With the rapid development of the Internet economy, online anchors have become a hot profession at present, and in the eyes of outsiders, they are glamorous and can obtain high income. However, there are also considerable risks behind this profession, as an emerging form of employment, how to determine the labor relationship between online anchors and employers? When the rights and interests of these people as workers are violated, how can they be resolved?
The anchor with the goods is owed wages, can he get his wages back without a labor contract?
Xiaohe, an online anchor, said that she felt that the job was very free and had a good income, so she joined the industry after graduation.
After a few unsuccessful experiences, Xiaohe decided to find a mature team to learn first. Soon, she saw a recruitment information for online anchors on the Internet, so she contacted Mr. Wang, who posted the recruitment information.
In the exchange, Mr. Wang said that he was entrusted by a clothing company to set up a team to carry out the business of online live broadcasting, and there are still several anchors in the team.
Xiaohe: He probably asked me if I had done this before, and then I talked about how to divide it, and he asked me to go to the address of the factory and say that I would have an interview, which should be regarded as an interview, and during the interview, he said that the company would give me a basic salary, and then take a commission from the marketing amount.
After the two sides negotiated, Xiaohe joined Mr. Wang's team and began to live broadcast the goods. But every time it came to the agreed day to pay the payment, Xiaohe did not receive the money in time, so she found Mr. Wang to inquire about the situation.
Xiaohe: He didn't send me on time for the first two months, it was a few days of delay, but it was still delivered, and then I didn't think about it so much, that is, in the third month, he didn't pay me a salary.
The two parties have not signed a labor contract and have agreed on the salary and package verbally.
Mr. Wang told Xiaohe that because her sales performance was not up to standard, he decided not to pay him for the third month. At this time, Xiaohe found that something was wrong, the two parties had not signed a labor contract before, and the salary and treatment were all verbally agreed, and now there was a dispute, and it was very difficult to resolve. After several unsuccessful negotiations, Xiao He filed an arbitration application with the Zhuhai Labor and Personnel Dispute Arbitration Court, arguing that although she and the company had not signed a labor contract, there was a de facto labor relationship between the two parties, so she applied for an order to order the company to pay the arrears of wages and pay 20,000 yuan for the double wage difference without a labor contract.
The platform employment model is diverse, and the labor arbitration trial is more complicated.
In fact, it is not uncommon for Xiaohe to encounter a situation, some online anchors generally do not sign traditional labor contracts for various reasons such as cooperating with multiple enterprises, so in this case, can the rights and interests of workers be protected? How will the arbitration institution determine the employment relationship between them?
Chen Bin, President of Zhuhai Labor and Personnel Dispute Arbitration Court: Because of the platform economy of this new form of employment and the uncertain labor relationship of workers' employment, this situation is more complex and diversified. Then the trial process of our labor arbitration case is more complicated.
If the parties do not have an employment contract, how to determine the employment relationship.
The difficulty in this arbitration case is that the parties have not signed an employment contract, so in this case, can the existence of an employment relationship not be determined? Ji Chunyan, the arbitrator handling the case, said that if the employee can provide evidence to prove the existence of employment between him and the employer, it can also be determined that there is an employment relationship between the two parties.
Ji Chunyan, Vice President of Zhuhai Labor and Personnel Dispute Arbitration Court: It is possible to establish an employment relationship without signing a labor contract, and it is a de facto labor relationship, and he has to provide a lot of auxiliary evidence to form a complete chain of evidence before it is possible to prove the existence of an employment relationship between them. For example, the recruitment information, application records, and entry registration forms of the unit at the time of entry, as well as some work records of his work, including some traces of the management of the unit, the signature of the unit, and the seal, these evidence.
At the arbitral tribunal, the applicant, Xiao He, provided recruitment information, chat records of the work group, etc., and she believed that she was hired to work for the garment company and was managed by the other party, so it should be determined that there was an employment relationship.
The garment company said that Xiaohe was recruited by Mr. Wang and managed by him. Mr. Wang is not an employee of the company, but was entrusted by the company to set up a live broadcast team, so there is no labor relationship between the company and Xiaohe.
