Viewpoint... Talk about the legal risks and prevention of labor dispatch and labor outsourcing.
Published:
2023-03-28
Recently, when accepting perennial consultants and conducting legal compliance reviews for enterprises, it was found that many enterprises could not distinguish between labor dispatch and labor outsourcing. In the process of use, there were cases of confused use and inappropriate use. This paper briefly distinguishes the above two composite forms of employment so that everyone can make more accurate use of different forms of labor. Definition of 1. 1. Labor dispatch: Labor dispatch refers to a form of employment in which an enterprise (labor dispatch unit) dispatches the recruited workers to the employing unit by way of operation, and the employing unit directly manages the labor process of the workers. Article 59 of the "the People's Republic of China Labor Contract Law" states: "A labor dispatch unit shall enter into a labor dispatch agreement with the unit that accepts labor in the form of labor dispatch (hereinafter referred to as the employer). The labor dispatch agreement shall stipulate the number of posts and personnel to be dispatched, the duration of dispatch, the amount and payment method of labor remuneration and social insurance premiums, and the liability for breach of the agreement. The employing unit shall determine the dispatch period with the labor dispatching unit according to the actual needs of the job position, and shall not divide the continuous employment period into several short-term labor dispatch agreements". Article 66 states: "Labor contract employment is the basic form of employment in China's enterprises. Labor dispatch is a supplementary form and can only be implemented in temporary, auxiliary or alternative jobs. The temporary jobs specified in the preceding paragraph refer to jobs that last for no more than six months; auxiliary jobs refer to non-main business jobs that provide services for main business positions; alternative jobs refer to workers of the employing unit. During a certain period of time when you are unable to work due to off-the-job study, vacation, etc., you can be replaced by other workers. The employing unit shall strictly control the number of labor dispatched and shall not exceed a certain proportion of its total employment, and the specific proportion shall be prescribed by the labor administrative department of the State Council." It can be seen that labor dispatch involves three parties, workers, employers, employers. Moreover, labor dispatch can only be implemented in temporary, auxiliary and alternative positions, and the total number of useful workers is generally not more than 10% of the total unit employment. 2. Labor outsourcing refers to the employment form in which the employing unit (the contracting unit) contracts the business to the contracting unit, and the contracting unit arranges its own personnel to complete the corresponding business or work content according to the requirements of the employing unit (the contracting unit). The contract issuing unit and the contractor form a civil contractual relationship based on the outsourcing contract, which is not subject to the adjustment of the labor contract law. The contract issuing unit and the contractor agree to deliver certain work of the contract issuing unit to the contractor for completion, and the contract issuing unit shall pay certain expenses to the contractor. The contractor establishes labor relations with the employed workers and manages and controls the workers. The contract issuing unit cannot directly manage and control the workers of the contractor. 2. legal risk and prevention In the practical process, because labor dispatch is limited by the number of posts and employment, in order to avoid the risk of labor dispatch, many enterprises adopt the form of labor outsourcing. However, due to the inability to clarify the difference between labor dispatch and labor outsourcing, there are situations in which the contracting unit directly manages the outsourcing personnel, arranges work, supervises employment, etc., which has actually replaced the status of the contracting unit and transformed it into an employment unit, the legal relationship between the parties has become a labor dispatch in nature. Once a dispute occurs, the contracting unit will not be able to circumvent the labor law's main responsibility on the grounds of business outsourcing. In July 2022, Jiangsu Province, Shanghai City, Zhejiang Province and Anhui Province stipulated in the notice on the issuance of the guidelines on compliance and employment of labor dispatch in the Yangtze River Delta region that "when outsourcing labor services, employers should pay attention to the difference between labor outsourcing and labor dispatch, so as to avoid the situation that labor outsourcing is actually labor dispatch. For example, if an enterprise contracts its business to another unit, but the laborers of the contracting unit accept the command and management of the enterprise, provide labor according to the arrangement of the enterprise, or provide labor in the name of the enterprise, it may be considered as labor dispatch rather than labor outsourcing. " How to prevent the above-mentioned legal risks, first of all, we must clearly distinguish between labor dispatch and labor outsourcing. I believe you have read many such articles before and analyzed them from the perspectives of subject, nature, applicable law, etc., but the more different angles, the more confusing it is. We can simply start from the most essential point, which is the participation of the labor process. That is, labor dispatch enterprises pay attention to the management of the labor process, the employing unit directly arranges the work of the dispatched personnel, the employing unit, that is, the dispatching company, does not participate in the labor process, while the contracting party of labor outsourcing does not participate in the labor process, only pays attention to the work results. By distinguishing this from the above, we can do a good job of legal risk prevention. Enterprises need to pay full attention to the business outsourcing contract signed with the contractor, avoid the formation of de facto labor relations between the employer and the contractor's employees through the terms of the contract, and avoid the terms that the company and the contractor's employees have management relations, that is, the whole agreement involves the management of "people" as little as possible. The contract should also specify the rights and obligations between the employer and the contractor, and the terms of the contract must be complete to avoid unfounded disputes. At the same time, the contractor should be carefully selected. If the state or local government departments have special requirements for service qualifications, professional contractors with corresponding qualifications should be selected, and the scale, credit and management mode of the contractor should be paid attention to. They should sign written labor contracts with employees, pay social insurance for employees, and pay labor remuneration and welfare benefits directly to labor outsourcing personnel.
