How Do Migrant Workers Confirm Their Labor Relations?

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In recent years, migrant workers with skilled skills have been working in many enterprises, which has become a flexible employment phenomenon. For example, there are skilled migrant workers in the construction industry, for example, where the industrial characteristics are more obvious and the similar enterprises are more concentrated, this flexible labor employment style exists widely.

Recently, the Jizhou Municipal People's court and the Hengshui intermediate people's court tried to confirm such a labor dispute, which has the value of reminding workers and employers of mobile employment.

Hengshui Jizhou individual industrial and commercial household heating equipment factory, many years engaged in the production and sales of radiator, spray processing.

Wang Mouqun works in the factory and implements piecework remuneration, which is one year and one settlement.

In March 7, 2015, Wang Mouqun was injured in a traffic accident when he was returning home.

Wang Mouqun said that he has worked in a heating equipment factory since 2010.

The factory is a radiator processing plant, its production processes are cutting, cutting, welding, grinding, assembly, packaging and so on.

He is engaged in the blanking process, which is long-term, stable, continuous and has certain technical content, not temporary and auxiliary jobs.

Since December 30, 2013, Wang Mouqun's mobile phone number has begun to bind the specific CRBT of the factory. The content is to publicize the product of the factory. The payment invoice for the mobile phone number is also kept in Wang Mouqun's hands.

His colleagues testified to him that he had labor relations with the factory.

Although he also went to other heating equipment manufacturers to do the cutting work, he did not form labor relations with these enterprises.

He has worked here for more than six years, and neither side has proposed the termination of labor relations.

A heating equipment factory said that Wang Mouqun worked in three factories for piecework processing. Our factory is only a factory of its work. The way of work is to live and live without it. According to the number of pieces, the end of the year will be collected; Wang Mouqun does not need to observe the management matters such as attendance, rewards and punishments in our factory.

Wang Mouqun engaged in piecework work, according to the factory and seasonal production business changes, the factory needs to process products, only by telephone notification way to the factory piece processing overtime work, no business or less business workers casual, big, can work in other factories, not the actual management of our factory.

Wang Mouqun is not a long-term employment worker in our factory. Neither side has signed a labor employment contract.

Therefore, there is no labor relationship between the two sides.

In April 27, 2015, Wang Mouqun applied for arbitration to the Jizhou labor and personnel dispute mediation and Arbitration Commission, and asked for confirmation of a labor relationship between a heating equipment factory and Wang Mouqun.

In May 29, 2015, the arbitration award of No. 01 (No. 2015) 01 of Jizhou Lao Ren Zhong case verdict: "since March 7, 2015, there is a fact with a heating equipment factory".

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A heating equipment factory refused to accept the case and filed a lawsuit with the people's Court of Jizhou, demanding that there is no factual labor relationship between the two parties.

The court of first instance held that the labor relationship is a labor contract signed between the employer and the laborer in accordance with the law. The laborer accepts the management of the employing unit and engages in the work arranged by the employer, and becomes a legal relationship between the remuneration of the employer and the protection of the employer.

The biggest difference between labor relations and other employment relations is that the laborers in the labor relations have affiliation with the employing units, accept the management of the employing units, abide by the rules and regulations of the employing units, engage in the work assigned by the employers and obey the personnel arrangement of the employing units, that is to say, the employers and workers in the labor relations are not equal, and they have the relationship between management and management.

In this case, although Wang Mou group is engaged in blanking work at a heating equipment factory, it can be seen from the work of its colleagues that Wang Mouqun is not bound by a heating equipment factory, but has a job to live. When he is not alive, he can go elsewhere to look for work and do not need the consent or permission of a heating equipment factory. Therefore, Wang Mouqun is not subject to the management of a heating equipment factory. The relationship between a heating equipment factory and Wang Mouqun is not the relationship between management and management, and it does not have the essential elements of labor relations.

The court of first instance made (2015) the civil judgment No. 1050th of jizmin No. 1, and there was no labor relationship between a heating equipment factory and Wang Mouqun.

Wang Mouqun refused to accept the judgment of the first instance and appealed to the intermediate people's Court of Hengshui.

The evidence of the second instance court submitted to Wang's group's second instance is as follows: Wang Mouqun's cell phone number is bound to the CRBT.

