Is There A Labor Relationship Between Direct Selling Agents And Direct Selling Enterprises?

Wang worked in a Direct Selling Company exclusive product store. The main content of his work is to promote the brand and promote products. According to Wang's monthly sales, the company pays remuneration to him. One day, Wang was injured during his work and was recuperate at home. After Wang's condition improved, he claimed compensation for work-related injury to the company. However, the company refused because of the absence of labor relations between the two sides.

Wang then applied to the labor dispute arbitration committee for confirmation of the existence of labor relations with the company. In regard to whether there is any labor relationship between Wang and Direct Selling Company, some people think that the salesperson pays the price for selling products to the company, and sells it to others. The company pays the "concession membership discount" according to the amount of merchandise purchased by the salesperson, and its nature does not belong to the labor remuneration, so it can not be concluded that there is labor relationship between the two sides.

The crux of the problem lies in the regulations promulgated by the State Council in August 23, 2005, which specifically regulate the direct selling industry. Fifteenth, sixteenth, nineteenth and 25 of the Ordinance stipulate that a direct selling enterprise should sign a sales contract with the recruited salesmen, and shall not recruit full-time employees of the direct selling enterprises as direct sellers. The sellers have the same "cool off period" as the consumers, which indicates that there is no labor relationship between the salesmen and the direct selling enterprises. However, there are conflicting provisions in the same regulation.

According to the thirteenth, eighteenth, twenty-first and 24 provisions of the Ordinance, direct selling enterprises and their branches are responsible for conducting business training and examination for the recruited salesmen, and issuing direct sellers' certificates. This indicates that direct selling enterprises have certain managerial control over the salesmen, and at least should pay the remuneration of the salesmen on a monthly basis, which shows that there is labor relationship between the two sides. The reason why the Ordinance is inconsistent is the particularity of direct selling.

The basic legal relationship between direct sellers and direct selling enterprises is the relationship between contracts of sale and purchase. The buying and selling activities of both sides spanfer the ownership of direct selling products to direct sellers. Sellers can promote and sell products in accordance with the relationship between the two parties on the basis of the entrustment sales relationship, so as to get the "reward reward" or the so-called "membership discount" of the direct selling enterprises as their trustees. compensate 。 A salesperson can do it himself. Consumer products 。 Therefore, the legal relationship between direct selling agents and direct selling enterprises is very complicated. The regulations stipulate that the sales contracts signed by both parties are characterized by various contracts, such as buying, selling, entrusting and labor service.

However, no matter how complicated the legal relationship is between the two parties, it is a labor relationship to accurately define whether the salesmen provide labor for direct selling enterprises. Labor relations It is very important to protect the legitimate rights and interests of direct sellers. Judging from the theory and practice of labor law in China, whether there is a subordinate relationship between management and management is the key to distinguish between the two relations.

From the perspective of the characteristics of direct selling, the salesperson is not a formal employee of the direct selling enterprise, and the two sides are equal civil legal relationship, while the direct selling behavior indicates that the enterprise uses the exchange relationship of labor force in the product promotion. If the salesmen are included in the management of labor relations, they will increase their social responsibilities and financial burden, which is not conducive to giving full play to the advantages of flexible use of direct selling enterprises. Therefore, defining the legal relationship between two parties as labor relations is more in line with the actual situation, and is also more conducive to the sustainable development of direct selling industry.