Is the owner of the commercial vehicle an employer under the Labor Law?

What do you say about this topic? If it is according to the provisions of the labor law, it is indeed illegal! But from a practical point of view, I found that no matter what kind of company is working overtime, there are many people who advocate the concept of 996, why can this be? Let's take a look at it step by step!

From a legal point of view.

Needless to say, everyone knows what 5 days and 8 hours, overtime cannot exceed 36 hours per month, etc. But whether it is a factory or an office building, few companies can do this.

Actual situation. It is precisely that many factories are labor-intensive factories, because the degree of automation is not enough, can only be done manually, so if you want to produce more every day, you can only arrange overtime, and it is obvious that one hour a day is obviously not enough.

For those enterprises in office buildings, especially Internet companies, they encounter some special periods, and they have to work overtime day and night. For example, e-commerce companies, during Double 11, spend a long time in the company, and there is no concept of commuting time at all.

For enterprise employers, the current concept is to give you a salary of 1,000 yuan, and you have to create 3,000 yuan of value for the company.

It's not uncommon to work 12 hours a day, 6 days a week, or 7 days a week!

No matter how much companies recommend overtime, many companies will still arrange one day off a week. The most common is the security position, where many things work in two shifts and one day off a week. After all, it still takes some personal life.

If you work seven days a week and it's 12 hours, then you can say that you have basically no personal life. After getting off work 12 hours a day, I basically sleep except for eating. How can you have time to live your own life, if you come across such a company, it is best not to choose not to go.

If overtime pay is calculated normally, and that person earns more money, many people choose to accept it silently!

Overtime is everywhere, why don't many people complain? Because as long as the company gives overtime pay according to the regulations, many people accept it silently in order to make more money. After all, I came out to work to save more money.

The current status quo is that the salary structure of many positions is: minimum wage standard + overtime pay, if you want to have a high salary, you need to work overtime. In fact, friends in Shenzhen know that many people look for overtime in factories, and the first thing is to ask if there is too much overtime.

Because less overtime means that the company is not good, and the monthly salary is low.

Therefore, how to evaluate between reality and law is something we need to consider carefully! After all, many things are not considered from a single aspect!

There are three basic characteristics of labor relations:

First, there is both an equal relationship and a subordinate relationship. Before the establishment of an employment relationship, the employee and the employer are equal subjects, and may determine whether to establish an employment relationship and the conditions and content of the establishment of the employment relationship on the basis of equality, voluntariness, and consensus. After the establishment of the labor relationship, the employees of the employer are in the position of providing labor, and the employer becomes the user of labor and is in the position of the manager of the labor, and the two parties form a relationship between the leader and the led.

The second is to have both personal and property relationships. On the one hand, workers provide valuable abstract labor to the employer, and the employer pays labor remuneration and other economic benefits.

On the other hand, there is a subordinate relationship between the employee and the employer between management and management, and these two aspects are intertwined. Third, it has both the will of the parties and the will of the state. Labor relations are formed through the comprehensive provisions of labor laws and regulations and labor contracts, and have a strong state intervention.

The owner of the commercial vehicle is the owner of the right to use the labor law, because because the owner of the vehicle is the owner of the means of production, he can hire a driver to contract and lease his car to earn capital. Therefore, he is the right holder of the right to work in the sense of labor. FYI.

The subject of labor law is generally a legal entity.

If the owner of a commercial vehicle is a legal person and employs employees to work for him, then it is the owner of the right of employment. Otherwise not.

There is no statement of the employment rights holder, only the statement of the employer. If the operating vehicle is personal, then it is likely that a labor relationship is established

No, the labor law regulates the relationship of rights and obligations between the employee and the employer. Therefore, the owner of the vehicle is an individual and does not meet the qualifications of the subject of labor relations.

1. Employers as stipulated in labor-related laws and regulations refer to enterprises, individual economic organizations, private non-enterprise units and other organizations within the territory of the People's Republic of China. At the same time, it also includes the establishment of labor relations between state organs, public institutions, and social organizations and workers.

