There is a profession where the working hours are indefinite;
There is a profession in which the means of transportation to work are uncertain;
There is a profession where three meals a day are irregular;
There is a profession that frequents high-end hotels and places of interest;
There is a profession that allows you to travel the world for free;
There is a profession that waives the flag and shouts wherever it goes, and a group of people hug each other;
There is a profession with poetry and distance, warmth and warmth, and you can also experience the darkness and beauty of society.
There is a profession that ordinary people envy...
It's the outbound tour leader.
The glamorous profession on the surface also has an unknown sadness behind it.
Recently, I followed up on a case related to tourism, and I am grateful for my more than ten years of tourism work, and I would like to share it with you.
An employment contract was signed with the employer, but the court did not support the employee's request for payment of wages
Mr. Li joined an international travel agency on January 10, 2014 as a team leader.
The two parties renewed the Employment Contract on December 30, 2019.
The contract stipulates: "Party B shall serve as the team leader in the management department of Party A's team leader; Party A shall calculate Party B's labor remuneration from the date of actual employment; On the 10th of each month, Party A shall pay Party B's labor remuneration in full for the previous natural month; Party A shall pay social security fees for Party B to the designated institution in accordance with the law; Party B shall obey the company's arrangement, obey the company's unified management and deployment, complete the team leader work, Party B shall lead the group in accordance with Party A's arrangement, and Party B shall not serve as the leader or tour guide of a travel agency or a third-party team other than Party A, unless Party A has obtained written consent in advance. ”
However, during the performance of the contract between the two parties, all the social security fees and wages paid were paid by Li to the travel agency first, and then the travel agency paid and paid his salary.
Later, due to the "epidemic", Li did not have any income in the past 3 years.
During this period, the travel agency requested to terminate the employment contract between the two parties.
Later, Mr. Li filed for arbitration with the Labor Arbitration Commission, demanding that the travel agency pay a total of 200,000 yuan of the minimum wage in Beijing during the labor relationship between the two parties, but all the claims were rejected.
Later, Li was dissatisfied and sued the court, but he also did not receive support.
Punch line].1. Whether there is an employment relationship between the two parties
Article 7 of the Labor Contract Law of the People's Republic of China stipulates that "an employer shall establish an employment relationship with an employee from the date of employment".
In this case, Mr. Li actually provided labor for the travel agency, and the labor was a major part of the travel agency's business.
During this period, Mr. Li was substantially managed by the travel agency in terms of leave management, part-time job prohibition, year-end rewards, etc.
There is a written "Labor Contract" between the two parties.
The Tourism Law stipulates that: "A travel agency shall meet the following conditions for the tour leader appointed to organize tourists to travel abroad: enter into a labor contract with a travel agency that has obtained an outbound tourism business license by appointing it to engage in tour leader business. ”
In summary, the relationship between the two parties is an employment contract.
2. Whether the travel agency needs to pay back wages to Li.
The Labor Law stipulates that "an employer shall, in accordance with the provisions of the labor contract and state regulations, pay the labor remuneration to the employee in full and in a timely manner." ”
Labor Contract Law: "When an employer recruits a worker, it shall not seize the worker's resident identity card and other documents, and shall not require the worker to provide a guarantee or collect property from the worker in any other name." ”
If there is an agreement between the two parties to sign the Employment Contract, the employer is required to pay the remuneration in full and in a timely manner. and shall not charge any fees to the workers.
However, Li's income** also includes group subsidies and rebates from overseas local agencies. In the case that Li has other income**, the travel agency has formally paid the wages involved in Li's case.
The two parties have performed the labor contract in this case mode for several years, and have not raised any objections, so Li's claim for payment of arrears of wages by the travel agency is not supported.
3. Why is the labor contract signed between the tour leader and the travel agency different from other labor contracts?
According to China's current relevant policies, the biggest difference between becoming an outbound tour leader and a tour guide is that if you want to obtain a tour leader certificate, you need to sign a labor contract with an outbound travel agency.
In the previous article on how to protect the rights and interests of tour guides, it has been mentioned that most of the travel agencies and tour guides in China are not labor relations, because China's tourism season is obvious, if there are labor relations, the operating costs of travel agencies will be greatly increased, so in order to reduce costs, travel agencies choose more social tour guides, not to establish labor relations with tour guides, but labor relations.
However, even if an employment relationship is signed between the tour escort and the travel agency, this employment relationship is still a "false employment relationship".
The labor relationship signed between each other is more like the relationship between the affiliated and the affiliated.
There was no agreement between the two parties to sign an employment contract, but a formal employment contract was signed in order to meet the requirements of obtaining a tour escort certificate and satisfying the requirements of the Tourism Law.
Knowing that there is no labor relationship with Mr. Li, the travel agency still signs a labor contract with him and goes through social security and other formalities, which does not meet the employment norms, and also brings potential hidden dangers to the quality of tourism services and the safety of tourists.
At the same time, as a team leader, this form of employment also brings great hidden dangers to their own security.
It is hoped that tour guides, as the soul of the tourism industry, can be treated and guaranteed accordingly.
It is hoped that travel agencies can improve employment management, strictly implement the "Tourism Law of the People's Republic of China", "Regulations on Travel Agencies" and other management requirements for engaging in tour escort business, and prevent the recurrence of false labor contracts.
It is hoped that travel agencies can actively assume their social responsibilities as enterprises and conscientiously fulfill their legal obligations as enterprises;
It is hoped that the state will pay attention to the unreasonable and compliant employment form of the tourism industry.
Hopefully, the tourism industry is getting better and better.
If you need legal help, you can contact me.