China: 劳动法最前线——从公司人事的角度看劳动法动向 第 162 回关于审理劳动争议案

Last Updated: 20 October 2017
Article by Broad & Bright
Most Read Contributor in China, October 2017

广东省高院发布关于审理劳动争议案件疑难问题的解答

近日,广东省高级人民法院发布了《关于审理劳动争议案件疑难问题的解答》( "《问题 解答》"),对常见的一些诸如特殊用工关系的认定、劳动合同的解除等问题进行了明确,具 有十分的操作性,值得广东地区的企业特别关注。

1 四种用工关系的认定

实践中,有一些常见但不同于正常的劳动关系下用工的用工情况,对其关系如何认定说 法不一。此次《问题解答》对以下四种情形下的用工关系认定进行了明确:

  1. 个人承包、挂靠他人经营或借用他人营业执照经营的,承包人、挂靠人或借用人自 行招用的劳动者不受发包人、被挂靠人或被借用人管理和支配,劳动者的工资也并 非由发包人、被挂靠人或被借用人支付,双方之间的关系不符合劳动关系的特征, 因此,被招用的劳动者主张与具有用工主体资格的发包人、被挂靠人或被借用人存 在劳动关系的,一般不予支持。
  2. 快递等人员与其用工单位之间的关系,应按双方的约定认定。但如果用工单位依法 制定的各项劳动规章制度适用于该劳动者,该劳动者亦受用工单位的劳动管理,从 事用工单位安排的有报酬的劳动,且该劳动者提供的劳动是用工单位业务的组成部 分,应认定双方存在劳动关系。
  3. 出租汽车企业须依法与驾驶员签订劳动合同和参加社会保险,因此,以承包、租赁 等方式经营的出租车司机主张与出租车公司存在劳动关系的,予以支持。但出租车 司机自行招用的代班司机系出租车司机自行招用,不受出租车公司管理和支配,不 宜认定代班司机与出租车公司存在劳动关系。
  4. 村民委员会、居民委员会与其对外招聘人员发生的用工关系符合劳动关系特征的, 应按劳动关系处

2 两类劳动合同解除的认定

员工严重违反企业规章制度、企业客观情况发生重大变化是实践中常见的企业可能解除 员工劳动合同的情形。但是,实际解除过程中,仍旧由诸多不确定性。此次《问题解答》 对以下两种情形的解除,做出了进一步的说明:

  1. 企业以员工违反让划育规定为由解除与员工劳动合同的,员工要求企业支付违法解 除劳动合同的赔偿金,予以支持。但劳动合同、集体合同、用人单位规章制度另有 约定的除外。
  2. 企业因自身发展规划进行的搬迁,属于劳动合同订立时所依据的客观情况发生重大 变化,企业应与员工协商变更劳动合同内容。未能就变更劳动合同内容达成协议的, 员工要求解除劳动合同以及企业支付解除劳动合同的经济补偿金的,予以支持。但 如企业搬迁未对员工造成明显的影响,且企业采取了合理的弥补措施(如提供班车、 交通补贴等),员工解除劳动合同理由不充分的,企业无须支付解除劳动合同的经 济补偿金。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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