The respondent entrusted ** lawyer Luo Jiaxi: The company is a traditional industry, producing clothing, and is ready to carry out some online sales channels, but because he can't be contacted, and he is not in the new ** industry, so he found a third person in the middle who can operate the new ** account, and he will organize the anchor to operate this kind of online sales, and the recognition of the two parties in this legal relationship is not consistent, so it will lead to a dispute conflict.
Based on the evidence submitted by both parties, the arbitrator held that it was not sufficient to determine that Xiao He had an employment relationship with the garment company, so who should Xiao He ask for the arrears of remuneration? During the trial, the arbitrator found that Mr. Wang was responsible for Xiaohe's recruitment, management and payment of remuneration, and that the money she was owed should be related to Mr. Wang, but Mr. Wang, as an individual, could not be the subject of the application for labor arbitration.
Ji Chunyan, Vice President of Zhuhai Labor and Personnel Dispute Arbitration Court: The choice she faces is to withdraw the arbitration request against the respondent and then go to the court to sue this third party outside the case. At the end of the trial, when we entered the mediation process, we invited a third party outside the case to see if the case could be resolved through this mediation.
After mediation, the third party outside the case pays the arrears of remuneration.
After mediation, Mr. Wang, a third party outside the case, and Xiao He reached an agreement through negotiation, under which Mr. Wang would pay the remuneration owed to Xiao He, and Xiao He withdrew the arbitration application.
Chen Bin, President of Zhuhai Labor and Personnel Dispute Arbitration Court: When a worker is employed, as an adult, whether you sign an online contract agreement or go to work in an enterprise in this new format, you must consider your labor rights and interests and sign relevant employment documents.
Who am I working for?"
Although this kind of work is now common, the labor relationship between workers and employers is not clear, and even some workers do not know who they are working for, as Mr. Tan, who works as a food delivery rider in Ningbo, Zhejiang Province.
In March 2023, Mr. Tan was introduced by a fellow villager to work as a rider at a takeaway site in Beilun District, Ningbo City. After working for 3 months, Mr. Tan submitted his resignation to the site manager due to an urgent matter at home.
Mr. Tan: I submitted my resignation in mid-June, and then the relevant leaders of the company did not give a reply, he did not agree, and he did not refuse. Later, I proposed to resign again around July 28, but the relevant leaders of the company still had the same attitude, and he did not give me an answer. Later, I thought I had already told me a month in advance that I was leaving, so I left.
Riders were "voluntarily resigned" to defend their rights.
After leaving his job, Mr. Tan found that the last month's remuneration was much less. It turns out that according to the agreement between the two parties, if the rider does not terminate the contract one month in advance due to personal reasons, it will be regarded as a breach of contract, and the remuneration for each order in the last month will be reduced. The person in charge of the takeaway site said that because Mr. Tan did not terminate the contract according to the contract, it was a voluntary resignation, and according to this situation, the company deducted part of his remuneration.
Mr. Tan believed that he had been informed of his resignation in advance, and it was unreasonable for the site to deduct money on this ground, so he filed an arbitration application with the local labor arbitration institution, demanding that the other party pay the difference in wages in June 2023 of 1,000 yuan. But soon, Mr. Tan was told that the subject of the application in the case was wrong, what was going on?
Lu Sangyu, Deputy Director of the Labor and Personnel Dispute Arbitration Division of Ningbo Social Security Center: After the case was accepted, we first talked to the employer. After checking with the employer, we found that the employer's statement was that the subject of the employee's arbitration may be wrong.
It turned out that the takeaway site where Mr. Tan worked was set up by a technology company in Guangzhou, and the "Freelancer Service Agreement" signed when he joined the company was signed by a company in Jiangxi, and the remuneration was also paid by this company, so which company did Mr. Tan have an employment relationship with?
Lu Sangyu, Deputy Director of the Labor and Personnel Dispute Arbitration Division of Ningbo Social Security Center: Theoretically speaking, one of the main employers of a laborer may actually be a science and technology company in Jiangxi, but the object of his service, the actual employment service and one of the objects of service is a technology company in Guangzhou. And it is not a formal employment contract, but a freelance service agreement.
The labor relationship between food delivery riders and the platform is ambiguous.
In desperation, Mr. Tan filed labor arbitration applications with the arbitration institution as the respondents of both companies, and even so, the Freelancer Service Agreement signed by Mr. Tan would have caused difficulties in the determination of the employment relationship. According to the signed agreement, the relationship between the two parties can only be recognized as an employment relationship, which makes the cost of Mr. Tan's rights protection higher.
