[Case Review].
In June 2019, Huang went to work in a health physiotherapy company, commensurate with the company's legal representative, Shi's mentor and apprentice, received technical training from Shi and provided customers with health care and conditioning services according to the specified technical standards. In addition, Huang completed a number of service, administrative, and procurement matters according to Shi's requirements. Shi transferred money to Huang many times, one of which was remarked "salary".
A health physiotherapy company did not sign a written labor contract with Huang, did not go through social insurance procedures for Huang, and failed to pay social insurance premiums. Therefore, Huang requested that a health physiotherapy company be ordered to pay overtime wages. A health physiotherapy company counterclaimed, requesting that there be no employment relationship between it and Huang, and that it was not required to pay the difference in basic salary, job allowance, twice the difference in wages without a written labor contract, and economic compensation.
[Hanji Lawyer on Law].
There was no impropriety in establishing a de facto employment relationship between a health physiotherapy company and Huang. Although Shi and Huang are commensurate with each other, the two parties have not established a training contract relationship. As the legal representative of a health physiotherapy company, Shi managed Huang, assigned work tasks, and paid labor remuneration.
As a company that provides health care and conditioning services, a health physiotherapy company requires certain conditioning skills for its staff. In this case, Shi, as the legal representative and technical leader, had certain technical training and exchanges with Huang, which was highly probable to be within the scope of work and business training, which was insufficient to prove that there was a training contract relationship between the two parties, and it should be determined that a de facto labor relationship had been established between the two parties.
Therefore, Huang had an employment relationship with a health physiotherapy company, and the health physiotherapy company should pay Huang the difference in basic salary, job subsidies and other expenses.
[Hanji lawyer reminds].
In industries with the cultural tradition of "apprenticeship", it should be prudent to determine that the "master-apprentice" relationship establishes a de facto labor relationship.
Courts often focus on the following aspects: First, the employee is subject to a certain degree of management by the employer, which is manifested in the application of labor rules and regulations and direct management and control. Some smaller-scale employers may not have standardized and written labor rules and regulations, but the employees should still abide by the unwritten management regulations, and the actual situation of the employees under the management of the employer should be comprehensively examined.
At the same time, the employer's management of employees should not be too loose and disorderly, but should reach a certain level of management intensity. In addition, reasonable vocational training is an integral part of labour management and does not conflict with the establishment of labour relations. Second, when a worker is arranged by the employer to engage in a certain intensity of labor, it should reach a certain frequency and intensity, which is different from practical exercises for the purpose of learning and training. Third, when an employee receives the remuneration paid by the employer, he or she shall check whether the payment is actually made by the employer in conjunction with the company's accounts and other financial records.