Young ning, wen suk, cover reporter, zhong xiaojun
Can an agreement called “labour” cover up de facto labour relations? Is it possible to claim labour law rights after injury? Recently, the chengdu golden cow court concluded a labour dispute。
I got a job agreement at the entry bar
The boss says there's no labour relationship
On 11 december 2023, zhang liang went to a restaurant bar run by seo fei and became a shopkeeper. Almost a month after entering the job, the parties signed an additional labour agreement, which provides for a one-year period of employment, zhang zhang is required to observe the discipline and norms governing work in the shop, is paid in the form of a “basic wage plus bonus”, is linked to job performance, performance appraisal, operating status, etc., and can adjust remuneration to the condition of the restaurant。
Zhang zhang went to work on time every day and was placed in a restaurant management arrangement, and his salary was paid on a monthly transfer by xu fei, the boss, until an accident occurred。
On 18 may 2024, zhang liang was hospitalized in a traffic accident while on his way to work. Two days later, he was discharged from hospital and was unable to return to work due to his injuries. When zhang liang tried to claim the right to compensation for injury at work and insurance, he learned that the parties had signed the labour agreement, that there was no labour relationship, and that the restaurant and bar had not paid social security for zhang liang in accordance with the law。
Subsequently, zhang liang initiated labour arbitrations to confirm labour relations with restaurants and bars and to claim double wages without a written labour contract. However, during the arbitration, the restaurant was deregistered by the operator xu fei and zhang had no choice but to take the case to court。
Court hearings: stable and continuous working relations between the parties
Following the court's consideration of the case, a comprehensive review of the evidentiary material submitted by the parties, such as the labour agreement, the payroll records and the certificate of organization of work, focused on verifying the actual performance of the employment relationship between the parties。
The trial found that zhang's work as a shopkeeper was part of the core business of the restaurant bar, that it was governed by daily shifts in the restaurant bar, job assignments, etc., and that strict compliance with the rules and regulations established by the restaurant bar, and that zhou, the restaurant operator, paid regular basic remuneration and floating bonuses to zhang on a monthly basis, had established a stable and continuous working relationship。
In accordance with the provisions of the circular of the ministry of labour and social security on matters relating to the establishment of labour relations, the court decided, in accordance with law, to confirm the existence of a labour relationship with the restaurant bar from 11 december 2023。
The labour agreement contains the basic provisions of the labour contract: the content of the work, the manner of remuneration, the duration of the agreement, the administrative requirements, etc., and the nature of the contract. On this basis, zhang liang's request to double wages without a labour contract was rejected by the golden cow court in accordance with the law. The court of second instance upheld the sentence. As a follow-up, zhang liang may, on the basis of an effective judgement, assert his rights and interests in the course of work injury determination and insurance settlement proceedings。
The judge recalls:
The nature of the legal relationship between the enterprise and the worker depends not on the name of the agreement signed between the two parties, but on the substance of the management of the work. The court will examine the substantive elements of subject matter, regulatory compliance and relevance of the labour business in strict conformity with the relevant laws and regulations, and determine the existence or otherwise of the labour relationship in accordance with the law。
It is recommended that enterprises comply with the law on the basis of the actual pattern of employment: for long-term, stablely managed workers, the labour contract shall be concluded in accordance with the law and the legal obligation to pay social insurance, etc.; for temporary, one-time labour cooperation, the agreement shall be ensured in conformity with the actual manner of performance, clearly reflecting the real rights and obligations of both parties。
