In recent years, live streaming has swept online platforms and become a popular marketing method, so is it a labor relationship between the anchor and the company to sell the company's products through live broadcast and other means? Recently, the Intermediate People's Court of Jieyang City, Guangdong Province, made a final judgment upholding the first instance of a labor dispute case, finding that Huang had an employment relationship with a jewelry company, and ordered the company to pay Huang a total of 7690,000 yuan.
The anchor with the goods signs a contract with the company, and the number of live broadcasts per month is not less than 26.
In April 2022, Huang joined a jewelry company in Jieyang City, and his working place was the company's business location, and then the two parties signed the "Artist Franchise Agreement".
According to the agreement, Huang shall obey the company's overall arrangement of live broadcast time, content and product selection, and the number of live broadcasts per month shall not be less than 26, and the duration of each live broadcast shall not be less than 4 hours or the total duration of live broadcasts per month shall not be less than 100 hours, and shall be uploaded on the designated platform according to the company's requirements**. In addition, Huang's live broadcast account and the bound payment account are owned by the jewelry company, and the company is responsible for collecting and distributing all the income generated by the performing arts activities. The company pays Huang a basic salary of 10,000 yuan per month and the sales commission agreed in the agreement.
Half a year later, due to the company's arrears of wages, the two parties communicated in the WeChat group to no avail, and Huang resigned and filed for labor arbitration.
The arbitration award company should pay Huang severance compensation, basic salary and business commission. Dissatisfied, the company filed a lawsuit with the Jiedong District People's Court of Jieyang City. The Jiedong Court found that there was an employment relationship between the two parties in the first instance and rejected all the company's claims, and the company was dissatisfied and appealed to the Jieyang Intermediate People's Court.
The Jieyang Intermediate People's Court held that the company's business scope did not include the performing arts career of ** artists, anchor activities, etc., and the "Artist Franchise Agreement" signed by the two parties was essentially that Huang sold jewelry for the company in the form of an anchor to obtain corresponding remuneration, and his live broadcast activities should be recognized as performance of duties.
According to the content of the agreement and the WeChat chat records, attendance records, salary slips, and bank transfer statements submitted by Huang for the company's management and approval of his work content and leave, it can be determined that Huang actually accepted the management, command and supervision of the jewelry company, and the company also paid labor remuneration as agreed every month.
For this reason, Huang and the jewelry company met all the requirements for establishing an employment relationship, which constituted an employment relationship. In addition, according to the Labor Contract Law and other relevant laws and regulations, it is not improper to determine that the severance compensation for the termination of the labor relationship is 10,000 yuan. The Jieyang Intermediate People's Court then ruled that the company should pay Huang a total of 7690,000 yuan.
The judge said: The principle of priority of facts should be adopted to determine the employment relationship in the new business.
According to the judicial officer of the case, compared with the traditional labor relationship with strong economic subordination and personal subordination, the new form of employment relationship has the characteristics of flexible employment relationship, flexible working hours, and weakened management arrangements.
In practice, with regard to the employment relationship in the new business format, it is mainly determined whether there is an employment relationship between the two parties from three aspects: the examination of the employer's qualifications, whether the two parties have a personal subordinate relationship, the method of calculating labor remuneration and the payment entity. That is, the principle of priority of facts should be adopted, and the analysis and determination of individual cases should be carried out in strict accordance with the employment facts.
In this regard, the judge reminded that if both the employer and the employee meet the criteria for determining the labor relationship, they should enter into a written labor contract to enjoy their rights and perform their obligations in accordance with the law. For those that do not fully comply with the establishment of labor relations, the employer should also actively protect the legitimate rights and interests of the workers, so as to promote the healthy, orderly and stable development of the new business economy.
Text Guangzhou** New Flower City Reporter: Charter Correspondent: Wu Manhe, Li Jie Guangzhou** New Flower City Editor: Lin Jing.