2. The easiest way to judge is to see whether the other party has a business license and whether it has signed a labor contract; If not, it is an employment relationship between individuals and individuals.

If both parties are qualified to sign a contract, and one party pays labor and the other party pays wages and obeys the management of the organization, then it is considered an employment relationship, and the problem you are talking about can be determined.

The relationship between the operating vehicle and the driver should not fall within the scope of the labor law, and belong to the contracted operation.

Your question is whether the owner of a commercial vehicle has the right to employment under the labor law? What to do in this situation? Then it must be handled in accordance with the provisions of the Contract Law.

If the vehicle purchased by an individual is affiliated with the employer and operated externally in the name of the affiliated unit, the driver hired by the individual is in a de facto labor relationship with the affiliated unit; If the employer is affiliated but does not operate externally in the name of the employer, it is not an employment relationship with the affiliated entity.

Administrative Division of the Supreme People's Court.

Answer to the question of whether the work of the driver employed by the actual owner of the vehicle operated by another unit can be recognized as a work-related injury

2006 Xing Ta Zi No. 17.

Anhui Provincial High People's Court:

Your hospital (2006) Wan Xing Ta Zi No. 0004 "Instructions on whether the work of the driver employed by the actual owner of the vehicle attached to other units can be recognized as a work-related injury" has been received. After study, the reply is as follows:

If the vehicle purchased by an individual is attached to another unit and operated externally in the name of the affiliated unit, a de facto labor relationship has been formed between the driver hired by the individual and the affiliated unit, and the relevant provisions of the Labor Law and the Regulations on Work-related Injury Insurance shall be applied to determine that the work-related injury is constituted.

2 December 3rd of the 7th year.

Niu Liang invested in buying a truck to run transportation, and attached his car to the name of the Shunfeng team, and the Shunfeng team regularly charged Niu Liang a docking fee. Niu Liang hired the driver Li San as a truck driver, and during a cargo transportation process, Li San was injured in an accident, who should be responsible for the injuries suffered by Li San?

According to the provisions of the Reply of the Supreme People's Court on Whether the Work of a Driver Employed by the Actual Owner of a Vehicle Affiliated to Another Unit Can Be Recognized as a Work-related Injury, "If a vehicle purchased by an individual is attached to another unit and operated externally in the name of the affiliated unit, and a de facto labor relationship has been formed between the driver hired by the individual and the affiliated unit, and the relevant provisions of the Labor Law and the Regulations on Work-related Injury Insurance shall be applied to determine whether it constitutes a work-related injury." It can be seen from this that Niu Liang bought a truck and hired Li San to drive it, and there was a direct employment relationship between him and Li San. Because Niu Liang attached the car to the Shunfeng convoy and engaged in the transportation of goods in the name of the convoy.

Although Niu Liang hired Li San in his own name, the consequences of his actions should be borne by the team.

The Supreme People's Court's Reply to the Question of Whether the Work of a Driver Employed by the Actual Owner of a Vehicle Affiliated to Other Units Can Be Recognized as a Work-related Injury ......

If the vehicle purchased by an individual is attached to other units and operated externally in the name of the affiliated unit, a de facto labor relationship has been formed between the driver hired by the individual and the affiliated unit, and the relevant provisions of the Labor Law and the Regulations on Work-related Injury Insurance shall be applied to determine whether it constitutes a work-related injury.

Individuals carry out vehicle transportation in the name of the affiliated unit and pay fees regularly. Therefore, the affiliated entity is legally liable for the work-related injuries of the individual's employees, thus better protecting the realization of the rights of the workers.

Applicable to public institutions, applicable to enterprises, individual economic organizations within the territory of the People's Republic of China, and workers with whom they have formed labor relations, state organs, public institutions, social organizations, and workers with whom they have established labor contract relations, shall be implemented in accordance with this Law.

Article 2 of the Labor Law of the People's Republic of China applies to enterprises and individual economic organizations (hereinafter referred to as employers) within the territory of the People's Republic of China and the workers who have formed labor relations with them.

