Text |Qing & Xia Shichang.
The number of characters is sharedWord |Estimated reading time:minutes
Of course, full-time labor contracts are the mainstream of employment, and labor dispatch is also chosen by many employers because of its flexible employment methods, low recruitment costs, non-occupation of the company's staffing (effectively reducing human resource reserves), saving labor costs, management costs, reducing social security costs, and reducing the risk of labor disputes. However, labor dispatch is not a universal employment method after all, and there are many restrictions on it in laws and regulations. Employers who want to enjoy the flexibility and convenience of dispatch often fail to strictly comply with relevant regulations, and various disputes and disputes in this field also arise. Based on the above reasons, this article attempts to sort out and analyze the legal relationship in labor dispatch, the circumstances under which labor dispatch will be penetrated, and how to bear the consequences of liability after penetration.
one
Analysis of the concept of labor dispatch
1.Definition. Labor dispatch refers to a special employment method in which a labor dispatch unit signs a labor contract with a dispatched worker to establish a labor relationship, dispatches the worker to the employing unit, makes him work in the workplace of the employing unit, and accepts the command and supervision of the employing unit, so as to complete the combination of labor force and means of production. The essence of labor dispatch is the separation of labor use and employment, which is a more flexible employment method, which can solve the short-term employment needs of employers and provide more employment opportunities for workers.
2.Origin and development. Labor dispatch is a form of employment developed with the development of China's reform and opening up, which first appeared in the 80s and 90s of the 20th century, and the earliest provisions in China were found in the "Interim Provisions on Labor Dispatch" promulgated by the Ministry of Labor in 1996, and the subsequent "Labor Contract Law" and "Labor Dispatch Management Measures", etc., further clarified the relevant provisions, and the relevant provisions of the current "Labor Contract Law" are concentrated in Chapter 5, Section 2.
3.The requirements of the "three genders" and the proportion of dispatched positions. Therefore, the "Labor Contract Law" and the "Several Provisions on Labor Dispatch" both stipulate that labor dispatch can only be implemented in temporary, auxiliary or substitute positions, which is what we usually call the "three sexes" requirements of labor dispatch positions. Among them, "temporary" refers to the position that lasts for no more than 6 months, "auxiliary" refers to the position that is applicable to dispatch is a non-main business position that provides services to the main business position, and "alternative" is used to replace the position of a worker who is unable to work for a certain period of time due to full-time study, vacation, etc. In terms of the proportion of employment, the number of dispatched workers employed by the employing unit in auxiliary positions shall not exceed 10% of the total number of employees. The total number of employees refers to the sum of the number of workers, including dispatched workers. It should be added here that foreign diplomatic missions in China, representative offices of organizations of the United Nations system, foreign press representative offices, permanent representative offices of foreign enterprises and permanent representative offices of foreign financial institutions are not subject to the above three restrictions on the proportion of employment and employment.
II. II. II
The difference between a labor dispatch relationship and a general labor relationship
1.The main body is different. In general, the main body of the labor relationship is two parties, i.e., the employer and the employee, and the employer is the actual employer when the two parties establish a labor contract relationship. There are three parties to labor dispatch, namely the employer (labor dispatch unit), the employing unit (the unit that accepts labor dispatch forms), and the worker, the labor dispatch unit and the worker are in a labor contract relationship, the labor dispatch unit and the employer are in a civil contract relationship, and the worker and the employer are in actual employment relationship. The obligations of the employer, such as the payment of wages and remuneration and the payment of social insurance, shall be borne by the employer that does not directly employ the employee, while the employer that directly employs the employer is generally not required to directly bear the obligations of the employer unless it has a statutory fault or has been penetrated into the dispatch relationship.
2.Remuneration is paid differently. In general, the employer pays wages directly to the employee in the form of moneyLabor dispatch means that the employer first pays the dispatch fee to the employer, and then the employer pays the dispatched worker according to the agreement.
3.The duration of the employment contract is different. For general labor relations, there is no mandatory requirement for the duration of the first labor contract, and the employee and the employer can negotiate to determine the term of the labor contractIn labor dispatch, the employer (labor dispatch unit) must sign a fixed-term written labor contract with the dispatched employee for more than two years.
4.The applicable positions and nature are different. General labor relations are fully applicable to all types of positions;Labor dispatch can only be applied to temporary, auxiliary and substitute positions.
5.Different qualification requirements for units. For general labor relations, it is sufficient to require the employer to have the qualifications of the employing entity (applying for a business license, i.e., having the qualifications of the employing entity); In addition to the qualifications of the employing entity, labor dispatch also needs to have an administrative license to operate labor dispatch business, that is, it needs to have "double certificates" to work.
Three
The circumstances and consequences of labor dispatch being penetrated
1.Reverse dispatch. This type of dispatch refers to the signing of a labor dispatch agreement between the employing entity and the labor dispatch entity, arranging for the original employees of the employing unit or the employees recruited by itself to sign labor contracts with the labor dispatch unit, and then dispatching the aforesaid employees to the employing unit to still engage in the original work tasks or fully accept the management of the employing unit. This is the most common situation in practice.
