How to determine the inconsistency of the labor relationship between the employer signing the labor

Q: Our company is a subordinate unit of a group, and an employee of our company signed a labor contract with our subsidiary, but the employee works in our company and his salary is paid by our unit. Excuse me, which unit does this employee have an employment relationship with?

Which unit should bear the employee's pension insurance? In the event of a labor dispute, which unit will respond to the lawsuit? A:

From the perspective of labor laws and regulations, the establishment of an employment relationship between an employer and an employee means that it has established a social security relationship, a wage relationship, and a personnel management relationship with the employee at the same time. However, there is a certain complexity and diversity in the actual labor employment, with the development of personnel or personnel outsourcing business, some enterprises have begun to entrust independent third-party companies to pay social security premiums for their internal employees, and manage personnel relations, so there is a separation of social security relations, personnel relations and labor relations. With the development of enterprise collectivization, the transfer and rotation of employees among enterprises within the group has also become a norm, so there is a situation where the labor relationship is inconsistent with the actual wage payment subject.

Regarding the question raised by your company, it is inconsistent between the employer that signed the employment contract and the actual employer. How to legally straighten out the four relationships in this situation should generally start in the following ways: In the first way, the employee can be solved by secondment, that is, the company of you, the subsidiary where the employee signed the contract, and the employee sign a secondment agreement, and agree that the salary will be paid by your company.

Your company shall deduct the social security premiums that you should pay from your salary, and transfer them to the subsidiary every month together with the social security premiums that your company should pay, and the subsidiary will pay the social insurance premiums for you. For this kind of secondment, the employee has a labor relationship with the subsidiary, and the labor relationship with your unit, and if there is a dispute, the subsidiary will come forward to solve it, but when it comes to your company, your unit also needs to come forward. In the second way, if your company really needs the employee, then the employee's personnel relationship will be directly transferred to your company, and your company will sign a labor contract with him and continue to pay social insurance premiums for him.

Thirdly, if the employment contract between the employee and the company has expired, and your company continues to use it, then a new labor relationship has been formed with your company, and your company should pay social insurance premiums and wages.

The labor relationship that is mainly subject to adjustment of the Labor Law refers to the production relationship between the owner of labor force (laborer) and the user of labor force (employer), in which one party provides labor force for compensation and the other party uses it to combine with its means of production for the realization of the labor process. Article 1 of the Circular on Matters Concerning the Determination of Labor Relations promulgated by the Ministry of Labor and Social Security on May 25, 2005 provides a relatively clear definition of "establishment of labor relations": an employment relationship shall be established if an employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances:

1.The employer and the employee meet the qualifications stipulated by laws and regulations;

2.The labor rules and regulations formulated by the employer in accordance with the law are applicable to the workers, and the workers are subject to the labor management of the employer and engage in paid labor arranged by the employer;

3.The labor provided by the worker is an integral part of the employer's business.

In judicial practice, to confirm and identify whether a relationship is an employment relationship, it is necessary to follow certain substantive and formal standards. The substantive criterion is the core criterion and decisive factor for determining the existence of an employment relationship. It mainly includes:

Labor is used by others, labor organization relations, organizational subordination, and personal relations. On the other hand, the determination of an employment relationship can also be judged from the formal perspective, but the formal standard is only an auxiliary factor in determining whether an employment relationship exists, and the induction and generalization of such characteristics is mainly for the convenience of judicial operation. At present, the main forms of relevant legal provisions are:

Worker qualifications, employer qualifications, written labor contracts, labor payments, wage remuneration, etc. Article 2 of the Notice on Matters Concerning the Determination of Labor Relations promulgated by the Ministry of Labor and Social Security on May 25, 2005 stipulates that the following documents may be referred to when determining the existence of an employment relationship between the two parties:

1.Wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums;

2."Work Permit", "Service Certificate" and other documents issued by the employer to the employee that can prove the employee's identity;

3.Recruitment records such as the "registration form" and "registration form" filled in by the employee;

4.attendance records;

5.Testimonies of other workers, etc. However, it is worth noting here that the formal standard is only an auxiliary means to determine whether there is an employment relationship, and if a certain social relationship only has the formal standard of labor relationship, it cannot be automatically determined that there is an employment relationship between the parties.