Mobile phone bundling CRBT is an act of advertising. Whether there is labor relationship with its unit should be confirmed based on facts and legal provisions. Therefore, the court of second instance has no confirmation of its relevance.

The facts found by the court of second instance are consistent with the facts found in the first instance.

It is also found that Wang's phone number is tied up with the phone number, the telephone recording of a witness's section, the certificate issued by a certain heating plant in Jizhou, and the telephone recording of a certain radiator factory in Jizhou.

The testimony of a witness appearing in court in Chen and Zhang can prove that Wang's work in a heating plant was earlier than that of the two witnesses. He was responsible for cutting off the work. The way of doing things was to finish the work and finish the material before leaving.

The court of second instance held that there was a problem of labor relations between Wang Group and a heating equipment factory.

According to the first provision of the Ministry of labor and social security on the establishment of labor relations related matters (No. 2005 of the Ministry of labour, No. 12), there is labor relationship between Wang Group and a heating equipment factory.

But Wang Mouqun recognised that he worked in other factories as well as working in a heating equipment factory.

When Wang Mouqun worked in a heating equipment factory, he finished the work and finished the material.

Wang Mouqun worked in a heating equipment factory at random, living and working, without going to work. He was not affected by the management of a heating equipment factory during the working period, and paid monthly monthly wages, and released at the end of the year.

Both sides conform to the legal relationship characteristics of providing labor services.

Therefore, the court of first instance decided that there was no labor relationship between the two parties, and that our hospital should maintain it.

In June 2, 2016, the Hengshui intermediate people's court made (2016) the 11 civil judgment No. 367 civil judgment: rejecting the appeal and upheld the original judgment.

China's labor contract law stipulates that the employer will establish labor relations with the laborers from the date of their own employment, but the law does not make clear and specific provisions on "employment day" and "labor relations".

Abstract provisions are applied in practice, which will be explained in detail. However, how to define their connotation and denotation is both judicial and administrative.

The Supreme People's court judge: for the determination of labor relations, we should pay attention to the distinction between labor relations and employment relations, as well as the relationship between contracts.

In terms of labor relations and employment relations, the essence of the two is actually the same. The predecessor of labor relations is employment relationship. When the productivity level is not high and the labor force is regarded as a commodity, the employment relationship between employers and employees is formed by the civil law. When the personal attribute of the labor force is more and more valued by the people, the state's public power gradually intervenes to strengthen the protection of the workers. Then the labor force is no longer regarded as a commodity simply, the socialization characteristics of the employment relationship become more and more obvious, and the employment relationship gradually moves out of the civil law into the adjustment field of the social law, and is eventually replaced by the labor relations.

However, employment relationship is gradually replaced by labor relations. After all, it is a gradual process, which depends on the degree of economic development of various countries.

In foreign countries, there are general rules for employment relations which are not protected by labor law.

However, in China, the provisions in this regard are very vague.

Labourers working in many enterprises and establishing multiple labor relations are not prohibited by law and labor policies.

After the promulgation of the labor law, the prevailing view was that, at the same time, a worker could only establish a labor relationship with a unit, which was known as "one heavy" or single labor relationship.

In 2003, after the issuance of opinions on Several Issues concerning part-time employment, the Ministry of labor and social security was widely accepted.

In 2007, the labor contract law upgraded it to law, that is, part-time workers have legitimacy, and the establishment of multiple labor relations is legitimate. At the same time, the law also gives employers the right of legal choice to balance the interests of both sides.

That is, "

"Article thirty-ninth fourth stipulates that" when a laborer establishes labor relations with other employers at the same time, it will seriously affect the completion of the work of the unit, or if the employer proposes to refuse to correct it, the employer can rescind the labor contract. "

Therefore, the long-term stability of labor employment should not be a constitutive requirement of labor relations, nor should it be the implied meaning of "employment day".

It is generally held that the provisions of Article 1 of the notice of the Ministry of labor and social security concerning the establishment of labor relations are applicable to labourers in accordance with the laws and regulations formulated by the employing units according to law, which constitute the essentials and essentials of labor relations.

However, there are many controversies about whether the personal attributes or membership attributes of laborers are constitutive elements of labor relations and how to identify them.

Moreover, whether labor management is closely related or not is not the same.

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