Foreword
With regard to labor dispatch, the existing provisions are reflected in the Labor Contract Law of the People's Republic of China and the Interim Provisions on Labor Dispatch implemented by the Ministry of Human Resources and Social Security in 2014. Strictly speaking, "business outsourcing" does not exist independently, it is actually born out of labor dispatch, where business outsourcing refers to business outsourcing, labor outsourcing, post outsourcing, human resources outsourcing, construction project subcontracting and so on in the current market. According to Article 27 of the Interim Provisions on Labor Dispatch, "if an employer uses a worker in the form of labor dispatch in the name of contracting, outsourcing, etc., it shall be dealt with in accordance with these Provisions".
1. Similarities and differences in the management of the two
The similarity between labor dispatch and business outsourcing is that the worker does not provide labor for the employer of the other party to the labor contract, but works for an employer other than the nominal employer (according to the Labor Contract Law, the labor dispatch entity is the 'employer', and the employer that accepts the labor dispatch form is the 'work unit').The management rights are different entities. From the perspective of the unit, it is implemented in non-core, secondary or auxiliary functions or substitute jobs. In labor dispatch, after the dispatch company or employer provides the workers, it no longer directs the workers and does not intervene in the production process. In terms of production and operation, the employer has the same complete management and command authority as the regular employee for dispatched employees. The fees paid by the employer to the labor dispatch company are accurate to the person: salary, social security, and capitation fee (management fee) for each worker. The management power of business outsourcing is in the hands of the outsourcing company, and after the enterprise outsources a certain business to the outsourcing company, it will no longer intervene in the specific business operation, and the outsourcing company will judge and operate on its own. The company pays the outsourcing company a total fee, and it doesn't matter how many workers the outsourcing company sends and how much it can withstand the pressure on labor costs.
2. The legal relationship between the two is different
Labor dispatch is a form of labor employment clearly stipulated in the Labor Contract Law, in which there is an entrustment contract relationship between the employer and the employing entity, but the rights and obligations of both parties are set out in accordance with the requirements of the Labor Contract Law to protect the relevant rights and interests of employees. When an employer signs an employment contract with a dispatched worker, the relevant provisions of the Labor Contract Law shall apply, including monthly payment of wages, payment of social insurance, and the main obligation of the employee to bear work-related injury compensation if the employee suffers a work-related injury at the employer; The dispatched worker does not directly sign a labor contract with the employer, but the employer shall inform the dispatched worker of the content of the labor dispatch agreement.
According to the specific content of the outsourcing business, the relevant laws and regulations such as the Civil Code, the Construction Law, the Accounting Law, the Lawyer Law, etc., and there are entrusted service contracts, contracting, processing, customization, construction contracts, etc.
3. The qualifications required for the two are different
The establishment of a labor dispatch unit must meet the conditions stipulated in the Labor Contract Law: (1) the registered capital shall not be less than RMB 2 million; (2) Have fixed business premises and facilities suitable for conducting business; (3) Have a labor dispatch management system that complies with the provisions of laws and administrative regulations; (4) Other conditions provided for by laws and administrative regulations. To operate labor dispatch business, it shall apply for an administrative license from the labor administrative department in accordance with the law; If it is permitted, the corresponding company registration shall be handled in accordance with the law. Without permission, no unit or individual may operate labor dispatch business. Therefore, the labor dispatch company must obtain the "Labor Dispatch Business License". In the business outsourcing relationship, the contractor does not need a special administrative license from the state organ, except for special industries that require contracting qualifications.
4. Employment risk and assumption
In a labor dispatch relationship, the employer shall bear the wages, social security and work-related injuries of the dispatched workers, and the employer shall provide corresponding working conditions and labor protection, pay the dispatched workers overtime pay and performance bonuses, and provide job-related benefits, in addition to the civil law tort liability.
According to Article 1191 of the Civil Code, during the period of labor dispatch, if the dispatched staff member causes damage to others due to the performance of work tasks, the employing unit accepting the labor dispatch shall bear tort liability; If the labor dispatch unit is at fault, it shall bear the corresponding responsibility.
Although the applicable law of business outsourcing is different from that of labor dispatch, based on the principle of constant protection of labor relations and the fact that there is no independent legal provision for business outsourcing, the provisions of Article 1191 of the Civil Code are also applicable to business outsourcing.
In addition to the above differences, labor dispatch contracts require more than two years, while business outsourcing does not have such mandatory provisions.
V. Determination of "business outsourcing" in trial practice
Case 1:The fact that employers are not allowed to carry out labor dispatch in the name of labor outsourcing is selected from the Top 10 Typical Cases of Labor Disputes in Jiangsu Courts in 2019 (Jiangsu High Court) (May 1, 2020).
