The judicial adjudication interpretation is the interpretation made by the Supreme People's Court on the specific application of law in adjudication work, and has universal judicial effect, that is, it is binding on the adjudication of people's courts at all levels. Compared with legal provisions, on the one hand, the promulgation of judicial interpretations makes up for the lag, rigidity and ambiguity of laws, and on the other hand, it provides reliable empirical experience for the legislative work of relevant departments, and the relationship between the two is mutually reinforcing. Of course, the role of judicial interpretations is not limited to serving as the basis for the application of court judges' handling of cases, but also has clear guidance for the behavior of units and individuals and predicts the results, so how judicial interpretations are prescribed and applied will also have a direct impact on the employment management and dispute resolution of units. In this regard, [Vernacular Labor Law] will conduct a series of interpretations of the draft for comments in combination with employment management practices, and everyone is welcome to pay attention to it.
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Minute. Recently, the Supreme People's Court solicited opinions from the public on the Interpretation (II) on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (Draft for Comments) (hereinafter referred to as "Interpretation II"), some of which are affirmations of the current judicial practice viewpoint, while some of the provisions deviate from the current judicial practice viewpoint, imposing more social and economic responsibilities on enterprises, which has attracted the attention of professionals in the industry. Today, [Vernacular] will continue to interpret the content of the draft for comments, and we hope that you will join us in actively submitting comments and suggestions to the SPC on the draft of Interpretation II.
Previously, there was no clear provision in the law on whether overage workers should be subject to labor relations or labor relations. Article 32 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases only stipulates that persons who have reached retirement age and have enjoyed pension insurance benefits or received retirement pensions in accordance with the law shall be treated as labor relations. Article 44 (2) of the Labor Contract Law stipulates that "the employee shall begin to enjoy basic pension insurance benefits in accordance with the law", while Article 21 of the Regulations for the Implementation of the Labor Contract Law stipulates that "the employee reaches the statutory retirement age". It can be said that the protection of the rights and interests of overage workers has long been one of the most controversial issues in judicial practice.
In judicial practice, as long as the "statutory retirement age" is reached, the adjudication organ mostly handles it according to the labor relationship. This article clarifies that if an over-age worker is still providing labor for the employer during the period when he has reached the statutory retirement age but has not yet enjoyed the basic pension insurance benefits, the arbitration institution or the court may refer to the current labor laws and regulations to resolve the dispute. It is important to note that the term "reference" is used rather than directly clarifying the employment relationship. In addition, it is undeniable that once this article comes into effect, it will inevitably increase the employment costs of enterprises to a certain extent, which may further affect the re-employment or continued employment of over-age workers.
In practice, not having the qualifications of an employing entity generally refers to an individual or a unit or group that does not have the relevant qualifications to actually engage in project work by recruiting workers. Articles 7 and 8 give workers recruited by subcontractors, subcontractors, or affiliated units who do not have the qualifications of an employing entity the right to claim specific responsibilities from the contractor or affiliated unit with the qualifications of an employing entity, thus facilitating the workers' claim of rights and safeguarding the rights and interests of the workers to a greater extent.
With regard to the specific liabilities referred to in the preceding paragraph, this article only explicitly lists the payment of wages and the granting of work-related injury insurance benefits, which restricts the rights of workers in such cases, which means that the contractor and the affiliated unit bear the responsibilities of these two employment entities, which does not necessarily lead to the existence of an employment relationship between them and the workers. In other words, it is still necessary to examine whether there is subordination in order to confirm the employment relationship, and if there is no subordination, it is not appropriate to determine the formation of a de facto employment relationship.
As for the reason for these two responsibilities, the reason is that this provision is not the first time that it provides for the protection of the rights and interests of workers under subcontracting or subcontracting. For example, Article 3, Paragraph 1 (4) and (5) of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance, and Article 7 of the Opinions of the Ministry of Human Resources and Social Security on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance both stipulate the work-related injury insurance liability borne by the contractor or the affiliated unit with the qualifications of the employing entity. Article 9 of the Opinions of the General Office of the People's Republic of China on Comprehensively Addressing the Issue of Wage Arrears for Migrant Workers and Article 36 of the Regulations on Guaranteeing the Payment of Migrant Workers' Wages emphasize the wage repayment responsibilities of the construction unit and the general construction contractor.
This article stipulates the determination of the employment relationship in the case of alternate employment and joint employment, as well as the assumption of the responsibility of multiple employers for self-construction. First of all, the determination of the employment relationship is in line with the mainstream practice in practice, that is, the entity that signed the labor contract is first looked at, and then confirmed according to the actual employment management, working hours, wage payment entity and social security payment entity. We understand that when the relevant factors show different tendencies, it is necessary for the arbitration institution or the court to confirm it on a case-by-case basis. Second, the employee's claim that multiple employers should be jointly liable will be supported, except for the agreement with the consent of the employee. In practice, the agreement agreed by the employee can be an employment contract, a tripartite agreement, etc., which reduces the employer's liability to a certain extent.
This is also the first time that the Supreme People's Court's judicial interpretation has now blurred the concept of employment. Previously, Article 46 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases regarded "the employer and its affiliated enterprises taking turns to conclude a labor contract with the employee" as one of the circumstances in which "the employee is arranged to work in the new employer from the original employer for reasons other than his/her own", and determined that the working years of the employee under such circumstances can be counted consecutively.
In response to the draft of Interpretation 2, the [Vernacular Labor Law] also submitted relevant amendments to the Supreme People's Court. If you want to put forward valuable opinions after reading our series of interpretations, you can leave a message to us in the background or send your opinions to the Supreme People's Court by written mail or email, and explain the specific reasons when making suggestions. Written opinions can be sent to Wang Nannan, Civil Trial Division 1 of the Supreme People's Court, No. 27, Dongjiaomin Lane, Dongcheng District, Beijing, 100745;Please send an e-mail to mytlaw@163com, the deadline for this consultation is December 22, 2023.