On the Application of "Subordination" in Determining Labor Relations Cases

Author | Hua Junli's foreign lawyer team, lawyer Duan Xupeng

Introduction:

At present, the continuous changes and development of social economy in our country have given birth to many new industries, which have brought new types of employment relations. These employment relations that are different from traditional labor relations need to be protected by law. However, due to the lag of legislation, the author believes that the handling of specific problems in practice cannot only apply rules, but also needs to combine principles and practical experience, especially the cases that need to identify labor relations.

In dealing with cases involving a new type of employment relationship, whether the specific employment relationship can be identified as a labor relationship is the primary issue. In the absence of an employment contract and one party denies the existence of a labor relationship, it is necessary to judge whether the labor relationship is established according to the characteristics of the labor relationship, and the importance of "subordination" as an inherent feature of the labor relationship is self-evident. This article will try to analyze the standards and laws for recognizing "subordination" in judicial practice.

First, the concept of "subordinate attributes".

From the literal analysis, "subordinate attribute" describes a relationship between two concepts. This paper only discusses the issue of "subordinate attribute" in the framework of labor relations. Specifically, in labor relations, "subordinate attribute" is a description of the unequal relationship between workers and employers.

Although labor relations in modern society are established on the basis of equality, willingness, and freedom, once established, workers lose absolute control over themselves, mainly reflected in: in terms of personality, workers become part of the collective and are labeled as "employees"; in terms of organizations, their personal freedom is constrained by employment contracts, unable to fully control their own time and actions, and need to obey collective discipline and actions; in terms of economy, they can only (at least temporarily) rely on the employer's economy to "support".

In short, workers lose their independence and become dependent on the employer in terms of personality and economy. This is a state of subordination, which is also a necessary internal feature of labor relations.

It is generally believed that "subordination" is mainly reflected in the following two aspects: first, the employer's control over the personal freedom of the worker, for example, the employer can formulate rules and regulations, stipulate the time of attendance, rewards and punishments, etc., this so-called "personality subordination"; second, the employer's control over the worker's economy, for example, the employer can deduct the worker's compensation according to the worker's attendance, this so-called "economic subordination".

In addition, there is a reference to "organizational subordination" in judicial practice, but the author believes that "organizational subordination" is essentially the external manifestation or result of "economic subordination" and "personality subordination". This paper only divides the concept of "subordination" into "personality subordination" and "economic subordination".

The application of the concept of "subordination" in judicial practice

First of all, we must clarify under what circumstances the concept of "subordination" needs to be used in judicial practice. In judicial practice in our country, the determination of labor relations is often more "formal" elements, that is, whether there is an employment contract in appearance. Under the premise of the existence of an employment contract, there is generally no need to examine the substantive elements in depth. Only when the employment contract is missing, the substantive elements need to be reviewed. In addition to the review of the main body and the main business, the substantive elements can best determine the existence of labor relations, that is, the review of "subordination".

The concept of "subordinate attribute" is not explicitly mentioned in the employment contract law and labor law of our country, but in the field of labor law, the concept of "subordinate attribute" is often seen in various guiding cases and court verdicts, which shows that this concept is widely used. The relatively accurate description of the connotation of "subordinate attribute" is the "Notice on Matters Related to the Establishment of Labor Relations" issued by the Ministry of Labor and Social Security in 2005. Article 1 of the notice: "If the employer recruits workers without a written employment contract, but at the same time has the following circumstances, the labor relationship is established.

(2) The labor rules and regulations formulated by the employer in accordance with the law shall apply to the laborers, and the laborers shall be subject to the labor management of the employer and engage in the paid labor arranged by the employer... "Although this clause does not directly mention the concept of" subordination ", it describes the typical situation of personality and economic subordination in practice very directly.

The notice was cited 98,466 times in various refereeing documents, according to a query in the "Wolters Kluwer First" database.

At present, compared with the traditional employment relationship, the relationship between "laborers" and employers in "new business" industries is more subtle and flexible. In this type of employment, the "employment contract" is no longer signed between the two parties, but replaced by various other written documents and even electronic documents, which also makes the determination or denial of labor relations more dependent on the judgment of "subordinate attributes". The author searched seven relevant labor relationship determination cases in Guangdong in recent years for a glimpse of the application of the concept of "subordinate attributes" in practice:

From the above seven cases, we can roughly summarize the characteristics of the application of "subordinate attributes" in judicial practice:

① Most of the invocations of "subordination" are rooted in the provisions of the "Notice on Matters Related to the Establishment of Labor Relations".

