A development service center in Tianjin is a labor dispatch unit established in accordance with the relevant provisions of the Company Law.
From December 1, 2005 to December 31, 2020, Mr. Liu and a development service center in Tianjin successively signed eight "Labor Contracts for Labor Dispatch Units in Tianjin", and sent Mr. Liu to a passenger section of a group of China Railway to work as a train crew in the form of labor dispatch.
On December 28, 2020, a development service center in Tianjin issued a Notice of Termination of Labor Contract to Liu.
On October 15, 2021, Liu filed an arbitration application with the Tianjin Hexi District Labor and Personnel Dispute Arbitration Commission, requesting 1In accordance with the law, it was confirmed that the "Labor Contract of Tianjin Labor Dispatch Unit" signed by Liu and a development service center in Tianjin was invalid; 2.In accordance with the law, it was confirmed that there was an employment relationship between Liu and a passenger section of a Chinese railway group from December 1, 2005 to December 31, 2020.
Subsequently, the commission did not make a ruling within the time limit prescribed by law, and issued a certificate of overdue failure to make a ruling to Liu.
Dissatisfied, Liu sued to the Tianjin Hexi District People's Court (hereinafter referred to as the "Court of First Instance").
Subsequently, the parties filed a lawsuit with the Tianjin No. 2 Intermediate People's Court (hereinafter referred to as the "Court of Second Instance").
During the trial, Liu asserted that the position he was engaged in did not meet the temporary, auxiliary or substitute employment characteristics of labor dispatch, so the "Labor Contract of Tianjin Labor Dispatch Unit" signed by a development service center in Tianjin was invalid because it violated the mandatory provisions on the validity of laws and administrative regulations, and he should have had an employment relationship with a passenger section of a group of China Railway from December 1, 2005 to December 31, 2020.
After trial, the court of first instance held that in response to Liu's litigation claim, the court judged as follows: 1The "Labor Contract of Tianjin Labor Dispatch Unit" signed by Liu and a development service center in Tianjin was invalid in accordance with the law; 2.In accordance with the law, it was confirmed that there was an employment relationship between Liu and a passenger section of a Chinese railway group from December 1, 2005 to December 31, 2020. According to the ascertained facts, from December 1, 2005 to December 31, 2020, Liu and a development service center in Tianjin successively signed eight "Labor Contracts for Labor Dispatch Units in Tianjin", and the two parties established labor relations, and sent Liu to a passenger section of a group of China Railway in the form of labor dispatch to work as a train crew, and Liu never raised any objection until the termination of the above contract, which shows that Liu knew and recognized the labor dispatch relationship between a passenger section of a group of China Railway. The so-called labor dispatch refers to a new form of employment in which a labor dispatch entity establishes a labor relationship with the dispatched worker, dispatches the worker to the employing unit, and the dispatched worker engages in labor under the command and supervision of the employing unit.
The provisions on the "three genders" positions and the proportion of dispatched workers in the Interim Provisions on Labor Dispatch are all administrative provisions with the dispatching entity or the employing unit as the subject of obligations, and only violations of the above-mentioned administrative provisions will not affect the validity of the dispatch agreement and labor contract. If the dispatching unit or employing unit violates the above-mentioned administrative provisions, the administrative department of human resources and social security shall order it to rectify within a time limit, and the disputes arising therefrom shall not fall within the scope of acceptance of labor dispute cases as stipulated in the Labor Dispute Mediation and Arbitration Law of the People's Republic of China. During the trial, Liu asserted that the "Labor Contract of Tianjin Labor Dispatch Unit" signed between him and a development service center in Tianjin was invalid, and at the same time confirmed that he had an employment relationship with a passenger section of a certain group of China Railway from December 1, 2005 to December 31, 2020, which lacked factual and legal basis and was not supported by the court.
After trial, the court of second instance held that, with regard to Liu's claim to confirm the invalidity of the "Labor Contract of Tianjin Labor Dispatch Unit" signed with a development service center in Tianjin, Liu claimed that the "Labor Contract of Tianjin Labor Dispatch Unit" involved in the case was invalid because the position he was engaged in did not meet the temporary, auxiliary or alternative employment characteristics of labor dispatch. According to the relevant provisions, the civil act that violates the mandatory provisions on the validity of laws and administrative regulations is invalid, and the position of the labor dispatch personnel does not meet the temporary, auxiliary or substitute employment characteristics of labor dispatch and is not a mandatory provision of validity, so the court of first instance did not improperly reject Liu's claim, and the court upheld it.
Regarding Liu's assertion to confirm the existence of an employment relationship between him and a passenger section of a certain railway group from December 1, 2005 to December 31, 2020. Because the "Labor Contract of Tianjin Labor Dispatch Unit" signed by Liu and a development service center in Tianjin was legal and valid, he established a labor contract relationship with a development service center in Tianjin in accordance with the law, so the court of first instance rejected Liu's claim was not improper, and the court upheld it.