| Affiliated enterprises are a common mode of business operation under the role of market economy in modern society,specifically those enterprises that have direct or indirect control or significant influence relationship with other enterprises and other ties.The mixed and cross employment of workers among affiliated enterprises is certainly necessary for their operation,but it has also become a "safe haven" for many enterprises to reduce employment costs and avoid labor legal responsibilities.The confusion and complication of labor relations caused by the mixed employment of affiliated enterprises may also become a special means for employers to avoid signing labor contracts with workers and forcing workers to interrupt their continuous working years.In addition,it also leads to the fragmentation of formal labor relations and substantive labor relations,which makes it difficult to accurately identify the employer who should really bear the responsibility of labor law in labor disputes,thus leading to the application of the penalty of double wages and whether to bear joint and several responsibility,which is a difficult problem to be solved in labor disputes in China.The impact and influence of mixed employment of affiliated enterprises on the employment of a single enterprise should not only be ignored but also be paid great attention to,so as to adequately regulate the mixed employment of affiliated enterprises under the existing labor law,establish the legal status of double labor relations,reconstruct the path of identifying the labor relations under the mixed employment of affiliated enterprises in judicial decisions,clarify the legal basis for the allocation of labor law responsibilities of the employer under such circumstances,and provide the legal basis for the allocation of labor law responsibilities of affiliated enterprises.The legal basis for the allocation of responsibility is not to apply joint and several liability directly according to the company law,but to choose a more appropriate way of allocation,not to apply joint and several liability if the labor management characteristics of a member of the affiliated enterprise are distinct and clear for a period of time,and to clarify the basis of judicial decision if joint and several liability is applied.The article selects three typical cases from judicial cases and distills the controversial points: firstly,there are controversies over the determination of labor relations: one labor relation,double or multiple labor relations;secondly,there is a difference of opinion on whether to support double wages without labor contract;thirdly,there is a difference of opinion on whether affiliated enterprises must bear joint and several responsibilities.Through legal analysis,it is argued that there is a necessity for the existence of dual labor relations,and then combined with the analysis of the subordination of workers,it is used to reconstruct the specific path of determining labor relations in the case of mixed employment of affiliated enterprises.From the perspective of protecting the rights and interests of workers,the penalty of double wages without an employment contract should be applied in the case of mixed employment of workers by affiliated enterprises.Finally,it is determined that the mixed employment of workers by affiliated enterprises should constitute a double labor relationship,and the employer who does not sign a written labor contract with the workers should be liable for the double wage penalty,while whether the affiliated enterprises should be jointly and severally liable should be judged according to the established labor relationship,if it constitutes a double labor relationship,only one employer should be liable,if it constitutes a double(multiple)labor relationship,several affiliated enterprises should be jointly and severally liable.If the employment relationship is double(multiple),then several affiliated enterprises shall be jointly and severally liable. |
