【Basic facts of the case】

Company A is the general contractor of a residential project, and Company B is its shareholder unit, and Company B, as a partner, carries out construction in the name of Company A. Fu is an employee of Company B, joined Company B in May 2014 and signed a labor contract with the company to engage in on-site management. Due to the needs of the cooperative project, on November 24, 2014, Fu was assigned by Company B to work in the residential project, and the corresponding qualification certificate was registered in the name of Company A for the implementation of the project. At the same time, Company A pays social insurance for it, and the corresponding amount is deducted by Company A from the amount payable to Company B. Company B paid wages and housing provident fund to a certain person from May 2014 to June 2016. After that, due to a dispute between Company B and Fu over the salary and treatment, the two parties could not negotiate, and Fu officially resigned at the end of July 2016. At the end of 2016, Fu filed an arbitration with the Labor Arbitration Commission, demanding that Company B pay him the unpaid wages, economic compensation, etc., and that Company A bear joint and several liability for his request. The Labor and Personnel Dispute Arbitration Commission made a ruling upholding Fu's main arbitration claim and ruling that Company A was jointly and severally liable for his claim. Company A was not satisfied with the ruling and filed a lawsuit requesting the court to rule that it was not jointly and severally liable. Fu also filed a lawsuit.

【Focus of controversy】

Whether there is an employment relationship between Fu and Company A, and whether Company A should bear joint and several liability.

【Referee's Viewpoint】

During the hearing, the Labor and Personnel Dispute Arbitration Commission failed to confirm the ownership of the labor relationship, but upheld part of Fu's arbitration claim, ruled that Company B should pay the corresponding amount to him, and only ruled that Company A was jointly and severally liable for the unpaid wages in accordance with Article 25 of the Jiangsu Provincial Labor Contract Regulations.

Article 25 In any of the following circumstances, if a worker is assigned from the original employer to work in a new employer for reasons other than his/her own, the employee's working years in the original employer shall be calculated as the working years of the new employer; If the original employer has already paid economic compensation to the employee in accordance with the law, the new employer will no longer calculate the employee's service period in the original employer when calculating the working period for which the economic compensation is paid in accordance with the law when the labor contract is terminated or terminated in accordance with the law:

(1) The employer changes the position of the employee in the form of assignment;

(2) The employer changes the position of the employee due to the transfer of asset business, asset acquisition, reorganization, etc.;

(3) The employer arranges for the movement of workers between its subordinate branches or affiliated enterprises;

(4) The employer and its affiliated enterprises take turns to conclude labor contracts with the workers;

(5) Other circumstances provided for by laws and regulations.

The court of first instance held that Fu had signed an employment contract with Company B, and the evidence submitted by it was insufficient to prove that there was an employment relationship between him and Company A, so it did not support Fu's claim, and the judgment was that Company B bore the corresponding payment liability, and Company A was not jointly and severally liable.

【Case Analysis and Reflection】

In this case, the main focus of the dispute was on the attribution of the labor relationship, just like the relativity of the labor contract, the labor relationship should have a single nature, and at the same time limit the application of joint and several liability, otherwise it will bring huge management problems to the employee, the employer and the corresponding supporting institutions, the employee does not know his belonging, the employer does not know its ownership, which is not conducive to the standardization of the existing labor relationship management. This cognitive confusion is precisely the deformed product of what the construction industry has always called the "cooperation" model under the shell of the current policy. The reason why Fu attached the corresponding certificate to Company A and had Company A formally pay social insurance is precisely the "countermeasures" adopted by some enterprises to some current administrative management policies. This ultimately leads to the question of which company bears the corresponding responsibility for its employees. How to solve this problem of ambiguity in labor relations from the root cause is a problem that we should think deeply about. After the conclusion of this case, Company A, with the assistance of legal counsel, has carried out the work of comprehensively investigating the employment situation and made some progress, so that the workers who really work for the company have obtained the rights and interests that should belong to them.

At the same time, in this case, the labor and personnel dispute arbitration commission had certain flaws in its control of the applicable law, and the legal provisions cited in the arbitration award could not support the award it made, such as Article 25 of the Jiangsu Provincial Labor Contract Regulations, which stipulates the calculation of the employee's working life, and cannot be applied to the judgment of whether to bear joint and several liability. The court of first instance corrected the error during the trial and clarified to the employee the ownership of his labor relationship, which not only protected the rights and interests of Company A, but also protected the rights and interests that Fu should enjoy as a worker.

(This article is translated by software translator for reference only.)