4 Erroneous Zones For Identifying And Identifying Labor Relations In Special Posts

When a laborer enters the employing unit or accepts the training of the employer, or gives out employee cards, work clothes, even a contract or a basic salary, these seemingly consistent labor relations may not necessarily constitute labor relations.

Therefore, people working in some special positions should pay special attention to the following four misunderstandings.

Misunderstanding 1:

Is the master broker agreement a labor contract?

[case] Lina signed a master brokerage contract with a network technology brokerage company by virtue of his natural beauty. The company pays Lina monthly income of 5000 yuan.

The company arranges its designated Live Room anchors on a website.

The brokerage contract also includes Lina's work content, rights and obligations of both parties.

Agreement was made on cooperation expenses, income distribution and liability for breach of contract.

After 6 months of work, Lina resigned from the company on the grounds that he did not pay the social insurance premium according to the regulations, and applied for arbitration to the labor dispute arbitration committee. He requested to confirm that he had a labor relationship with the brokerage firm during his stay and demanded that the brokerage company pay the economic compensation for the termination of the labor relationship.

Without the support of the Arbitration Commission, she appealed to the court and was dismissed by the court.

[analysis] labor relations are the relationship between rights and obligations of the two parties, which are formed by the parties who provide labor through the consent of one worker and pay by the employer.

The core of labor relations is the location, content, mode and process of labor, and even if there is no work but the labor relationship is still in existence, it needs to be restricted by the employing units. The way of restraint includes both rules and regulations as well as specific management behaviors.

In this case, the contract signed by both parties is a brokerage contract, not a labor contract.

Lina's main work is done in his home without having to go to the office of the defendant company and do not have to comply with the company's rules and regulations.

Therefore, the agreement between rights and obligations between the two parties does not conform to the characteristics of labor relations.

Since there is no labor contract relationship, the company certainly does not need to pay the economic compensation for labor relations.

Misunderstanding two:

The securities agency agreement is equivalent to

[case] Liu and a securities company signed a "principal-agent contract", the contract agreed Liu Mou as a securities broker, the company entrusted Liu to customer solicitation, customer service and other activities, the company paid the agency's remuneration to Liu.

After the expiration of the one-year contract, the two parties did not renew the contract.

After that, Liu asked the company to pay the economic compensation for the rescission of the contract, and applied for arbitration to the labor dispute arbitration committee, requesting the company to pay the compensation for the cancellation of labor relations and overtime compensation, and the annual leave compensation.

The arbitration did not support its request. Liu complained to the court and was dismissed.

[analysis] stockbroker refers to a natural person who is entrusted by a securities company to engage in activities such as customer solicitation and customer service.

In this case, Liu and a securities company have signed a "principal-agent contract". According to this, the principal-agent relationship, rather than the labor relationship, is established between the two sides.

Because Liu can not submit effective evidence to establish labor relations with the company, Liu asked to confirm that the litigation request for labor relations between the company and the company was lack of facts and legal basis, and of course, it would not be supported by the law.

Misunderstanding three:

Drivers on behalf of the driver have work cards, work clothes, of course.

[case] Mr. Zhao worked for a generation driving company through online recruitment.

The agreement signed by the two sides stipulate that Mr. Zhao can open the company's specific software as a driver of the company. If a client needs to drive the car, he can contact the customer who calls for the driver in the vicinity and do business on behalf of the driver.

At the same time, the company charges an information service fee at 20%, which is deducted by the company from its pre deposit after the driver provides the service to the driver.

In addition, the company also provides Mr. Zhao with special driving license and work clothes.

However, after 7 months' work, Mr. Zhao withdrew from the company's relationship with the company and applied for labor arbitration on the ground that the two sides did not sign labor contracts.

The Arbitration Commission ruled against Mr. Zhao's application for arbitration.

[analysis] the agent driving relationship in this case is essentially an information platform for behalf of the driving company to drive the driver on behalf of the driver, and it bears the function of information pmission.

When to pick up the driver, where to pick up, where to rest and when to cancel the contract, the driver decides to be independent of the company and manage it.

In terms of revenue, the driver of the substitute driver directly takes charge of the driving fee instead of the company.

Different from the normal labor relations, the driver of the driver should pay the information service fee to the driver company.

As for behalf of the driving company for Mr. Zhao to provide work cards, clothing, etc., are not enough to prove that there is labor relations between the two sides.

Misunderstanding four:

Does the insurer have a contract, a basic salary and a labor relationship?

[case] Miss Lu has become an insurance agent salesperson after being trained by an insurance company. The insurance agency contract signed by both sides stipulate that the insurance agent reaches the lowest level required by the company, the monthly salary is 1000 yuan per month, and the performance salary is unified according to the volume of completed business.

If the agent fails to complete the minimum score within 3 months, the company has the right to terminate the contract.

After 5 months, Miss Lu did not reach the lowest score in 3 months.

Therefore, the company not only paid Miss Lu's salary for the 3 months, but also released the insurance agency contract according to the contract.

After applying for labor arbitration, Miss LV decided to refuse to accept the complaint that she did not belong to the scope of labor dispute arbitration.

[comment] the contract of insurance agency signed by Lu and the company is not a labor contract.

The two sides form the principal-agent relationship based on the insurance agency contract, that is, the insurance company entrust Miss Lu to act as an agent for the insurance business within the scope of authorization, undertake the legal liability of the act, Miss Lu engaged in the appointed agency behavior, and get the agency fee paid by the company when she achieves certain performance.

The conclusion of insurance agency contract does not directly or indirectly constitute the labor contract relationship between the two parties.

On the basis of disputes arising from this contract, Miss Lu can claim rights separately.

Otherwise, Miss Lu will continue to advocate rights and interests according to her labor relations and will not be supported by law.

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