The employee may adduce work-related evidence to prove the employment relationship. Generally, an employment relationship is established with the actual employer.

Work permit or work card (preferably stamped with the official seal), salary card transaction records, salary slips, tooling with the name of the company, individual income tax payment certificate printed and stamped by the local taxation bureau, attendance records, social insurance payment records, work orders, colleague testimonies (resigned and in-service are acceptable), audio and video recordings or other written materials with your name and official seal or the signature of the boss can be used as evidence to prove the employment relationship.

Notice on Matters Concerning the Establishment of Labor Relations

1. The employment relationship shall be established if the employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances:

1) The employer and the worker meet the entity qualifications prescribed by laws and regulations;

2) The labor rules and regulations formulated by the employer in accordance with the law shall apply to the workers, and the workers shall be subject to the labor management of the employer and engage in paid labor arranged by the employer;

3) The labor provided by the worker is an integral part of the employer's business.

2. If the employer has not signed a labor contract with the employee, the following documents may be referred to when determining the existence of an employment relationship between the two parties:

1) Wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums;

2) "Work Permit", "Service Certificate" and other documents that can prove the identity of the worker issued by the employer;

3) Recruitment records such as the "registration form" and "registration form" filled in by the worker;

4) Attendance records;

5) Testimony of other workers, etc.

Among them, the employer shall bear the burden of proof for the relevant documents in items (1), (3) and (4).

Labor Dispute Mediation and Arbitration Law

Article 2. This Law shall apply to the following labor disputes between employers and workers within the territory of the People's Republic of China:

1) Disputes arising from the confirmation of labor relations;

2) Disputes arising from the conclusion, performance, modification, rescission and termination of labor contracts;

3) Disputes arising from removal, dismissal, resignation, or resignation;

4) Disputes arising from working hours, rest and vacation, social insurance, welfare, training, and labor protection;

5) Disputes arising from labor remuneration, medical expenses for work-related injuries, economic compensation or compensation, etc.;

6) Other labor disputes as stipulated by laws and regulations.

Legal analysis: Based on the actual work unit, the payment of wages is only a kind of evidence to prove whether there is an employment relationship between the two parties, and there are often situations of paying wages on behalf of the two parties in real life, and in order to determine whether there is an employment relationship, it is mainly to see whether the employee is subject to the labor management of the employer and engages in the work arranged by the employer.

Legal basis: Notice on Matters Concerning the Establishment of Labor Relations Article 1 If a worker is recruited in a single-mode leather position without a written labor contract, but the following circumstances are met at the same time, the labor relationship shall be established. 1) The employer and the worker meet the entity qualifications prescribed by laws and regulations; (2) The labor rules and regulations formulated by the employer in accordance with the law shall apply to the laborer, and the laborer shall be subject to the labor management of the employer and engage in paid labor arranged by the employer; 3) The labor provided by the worker is an integral part of the employer's business.

The inconsistencies between the payroll unit and the contract signing unit are as follows:

1. You can negotiate with the employer;

2. Take the labor contract to the labor department to complain;

3. Terminate the labor contract and apply for compensation;

4. Appeal and arbitration.

The process of signing a contract is generally as follows:

1. Sign the letter of intent: When the two parties initially reach the intention of cooperation, they can sign the letter of intent to determine the basic framework and terms of the cooperation as the basis for the follow-up contract;

3. Negotiate the terms of the contract: The terms of the negotiation contract include the content of the contract, the way of performance, the cost, the guarantee and the liability for breach of contract, etc., and it is necessary to fully communicate and negotiate to ensure that both parties reach a consensus;

4. Sign a formal contract: After negotiating the terms of the contract and reaching an agreement, the contract will be formally signed. The contract needs to be signed and sealed by the authorized representatives of both parties to ensure the validity of the contract;

5. Performance of the contract: both parties perform the contract in accordance with the terms of the contract and complete the obligations and responsibilities assumed;

6. Contract change: If the contract needs to be modified or changed, both parties need to renegotiate and sign a written change agreement;

7. Contract termination: If the contract expires or there is a breach of contract, both parties need to deal with it in accordance with the terms of the contract to ensure the legality and validity of the contract termination.

