Hu Ren She Gui 2023 No. 32.
The human resources and social security bureaus of all districts, and all relevant units:
In order to implement the Decision of the Standing Committee of the National People's Congress on Amending the Labor Contract Law of the People's Republic of China (hereinafter referred to as the "Amendment Decision"), the Interim Provisions on Labor Dispatch (hereinafter referred to as the "Dispatch Regulations") of the Ministry of Human Resources and Social Security, and the Implementation Measures for the Administrative Licensing of Labor Dispatch (hereinafter referred to as the "Licensing Measures") of the Ministry of Human Resources and Social Security, the following implementation opinions are put forward on several specific issues in the implementation process:
1. On the handling of administrative licenses that have been revoked, revoked, or not renewed.
In accordance with the "Licensing Measures" and the relevant provisions of the Municipality, if the "Labor Dispatch Business License" of the labor dispatch unit is not renewed or revoked or revoked due to the failure to meet the licensing conditions, the labor contract and labor dispatch agreement originally concluded in accordance with the law may continue to be performed until the expiration of the dispatch period.
2. On the implementation of equal pay for equal work.
The employing units in this city shall, in accordance with the provisions of the Amendment Decision on equal pay for equal work, implement the same labor remuneration distribution method for dispatched employees and workers in the same position in their own units.
If the employer fails to implement the same labor remuneration distribution method in accordance with the principle of equal pay for equal work, the administrative department of human resources and social security shall order it to make rectification within a time limit;If the employer fails to make corrections within the time limit, the administrative department of human resources and social security shall impose penalties in accordance with the relevant provisions of the Regulations on Labor and Social Security Supervision.
3. On the issue of auxiliary positions.
In accordance with the provisions of the "Dispatch Regulations", the employing unit shall discuss with the workers' congress or all employees, put forward plans and opinions, and negotiate with the trade union or employee representatives on an equal footing to determine the scope of auxiliary positions applicable to labor dispatch employment, and publicize it in its unit.
If the employing unit fails to determine the scope of auxiliary posts in accordance with the regulations, the administrative department of human resources and social security shall order it to make rectification within a time limit;If the employer fails to make corrections within the time limit, the administrative department of human resources and social security shall impose penalties in accordance with the relevant provisions of the Regulations on Labor and Social Security Supervision.
Fourth, on the issue of work-related injuries of dispatched employees.
If a dispatched employee is injured in an accident at an employer in Shanghai, the labor dispatch unit or a branch established by a labor dispatch unit in another province or city in Shanghai shall submit an application for work-related injury recognition to the administrative department of human resources and social security of the registered area, and shall bear the work-related injury insurance responsibilities such as applying for work-related injury labor ability appraisal and applying for work-related injury insurance benefitsThe employing unit shall assist in the investigation and verification of the determination of work-related injuries, and bear the work-related injury insurance liabilities such as work-related injury insurance benefits and floating rates that should be paid by the employer in accordance with the provisions of the national and municipal work-related injury insurance.
If a labor dispatch unit in another province or municipality has not set up a branch in the city, the employing unit in this city shall submit an application for work-related injury recognition to the administrative department of human resources and social security in the registered area, and bear the work-related injury insurance liability in accordance with the provisions of the state and the city's work-related injury insurance.
If a dispatched employee who has suffered a work-related injury is returned to the labor dispatch unit during the existence of the labor relationship, the employer shall, in accordance with the provisions of the Measures for the Implementation of Work-related Injury Insurance in Shanghai, settle the one-time disability employment subsidy to which the employee is entitled in accordance with the lawWhen the employee dissolves or terminates the labor relationship with the labor dispatch unit, the work-related injury insurance** and the labor dispatch unit shall pay a one-time medical subsidy for work-related injury and a one-time employment subsidy for disability respectively according to the regulations.
The labor dispatch unit shall be jointly and severally liable for compensation for the employer's work-related injury insurance liability in accordance with the law.
5. On the issue of recruitment and employment filing and social insurance for cross-regional labor dispatch.
If a labor dispatch unit from another province or municipality dispatches employees to the city, it shall pay social insurance for the dispatched employees in the city in accordance with the standards of the city.
