Does the massage technician and the health club constitute an employment relationship?
In today's society, people are pursuing more and more health care, and various health clubs such as massage parlors, foot bath shops, and physiotherapy clubs are emerging. Most of the massage therapists who provide services to consumers in these health clubs receive remuneration in the form of proportional shares. Under this model, there is a great deal of controversy in practice about the relationship between the massage technician and the health club, whether it is a commercial partnership or an employment relationship. So what is the relationship between the technician and the club, not only depends on what kind of contract is signed, but also depends on the characteristics of what kind of legal relationship the relationship between the two parties conforms. The author analyzes several typical cases on the identification of the relationship between massage technicians and health clubs, which are here for readers' reference.
Case 1: Dong x Ping and Zhangzhou x Foot Bath *** Pinghe Branch Labor Dispute Case [Case No.: (2020) Min 06 Min Zhong No. 3220].
Basic facts of the case. On January 29, 2019, Dong X Ping went to X Foot Bath Company, the work content is to provide massage services to customers, and the two parties verbally agreed to get paid according to the commission, which will be settled once a month and paid on the 20th of the next month, and the two parties have not signed a written labor contract. On August 26, 2019, Dong X Ping sent a WeChat message to Manager Yang, the manager of X Foot Bath Company, to resign, and since August 27, 2019, he has not worked in X Foot Bath Company. Dong Xping works from 8 p.m. to 5 a.m., and she has to clock in when she goes to work, but she doesn't need to clock in when she gets off work. On December 26, 2019, Dong Xping returned to work in X Foot Bath Company, and agreed with Manager Yang, the manager of X Foot Bath Company, that he would not come to work until the Spring Festival in 2020, and Dong Xping has not worked in X Foot Bath Company since January 26, 2020. Later, Dong X Ping applied for arbitration, demanding the termination of the employment relationship between the two parties and demanding that X Foot Bath Company pay double the wages of the employee who had not signed the labor contract.
The focus of the controversy. The focus of the dispute in this case was whether there was an employment relationship between Dong Xping and X's foot bath company.
The gist of the referee. During the existence of the relationship between the parties, Dong Xping had to clock in and out when she went to work, but she did not need to clock in when she left work, and Dong Xping's attendance had no relationship with whether or how much she received compensation. The company argued that the purpose of setting up the punch card was only to count the presence of massage technicians and facilitate the number of customers, and that it was not the employer's attendance management of employees, which was in line with reality and was accepted. In this case, Dong Xping did not return to work at X Foot Bath Company from August 27, 2019, and did not return to work at X Foot Bath Company until December 26, 2019. To sum up, Dong Xping's attendance status is uncertain, and there is basically no need to follow the relevant work instructions of the unit, and there is no objective fact that he accepts the management of X Foot Bath Company. Secondly, in this case, Dong Xping and X-Footbath Company only orally agreed on labor remuneration, but did not involve rest and vacation, social insurance, labor protection and conditions, etc., and as far as the content of the agreement between the two parties on the remuneration received by Dong X-Ping, the remuneration paid by X-Ping to Dong X-Ping was distributed by the company according to a certain proportion of the fees paid by Dong X-Ping's service recipients, and its essence was a kind of commercial profit sharing, which was of consideration with Dong Xping's labor services. According to Article 1 of the Notice of the Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations (Lao She Bu Fa 2005 No. 12), although Dong Xping and X Foot Bath Company both have the qualifications of the main body of labor relations, the relationship between the two parties is quite loose, and they do not have the personal subordination relationship between the workers to the employer, and do not meet the constitutive requirements for the establishment of labor relations, so it is determined that there is no labor relationship between the two parties.
Case 2: Zhang X Mei and Fushun City Shuncheng District X Health Club Labor Dispute Case [Case No.: (2022) Liao 04 Min Zhong No. 1639].
Basic facts of the case. From September 18, 2021 to January 2, 2022, Zhang X Mei was recruited online to work as a massage technician at X Health Center, and the two parties did not sign a written contract. The two parties orally agreed that the settlement remuneration payment period was 15 days, and the two parties did not agree on the work period. Later, a dispute arose between the two parties over economic compensation and double wages, and Zhang X Mei applied for arbitration on February 25, 2022, requesting X Health Center to pay RMB 5,700 in compensation for illegal termination and RMB 39,900 in double wages.
The focus of the controversy. The focus of the dispute in this case was whether the parties had established an employment relationship.
The gist of the referee. In the absence of a written employment contract between the parties, the relevant provisions of the Notice on Matters Concerning the Establishment of Labor Relations (Lao She Bu Fa [2005] No. 12) issued by the former Ministry of Labor and Social Security may be referred to to examine whether the employment relationship is established. In this case, Zhang X Mei is a person with complete x capacity for civil conduct, and X Health Center is a lawfully established individual industrial and commercial household, and both parties meet the qualifications for the establishment of labor relations. In this case, Zhang X Mei asserted that there was a subordinate management and subordinate management relationship with X Health Center, which was manifested in the form of being managed by the head technician of X Health Center, being assessed and managed by X Health Center's computer, uniformly dressed, fixing the commuting time, and failing to arrive on time after the work card was released. Judging from the recruitment information submitted by Zhang Xmei, it is clearly stated that "the salary is 55 mention"; From the point of view of personal dependence, although Zhang Xmei has a fixed time to commute to and from work, the consequence of not arriving at work on time is only that the work card is released later, and the full attendance reward and fine mentioned by Zhang Xmei are not recognized by the X-Mei Health Center, and Zhang X-Mei has not adduced evidence to prove the existence of the above circumstances, so the X-Mei Health Center did not make any management provisions on Zhang Xmei based on the labor contract relationship, and should not be regarded as a rule and regulations with a personal subordination relationship between the two parties. From the perspective of economic income, Zhang X Mei said that she has no basic salary, and her income is mainly through the service to the guests, although the ** of the service items is determined by the X Health Center, but its daily income is not controlled by the X Health Center, and the income is only distributed according to the proportion agreed by both parties. In summary, Zhang Xmei could not prove that the two parties had an agreement to establish an employment relationship, nor could they prove that the economic and personal dependence of the two parties had the nature of an employment relationship, so it was determined that there was no employment relationship between the two parties.