The court held that the calculation of the "contracted service fee" agreed in the agreement between Nanjing Company B and Suzhou Company A was based on the employee's monthly working hours rather than the work results. Nanjing Company B directly managed, arranged and directed Huang's work; Huang's means of production were all provided by Nanjing Company B; Mr. Huang's work was part of the business of Nanjing Company B; Suzhou Company A is responsible for recruiting Huang and managing labor relations; The relationship between Nanjing Company B and Suzhou Company A was not "project outsourcing", but only one employee was dispatched by Suzhou Company A to the project. Accordingly, although the name of the two companies was the "Labor Outsourcing Agreement", the relationship between Huang, Nanjing Company B and Suzhou Company A met the characteristics of a labor dispatch relationship in which the labor dispatch unit dispatched the workers and the employing unit actually employed the workers, and Suzhou Company A had labor dispatch business qualifications, so the judgment confirmed that Huang had an employment relationship with Suzhou Company A since July 6, 2018, and a labor dispatch employment relationship with Nanjing Company B since July 6, 2018.
Case 2:The framework agreement is called the "Framework Agreement on the Service of the Technical Team of the World Village", but it is actually a labor dispatch contract dispute, not a technical service contract dispute - Nanjing World Village Health Smart Retail and Shanghai Aorate Intelligent Technology Technology Co., Ltd.
Selected from the Supreme People's Court (2021) Supreme Court Zhi Min Zhong No. 1700 Civil Ruling.
The Supreme People's Court reaffirmed the nature of the framework agreement: first, although the name of the framework agreement stipulates that the name of the service project is "Global Village Technical Team Service", the framework agreement does not stipulate the specific tasks of the technical service with regard to the specific content of technical services, and only stipulates that the entrusting party, World Village, will arrange the specific work of the service personnel of the company. Secondly, according to the framework agreement, "the specific dispatched personnel shall be dispatched after Party A's inspection and confirmation, and if Party A's work requirements cannot be met during the service period, Party B shall promptly replace the qualified personnel". Clause.
3. With regard to the service fee, the service fee in the framework agreement is not based on the delivery of technical service projects, but is calculated according to the specific attendance status of the expatriates and the level of technical service personnel, and the framework agreement does not have relevant provisions for the acceptance of technical achievements. Clause.
4. Application of LawAccording to Article 4 of the Framework Agreement, the main obligation of Global Village does not include receiving the technical service results of Aosu, but ensuring that the technical service personnel of Aosu Company are provided with working conditions and workplaces that comply with the Labor Law of the People's Republic of China and relevant laws and regulations. The company also needs to ensure the legal employment of the personnel, such as the labor contract has been signed in accordance with the law, the social security (including work-related injury insurance, etc.), and the management responsibility for the above-mentioned technical personnel. Obviously, according to the rights and obligations of both parties stipulated in the framework agreement, the legal nature of the framework agreement should be a labor dispatch contract, and the nature of the dispute in this case is a labor dispatch contract dispute.
Case 3:Determination of tort liability in security service contracts.
The gist of the adjudication: The employer directly signs a labor contract with the security guard, and the employer does not bear the labor remuneration of the security guard, and the employer does not bear the legal liability for tort.
Case**: 2014) Hu Er Zhong Min Yi (Min) Zhong Zi No. 408 - Shanghai No. 2 Intermediate People's Court.
The court of first instance held that during the labor dispatch period, if the dispatched person performs work tasks and causes personal injury to others, the recipient of the labor dispatch shall bear the tort liability, and if the labor dispatch party is at fault, it shall bear the corresponding supplementary liability. The court of second instance held that, according to the security service contract signed between KDL and Jiyoujing, as well as the employee handbook and weekly meeting minutes provided by JDL, it could be proved that KDL entrusted Jiyoujing to provide security services to KDL's factory, and that Jiyoujing Company enjoyed the right to manage the workers and labor production, mastered the management and control of labor and production process, and directly commanded, supervised and managed the security of the factory area. However, KDL does not directly participate in the management of the security of the factory, does not exercise command and control over the security of the factory, and does not directly pay labor remuneration to the workers. Obviously, there is no labor dispatch relationship between Liu Kebei, Kangdelai Company, and Jiyoujing Company. Liu Kebei and Jiyoujing Company constitute a labor contract relationship, and a service contract relationship is formed between KDL Company and Jiyoujing Company, while Liu Kebei and KDL Company do not constitute any direct legal relationship. Liu Kebei had a dispute with Cheng Xiaoyu during working hours and at his job position, causing Cheng Xiaoyu to be injured, and in view of the fact that Liu Kebei caused damage in the course of performing his duties, the liability for compensation should be borne by the employer, i.e., Jiyoujing Company.
Postscript: Labor dispatch refers to a special employment method in which a labor dispatch unit signs a labor contract with a dispatched worker, and then dispatches the employee to the employer to work in the workplace of the employer and accept the command and supervision of the employer to complete the combination of labor and means of production. Labor outsourcing refers to the outsourcing of part of its business or functional work to relevant institutions, which arrange personnel to complete the corresponding business or work according to the requirements of the enterprise. In practice, employers can reduce labor costs and improve work efficiency through business outsourcing and other means, but both the law and trial practice indicate that "labor dispatch" shall not be carried out in the name of "labor outsourcing", which excludes its own statutory liability and infringes upon the legitimate rights and interests of employees.