Four Types of Workers Exempt from Protection

3. Contracting by negotiation

Case study:

Mr. Liu reached an agreement with the rear-service department of a state-owned enterprise to do everyday cleaning for the company for three years. At the end of three years, the company refused to renew the agreement. Mr. Liu took the company to court, claiming that he had an employment relationship with the company and demanding compensation for its refusal to renew the agreement, yet the court rejected his claim on the grounds that no employment relationship existed between them.

The judge’s interpretation:

The agreement reached between the two parties can not be defined as a “labour contract”. Nor does it constitute an employment relationship. The legal relationship between them is often considered to be contractual. In other words, the hiree should complete the tasks as required by the hirer using his own equipment, techniques and labour while the hirer pays the hiree after the required work has been completed. Therefore, Mr Liu can not claim compensation according to the Labour Law and the Labour Contract Law.

4. “Domestic worker”

Case study:

Miss Xu took a job as a domestic worker in the Wang family. Both sides agreed verbally that Xu had to work for six months without rest during the two-day weekends and statutory holidays. Six months later, Miss Xu demanded that the Wang family should pay for the overtime she worked during the two-day weekends and statutory holidays. As the two sides could not reach a settlement, Miss Xu file a lawsuit court, but her appeal was rejected.

The judge’s interpretation:

According to the Labour Law and the Labour Contract Law, enterprises, individual economic organizations, non-enterprise private entities, state organs, public institutions, social organizations within Chinese territory may form an employment relationship with individual workers. Legally speaking, a “natural person” can not become an “employer”. In this case, Miss Xu supplied her labour to the Wang family, or rather a natural person. So the Wang family could not become an “employer” and there did not exist an “employment relationship” between the two sides in the legal sense.

Legal experts say that the special “workers” in the above cases should ascertain whether their disputes with employers fall into the category of labour disputes. If their cases do not come under the category of labour disputes, they do not have to file for arbitration or take their cases to court, which can only end up wasting a lot of time and energy, increasing legal costs in rights protection and leading to nowhere. Under the circumstances, interested parties may bring a civil action for a breach of contract or a violation of their rights.

 

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  Source: ACFTU  2015-08-13

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