year fixed term written labor contract, and Ma Xiaohui worked until November 30, 2015.

"During the arbitration hearing, Liu Jinshui clearly admitted that there existed labor relations with Ma Xiaohui during the period from August 1, 2014 to November 30, 2015. How can he totally negate it now?" Tian Jun was puzzled.

Hu Jianxin once again took part in court hearing as a trade union legal aid lawyer. He approved Liu Jinshui's entry time, position and written labor contract, but put forward: "in November 30, 2015, Ma Xiaohui asked the director of department Zhao to ask for sick leave, and the other side told her not to go back to work again."

Ma Xiaohui gave birth to a girl on 31 December 2015 and is now in lactation. The labor relations between the two sides have not been lifted.

According to the law, Ma Xiaohui has the right to ask Liu Jinshui to continue to perform the labor contract. "

In response to Liu Jinshui's claim of Ma Xiaohui's continuous absenteeism in November 2015, Hu Jianxin lawyer asked, "since you say Ma Xiaohui is absent from work, what is the basis for it?" Liu Jinshui said, "there is no record of attendance and no corresponding evidence."

To the unit's explanation of social insurance coverage, the judge asked Liu Jinshui, "why did you sign this?"

Liu Jinshui replied, "this was signed when Ma Xiaohui entered the office.

At that time, I was going to give her social security, but she said that he had already had it, he could not pay the premiums in Beijing at the same time, and she did not want to deduct this part of the money from her wages, so she wrote the note.

Hu Jianxin lawyer protested: "although Ma Xiaohui has new agricultural insurance in his hometown, it is not the same as employee pension insurance. These two are not an account, there is no conflict, and employers can give her endowment insurance in Beijing.

Since there is no social security payment for employees, it is necessary to assume corresponding responsibilities and pay maternity allowances to Ma Xiaohui according to law.

Before long, the court decided that the result would be exactly the same as arbitration.

Liu Jinshui refused to accept the verdict and appealed to the central court.

As for Liu Jinshui's appeal, Hu Jianxin's lawyer had nothing to worry about: "the second trial is based on the first instance judgment, and the trial and judgement are based on the principle of safeguarding the rights and interests of workers."

Sure enough, the court of second instance ruled against Liu Jinshui's appeal and upheld the original judgment.

In this way, the three agent of Hu Jianxin's lawyer was helped by the trade union, and Ma Xiaohui won the arbitration, the court's first instance and the second instance three lawsuits.

Hu Jianxin lawyer told reporters whether Ma Xiaohui had been absent from work in November 2015, whether there were labor relations between the two sides, whether the labor relationship had been lifted in November 30, 2015 and whether Liu Jinshui had to pay maternity allowances was the focus of controversy in this case.

In view of the existence of labor relations between the two parties,

The tenth article stipulates that a written labor contract shall be concluded in the establishment of labor relations.

Article 1 of the notice of the Ministry of labor and social security on the establishment of relevant matters concerning labor relations stipulates that the employer's employer has not signed a written labor contract but has the following circumstances.

(1) employers and workers comply with the main qualifications stipulated by laws and regulations; (two) all the labor rules and regulations formulated by the employing units according to law shall be applicable to the labor management of the laborers, the employed laborers, and the remunerated labor arranged by the employing units; (three) the labor provided by the workers is an integral part of the business of the employing units.

From the point of view of this case, Liu Jinshui and Ma Xiaohui signed a one year fixed term labor contract in September 1, 2014, and the two sides have established labor relations.

Although the written labor contract has not been renewed after the expiration of the contract, the fact labor relationship has been formed, and it is also protected by the labor law.

Liu Jinshui said Ma Xiaohui had a continuous absenteeism in November 2015 and was dismissed by the director of her department, which Ma Xiaohui denied.

According to the principle of who should give evidence, Liu Jinshui should provide facts and legal basis for his advocating, but he has submitted relevant evidence for this purpose, so he has not been accepted by the Arbitration Commission, the court of first instance and the second instance.

Hu Jianxin lawyers said that the payment of social insurance for employees is the legal obligation of employers. Although Liu Jinshui and Ma Xiaohui signed the "social insurance coverage" statement, they could not be exempted from Liu Jinshui's statutory obligations.

The twenty-third provision of the Beijing enterprise employees' maternity insurance stipulates that if the enterprise fails to participate in maternity insurance in accordance with the provisions, the child insurance benefits of the employees shall be paid by the enterprise in accordance with the provisions of this regulation.

During the maternity leave period of female workers, they enjoy the corresponding maternity allowance according to the state regulations. Because Liu Jinshui did not give birth insurance to Ma Xiaohui, she could not enjoy maternity insurance benefits. Liu Jinshui should take corresponding responsibilities.

Ma Xiaohui's request for payment of maternity allowance according to his monthly wage standard is in conformity with the provisions of the law, which has been supported by the first instance and the second instance of the Arbitration Commission and the court.

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