If a labor dispatch unit from another province or municipality establishes a branch in the city, the branch shall go through the recruitment filing formalities and pay social insurance for the dispatched employees in the city in accordance with the standards of the city. If a labor dispatch unit in another province or municipality has not set up a branch in the city, the employer in this city shall go through the employment filing formalities and pay social insurance for the dispatched employees on behalf of the labor dispatch unit in this city in accordance with the standards of this city.
If a labor dispatch unit in another province or municipality has not set up a branch in the city and the employer in the city fails to pay social insurance in the city in accordance with the regulations, and the dispatched employee requests the employer in the city to bear the social insurance benefits such as work-related injury and medical treatment in the event of a dispute, the employer in this city shall bear it in advance.
6. On the issue of the advance payment of arrears of wages guarantee.
If the labor dispatch unit or the employing unit meets the conditions for the advance payment of the arrears of wages, the relevant administrative organs may, after ascertaining the circumstances of the dispute and the facts of the arrears of wages, advance the arrears of wages of the workers in accordance with the Municipal People's ** Several Provisions on the Raising and Advance of the Guarantee Funds for Arrears of Wages of Enterprises in Shanghai, but only advance the same arrears of wages for the same worker once.
7. On the issue of dispatching labor to human resource service outsourcing.
Where a labor dispatch entity or an employing entity converts dispatched labor to human resources service outsourcing, it shall adjust the management method for the employee formed by the original labor dispatch legal relationship, and reasonably determine the management boundaries according to the nature of human resources service outsourcing and with reference to the principles of direct management and indirect management, so as to prevent related disputes from arise. Where an employing entity uses a worker in the form of labor dispatch in the name of contracting, outsourcing, etc., it shall be handled in accordance with the Dispatch Provisions.
8. Other matters.
These Opinions shall take effect on January 1, 2024, and shall be valid until December 31, 2028.
Shanghai Municipal Human Resources and Social Security Bureau.
December 5, 2023.
1. If the labor dispatch license is revoked, revoked, or not renewed, will the labor contract and labor dispatch agreement originally concluded in accordance with the law continue to be valid?
In accordance with the Measures for the Implementation of the Administrative Licensing of Labor Dispatch and the relevant provisions of the Municipality, if the Labor Dispatch Business License of the labor dispatch entity is not renewed or revoked or revoked due to the non-compliance with the licensing conditions, the labor contract and labor dispatch agreement originally concluded in accordance with the law may continue to be performed until the expiration of the dispatch period.
2. If the employer fails to implement the same labor remuneration distribution method for dispatched employees in accordance with the principle of equal pay for equal work, how will the human resources and social security department deal with it?
The employing units in this city shall, in accordance with the provisions of the Decision of the Standing Committee of the National People's Congress on Amending the Labor Contract Law of the People's Republic of China on equal pay for equal work, implement the same labor remuneration distribution method for dispatched employees and workers in the same position in their own units.
If the employer fails to implement the same labor remuneration distribution method in accordance with the principle of equal pay for equal work, the administrative department of human resources and social security shall order it to make rectification within a time limit;If the employer fails to make corrections within the time limit, the administrative department of human resources and social security shall impose penalties in accordance with the relevant provisions of the Regulations on Labor and Social Security Supervision.
3. If the employing unit fails to determine the scope of auxiliary positions for labor dispatch and employment in accordance with the regulations, how will the human resources and social security department deal with it?
In accordance with the provisions of the Interim Provisions on Labor Dispatch, the employing unit shall, after discussion by the workers' congress or all employees, put forward plans and opinions, and negotiate with the trade union or employee representatives on an equal footing to determine the scope of auxiliary positions applicable to labor dispatch and employment, and publicize them in their units.
If the employing unit fails to determine the scope of auxiliary posts in accordance with the regulations, the administrative department of human resources and social security shall order it to make rectification within a time limit;If the employer fails to make corrections within the time limit, the administrative department of human resources and social security shall impose penalties in accordance with the relevant provisions of the Regulations on Labor and Social Security Supervision.
