Basic facts
In August 2020, Company A, as Party A, and Haohuo (Kunshan) Network Technology, as Party B, signed the "Platform Service Agreement between Company A and Haohuo (Kunshan) Network Technology", stipulating that Company A will contract the business to Haohuo Company, and Haohuo Company will contract the business to a commercial entity with business qualifications after contracting the business, and Company A will pay the project service fee, platform service fee and other fees to Haohuo Company. Company A has the right to accept and supervise the quality of the business contracted by Haohuo, and Haohuo has the right to accept and supervise the quality of the business completed by the contractor.
The "Personal Studio Registration Agreement" signed on April 9, 2020 by the entrusting party (Party A) is Mr. Chen and the entrusted party (Party B) is the management of Shuidi (Kunshan) Incubator, which stipulates that Party A entrusts Party B to handle the registration of individual industrial and commercial households for Party A. The name of the merchant used in the application for industrial and commercial registration of individual industrial and commercial households shall be determined by Party B at its sole discretion, and Party A shall accept the name of the individual industrial and commercial household decided by Party B. Party B authorizes Party A to use the trade names owned by Party B Group, such as "Haohuo", during the legal existence of the individual industrial and commercial households registered on behalf of Party B. Party A voluntarily uses the Haohuo platform as a business management tool, and shall register and authenticate a valid account as an individual industrial and commercial household in accordance with Party B's requirements and platform regulations. If Party A confirms that it will become a project of this platform, it will sign a subcontracting cooperation agreement with Party B. The information of the individual industrial and commercial household registered in the enterprise information publicity report of the individual industrial and commercial household stated that the name of the individual industrial and commercial household registered by Chen is "Yushan Town, Kunshan City, Yilu Yi Zhu Sanqi Jiuhao Haohuo Business Service Studio", the operator is "Chen", the type is "individual industrial and commercial household", and the business scope is "takeaway delivery services, etc.", and the registration and approval dates are both April 9, 2020.
On April 9, 2020, Tongcheng Haohuo Network Technology Co., Ltd., as Party A, and Yilu Yiqi Jiuhao, Yushan Town, Kunshan City, as Party B, signed the "Project Subcontracting Agreement", stipulating that Party B independently chooses to contract Party A's corresponding business or order, and all the subject business revenue contracted by Party B belongs to Party B, and Party A will settle the service fee to the platform account or bank account designated by Party B on a monthly basis. In addition, the agreement is in clause 34. The agreement stipulates: "Party B or Party B's partner contractor and Party A shall have an equal cooperative relationship, and no labor, labor or employment relationship shall be established under any circumstances." Party B and the partner contractor shall independently complete the contracting business and bear all risks and responsibilities that may arise in the contracting process. "Haohuo (Kunshan) Network Technology*** transferred 788 yuan to Chen's bank account on October 22, 2020.
The "Contracting Business Operation Specification" submitted by Company A stipulates: "1. Effective service time: 7:30-4:00 (the contract should start according to the service sequence time of the site personnel, and if there are special circumstances, the stationmaster should be communicated in time);2. The rider shall start work on time in the effective service time in the contracted area according to the requirements of the contracted business, and shall be liable for the following ...... if the construction is not started without reasonHowever, both the general contractor and the rider confirm that there is no management and management relationship similar to the labor relationship between the two parties, and the rider's above-mentioned notification and explanation obligations are only ...... for the smooth development of the delivery business cooperation between the two partiesThe end of the specification states that "the signature is knowledge of the above-mentioned operating specifications." and be willing to accept compliance with the above norms. Chen signed the contractor of the specification, and the date of payment was August 26, 2020.
Chen claimed that he was required to obey the management and work arrangements of Company A from August 26, 2020, to accept the rewards and punishments of Company A, that Chen must start work within the effective service period specified by him, receive system dispatches, and that Chen was required to pay liquidated damages to Company A for any violation of the regulations (i.e., accept the fine imposed by Company A). Chen has been accepting system dispatches to complete delivery tasks as a full-time rider on the Ele.me platform, and the fruits of Chen's labor are enjoyed by Company A. During Chen's employment, Company A purchased employer's liability insurance for Chen, and Chen's personality subordination and the relationship between management and management should be determined to be an employment relationship.
Company A claimed that it had a contractual relationship with Chen, and that the salary bill provided by Chen was not made by Chen, but was generated by Chen by logging in to the system by himself. Chen has been a rider of Guangzhou Yicheng Network Technology *** before August 27, 2020, and after the business site of Guangzhou Yicheng Network Technology *** was transferred to Company A, the original and Company A signed the "Contracting Business Operation Specification" at the end of August 2020 before starting to deliver business to Chen, and Chen delivered orders at the Jinzhou site before signing the specification. In addition, the salary bill provided by Chen shows that Company A is only a ** businessman, and from the composition of the contract remuneration reflected in the salary bill, it can be shown that Chen has no basic salary for working as a rider, and the vehicles and materials required to complete the contracted business are borne by Chen himself, which is in line with the "Contracting Business Operation Specification" signed by both parties. In addition, the insurance individual income tax is paid by Chen himself.
Chen's litigation request to this court is as follows：1.Request to confirm the existence of an employment relationship between Chen and Company A from September 1, 2020 to February 21, 2021 in accordance with the law2.It is requested that the litigation costs of this case be ordered to be borne by Company A.
Company A replied:There was no labor relationship between Chen and Company A, but a contractual cooperative relationship.
In addition, during the trial, Chen clearly requested confirmation of his employment relationship with Company A. Mr. Chen had submitted an application to the Labor and Personnel Dispute Arbitration Commission of Nansha District, Guangzhou City to confirm that Mr. Chen had an employment relationship with Company A. On November 24, 2021, the arbitration commission rendered the Suinan Lao Ren Zhong Case [2021] No. 1498 Arbitral Award, ruling to reject all of Chen's arbitration claims.
The above facts were confirmed by the evidence provided by the plaintiff and company A and the trial transcripts.
The Court is of the opinion that
As to whether there is a de facto labor relationship between Chen and Company A, a comprehensive analysis is as follows:
First of all, judging from the content and nature of the agreements signed by Chen and the individual industrial and commercial households established by him, the agreements also contain similar labor and commercial contract relationship clauses. Although Company A had management or requirements for Chen's service hours, order taking, delivery, etc., the essence was to ensure the smooth development of the delivery business and ensure the service quality of the takeaway business, and it was not a simple labor and employment management behavior. Company A has no specific restrictions on Chen's work intensity and the number of businesses contracted, and Chen can flexibly and independently complete the distribution, and the expenses are settled according to the order, and he has a high degree of autonomy in terms of working hours and business completion process, and the two parties do not reflect the personality subordination of the labor relationship.
Secondly, Company A does not provide minimum wage protection, but adopts a no-base salary method, and Chen determines the remuneration according to the number of orders received, and does more to get more, which is different from the salary in the general sense, and the transportation and other equipment to be used in the work are provided by Chen, and there is no economic subordination between the original Company A.
Thirdly, it is clarified in the Specifications for the Operation of Contracting Business that there is no similar relationship between the management and the management of the employment relationship between the two parties, and the relevant agreements on service duration and liquidated damages between the two parties are only for the smooth development of the delivery business. As a person with full capacity for civil conduct, Mr. Chen has clearly known the relationship between him and Company A as stipulated in the Specification, and still signed the Specification and has actually performed it, which can also prove that there is no agreement between the two parties to establish an employment relationship.
In summary, this court did not support Chen's request to confirm the existence of an employment relationship with Company A.
The judgment is as follows: Chen's claim is dismissed.