Legal risks of different labor employment modes | enterprise risk control
In recent years, the problem of rising labor cost has become the focus of the society and the industry. As for the solution of labor cost, enterprises can try to reorganize the labor employment model, including labor dispatch, labor subcontracting, labor outsourcing, etc.
一、The concept of labor dispatching, labor subcontracting and labor outsourcing
1. Labor dispatch
Labor dispatch refers to the labor dispatch agreement signed between the labor dispatch unit and the employing unit, which stipulates the dispatch post and the number of personnel, the dispatch period, the amount and payment method of labor remuneration and social insurance premium, and the supplementary employment form implemented in the temporary, auxiliary or alternative jobs of the employing unit.
According to the Interim Provisions on Labor Dispatch, the following conditions shall be met for the implementation of labor dispatch:
First, the employer can only use the dispatched workers in temporary, auxiliary or alternative jobs. Temporary jobs refer to those whose duration does not exceed 6 months; Auxiliary jobs refer to non-main business jobs that provide services for main business jobs; Alternative jobs refer to the positions in which other workers can replace their jobs within a certain period of time when the workers in the employing unit are unable to work due to off-duty study, vacation or other reasons.
Second, the employing unit shall strictly control the number of dispatched workers, and the number of dispatched workers used shall not exceed 10% of the total number of employed workers. Total employment refers to the sum of the number of labor contracts concluded by the employing unit and the number of dispatched workers employed.
2. Labor subcontracting
Labor subcontracting is a kind of labor operation mode applicable in the business field of construction enterprises, and it is an activity completed by labor subcontracting enterprises with labor subcontracting qualifications. The details are as follows:
According to the "Measures for the Administration of Construction Subcontracting of Housing Construction and Municipal Infrastructure Projects", the construction subcontracting of housing construction and municipal infrastructure projects is divided into professional engineering subcontracting and labor subcontracting. The subcontracting of professional projects refers to the activity that the general contractor of construction contracts the professional projects in the contracted projects to other construction enterprises with corresponding qualifications. Labor subcontracting refers to the activity in which the general contractor or specialized contractor contracts the labor work in the contracted project to the labor subcontractor.
According to the "Qualification Standards for Construction Enterprises", the qualification of construction enterprises is divided into three sequences: construction general contracting, professional contracting and labor subcontracting. Enterprises that have obtained labor subcontracting qualifications may undertake labor subcontracting operations of enterprises with general contracting qualifications or professional contracting qualifications. The qualification of labor subcontracting enterprises is not divided into categories and grades, and can undertake all kinds of construction labor operations.
3. Labor outsourcing
Labor outsourcing is a kind of labor cooperation model in the field of production or business. In practice, there are no clear laws and regulations to regulate it. Labor outsourcing is generally regarded as a business model in which an enterprise (the employer) entrusts part of its business or auxiliary work to a professional institution or other economic organization (the contractor) other than the enterprise, and the contractor arranges laborers to complete the business or work according to the requirements of the employer.
二、The distinction of different labor employment modes
Because labor subcontracting is a special mode applicable to the construction field, its applicable provisions belong to the special provisions of the law, here we focus on the distinction between labor dispatching and labor outsourcing:
1. The law is applied differently
It means that the enterprise authorizes other entities to engage in business activities in the name of the authorized enterprise and within the scope of authorization, and the legal consequences shall be borne by the authorized enterprise. The authorized subject is generally called the "agent", and the authorized enterprise and the authorized subject form the principal-agent relationship. The authorized subject generally needs to pay the agency fee to the authorized enterprise.
2. Different nature of contracts
Labor dispatch The signing of labor dispatch contracts belongs to one kind of labor contracts; Labor outsourcing contract is a kind of civil contract, mainly in the form of production outsourcing, business outsourcing, job outsourcing, business process outsourcing agreement.
3. Different management rights
In labor dispatch, the employing unit shall have complete command and management over the working process of the workers, and the dispatched workers shall follow the rules and regulations of the employing unit. In labor outsourcing, the right of command and management is exercised by the contractor, and the owner does not directly manage it. The various rules and regulations of the owner do not apply to the workers engaged in outsourcing services, but the outsourcing unit can exercise certain indirect management rights over the contractor based on safety, fire protection, quality and other factors.
4. Different bearing of labor risks
In labor dispatch, the labor dispatch unit shall not be responsible for the work results of the dispatched workers, and the labor result risk shall be borne by the employing unit. In labor outsourcing, the employer is concerned about the work results delivered by the contractor, and the contractor can get the corresponding outsourcing costs only when the work results meet the agreement. The labor risk of the workers engaged in outsourcing business has nothing to do with the employer.
5. Different employment risks are borne
Labor dispatch, as a way of labor employment, is one of the main bodies in the tripartite legal relationship of labor dispatch, which needs to bear certain employment risks. In labor outsourcing, the employment risk of the contractor in hiring laborers has nothing to do with the employer, and the employer and the contractor bear their own employment risk, and their employment risk is completely isolated.
6. Different requirements for business qualification
The labor dispatch unit must be a legal entity established in strict accordance with the labor contract law and obtained the administrative license for labor dispatch. Contractors in labor outsourcing generally have no special business qualification requirements.
Labor dispatch is one of the common labor employment modes. In terms of labor employment risk, labor dispatch agencies and employers are bound to labor units in essence. In other words, once the worker has an industrial accident in the process of work, the employer and the employer should bear joint and several liability for the damage suffered by the worker. This is because: on the one hand, the labor contract of the laborer is signed with the employer, and the labor relationship exists between the laborer and the employer. As a party of the labor relationship, the employer should bear the corresponding responsibility for the injury of the laborer. On the other hand, the employing unit is the party that actually enjoys the fruits of the labor of the laborer. In order to protect the legitimate rights and interests of the laborer and prevent the claim caused by the cancellation of the employing unit from having no door, the employing unit should also bear the corresponding responsibility for the injury of the laborer. In addition, China's "Labor Law", "Labor Contract Law" and relevant laws and regulations to protect workers is more comprehensive, not only in the dispatch of labor as the labor unit as the joint compensation liability person, in the subcontracting of labor, if certain specific conditions are met, but also stipulate that the labor unit or contractor may also be identified as the joint compensation liability person for industrial accidents. For example, if the contractor subcontracts the contracted business to a subcontractor who does not have the corresponding qualifications, there is some fault, and the contractor, as the actual employing unit, enjoys the fruits of the labor of the worker, in this case, the contractor may be identified as the joint liability person to bear the consequences of compensation for the damage of the worker's industrial accident.