Hello, adapt to the broad masses of working people.

Who employs the employee and who is responsible refers to the employer. If the employee is an individual and no employment contract has been signed, the relevant laws and regulations shall not apply.

Legal analysisAn employment contract refers to an agreement between an employee and an employer that establishes an employment relationship and specifies the rights and obligations of both parties. The conclusion and modification of labor contracts shall follow the principles of equality, voluntariness and consensus, and shall not violate the provisions of laws and administrative regulations. The employment contract shall be legally binding immediately and shall be binding upon the parties, and the parties shall perform their obligations under the employment contract.

Liability of the employer for violating the law: 1. The legal liability of the employer for violating the law by "signing a labor contract", if the employer fails to conclude a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly wage. If the employer violates the regulations by not concluding an indefinite-term labor contract with an employee, it shall pay the employee twice the monthly salary from the date on which the indefinite-term labor contract should be concluded.

2. If the employer has any of the following circumstances, the labor administrative department shall order the employer to pay labor remuneration, overtime pay or economic compensation within a time limit; If the labor remuneration is lower than the local minimum wage standard, the difference shall be paid; If the employer fails to pay within the time limit, the employer shall be ordered to pay additional compensation to the employee at the rate of not less than 50% but not more than 100% of the amount to be paid. 3. The employer shall be liable for "illegally dissolving and terminating the labor contract", and if the employer dissolves or terminates the labor contract in violation of the provisions of the Labor Contract Law, it shall pay compensation to the employee in accordance with twice the economic compensation standard stipulated in the Labor Contract Law. If the employer violates the provisions of the Labor Contract Law and fails to issue a written certificate of dissolution or termination of the labor contract to the employee, the labor administrative department shall order it to make corrections; If any damage is caused to the worker, he shall be liable for compensation.

If a worker dissolves or terminates a labor contract in accordance with the law, and the employer seizes the worker's file or other items, the labor administrative department shall order the worker to return it within a specified period of time, and shall be liable for compensation if the damage caused to the worker is caused.

Legal basisArticle 2 of the Labor Contract Law of the People's Republic of China This Law shall apply to enterprises, individual economic organizations, private non-enterprise units and other organizations within the territory of the People's Republic of China (hereinafter referred to as "employers") that establish labor relations with employees and conclude, perform, modify, dissolve or terminate labor contracts. The conclusion, performance, modification, dissolution or termination of labor contracts by state organs, public institutions, social organizations and workers with whom they have established labor relations shall be executed in accordance with this Law.

In the Labor Law, the employer is responsible for who employs, and if the individual needs to hire the employee and does not sign a labor contract, the provisions of the Labor Law do not apply here.

Generally speaking, even if an individual is employed, it is an employment relationship, and the labor contract is not the only basis, depending on whether the facts have occurred. For example, if migrant workers are in arrears of wages, the contractor will generally lead his own people to the employer to ask for money, rather than the migrant workers going to the contractor to ask for money.

I think this refers to employers. Because individuals cannot take this responsibility, except, of course, for those who are contracted laborers.

Article 7 An employer shall establish a labor relationship with a worker from the date of employment. The employer shall establish a roster of employees for future reference.

Article 8 When an employer recruits a worker, it shall truthfully inform the worker of the work content, working conditions, work location, occupational hazards, production safety status, labor remuneration, and other information that the worker requires to know; The employer has the right to know the basic information of the employee directly related to the labor contract, and the employee shall truthfully explain it.

Article 9 When an employer recruits a worker, it shall not seize the worker's resident identity card and other documents, nor shall it require the worker to provide a guarantee or collect property from the worker in any other name.

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 employment relationship shall be established from the date of employment.

Article 11 Where an employer fails to conclude a written labor contract at the same time as employing the workers, and the labor remuneration agreed upon with the workers is not clear, the labor remuneration of the newly recruited workers shall be implemented in accordance with the standards stipulated in the collective contract; Where there is no collective contract or the collective contract does not provide for it, equal pay for equal work shall be implemented.