Answer: Whether a worker is an independent contractor should be judged comprehensively according to the essence of the relationship between the two parties and the subjective understanding of both parties.
Chinese self-employed individuals are likely to be contractor, such as self-employed architects, scaffolders, welders, and self-employed electricians and plumbers. Of course, if these individual operators operate in the name of the company, they are even more independent contractors in the form of a company.
At present, the relationship between the emerging Internet platform and service providers is a difficult point in the judicial practice. The courts still mainly consider the relationship between the two parties in terms of personal, economic, and organizational subordination and the agreement between the two parties. For example, the work mode of flexible and loose management generally are considered as contractor relations. The businesses of snapping-up orders generally are of contractor nature, 1Inner Mongolia Chifeng Intermediate People’s Court (2019) No.04 Min Zhong 4645, Chifeng Yunsu Running Service Co., Ltd. and Lumou Employment Dispute Second Instance Civil Judgment. ¡°For Internet platform employment, we should adhere to the identification of personality subordination, economic subordination and organizational subordination, and fully respect the parties’ intention and freedom of contracting. In this case, Lumou is engaged in casual work, has the autonomy on whether to provide services, provides his own means of transportation, works freely, Lumou and Yunsu Running Company have weak subordination, especially the two parties have signed a cooperation agreement to clarify the rights and obligations of the two parties, the actors’ intention is true and should be respected. The court of first instance¡¯s finding of employment relations between the two parties is inappropriate.¡±but services such as delivery of goods and meals with relatively strict management can also be employment relations.2Business of snapping-up orders is a type of platform-based business in which workers compete orders from an internet platform operated by a company. Fujian Fuzhou Intermediate People’s Court (2019) Min 01 Min Zhong No.4093, Civil Judgment of Second Instance of Employment Dispute between Zhang Jiashou and Fuzhou Taijiang Chiwantong Network Technology Co., Ltd. “From the point of view of this agreement, Party B Zhang Jiashou’s picking up and delivering goods is the task arranged by Party A, which is essentially different from the casual Meituan takeout rider’s independent snapping-up order mode.¡±
According to case law, real estate agents are generally not contractors, but employees of companies. 3Nanning Intermediate People’s Court of Guangxi Zhuang Autonomous Region, (2021) Gui 01 Min Zhong No.984, Nanning Branch of Guangxi Shihua Real Estate Agency Co., Ltd., Fang Kui Employment Dispute Civil Judgment of Second Instance. Fujian Xiamen Intermediate People’s Court (2021) Min 02 Min Zhong No.1498, Xiamen yuanzhongyuan Real Estate Agency Co., Ltd., Luo Yiquan and other civil judgments of the second instance of Employment Disputes. Film projectionists who are paid on a per-show basis may also be contractors. 4Anhui Fuyang Intermediate People’s Court, (2018) Wan 12 Min Te No.19, Linquan Xinying Film Distribution and Projection Co., Ltd. and Yu Rulin applied for a civil ruling to revoke the special procedure of arbitration award. ¡°From May 2010 to January 2019, Yu Rulin signed a work agreement with Xinying Film Distribution and Projection Co., Ltd. of Linquan County. The two parties agreed to calculate the remuneration according to the number of films shown. The two parties formed contractor relationship, not an employment relationship, which does not belong to an employment arbitration matter.¡± Whether the cleaner is an independent contractor depends on the specific circumstances. If the cleaner takes the work arranged by the employer as the main source of income and is strictly managed by the employer, they are employees; but if the cleaner can freely arrange the cleaning time and manning, and provides services for more than one company, they are likely independent contractors.
Other contractor relations include circumstances where representative offices of foreign companies directly hire workers, individuals hire other individuals for services, individuals are contracted to certain work (such as breeding and planting), workers engage in daily labor services, and craftsmen hire assistant workers.5Guangxi Nanning Intermediate People’s Court, (2021) Gui 01 Min Zhong No.7300, Civil Judgment of Second Instance of Employment Dispute between Guangxi Ruiluyuan Technology Co., Ltd. and Liu Deqiang. ¡°The common contractor relationship in life is to do small jobs, such as individual bosses, contract industrialized farming, agricultural planting, and rural residents providing labor services on daily basis. They are all typical contractor relationships.¡±According to the judicial interpretation of the Supreme People’s Court on employment disputes, housekeepers, helpers and apprentices, and helpers of rural contractors are also contractors.6Article 2 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I) (Fashi 2020 No.26).
In a word, to determine whether a worker is a contractor or an employee is not always clear-cut. We should comprehensively consider the substantive factors of the relationship between the two parties, such as the degree of control and dependence of the worker, as well as the understanding and agreements of the nature of the relationship between the two parties.
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Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
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- 1Inner Mongolia Chifeng Intermediate People’s Court (2019) No.04 Min Zhong 4645, Chifeng Yunsu Running Service Co., Ltd. and Lumou Employment Dispute Second Instance Civil Judgment. ¡°For Internet platform employment, we should adhere to the identification of personality subordination, economic subordination and organizational subordination, and fully respect the parties’ intention and freedom of contracting. In this case, Lumou is engaged in casual work, has the autonomy on whether to provide services, provides his own means of transportation, works freely, Lumou and Yunsu Running Company have weak subordination, especially the two parties have signed a cooperation agreement to clarify the rights and obligations of the two parties, the actors’ intention is true and should be respected. The court of first instance¡¯s finding of employment relations between the two parties is inappropriate.¡±
- 2Business of snapping-up orders is a type of platform-based business in which workers compete orders from an internet platform operated by a company. Fujian Fuzhou Intermediate People’s Court (2019) Min 01 Min Zhong No.4093, Civil Judgment of Second Instance of Employment Dispute between Zhang Jiashou and Fuzhou Taijiang Chiwantong Network Technology Co., Ltd. “From the point of view of this agreement, Party B Zhang Jiashou’s picking up and delivering goods is the task arranged by Party A, which is essentially different from the casual Meituan takeout rider’s independent snapping-up order mode.¡±
- 3Nanning Intermediate People’s Court of Guangxi Zhuang Autonomous Region, (2021) Gui 01 Min Zhong No.984, Nanning Branch of Guangxi Shihua Real Estate Agency Co., Ltd., Fang Kui Employment Dispute Civil Judgment of Second Instance. Fujian Xiamen Intermediate People’s Court (2021) Min 02 Min Zhong No.1498, Xiamen yuanzhongyuan Real Estate Agency Co., Ltd., Luo Yiquan and other civil judgments of the second instance of Employment Disputes.
- 4Anhui Fuyang Intermediate People’s Court, (2018) Wan 12 Min Te No.19, Linquan Xinying Film Distribution and Projection Co., Ltd. and Yu Rulin applied for a civil ruling to revoke the special procedure of arbitration award. ¡°From May 2010 to January 2019, Yu Rulin signed a work agreement with Xinying Film Distribution and Projection Co., Ltd. of Linquan County. The two parties agreed to calculate the remuneration according to the number of films shown. The two parties formed contractor relationship, not an employment relationship, which does not belong to an employment arbitration matter.¡±
- 5Guangxi Nanning Intermediate People’s Court, (2021) Gui 01 Min Zhong No.7300, Civil Judgment of Second Instance of Employment Dispute between Guangxi Ruiluyuan Technology Co., Ltd. and Liu Deqiang. ¡°The common contractor relationship in life is to do small jobs, such as individual bosses, contract industrialized farming, agricultural planting, and rural residents providing labor services on daily basis. They are all typical contractor relationships.¡±
- 6Article 2 of the Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I) (Fashi 2020 No.26).