HR Legal Corner: Is the labor dispatch unit obliged to sign an indefinite labor contract?
Published:
2022-06-07
Whether the labor dispatch unit should sign an indefinite labor contract with the dispatched workers is a problem often encountered in practice, and this paper will make a brief analysis of the above problems according to the relevant legal provisions and the judicial precedents of Jinan Intermediate People's Court and Shandong Higher People's Court. 1. relevant legal provisions 1. What is an open-ended labor contract? The first paragraph of Article 14 of the "Labor Contract Law" stipulates: "An open-ended labor contract refers to a labor contract in which the employer and the laborer agree that there is no definite termination time." 2. Under what circumstances should an open-ended labor contract be concluded? The second paragraph of Article 14 of the "Labor Contract Law" stipulates: "The employer and the laborer may conclude an indefinite labor contract through consultation. Under any of the following circumstances, if the laborer proposes or agrees to renew or conclude a labor contract, in addition to the laborer's proposal to conclude a fixed-term labor contract, an indefinite labor contract shall be concluded: The (I) worker has worked in the employing unit for ten consecutive years; When an (II) employing unit implements the labor contract system for the first time or when a state-owned enterprise is restructured to re-conclude a labor contract, the employee has worked in the employing unit for ten consecutive years and is less than ten years away from the legal retirement age; The (III) concludes two fixed-term labor contracts in succession, and the laborer does not have the circumstances specified in Article 39 and Article 40, Items 1 and 2 of this Law, and the labor contract is renewed. If the employer fails to conclude a written labor contract with the worker for one year from the date of employment, it shall be deemed that the employer and the worker have concluded an open-ended labor contract." 3. Relevant provisions of labor contract in labor dispatch mode The second paragraph of Article 58 of the "Labor Contract Law" stipulates: "The labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years, and pay labor remuneration on a monthly basis; the dispatched worker is not working, The labor dispatch unit shall pay it monthly remuneration in accordance with the minimum wage standard set by the local people's government." Focus question: If the dispatched worker meets the conditions of the second paragraph of Article 14 of the Labor Contract Law, should the labor dispatching unit sign an indefinite labor contract with the dispatched worker in accordance with the provisions of Article 14 of the Labor Contract Law? Or should it sign a fixed-term labor contract with the dispatched worker for more than two years in accordance with the provisions of Article 58 of the Labor Contract Law? 2. Court Views 1. Shandong Higher People's Court (2021) Lu Minshen No. 10597 Sun Aiying and Jinan Kaiderong Human Resources Co., Ltd. Labor Dispute Civil Application Retrial Review Civil Ruling Court view: In this case, the respondent signed a labor dispatch agreement with the outsider to send Sun Aiying to work in the outsider's office. The second paragraph of Article 58 of the "the People's Republic of China Labor Contract Law" stipulates that the labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years and pay labor remuneration on a monthly basis. According to the above provisions, there is no problem of signing an open-term labor contract between the labor dispatch unit and the laborer. Therefore, the applicant claims that the respondent should pay twice the salary of the non-fixed-term labor contract. There is no legal basis. 2. Jinan Intermediate People's Court (2020) Lu 01 Min Zhong No. 11484 Jinan Laiwu Human Resources Development Service Co., Ltd. and Zhang Jiulong and other labor disputes Second Instance (2020) Lu 01 Min Zhong 11484 Judgment Court view: The labor contract signed by Zhang Jiulong and Laiwu Human Resources Company on December 10, 2010 expired on December 9, 2014, and the two parties signed the second labor contract on April 26, 2015. It was more than four months after the expiration of the first contract, and Zhang Jiulong received economic compensation of 20131 yuan. According to this fact, it cannot be concluded that Zhang Jiulong and Laiwu Human Resources Company have entered into fixed-term labor contracts twice in a row. The first instance found that the two parties signed a labor contract with improper continuity. The second paragraph of Article 58 of the the People's Republic of China Labor contract Law stipulates that the labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years and pay monthly labor remuneration; during the period when the dispatched worker is not working, the labor dispatch unit shall pay monthly remuneration in accordance with the minimum wage standard set by the local people's government. According to this regulation, there is no problem of signing an open-ended labor contract between the labor dispatch unit and the laborer. At the same time, Zhang Jiulong's litigation request is to "continue to perform the labor contract", and the first instance regards it as a proposal to conclude an open-ended labor contract. The requirement of the contract, and based on this, it was ruled that it was improper for both parties to "perform the signing of an open-ended labor contract" and should be corrected. 3. Summary The second paragraph of Article 58 of the Labor contract Law is a special provision on the conclusion of labor contracts by labor dispatch units. Labor dispatch units only need to sign "fixed-term labor contracts of more than two years" with dispatched workers in accordance with this provision, and there is no problem of signing open-term labor contracts.
