Leave without pay, internal retirement, etc. Establish labor relations with new employers.

It is controversial whether there is a labor relationship between unpaid leave and internal retirees and new employers. Some people think it is not a labor relationship, others think it is a labor relationship. Is it a labor relationship? This article will combine judicial practice and typical cases for analysis.

I. Controversial views

The first view is that the employment relationship between the above-mentioned personnel and the new employer cannot be regarded as a labor relationship, because the labor relationship between them and the original employer has not been dissolved, and the law does not stipulate that the labor relationship can be dissolved by itself, and China does not recognize the dual labor relationship, otherwise it will lead to chaos in the social security system.

The second view is that although the labor relationship with the original employer has not been terminated, it is actually in a nominal state. If we deny the labor relationship with the new employer, there will be a paradox of labor relationship instead of labor relationship, which is contrary to the factual basis and is not conducive to the protection of workers' rights and interests.

Two, leave without pay, retired and other personnel and the new employer, should constitute a labor relationship.

The author believes that people who leave their jobs without pay, retire internally and other new employers should constitute labor relations for the following reasons:

(1)202 1 Judicial Interpretation on the Trial of Labor Dispute Cases has made it clear that disputes between employees who leave their jobs without pay and retire internally and new employers shall be handled in accordance with labor relations.

The Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (1) Article 32 If an enterprise employee leaves his post without pay, retires before reaching the statutory retirement age, is laid off for work, or stops production or takes a long vacation, the people's court shall bring a lawsuit to the people's court in accordance with the labor relations.

(2) The mainstream view in the judicial circles around the country is that there are disputes between people who leave their jobs without pay and retire internally. Handle with the new employer according to labor relations.

For example, Opinions of Beijing Higher People's Court and Beijing Labor and Personnel Dispute Arbitration Committee on Some Difficult Issues in Labor Dispute Cases 14, how to deal with retirees who have not reached the statutory retirement age, those who have left their jobs without pay, those who are laid off and waiting for jobs, and those who have stopped production for long holidays in enterprises who have established labor relations with new employers before retirement? The labor relations established with the new employer before the retirement of those who have not reached the statutory retirement age, those who have left their jobs without pay, those who are laid off and waiting for their posts, and those who have stopped production and taken long vacations in enterprises shall be treated as labor relations. However, if the new employer can't pay the old-age insurance, medical insurance and unemployment insurance for it due to objective reasons, the employee will not be supported.

For example, Article 7 (1) of the Guide to the Requirements of the Shanghai Higher People's Court for the Trial of Labor Dispute Cases [Requirements for employees who leave their jobs without pay, retire internally, wait for their posts, stop production for long holidays, and assist in insurance] advocates that there is a labor relationship with the new employer, and they should provide evidence to prove that the following requirements exist at the same time:

1. Laborers refer to employees who leave their jobs without pay, retired employees who have not reached the statutory retirement age, laid-off employees who are waiting for their posts, employees who have stopped production in enterprises and taken long holidays, and employees who agree to keep social insurance relationships.

(3) The First People's Court of the Supreme People's Court also believes that disputes between employees who leave their jobs without pay or retire internally and new employers should be handled in accordance with labor relations.

Du Wanhua, president of the First People's Court of the Supreme People's Court, answered the reporter's question on the Interpretation of Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (III): Can employees who leave their jobs without pay, retire after leaving their posts, be laid off, or take long-term leave from their enterprises be re-employed and establish labor relations with new employers? How does this judicial interpretation protect the rights and interests of such people?

A: In formulating the judicial interpretation, combined with laws and regulations, it is stipulated that the labor relationship between employees who leave their jobs without pay, retired employees, laid-off employees who are waiting for their posts, employees who stop production and take long holidays in enterprises and new employers should be recognized as labor relations. Accordingly, labor laws and regulations should also apply to disputes arising from labor relations between workers and new employers.