Case 3: Labor dispute between Foot Bath and Zhao Xqin [Case No.: (2019) Zhe 08 Min Zhong No. 566].
Basic facts of the case. Since June 20, 2018, Zhao Xqin has been working as a foot bath technician at X Foot Bath Pavilion. During this period, the two parties did not sign a written labor contract, and the foot bath did not pay social insurance for Zhao Xqin. On October 21, 2018, Chen Linyu and Su Juying, partners of the foot bath, transferred 3% of their shares in the store to Zhao Xqin, who signed the share transfer agreement on November 1, 2018. On November 12, 2018, Zhao Xqin left the foot bath pavilion. On November 16, 2018, X Foot Bath held a shareholders' meeting and decided to transfer the foot bath house. Zhao Xqin signed the minutes of the shareholders' meeting. On 2 January 2019, Zhao Xqin applied to the Quzhou Labor and Personnel Dispute Arbitration Commission for arbitration, requesting confirmation of the employment relationship and payment of double wages for those who had not signed an employment contract.
The main point of dispute was whether an employment relationship was established between X Foot Bath and Zhao X Qin.
The gist of the referee. X Foot Bath asserted that Zhao X Qin was a shareholder and partner, and there was no employment relationship between the two parties. The court held that in principle, there is no contradiction between the identities of shareholders, partners and employees, and the key lies in whether there is a relationship between the employer and the shareholders and partners, between management and management, domination and domination. In this case, Zhao Xqin was engaged in the work of a technician such as massage and foot bath in the X foot bath parlor, and the content of his work was within the scope of the X foot bath parlor, and the remuneration he received was based on the type and quantity of business he completed. Therefore, based on the content of the labor, workplace, and calculation method of remuneration provided by Zhao Xqin, it can be determined that he was under the management and control of the foot bath and established an employment relationship with the foot bath. According to the ascertained facts, the court upheld Zhao Xqin's request for X Foot Bath to pay social insurance and pay Zhao X Qin's wages for the period from October to November 12, 2018. As to whether the foot bath should pay double the salary of Zhao X Qin who did not sign a labor contract, if the employer has not concluded a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly wage. According to the ascertained facts, Zhao Xqin transferred part of the shares of X Foot Bath on October 21, 2018 and became a shareholder, and he signed a labor contract with X Foot Bath on October 21, 2018 but did not sign it, so X Foot Bath did not need to pay double the salary of the unsigned labor contract.
Why is it that the same massage technician requests confirmation of the employment relationship, but because of the difference between the actual situation and the legal relationship, the result is diametrically opposed? In accordance with the relevant provisions of the Notice on Matters Concerning the Establishment of Labor Relations (Lao She Bu Fa [2005] No. 12) issued by the Ministry of Labor and Social Security, the author analyzes the factors for determining labor relations as follows:
01Specialization of subject qualifications.
The entities that establish labor relations can only be the worker and the employer. The so-called laborer is a natural person who engages in physical or mental work in an employer in accordance with the law and obtains labor remuneration, which is characterized by the following characteristics: the conditions for participating in labor comply with the law, such as not violating the legal minimum age limit, etc., and under the arrangement and command of the employer, he personally pays for labor and obtains remuneration. An employer refers to an economic entity that owns the means of production, employs laborers, arranges their work, and pays labor remuneration. The Labor Contract Law stipulates that an employer is an enterprise legal person, a non-enterprise legal person, an individual economic organization or other organization within the territory of China, and a natural person cannot become an employer.
02 There is a personal dependency relationship between the employee and the employer.
In the labor relationship, the employer may exercise the right of employment management, and the employee shall accept the reasonable arrangement and proper management of the employer in the course of work. Specifically, if an employee provides labor to the employer, the employer may change his or her job position in accordance with the law or contract and according to the employee's ability and performance; Employers shall formulate and improve rules and regulations in accordance with the law, and carry out normal employment management of employees. If the employee neglects to perform his or her labor obligations or violates the rules and regulations, the employer may impose sanctions. Therefore, the labor relationship is not a property relationship between the employee and the employer that is solely valued by the labor force, but also has the personal dependence of the employee on the employer, which is the most significant feature that distinguishes the labor relationship from other civil relationships.
03The labor provided by the employee is an integral part of the employer's business.
The content of the worker's work is an integral part of the employer's production and business operations; The employer shall pay the remuneration according to the labor provided by the employee. If the labor provided by the employee is not part of the employer's business, the employer is not required to pay the employee remuneration.
To sum up, what is the relationship between the technician and the club, it is not to look at what kind of contract is objectively signed, or whether it is the relationship between the unit and the employee, but also to see what kind of legal relationship the relationship between the two parties conforms to, and if it conforms to the characteristics of the labor relationship, the two parties form a labor relationship, otherwise it is not a labor relationship.