Whether the labor dispatch unit should sign an indefinite labor contract with the dispatched workers is a problem often encountered in practice, and this paper will make a brief analysis of the above problems according to the relevant legal provisions and the judicial precedents of Jinan Intermediate People's Court and Shandong Higher People's Court.
1. relevant legal provisions
1. What is an open-ended labor contract?
The first paragraph of Article 14 of the "Labor Contract Law" stipulates: "An open-ended labor contract refers to a labor contract in which the employer and the laborer agree that there is no definite termination time."
2. Under what circumstances should an open-ended labor contract be concluded?
The second paragraph of Article 14 of the "Labor Contract Law" stipulates: "The employer and the laborer may conclude an indefinite labor contract through consultation. Under any of the following circumstances, if the laborer proposes or agrees to renew or conclude a labor contract, in addition to the laborer's proposal to conclude a fixed-term labor contract, an indefinite labor contract shall be concluded:
The (I) worker has worked in the employing unit for ten consecutive years;
When an (II) employing unit implements the labor contract system for the first time or when a state-owned enterprise is restructured to re-conclude a labor contract, the employee has worked in the employing unit for ten consecutive years and is less than ten years away from the legal retirement age;
The (III) concludes two fixed-term labor contracts in succession, and the laborer does not have the circumstances specified in Article 39 and Article 40, Items 1 and 2 of this Law, and the labor contract is renewed.
If the employer fails to conclude a written labor contract with the worker for one year from the date of employment, it shall be deemed that the employer and the worker have concluded an open-ended labor contract."
3. Relevant provisions of labor contract in labor dispatch mode
The second paragraph of Article 58 of the "Labor Contract Law" stipulates: "The labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years, and pay labor remuneration on a monthly basis; the dispatched worker is not working, The labor dispatch unit shall pay it monthly remuneration in accordance with the minimum wage standard set by the local people's government."
Focus question: If the dispatched worker meets the conditions of the second paragraph of Article 14 of the Labor Contract Law, should the labor dispatching unit sign an indefinite labor contract with the dispatched worker in accordance with the provisions of Article 14 of the Labor Contract Law? Or should it sign a fixed-term labor contract with the dispatched worker for more than two years in accordance with the provisions of Article 58 of the Labor Contract Law?
2. Court Views
1. Shandong Higher People's Court (2021) Lu Minshen No. 10597 Sun Aiying and Jinan Kaiderong Human Resources Co., Ltd. Labor Dispute Civil Application Retrial Review Civil Ruling
Court view: In this case, the respondent signed a labor dispatch agreement with the outsider to send Sun Aiying to work in the outsider's office. The second paragraph of Article 58 of the "the People's Republic of China Labor Contract Law" stipulates that the labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years and pay labor remuneration on a monthly basis. According to the above provisions, there is no problem of signing an open-term labor contract between the labor dispatch unit and the laborer. Therefore, the applicant claims that the respondent should pay twice the salary of the non-fixed-term labor contract. There is no legal basis.
2. Jinan Intermediate People's Court (2020) Lu 01 Min Zhong No. 11484 Jinan Laiwu Human Resources Development Service Co., Ltd. and Zhang Jiulong and other labor disputes Second Instance (2020) Lu 01 Min Zhong 11484 Judgment
Court view: The labor contract signed by Zhang Jiulong and Laiwu Human Resources Company on December 10, 2010 expired on December 9, 2014, and the two parties signed the second labor contract on April 26, 2015. It was more than four months after the expiration of the first contract, and Zhang Jiulong received economic compensation of 20131 yuan. According to this fact, it cannot be concluded that Zhang Jiulong and Laiwu Human Resources Company have entered into fixed-term labor contracts twice in a row. The first instance found that the two parties signed a labor contract with improper continuity. The second paragraph of Article 58 of the the People's Republic of China Labor contract Law stipulates that the labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years and pay monthly labor remuneration; during the period when the dispatched worker is not working, the labor dispatch unit shall pay monthly remuneration in accordance with the minimum wage standard set by the local people's government. According to this regulation, there is no problem of signing an open-ended labor contract between the labor dispatch unit and the laborer. At the same time, Zhang Jiulong's litigation request is to "continue to perform the labor contract", and the first instance regards it as a proposal to conclude an open-ended labor contract. The requirement of the contract, and based on this, it was ruled that it was improper for both parties to "perform the signing of an open-ended labor contract" and should be corrected.
3. Summary
The second paragraph of Article 58 of the Labor contract Law is a special provision on the conclusion of labor contracts by labor dispatch units. Labor dispatch units only need to sign "fixed-term labor contracts of more than two years" with dispatched workers in accordance with this provision, and there is no problem of signing open-term labor contracts.
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