② Some courts will directly use the concept of "subordination" in the reasoning part, especially "subordination of personality".

③ Subordinate attributes can only be reflected through the details of the case, and their manifestations are various.

④ Judges have more discretion in applying this concept, but ultimately they still need to rely on proven facts.

From the above, it can be seen that for cases of labor relations determination, the interpretation and application of "subordinate attributes" are indispensable, but there is a lack of a set of relatively standardized and unified standards.

III. Specific characteristics of "subordinate attributes"

The author believes that for the identification and application of "subordinate attributes", it is necessary to find out its mapping in real situations and determine its performance characteristics. In an unknown employment relationship (no employment contract is signed and actual employment occurs), the characteristics of "subordinate attributes" are as follows:

The above figure is an incomplete enumeration of the characteristics of "subordinate attributes". Simply having only one of these characteristics cannot lead to the conclusion of having "subordinate attributes", but once the complex characteristics are present, they will inevitably affect the determination of facts. Here are two important characteristics to analyze:

① Employers' "strong" control

The most important feature of personal subordination in labor relations is that the employer actually realizes all-round "strong" control over the worker, which is different from other types of legal relationships. For example, in the commission contract, the client also has the right to place certain restrictions on the performance of the trustee's work, but this restriction is "only for things and not for people," while the control in labor relations is "both for things and for people." Therefore, if the employer realizes the dual management of the content of the work and the person of the worker, it is very likely to be recognized as a labor relationship.

In the above-mentioned (2022) Guangdong 16 Minzhuan No. 1845 case, it was precisely because Weiqin Company not only managed Fan Ximeng's live broadcast content, but also required it to follow the company's various rules and regulations, and even had the right to decide whether it could participate in commercial performances. Therefore, the court ultimately determined the existence of labor relations.

② Organizational affiliation

There is a saying that summarizes this characteristic of personal subordination as "organizational subordination". Having an organizational affiliation means that the worker becomes part of the employer and is directly managed by the employer's personnel, and its relationship with the employer is similar to the relationship between organs and the body. If the worker is not directly managed by the employer, then the labor relationship may not be recognized.

In the above-mentioned (2023) case No. 105, although the laborer Huang Xinjin confirmed that he was under the direct management of Chen Xisheng, there was no further evidence to prove that Chen Xisheng had a labor relationship with the employer, Nongyue Company. Therefore, the court found that the evidence provided by the laborer was insufficient, making it difficult to determine the existence of a labor relationship between the two parties.

IV. Practical recommendations

For employers, in order to avoid the embarrassment of other types of employment relationships being identified as labor relations, the key is to do the following:

① To have a clear understanding of your own employment needs, if you really need full-time employment, you need to give priority to signing an employment contract. For unimportant supplementary work, give priority to recruiting part-time employees or outsourcing the business.

② Treat non-labor personnel with discretion and can make demands for the content of the work, but avoid making personal requirements, such as not forcing them to abide by the company's rules and regulations, and making reasonable arrangements for their working hours.

③ Refuse to be affiliated with social security.

For workers, in order to safeguard their rights and avoid the denial of labor relations, the key lies in the following points:

① It is necessary to have a clear understanding of one's own career positioning. Choosing non-labor employment means freedom and uncertainty. Choosing full-time employment is stable but loses some freedom.

② It is necessary to have legal sensitivity to the establishment of the employment relationship, try to use a written agreement to determine the rights and obligations of all parties, and pay attention to leaving records of your work and communication during normal work.

Lawyer Profile

Duan Xupeng, Lawyer

Partner of

In 2012, he graduated from the Law School of South China University of Technology with a bachelor's degree in law; in 2015, he graduated from the Law School of South China University of Technology with a postgraduate degree and a master's degree in law, majoring in criminal law. During his time at school, he worked as an intern in Shenzhen Judicial Bureau, Guangzhou Nansha Procuratorate, and Shenzhen Longgang Court.

Since graduating in 2015, he has served as a legal specialist in the Consumer Committee of Futian District, Shenzhen, and was named an advanced individual in consumer rights protection by the Consumer Committee of Shenzhen in 2016. Since joining the firm, he has actively participated in team business, strengthened his legal foundation, and participated in many civil and criminal cases, playing an important role.

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Hua Junli foreign lawyer team

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Many lawyers in the team have rich experience in cross-border dispute resolution, intellectual property risk prevention and control, non-litigation business in capital markets, and foreign-related criminal affairs. The team has a deep understanding of overseas policies and markets with a global perspective, and is committed to providing professional, flexible and efficient advice to clients to help clients complete global business layout and maximize client benefits.

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