The identification of work-related injuries is usually based on the existence of labor relations between employees and employers. Although "Labor Law" and "Labor Contract Law" stipulate that a labor contract should be concluded to establish a labor relationship, it is not uncommon to have a factual labor relationship with an employer without signing a labor contract or even paying social insurance premiums in employment practice. To this end, the former Ministry of Labor and Social Security issued the Notice on Establishing Labor Relations between Employers and Laborers (No.[2005] 12 issued by the Ministry of Labor and Social Security).
It should be noted that the notice was issued in 2005, which is based on the consideration standard of labor relations under the traditional employment mode. However, with the penetration of internet technology into traditional industries, the employment methods and forms of employers have changed greatly, and the reference standards for determining labor relations in the Notice tend to be weak in appearance, even divorced from the actual employment methods, causing controversy. However, the rights of workers have not been ignored because of the change of employment mode under the internet technology, and they cannot be separated from the protection of labor laws and regulations. Under the new economic format, it is necessary to combine the basic characteristics of traditional labor relations and accurately define the employment characteristics under the economic model of "traditional industries in internet plus". Labor relations are the rights and obligations between the two sides formed by the agreement that the laborer provides labor and the employer pays remuneration, and they are economically subordinate to people. Judging the existence of labor relations should be measured from two aspects:
First, the reason and purpose of establishing labor relations between the two sides can only be to achieve exchange. Workers provide labor and employers pay the consideration, which is the basic feature of labor relations and the concrete manifestation of economic subordination of labor relations.
Second, the laborer must provide labor to the employer, and the employer who uses the laborer can use the laborer exclusively within the specified time. The so-called exclusive use is command and obedience. What the employer wants to get by paying consideration to the laborer is the right to control and use the labor force, which is the personal subordination of the laborer. The personal subordination of workers is the most essential feature of labor relations ... Specific to this case, the traditional dining method requires customers to go to the restaurant to buy, and with the participation of the Internet, the "takeaway brother" provides food delivery service according to the ordering information distributed by the Internet, so that buyers can enjoy delicious food without leaving home. This is the case. The platform is only a provider of subscription and service information. The platform collects the information of both the supplier and the demander, and the supplier and the demander choose it. The platform itself does not have the function of delivering food to the demanders, but the food delivery service needs the cooperation of the third party.
The business scope of the distribution company includes "food sales, catering management services and goods distribution services". The work of the takeaway brother is an integral part of the business of the distribution company, so the distribution company is the employer of the labor service providers of both the catering supply and demand sides. According to the evidence in the case, the monthly remuneration of the takeaway brother is paid by the distribution company. Although the takeaway brother also charges a certain commission fee from a platform, the monthly commission is only 100 yuan, which is obviously not the consideration for the takeaway brother to pay labor every month.
The takeaway brother can only get paid from the distribution company after providing the corresponding services according to the requirements of the distribution company, and has economic affiliation. Secondly, the takeaway brother in this case has a subordinate relationship with the distribution company. According to the statement and evidence provided by the takeaway brother, the takeaway brother is fixed at the "Jiangsu Non-delivery-Zhongnan Station" point, and there are special people for meetings, division of labor and assessment. The staff of the distribution company provide QR code registration, and the daily working hours, tasks and monthly rest time are arranged by the distribution company. If it is not online on time, the issuing company has the right to stop work. Therefore, it can be clearly shown that the takeaway brother must obey the instructions of the distribution company, accept the management and supervision of the distribution company, and the distribution company can restrain the takeaway brother by means of assessment. Although the distribution company can engage in the labor of other employers, it belongs to the free and sporadic arrangement of the distribution company outside the working hours and tasks, and does not affect the identification of the personal subordination of the distribution company by the takeaway brother in this case. It is true that the labor relations under the new format of Internet economy are more diverse, and so is this case. The takeaway brother does not need to be fixed in the fixed place of the distribution company, and the working hours are relatively flexible. The distribution company helped the internet technology control the takeaway brother invisibly, worked for him and paid him according to the performance of the distribution company. Labor laws and regulations aim to protect the legitimate rights and interests of workers, and the existence of labor relations cannot be denied because of changes in economic formats. Finally, the court comprehensively judged that the defendant's decision on work-related injury was clear, the applicable laws and regulations were correct, and the procedures were legal. According to the provisions of Article 69 of the Administrative Procedure Law of the People's Republic of China, we decided to reject the claim of a distribution company in Jiangsu. The court of the above case supported the work-related injury identification of the Human Resources and Social Security Bureau and believed that there was a labor relationship between the takeaway brother and the distribution company.
The court held that under the new economic format, with the development of Internet technology, it should be comprehensively defined by combining the characteristics of employment and the basic characteristics of traditional labor relations. In this case, the takeaway brother can only get paid from the distribution company after providing corresponding services according to the requirements of the distribution company, which has economic affiliation; The distribution company has a special person for meeting, division of labor and assessment. The staff of the distribution company provide QR code registration, and the daily working hours, tasks and monthly rest time are arranged by the distribution company. Therefore, there is a subordinate relationship between the takeaway brother and the distribution company, and the existence of labor relations cannot be denied because of the change of economic format.