Recently, when accepting perennial consultants and conducting legal compliance reviews for enterprises, it was found that many enterprises could not distinguish between labor dispatch and labor outsourcing. In the process of use, there were cases of confused use and inappropriate use. This paper briefly distinguishes the above two composite forms of employment so that everyone can make more accurate use of different forms of labor.
Definition of 1.
1. Labor dispatch: Labor dispatch refers to a form of employment in which an enterprise (labor dispatch unit) dispatches the recruited workers to the employing unit by way of operation, and the employing unit directly manages the labor process of the workers. Article 59 of the "the People's Republic of China Labor Contract Law" states: "A labor dispatch unit shall enter into a labor dispatch agreement with the unit that accepts labor in the form of labor dispatch (hereinafter referred to as the employer). The labor dispatch agreement shall stipulate the number of posts and personnel to be dispatched, the duration of dispatch, the amount and payment method of labor remuneration and social insurance premiums, and the liability for breach of the agreement. The employing unit shall determine the dispatch period with the labor dispatching unit according to the actual needs of the job position, and shall not divide the continuous employment period into several short-term labor dispatch agreements". Article 66 states: "Labor contract employment is the basic form of employment in China's enterprises. Labor dispatch is a supplementary form and can only be implemented in temporary, auxiliary or alternative jobs. The temporary jobs specified in the preceding paragraph refer to jobs that last for no more than six months; auxiliary jobs refer to non-main business jobs that provide services for main business positions; alternative jobs refer to workers of the employing unit. During a certain period of time when you are unable to work due to off-the-job study, vacation, etc., you can be replaced by other workers. The employing unit shall strictly control the number of labor dispatched and shall not exceed a certain proportion of its total employment, and the specific proportion shall be prescribed by the labor administrative department of the State Council." It can be seen that labor dispatch involves three parties, workers, employers, employers. Moreover, labor dispatch can only be implemented in temporary, auxiliary and alternative positions, and the total number of useful workers is generally not more than 10% of the total unit employment.
2. Labor outsourcing refers to the employment form in which the employing unit (the contracting unit) contracts the business to the contracting unit, and the contracting unit arranges its own personnel to complete the corresponding business or work content according to the requirements of the employing unit (the contracting unit). The contract issuing unit and the contractor form a civil contractual relationship based on the outsourcing contract, which is not subject to the adjustment of the labor contract law. The contract issuing unit and the contractor agree to deliver certain work of the contract issuing unit to the contractor for completion, and the contract issuing unit shall pay certain expenses to the contractor. The contractor establishes labor relations with the employed workers and manages and controls the workers. The contract issuing unit cannot directly manage and control the workers of the contractor.
2. legal risk and prevention
In the practical process, because labor dispatch is limited by the number of posts and employment, in order to avoid the risk of labor dispatch, many enterprises adopt the form of labor outsourcing. However, due to the inability to clarify the difference between labor dispatch and labor outsourcing, there are situations in which the contracting unit directly manages the outsourcing personnel, arranges work, supervises employment, etc., which has actually replaced the status of the contracting unit and transformed it into an employment unit, the legal relationship between the parties has become a labor dispatch in nature. Once a dispute occurs, the contracting unit will not be able to circumvent the labor law's main responsibility on the grounds of business outsourcing.
In July 2022, Jiangsu Province, Shanghai City, Zhejiang Province and Anhui Province stipulated in the notice on the issuance of the guidelines on compliance and employment of labor dispatch in the Yangtze River Delta region that "when outsourcing labor services, employers should pay attention to the difference between labor outsourcing and labor dispatch, so as to avoid the situation that labor outsourcing is actually labor dispatch. For example, if an enterprise contracts its business to another unit, but the laborers of the contracting unit accept the command and management of the enterprise, provide labor according to the arrangement of the enterprise, or provide labor in the name of the enterprise, it may be considered as labor dispatch rather than labor outsourcing."
How to prevent the above-mentioned legal risks, first of all, we must clearly distinguish between labor dispatch and labor outsourcing. I believe you have read many such articles before and analyzed them from the perspectives of subject, nature, applicable law, etc., but the more different angles, the more confusing it is. We can simply start from the most essential point, which is the participation of the labor process. That is, labor dispatch enterprises pay attention to the management of the labor process, the employing unit directly arranges the work of the dispatched personnel, the employing unit, that is, the dispatching company, does not participate in the labor process, while the contracting party of labor outsourcing does not participate in the labor process, only pays attention to the work results. By distinguishing this from the above, we can do a good job of legal risk prevention. Enterprises need to pay full attention to the business outsourcing contract signed with the contractor, avoid the formation of de facto labor relations between the employer and the contractor's employees through the terms of the contract, and avoid the terms that the company and the contractor's employees have management relations, that is, the whole agreement involves the management of "people" as little as possible. The contract should also specify the rights and obligations between the employer and the contractor, and the terms of the contract must be complete to avoid unfounded disputes. At the same time, the contractor should be carefully selected. If the state or local government departments have special requirements for service qualifications, professional contractors with corresponding qualifications should be selected, and the scale, credit and management mode of the contractor should be paid attention to. They should sign written labor contracts with employees, pay social insurance for employees, and pay labor remuneration and welfare benefits directly to labor outsourcing personnel.
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