To sum up, different types of contracts and different industries may be different, and it is possible to sue a company for not signing a contract and saying that it is possible to borrow money.

Legal basis]:

Article 85 of the Labor Contract Law of the People's Republic of China.

In any of the following circumstances, if the employer is ordered by the labor administrative department to pay the labor remuneration, overtime pay or economic compensation within a specified period of time, the employer shall pay the difference in the amount that is not paid within the time limit, and order the employer to pay additional compensation to the employee according to the standard of 50% to 100% of the amount payable

1) Failing to pay the labor remuneration of the worker in full and in a timely manner in accordance with the provisions of the labor contract or the provisions of the state;

2) Paying wages to workers at a rate lower than the local minimum wage standard;

3) arranging overtime work without paying overtime pay;

4) Dissolving or terminating a labor contract without paying economic compensation to the worker in accordance with these Regulations.

Legal analysis: In the case of inconsistency between the company that signed the labor contract and the payroll, it is usually determined according to the actual employment situation, that is, whether the employee actually serves the company that signed the labor contract or the payroll unit, and the company in which the employee's social security relationship is located. In the labor contract signed between the employee and the employer, the unit that signs the contract should be the company or enterprise where the employee actually works, and if it is inconsistent or in doubt, the employer may be required to explain the reasons, and if the employer has no legitimate reason, it may request to terminate the contract and give corresponding compensation.

Legal basis: Labor Contract Law of the People's Republic of China

Article 3 The conclusion of a labor contract shall follow the principles of legality, fairness, equality, voluntariness, consensus, and sincerity. The labor contract concluded in accordance with the law is binding, and the employer and the employee shall perform the obligations stipulated in the labor contract.

Article 10 A written labor contract shall be concluded for the establishment of labor relations. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If the employer and the employee conclude a labor contract before employment, the labor relationship shall be established from the date of employment.

Article 36 The employer and the worker may terminate the labor contract if they reach a consensus through consultation.

Arbitration institutions and courts will support the actual salary. In the employment contract, the employee is agreed on a lower wage standard, and the higher wage is paid at work. The main reason why the employer does this is to avoid the responsibilities of paying social insurance premiums and calculating overtime pay based on wages as stipulated by law.

However, this practice is illegal, and if there is evidence such as payment records to prove that the wages paid by the enterprise are inconsistent with the wages in the employment contract, in the event of a dispute, the arbitration institution and the court will uphold the actual salary.

In addition, if the employer fails to conclude a written labor contract at the same time as employing the employee, and the labor remuneration agreed with the employee is not clear, the labor remuneration of the newly hired worker shall be implemented in accordance with the standards stipulated in the collective contract; Where there is no collective contract or the collective contract stipulates, equal pay for equal work shall be implemented.

In this case, the employee can also request the employer to pay economic compensation. Severance shall be paid to the worker according to the number of years of service in the employer, and the standard of one month's salary for each full year. if it is more than 6 months but less than 1 year, it will be calculated as 1 year; If it is less than 6 months, half a month's salary shall be paid to the worker.

Except in the case where the employer maintains or improves the terms and conditions of the labor contract and the employee does not agree to renew the labor contract, the employer shall pay economic compensation to the employee if the fixed-term labor contract is terminated due to the expiration of the labor contract. If the employer maintains or raises the terms and conditions of the employment contract and the employee still does not agree, the employer is not required to pay severance payment.

Legal basis: Article 10 of the Labor Contract Law of the People's Republic of China A written labor contract shall be concluded to establish a labor relationship. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment.

If the employer and the employee have entered into a labor contract before employment, the employment relationship shall be established from the date of employment.