Lu Sangyu, Deputy Director of the Labor and Personnel Dispute Arbitration Division of Ningbo Social Security Center: Under the employment relationship, if there is a dispute between the two parties, it is generally not possible to deal with it through the labor and personnel dispute arbitration committee, but to file a lawsuit directly with the people's court.
Tong Zhixiong, Director of the Labor and Personnel Dispute Arbitration Division of Ningbo Social Security Center: Compared with traditional employment, the current employment relationship in this new form of employment is relatively uncertain and ambiguous. We still emphasize the principle of negotiation and mediation, so as to not only protect the legitimate rights and interests of workers, but also promote the healthy development of the new employment economy.
In order to resolve the dispute quickly and fully protect Mr. Tan's rights and interests, the arbitrator decided to mediate between the parties.
Lu Sangyu, Deputy Director of the Labor and Personnel Dispute Arbitration Division of Ningbo Social Security Center: First of all, it is also pointed out that the employee's urgent resignation is not reasonable. Although he had some disputes with the employer during the resignation process. At the same time, we also work with the employer to tell the employer that this kind of behavior of arbitrarily changing the unit price may not be legal. In the end, the two sides reached an agreement, in a more compromise way. The employer also agrees to pay a certain amount of mediation money to the employee within one month, and the employee also accepts it.
After mediation, a science and technology company in Guangzhou paid Mr. Tan's salary difference, and Mr. Tan also accepted this plan, and finally the labor arbitration case was settled by mediation, and both parties were satisfied with the results at that time.
Mr. Tan: Now the arbitration result is quite satisfactory, through this arbitration, I also recovered the salary I deserved, and also protected my legitimate rights and interests through the law, and through this matter, like a ** job, I will definitely be more careful and pay more attention to the relevant contracts.
The "platform" model has become the norm, and labor disputes have increased.
In some new forms of employment, the employer and the employee generally sign a service agreement, which is different from the employment contract, and the signing of the agreement is not an employment relationship between the two parties, and there is no insurance, welfare and other benefits. However, the signing of such an agreement does not mean that it cannot be recognized as an employment relationship. Through the arbitration case of Ms. Xu in Nanjing, we learned about the relevant legal knowledge in determining the employment relationship.
Ms. Xu browsed the information of a housekeeping service company recruiting cleaners on the Internet, this job is different from traditional housekeeping services, it is a popular online domestic service in recent years, providing services to third-party customers through the way of platform dispatch, working hours are relatively free, and the income is not bad.
When the online cleaner leaves, there is a dispute with the company.
Subsequently, Ms. Xu officially joined the housekeeping company and signed an Information Service Agreement. A year later, Ms. Xu decided to leave her job, and when she went through the procedures, she found that the company had deducted a tool fee and training fee.
The online cleaner filed an arbitration application for confirmation of the employment relationship.
After negotiating with the company to no avail, Ms. Xu approached a lawyer, hoping to protect her rights and interests through legal means. After understanding the situation, the lawyer said that although Ms. Xu did not sign an employment contract, there was a de facto employment relationship between the two parties, and she could claim her rights and interests in accordance with relevant laws and regulations. At the suggestion of her lawyer, Ms. Xu applied to the Nanjing Labor and Personnel Dispute Arbitration Commission to confirm the existence of an employment relationship with the company.
Labor relations or labor relations are the difference between "poor"**
The housekeeping company argued that according to the Information Service Agreement signed by the two parties, the relationship between the company and Ms. Xu should be an employment relationship.
Although there is only one word difference between labor relations and labor relations, there is a world of difference between the rights and interests of workers. If it is a labor relationship, in addition to wages and salaries, the company also has to pay five insurances and one housing fund, and the employee also has corresponding protection in terms of compensation for liability accidents and work-related accidents. So, is there a labor relationship between Ms. Xu and this cleaning company? The arbitrator said that it is necessary to consider several factors such as the degree of autonomy of the employee on the working hours and workload, the degree to which the labor process is subject to management control, whether it is necessary to comply with the relevant work rules and labor discipline and reward and punishment methods, the continuity of work, and whether the transaction can be determined or changed**.
