I believe that many HR have encountered similar practical problems, according to Article 7 of the Labor Contract Law: the employer from the date of employment that is the establishment of a labor relationship with the workers, but if the company and the employees signed a labor contract or contracting contract, is the establishment of a labor relationship, not a labor relationship?
Not necessarily, bearing in mind that the distinction between labor relations and labor relations is the most fundamental condition: whether there is a subordinate relationship. Only the fact that there is no employment, can not establish a labor relationship.
In the labor relationship, there is a subordinate relationship between the worker and the employer, the worker accepts the rules and regulations of the company's constraints and management, and according to the requirements to achieve the target results;
and in the labor relationship, the two sides of the status of equality, the enterprise assessment of the results of the delivery of the work, can not be too much management or rules and regulations of the party that provides the labor service constraints.
Therefore, regardless of whether the company and the employee signed a labor contract, as long as the work process, the laborer accepts the company's rules and regulations of the constraints and management, it may constitute a de facto labor relations. If you can't figure this out, it is easy to cause labor disputes or controversies.
Case Sharing:
Xiaozhou in 2008 in a hospital engaged in temporary cleaning work, and then signed a labor agreement with the hospital. From 2010 onwards, the hospital will be a department of supply room sterilized items disinfection work to be completed by the boat, and each time the work is completed to sign to confirm. Monthly salary of 800 yuan, until August this year, boat in the hospital work injury, boat that this is a work injury, but the hospital that boat and its labor relations, not labor relations, so do not agree that boat's injury is a work injury. So the boat in September to labor arbitration to confirm the existence of labor relations with the hospital.
In this case, the hospital arranged for the boat to complete a department supply room sterilized items disinfection work, and every time the work is completed to sign to confirm, reflecting the boat to obey the management of the employer. Moreover, the hospital has specified the form of payment of remuneration as a continuous, regular and regular payment of wages, indicating that it is a long-term continuous and stable work.
Finally, the labor arbitration award supported the boat request. The hospital sued the court, and the court, after hearing, found that boat and the hospital have a labor relationship.
So, if you don't want to bear the responsibility of employment, just a different form of signing a labor contract, without changing the actual performance of the contract between the two sides is likely to give the enterprise buried hidden trouble, there is a risk of employment. Once recognized as a de facto labor relations, the enterprise may be required to make up for the social security and provident fund, did not pay social security, the company has to bear the full amount.
So what to pay special attention to when companies and individuals sign labor contracts?
1. agreement within the contract to establish a labor relationship, the payment issued for labor fees, not wages, bonuses, allowances and other labor remuneration;
2. agreement on the content of the work should not be too standardized and specific, in order to differentiate between the official post;
3. agreement in addition to the norms related to the content of the work, the party to provide labor services are not subject to the employer's internal, such as attendance, rewards and punishments of the regulations. rules and regulations within the employer's organization, such as attendance, rewards and punishments, etc., etc.
The company wants to save the cost of employment, but also want to avoid the risk of employment, this problem can be solved? It is recommended to solve the problem through a third-party human resources company, so that they advise, provide professional human resources services solutions to labor dispatch, outsourcing ways to reduce their own burden, to transfer the risk of employment.