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Jiangsu Ao Jill Ecological Agriculture Science and Technology Co., Ltd. v. Zeng Guangfeng (Case of dispute over confirmation of labor relationship
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江苏澳吉尔生态农业科技股份有限公司与曾广峰确认劳动关系纠纷案
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Jiangsu Ao Jill Ecological Agriculture Science and Technology Co., Ltd. v. Zeng Guangfeng (Case of dispute over confirmation of labor relationship
江苏澳吉尔生态农业科技股份有限公司与曾广峰确认劳动关系纠纷案
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| Jiangsu Ao Jill Ecological Agriculture Science and Technology Co., Ltd. v. Zeng Guangfeng (Case of dispute over confirmation of labor relationship) | | 江苏澳吉尔生态农业科技股份有限公司与曾广峰确认劳动关系纠纷案 |
| [Judgment Abstract] | | [裁判摘要] |
| Where a laborer provides labor services according to the job responsibilities of the employer, is subject to the management of the employer, and obtains labor remuneration with his own labor, it complies with characteristics of labor legal relationship and it should be determined that there is labor relationship between the laborer and the employer. Even though the laborer has personnel relationship with another entity, where the personnel relationship fails to be normally performed not due to reasons of the laborer, the remuneration obtained by the laborer from the entity is insufficient to maintain his basic living, and the employer denies the labor relationship between it and the laborer on the ground that the laborer has personnel relationship with another entity, the people's court should not uphold the allegation of the employer. | | 劳动者按用人单位岗位要求提供劳动，受用人单位管理，以自己的劳动获取劳动报酬，符合劳动法律关系的特征，应当认定劳动者与用人单位之间存在劳动关系。即使劳动者与其他单位存在人事关系，但在非因劳动者自身原因导致该人事关系未正常履行且劳动者从其他单位取得的报酬不足以维持基本生活的情况下，用人单位以劳动者与其他单位存在人事关系为由，否认用人单位与劳动者之间存在劳动关系的，人民法院不予支持。 |
| Plaintiff: Jiangsu Ao Jill Ecological Agriculture Science and Technology Co., Ltd., domiciled in Ao Jill Greenery Theme Park Base, Longfei Avenue, Mingzuling Township, Xuyi County, Jiangsu Province. | | 原告：江苏澳吉尔生态农业科技股份有限公司，住所地：江苏省盱眙县明祖陵镇龙飞大道澳吉尔绿博园基地。 |
| Legal representative: Tian Chunzhi, chairman of the board of the Company. | | 法定代表人：田春芝，该公司董事长。 |
| Defendant: Zeng Guangfeng, male, 43 years old, Han nationality, domiciled in Guantan Township, Xuyi County, Jiangsu Province. | | 被告：曾广峰，男，43岁，汉族，住江苏省盱眙县官滩镇。 |
| Plaintiff Jiangsu Ao Jill Ecological Agriculture Science and Technology Co., Ltd. filed a lawsuit with the People's Court of Xuyi County, Jiangsu Province against defendant Zeng Guangfeng for dispute over confirmation of labor relationship. | | 原告江苏澳吉尔生态农业科技股份有限公司因与被告曾广峰发生确认劳动关系纠纷，向江苏省盱眙县人民法院提起诉讼。 |
| Plaintiff Jiangsu Ao Jill Ecological Agriculture Science and Technology Co., Ltd. (hereinafter referred to as “Ao Jill Company”) alleged that: Defendant Zeng Guangfeng started to work with plaintiff on September 1, 2015. Plaintiff learned that defendant was an employee of the Water Affairs Bureau of Xuyi County, there was labor relationship between both parties, and defendant's endowment insurance and medical insurance were paid by the entity. Thus, plaintiff and defendant signed a Labor Employment Contract, which agreed on the rights and obligations of both parties. Afterwards, defendant suffered from an accident damage in the work and he applied to the Labor and Personnel Dispute Arbitration Committee of Xuyi County for arbitration and required the Committee to confirm labor relationship between plaintiff and defendant. According to the arbitral award issued by the Committee, there was labor relationship between both parties. For