Huang Aying, Arbitrator of Nanjing Labor and Personnel Dispute Arbitration Court: In this case, all the services provided by the employee were completed through the employer's dispatch. The employer continuously dispatches orders to the applicant for a relatively long period of time, and the workload and working hours of each order are fixed, which has a relatively strong personal attachment in it.
After the trial, the Nanjing Labor and Personnel Dispute Arbitration Commission finally determined that there was an employment relationship between Ms. Xu and the housekeeping company. The arbitration institution also reminds employees that they should retain relevant evidence at work as much as possible, so as to better protect their rights and interests in the event of labor and personnel disputes.
What are the characteristics of the new business format and what measures are taken to protect the rights and interests of workers?
On January 24, the Ministry of Human Resources and Social Security held a press conference emphasizing the comprehensive use of different types of mediation to promote the substantive resolution of labor disputes. Prior to this, the Ministry of Human Resources and Social Security and the Supreme People's Court jointly released typical cases of labor disputes in new forms of employment to guide the practice of adjudication. The Rule of Law ** column interviewed the person in charge of the arbitration and mediation department of the Ministry of Human Resources and Social Security to explain the characteristics of the new employment form and some measures to protect workers.
From the typical cases released, we have learned that some employers have violated the law by entering into civil cooperation agreements to circumvent the obligations of employers, "fake outsourcing and real employment", and inducing workers to register individual industrial and commercial households. The arbitration institution for labor and personnel disputes corrected the situation in accordance with the law and found that there was an employment relationship between the two parties, while in some cases, the new employment form of the worker completely arranged the working hours and workload independently, and the organizational subordination between the employee and the employer was weak, and the arbitration institution determined that there was no employment relationship between the two parties in accordance with the law. It not only protects the legitimate rights and interests of workers, but also guides the benign development of new forms of employment.
Xu Chuanjiang, Deputy Director of the Arbitration Division of the Mediation and Arbitration Department of the Ministry of Human Resources and Social Security: Platform employment often involves multiple enterprise entities, and different enterprises use a unified platform for operation and management. The employment model of some platforms is highly dispersed, and the payment subjects of employment management, remuneration payment and social insurance are scattered in different regions, making it difficult to clarify the employment facts. From the perspective of workers, workers have both full-time and part-time status, different working hours and frequencies, and different number of service platforms, which is difficult to measure with a single standard. In the handling of cases, attention is paid to the overall handling of the relationship between promoting the development of enterprises and safeguarding the rights and interests of workers, and fully reflects the unity of political, legal and social effects.
In view of the characteristics and difficulties of labor and personnel disputes in the new form of employment, the human resources and social security department emphasizes adhering to the principle of "facts first" in determining labor relations, and determining the relationship between enterprises and employees based on employment facts.
Xu Chuanjiang, Deputy Director of the Arbitration Division of the Mediation and Arbitration Department of the Ministry of Human Resources and Social Security: Adhering to the idea of identifying labor relations based on subordination + elements, we refer to the relevant elements of labor management and comprehensively consider the existence and strength of personality subordination, economic subordination and organizational subordination to specifically determine labor relations.
At the same time, mediation also plays an important role in resolving labor and personnel disputes. Recently, the six departments issued the "Notice on Strengthening the One-stop Mediation of Labor Disputes in New Employment Forms" to provide workers with more convenient mediation services, reduce the cost of rights protection, and resolve conflicts and disputes quickly and efficiently.
Wang Zhiqiang, Deputy Director of the Department of Mediation and Arbitration of the Ministry of Human Resources and Social Security: It is required that in areas where disputes are prone to occur and occur frequently, township streets should generally set up substantive mediation centers to improve the dispute resolution capacity of township street mediation centers and promote the resolution of disputes nearby, locally and conveniently. We hope that through a relatively flexible way, labor and personnel disputes can be resolved in the mediation stage, and more conflicts and disputes can be resolved at the grassroots level and in the embryonic state, so as to minimize the conflict between the parties to the dispute, solve both the legal knot and the heart knot, and realize the conclusion of the case, the matter, and the people, so that the employment of workers is more stable, the employment of employers is more standardized, and the legitimate rights and interests of the parties to the dispute can be protected.
CCTV reporter Zhang Libin Zhu Tianfu).
*: CCTV news client.