Reverse dispatch is essentially a way for employers to evade legal liability, which reverses the relationship between labor dispatch units, employers and employees, changes the ownership of labor relations and harms the interests of employees. Based on the legislative spirit of the preferential protection of workers and the original legislative intent and legislative purpose of labor dispatch, it is often found to be invalid in judicial practice.
2.Self-dispatch means that an employer sets up a labor dispatch company to dispatch workers to its own unit or its subordinate units. The employer shall set up a labor dispatch company, and the workers of the employer shall sign a labor contract with the established labor dispatch company, and then the labor dispatch company shall dispatch the workers to the employing unit. This kind of labor dispatch will be found invalid because it is essentially an employer to avoid legal risks. In the judgment of the Guangdong Provincial High People's Court (2013) Yue Gao Fa Shen Jian Min Ti Zi No. 154, the labor dispatch company established by the employer was not a wholly-owned subsidiary of the employer, and the employer made a defense on this basis, but the court did not accept it, and it was still found to be a self-dispatch and invalid.
3.The labor dispatch relationship established between the employer and the employee in violation of the "three genders" requirements of labor dispatch. In the past, some regional courts held that the employer had violated the provisions of the Labor Contract Law on "three sexes", and its labor dispatch agreement was invalid. According to the Notice on Matters Concerning the Establishment of Labor Relations issued by the Ministry of Labor and Social Affairs No. 12 of 2005, if an employer is recognized as an employer, it is required to bear the responsibility of employment in accordance with the law. However, the current mainstream view is that the provisions of the Labor Contract Law on the "three genders" of labor dispatch are not mandatory, and the labor dispatch agreement that only violates this provision is still valid, and the employer should bear the consequences such as administrative penalties, but it does not need to be penetrated as a real employer to bear the corresponding responsibility.
4.Other situations in which labor dispatch is used to avoid the responsibilities or risks of the employer. For example, in order to avoid the indefinite term labor contract that is about to be faced, the employee is required to sign a labor dispatch contract instead; Failure to sign a fixed-term employment contract with the dispatched worker for more than two years; There is also a risk of penetration in specific positions, such as on a case-by-case basis.
Four
The assumption of the responsibilities of all parties after the labor dispatch is determined to be penetrated
After the dispatch labor contract between the labor dispatch entity and the dispatched worker was found to be invalid, the adjudication body found that there was no employment relationship between the dispatched worker and the labor dispatch entity, and the labor dispatch employment relationship was therefore determined through the determination. After penetration, the main responsibilities of the parties are as follows:
1.The actual employer shall be liable for the obligations of the employer such as labor remuneration, overtime pay, performance bonus, work-related injury compensation, and economic compensation. After penetration, it is determined that the dispatched worker and the employing entity have established a de facto employment relationship, and the employment relationship between the two parties shall be calculated from the date of employment, the rules and regulations of the employing entity shall apply to the dispatched worker, and the dispatched worker's labor shall constitute an integral part of the business of the employing entity, and the obligations of the employer shall be borne by the employing unit.
2.Therefore, the employer is not required to pay the dispatched worker twice the salary claimed by the dispatched worker without signing a written labor contract. The employer has signed a labor dispatch agreement with the labor dispatch unit, and the labor dispatch unit has also signed a written labor contract with the dispatched worker, which essentially achieves the purpose of confirming the relevant rights and obligations of the dispatched worker and the employer in writing. Although the labor dispatch contract is found to be invalid, the employment between the dispatched worker and the employer still exists in the form of a contract, and the invalidity of the contract content does not lead to the extinction of the contract form. Therefore, the employee's claim for double wages on the grounds that he did not sign a written employment contract was not supported.
3.If the employer violates the "three sexes" requirements of the labor dispatch regulations, although the labor dispatch contract is not invalid, but causes damage to the dispatched workers, the employer and the labor dispatch unit shall be jointly and severally liable for compensation. It should be noted that the 2008 Labor Contract Law stipulates that "if damage is caused to a dispatched worker, the labor dispatch entity and the employing entity shall be jointly and severally liable for compensation", that is, both parties shall be jointly and severally liable for the fault of either party. After 2013, it was amended to one-way joint and several liability, that is, when the employer is at fault, it will bear joint and several liability with the dispatching unit, and if it is the fault of the dispatching unit, the employer does not need to bear joint and several liability.
To sum up, on the one hand, the labor dispatch system uses "not all but uses" in the use of manpower, which can realize the optimal allocation of employment system and cost to a certain extent; On the other hand, employers should also pay attention to the provisions of existing laws and regulations to avoid being found to be passive and contrary to the original intention of application. Finally, it is emphasized that the relevant personnel of the employing unit should not only reasonably distinguish between labor dispatch and labor relations, but also pay attention to the differences between the two and the employment forms such as labor outsourcing and personnel **, so as to avoid confusion and application deviation.
Contributed by Qing, Xia Shichang.
Editor - Zeng Jie.
Validation - Speech and merit.