this regard, plaintiff was of the following opinions: (1) Whether it was employment relationship or labor relationship between plaintiff and defendant should be based on the contract signed by both parties and the background for the signing of the contract. Considering that the labor relationship between defendant and the Water Affairs Bureau of Xuyi County was not rescinded, plaintiff signed the employment contract with defendant. Therefore, the legal relationship between both parties was specific, which was employment relationship rather than labor relationship. (2) There are many similarities between employment relationship and labor relationship: the laborer or employee has personal dependence with the employer or employing entity and the employee or laborer has such rights and obligations of observing the rules and regulations, accepting work arrangements, and obtaining labor remuneration. The arbitral award presumed that there was labor relationship rather than employment relationship between both parties on the basis of the Labor Employment Contract, which lacked factual and legal basis. Plaintiff requested the Court to order that there was no labor relationship between plaintiff and defendant. | | 原告江苏澳吉尔生态农业科技股份有限公司(以下简称澳吉尔公司)起诉称： 2015年9月1日，被告曾广峰到原告处上班。经原告了解，被告系盱眙县水务局职工，双方存在劳动关系，且养老、医疗保险均在该单位缴纳，故原告与被告之间签订《劳务雇佣合同书》，对双方的权利义务予以约定。后被告在工作中遭受事故伤害，向盱眙县劳动人事争议仲裁委员会申请仲裁，要求确认原被告之间存在劳动关系。该委作出的仲裁裁决书认为双方存在劳动关系。对此，原告认为：一、原被告之间是雇佣关系还是劳动关系应当以当事人签订的合同以及签订合同时的背景作为依据，鉴于被告与盱眙县水务局之间存在的劳动关系并未解除，原告才与被告签订雇佣合同。因此，双方之间的法律关系是明确的，即是雇佣关系而非劳动关系；二、雇佣关系与劳动关系有许多相同之处，作为劳动者或者雇员均与雇主或用人单位存在人身依附关系，雇员或劳动者均要遵守规章制度、接受工作安排、获取劳动报酬等权利义务，而仲裁裁决书以合同书的内容推定双方之间系劳动关系而不是雇佣关系，缺乏事实与法律依据。请求判决原被告之间不存在劳动关系。 |
| Defendant Zeng Guangfeng contended that: (1) He worked with plaintiff Ao Jill Company from September 14, 2015 as manager of the Greenery Theme Park Base in Mingzuling Township and they signed a one-year labor contract with the deadline of September 13, 2016. After the expiration of the contract, they renewed the labor contract for one year and up to now, the contract has not been rescinded. (2) He worked with a subordinate entity of the Water Affairs Bureau of Xuyi County from December 1992. Since the entity had ill economic returns, he has been remained at the post without wage for many years. By taking into consideration of defendant's practical difficulties, the entity has been paying the social security fund for defendant. However, the aforesaid matters had no relevance with whether there was labor relationship between plaintiff and defendant. To sum up, defendant requested the Court to rule that there was labor relationship between both parties so that he may enter the procedure for work-related injury certification and obtain the due rights of the laborer. | | 被告曾广峰辩称：一、被告自2015年9月14日到原告澳吉尔公司处上班，任明祖陵绿博园基地经理一职，并签订了一年的劳动合同，合同截止期限为2016年9月13日。到期后双方又续签了一年劳动合同，截至目前未解除合同；二、被告于1992年12月进入盱眙县水务局下属单位上班，但因单位效益不好，已经停薪待岗多年。原单位因考虑到被告实际困难，所以一直帮被告缴纳社会保险。但上述事宜与原被告之间是否存在劳动关系没有任何关联。综上，请求法院判决双方存在劳动关系，以便被告进入工伤认定程序，获得劳动者应有的权利。 |
| In the trial of first instance, the People's Court of Xuyi County found that: | | 盱眙县人民法院一审查明： |