Specifically, first, the new employer has the obligation to pay social insurance. In the case of unpaid leave, early retirement, laid-off, suspension of business and long vacation. If a worker establishes a labor relationship with a new employer, the new employer and the worker shall pay social insurance premiums in accordance with relevant regulations. Second, when an industrial accident occurs, the new employer has the obligation to pay compensation. According to the relevant policies and regulations, if an industrial accident occurs during the work of the new employer, the new employer shall bear all the obligations of industrial injury treatment. Third, after the labor contract is dissolved or terminated, the new employer has the obligation to pay compensation. The relevant provisions of the Labor Law and the Labor Contract Law shall apply to the occurrence, exercise and legal consequences, including economic compensation and compensation, of the dissolution or termination of the labor contract between the employee and the new employer.

Third, typical cases

The Typical Supreme Law issued ten typical cases of promoting socialist core values: a tourist hotel company in Yichun v. Zhang Moumou labor dispute case.

primary facts

On may 28th, 20 14, defendant Zhang Moumou was employed as an engineer by a tourist hotel company in Yichun, Heilongjiang province. On September 5, 2065438/KLOC-0, the defendant left the plaintiff company on the grounds that the plaintiff company did not sign a written labor contract with it and did not pay social insurance to it. Later, on September 4, 20 15, he applied to the Labor and Personnel Dispute Arbitration Committee of Dailing District for arbitration, demanding the termination of the labor contract relationship with the plaintiff company, and demanding that the plaintiff company compensate him for various losses of 66 136.00 yuan. The Labor and Personnel Dispute Arbitration Commission of Dailing District made the arbitration award No.4 [201511.6].

The plaintiff, a tourist hotel company in Yichun, refused to accept the arbitration award and filed a lawsuit within the statutory time limit. Our hospital also found out that the employees of Yueming Forest Farm of Tiefaling Forestry Experimental Bureau in Zhang Moumou were left to fend for themselves since 1999 due to the economic depression of the unit and insufficient production tasks, and their wages were suspended during this period, but the social insurance premiums were still paid by the original unit and the individual defendant according to the amount stipulated by law. During the period from June 20 14 to September 20 15 when the defendant worked in the plaintiff's company, both parties did not sign a written labor contract.

Referee result

The effective judgment holds that there is a de facto labor contract relationship between the plaintiff and the defendant, but the plaintiff company has not signed a written labor contract with the defendant for more than one month and less than one year since the date of employment, and should pay the defendant twice the salary according to law. The plaintiff thinks that the defendant is an on-the-job employee of Yueming Forest Farm, and can only form a labor relationship with the plaintiff. However, according to Article 8 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases, enterprises leave their jobs without pay, retirees who have not reached the statutory retirement age, laid-off workers waiting for employment and employees who have stopped production and taken long holidays. Therefore, the plaintiff's defense is not supported. The defendant claimed that the plaintiff company should pay twice the salary according to the amount determined by the arbitration award, which did not exceed its average salary within one year, so the claim should be supported.

Fourthly, the author suggests that

According to the provisions of judicial interpretation and the mainstream view of current judicial decisions, leaving a job without pay, retiring early, being laid off and waiting for a job, and taking a long vacation due to suspension of business constitute labor relations with new employers. Disputes arising from labor relations between laborers and new employers shall be governed by labor laws and regulations. Therefore, new employers should pay attention to:

1. The employing unit shall sign a labor contract with the employee as soon as possible, instead of signing a labor contract.

2. The new employer shall fulfill the obligation to pay social insurance, and avoid the risks of paying economic compensation, paying social security, social security late fees, administrative penalties, etc. due to the compulsory termination of the labor contract.

3. In case of work-related injury, the new employer shall declare the work-related injury according to law and undertake the obligation of work-related injury identification, otherwise it will face the risk of compensating the workers for work-related injury losses.

4. When the labor contract is dissolved or terminated, the new employer shall, in accordance with the Labor Law, the Labor Contract Law and other relevant provisions, implement matters such as the generation and exercise of the right to dissolve, economic compensation and compensation.