4. If a labor dispatch employee is injured in an accident at an employer in the city, which unit shall apply for recognition of work-related injury?What are the respective responsibilities of the employing unit and the labor dispatch unit?
If a dispatched employee is injured in an accident at an employer in Shanghai, the labor dispatch unit or a branch established by a labor dispatch unit in another province or city in Shanghai shall submit an application for work-related injury recognition to the administrative department of human resources and social security of the registered area, and shall bear the work-related injury insurance responsibilities such as applying for work-related injury labor ability appraisal and applying for work-related injury insurance benefitsThe employing unit shall assist in the investigation and verification of the determination of work-related injuries, and bear the work-related injury insurance liabilities such as work-related injury insurance benefits and floating rates that should be paid by the employer in accordance with the provisions of the national and municipal work-related injury insurance.
If a labor dispatch unit in another province or municipality has not set up a branch in the city, the employing unit in this city shall submit an application for work-related injury recognition to the administrative department of human resources and social security in the registered area, and bear the work-related injury insurance liability in accordance with the provisions of the state and the city's work-related injury insurance.
If a dispatched employee who has suffered a work-related injury is returned to the labor dispatch unit during the existence of the labor relationship, the employer shall, in accordance with the provisions of the Measures for the Implementation of Work-related Injury Insurance in Shanghai, settle the one-time disability employment subsidy to which the employee is entitled in accordance with the lawWhen the employee dissolves or terminates the labor relationship with the labor dispatch unit, the work-related injury insurance** and the labor dispatch unit shall pay a one-time medical subsidy for work-related injury and a one-time employment subsidy for disability respectively according to the regulations.
The labor dispatch unit shall be jointly and severally liable for compensation for the employer's work-related injury insurance liability in accordance with the law.
5. If a labor dispatch unit from another province or city dispatches employees to the city, which unit shall handle the recruitment filing procedures?According to what standard social insurance is paid?
If a labor dispatch unit from another province or municipality dispatches employees to the city, it shall pay social insurance for the dispatched employees in the city in accordance with the standards of the city.
If a labor dispatch unit from another province or municipality establishes a branch in the city, the branch shall go through the recruitment filing formalities and pay social insurance for the dispatched employees in the city in accordance with the standards of the city. If a labor dispatch unit in another province or municipality has not set up a branch in the city, the employer in this city shall go through the employment filing formalities and pay social insurance for the dispatched employees on behalf of the labor dispatch unit in this city in accordance with the standards of this city.
If a labor dispatch unit in another province or municipality has not set up a branch in the city and the employer in the city fails to pay social insurance in the city in accordance with the regulations, and the dispatched employee requests the employer in the city to bear the social insurance benefits such as work-related injury and medical treatment in the event of a dispute, the employer in this city shall bear it in advance.
6. How can the human resources and social security departments deal with the situation of the labor dispatch unit or the employing unit meeting the conditions for the advance payment of arrears of wages?
If the labor dispatch unit or the employing unit meets the conditions for the advance payment of the arrears of wages, the relevant administrative organs may, after ascertaining the circumstances of the dispute and the facts of the arrears of wages, advance the arrears of wages of the workers in accordance with the Municipal People's ** Several Provisions on the Raising and Advance of the Guarantee Funds for Arrears of Wages of Enterprises in Shanghai, but only advance the same arrears of wages for the same worker once.
7. What should the labor dispatch unit and the employing unit pay attention to when the dispatched labor is transferred to human resource service outsourcing?
Where a labor dispatch entity or an employing entity converts dispatched labor to human resources service outsourcing, it shall adjust the management method for the employee formed by the original labor dispatch legal relationship, and reasonably determine the management boundaries according to the nature of human resources service outsourcing and with reference to the principles of direct management and indirect management, so as to prevent related disputes from arise. Where an employing entity uses a worker in the form of labor dispatch in the name of contracting, outsourcing, etc., it shall be handled in accordance with the Interim Provisions on Labor Dispatch.