On September 14, 2015, plaintiff Ao Jill Company (Party A) and defendant Zeng Guangfeng (Party B) signed the Labor Employment Contract, which stipulates that: I. Party A employs Party B as manager of the Mingzuling base and Party B shall provide labor services in the routine production and operation and management of the Mingzuling base of Party A. II. Term of labor services: Both parties may renew the Contract through consultation one month before the expiration of the term of one year of the Contract; in case of non-renewal after expiration of the Contract, Party B must undergo the work handover formalities... III. Party A shall, around the 15th day in each month, pay Party B the labor remuneration of CNY5650 (1580) in the name of salary in cash or account transfer and Party B shall, within three workdays upon receipt of the labor remuneration, issue a receipt to Party A. IV. Obligations and responsibilities of both parties: 1. Party B shall consent to assume the post of base manager as required by Party A, provide labor services according to the Post Responsibility Statement (see the Annex) and requirements developed by Party A, and complete the production and operation and management of the Mingzuling base. 2. Party B shall accept Party A's assessment of labor services he provides. Without the approval of Party A, Party B is not allowed to engage in any activity or business irrelevant to the labor services he is employed to provide. 3. Party B shall dutifully provide services, may not seek private gain through power or damage the interests of Party A, and shall observe the rules to be followed by employees and the provisions on punishments in the Employee Manual as developed by Party A and consent to accept Party A's punishment if he violates the corresponding provisions, with the fine deducted or settled from the labor service fee... VI. Others: 1. Party A shall have the right to correspondingly modify the Employee Manual and the management rules of the Company. Where Party B has known or learned the published modified content in the corresponding ways, the corresponding clauses shall apply to the performance of the Contract. 2. Party A shall have the right to adjust the job responsibilities and scope of labor services as required within the validity term of the Contract and may correspondingly adjust the labor remuneration and other matters. After Party A makes the aforesaid adjustments, where Party B raises no objection within one payment cycle, it shall be deemed that Party B accepts the aforesaid adjustments and arrangements. VII. This Contract has the following annexes: Annex 1: Confidentiality Agreement; Annex 2: Job Responsibilities Statement; and Annex 3: Employee Manual Developed by Party A and the Relevant Provisions. Defendant worked with plaintiff as manager of the Mingzuling base from the date of signing of the Contract and engaged in the corresponding work as required by plaintiff. Plaintiff issued an employee ID card to defendant, checked the attendance and evaluated the performance of defendant according to the Company's management rules, and paid him salaries on a monthly basis. In September 2016 after the expiration of the term of one year, both parties renewed the Contract.
．．．．．． | | 2015年9月14日，原告澳吉尔公司(甲方)与被告曾广峰(乙方)签订《劳务雇佣合同书》，约定：一、甲方雇佣乙方为明祖陵基地经理，乙方需在甲方明祖陵基地的日常生产经营和管理方面提供劳务。二、劳务期限：本合同自签订之日起一年，期满前一个月双方可协商续订；期满不再续订时，乙方必须办理交接手续……三、甲方每月15号左右，以工资名义，用现金或转账名义支付乙方的劳务报酬5650(1580)元，乙方应于收到劳务报酬之日起，三个工作日内向甲方出具收条。四、双方的义务和责任。1．乙方同意根据甲方需要担任基地经理一职，根据甲方制定的该岗位责任书(详见附件)的内容和要求提供劳务，完成明祖陵基地的生产经营及管理。2．乙方接受甲方对其提供劳务的考核。未经甲方许可，乙方不得从事与受雇劳务无关的活动或业务。 3．乙方应尽心尽责提供服务，不得以权谋私、损害甲方利益并在提供劳务过程中，遵守甲方制定的《员工手册》中员工应遵守的规定及处罚规定，并同意在违反时按照其中相对应的内容接受甲方的处理，从劳务费中给付扣除或结算……六、其他。1．甲方有权对公司的《员工手册》和管理制度进行相位修改。修改公布后的内容，乙方已经通过相应途径知悉、了解的，对应条款适用本合同的履行。2．甲方有权在本合同有效期内，根据需要调整乙方的岗位职责、劳务范围，劳务报酬等事项也将做出相应调整。甲方作出上述调整后，乙方在一个支付报酬周期内无异议的，视为乙方接受上述调整和安排。七、本合同的附件如下：附件一：《保密协议》；附件二：《岗位职责书》；附件三：甲方制定的《员工手册》及有关规定。被告自协议签订之日遂入职原告处担任基地经理一职，按原告要求从事相应工作，原告也向其发放工作牌，按照公司管理制度对被告进行考勤、考核并按月发放工资。2016年9月一年期满后，双方又续签一份合同。
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