How To Sign Labor Dispatch Contract?

Labor dispatch refers to the employment form dispatched by specialized labor dispatch agencies to the employing units. It is a new and fast developing form of employment in China's labor relations.

The two characteristics of labor dispatch are as follows: first, the workers are the employees of the dispatching companies, and there are labor contract relationships. This is different from the labor agency and the labor agency. The two is that the dispatching company only engages in the labor dispatch business, and does not contract the project, which is different from the labor contract.

The labor dispatch originated in 1920s, and the labor dispatch method originated from Japan and the United States. In Europe and America, talent dispatch has become an indispensable part of the labor market and an important part of human resource outsourcing. And domestic talent dispatch is late. Since the labor dispatching industry started late in China, there is a lag in the legal provisions governing the relationship. First of all, there is no uniform legislation on labor dispatch in China. Secondly, some relevant regulations and policies promulgated by individual localities also generally exist too narrow scope of adjustment objects and incomplete adjustment contents. In view of the current judicial situation, I think the employer should pay attention to the following contents in the labor dispatch contract:

1, before signing the labor dispatch contract, the qualification of the labor dispatching enterprises should be examined. At present, many job agencies begin to engage in labor dispatch services, some of which are approved by the government, but some are unauthorized. Therefore, it needs to be reminded that the qualification of labor dispatching agencies should be identified before signing labor contracts. If a labor contract is signed with a qualified dispatched institution, the contract is protected by law. If a labor contract is signed with an illegal dispatched institution, the contract is invalid. It is deemed that the laborer can provide labor services directly to the employer through the employment agency. The court may decide that there is a labor relationship between the laborer and the employing unit. For example, a hotel is prepared to employ 5 cleaners because of its operational needs, but is unwilling to undertake the employment responsibilities and risks such as social insurance. In the form of labor dispatch, a labor contract was signed with a labor service center for a period of two years. During the performance of the contract, if the pension and medical insurance should be applied, the dispute between the hotel and the cleaner will be referred to arbitration. The court found that the labor service center that signed the labor dispatch contract with the hotel did not register for Industry and commerce, not the main body of legal employment. Therefore, the arbitral award between the guesthouse and the cleaner is labor relations, and all social insurance should be handled for the cleaners. Therefore, when signing the labor dispatch contract, the employer must check whether the qualification of the labor dispatching enterprise is in conformity with the law. It needs to be reminded that the labor contract law (Draft) stipulates that the employing units (hereinafter referred to as the labor dispatch units) in the form of labor dispatch shall not be less than 500 thousand yuan in registered capital, and shall be deposited in the bank accounts designated by the labor protection department of the people's governments of provinces, autonomous regions and municipalities directly under the central government, with a standard of not less than 5000 yuan per worker.

2, when signing labor dispatch contracts, it is necessary to make clear the obligation of sending enterprises to pay wages for dispatched workers, and the right to liquidate damages and to recourse. According to the regulations of the Jiangsu Province on wage payment, if the employer assigns the laborers to the actual employing units, the actual employer's arrears and undue arrears of wages shall be borne by the employing unit to the laborers, and the actual employer shall bear joint and several liability. Therefore, when the central government has repeatedly stressed that it is strictly prohibited to pay wages for workers in arrears, employers and dispatched enterprises are jointly and severally liable for the dispatched workers. Therefore, in order to prevent the joint venture caused by the sending enterprises' Arrears of wages, and at the same time, in order to urge the dispatched enterprises to pay wages to the dispatched workers according to law, when the labor dispatch contract is signed, the obligation of sending the enterprises to pay the wages of the dispatched workers and the liquidated damages and the right of recourse shall be clearly defined. If the dispatched company fails to pay the wages according to the law, if the employer of the arbitral award is jointly and severally liable, it can not only claim the right of recourse to the sending enterprise according to the contract, but may also require the contractor to bear the penalty for breach of contract.

3, when signing labor dispatch contracts, it is necessary to clarify the payment of social insurance, labor conditions and labor protection, working hours and rest and vacation, labor discipline and responsibility for industrial accidents. In the process of using the dispatched laborers, the employing units will relate to labor conditions and labor protection, working hours, rest and vacation, and labor discipline. For example, employing a unit requires dispatching workers to abide by the rules and regulations of the employing units, set up prohibited areas for sending workers, strictly abide by the norms of labor discipline, such as business secrets involved in the work. In addition, some jobs require special working hours and rest and vacation systems. What needs to be explained here is that the appointment of working hours and rest and vacation system shall not violate the mandatory provisions of the state, otherwise the agreement is invalid and may cause adverse legal consequences to the employer. After the implementation of the regulations on work-related injury insurance, all kinds of enterprises have been included in the scope of industrial injury insurance. The dispatching enterprises that establish labor relations with dispatched workers also have this legal obligation. In order to avoid the risk of industrial injury occurring in the process of using the dispatched laborers, the dispatched contract shall stipulate that the dispatched enterprise shall be responsible for the work injury insurance in accordance with the law according to law and the liability for breach of contract. So these contents can be written into the dispatch service contract. Moreover, the twenty-fourth clause of the current labor contract law (Draft) is about the payment of social insurance, labor conditions and labor protection, working hours and rest and vacation, labor discipline, responsibility for undertaking industrial accidents, and so on. Therefore, the above agreement is also in line with the spirit of legislation.

4, when signing a labor dispatch contract, it should be clear that the duty of the dispatched worker to violate the lawful rights and interests of the third party in performing his duties. Some labor jobs are more likely to infringing on third people, such as security posts, drivers and so on. We often see the news media reported that a supermarket security to consumers search or assault and other acts, due to the characteristics of these posts, the infringement on the third person has occurred frequently. Who should be responsible for the infringement after the occurrence of the infringement facts? The labor dispatch enterprise considers that the labor party is causing infringement on the interests of the employing units, and the employer should assume the responsibility. The employer considers that the labor force is the employee of the labor dispatch enterprise, which is responsible for the infringement of others in the process of performing the labor contract, and the employer should assume the responsibility. Therefore, in order to avoid disputes and disputes, the author proposes to standardize the dispatch contract.

5, when signing labor dispatch contracts, the stipulations of the time limit for the dispatch of workers should be specified. In order to improve labor efficiency and facilitate the management of dispatched workers, employers always hope that the workers assigned by the labor dispatching enterprises are relatively stable. Therefore, most of the current labor dispatch contracts do not specify the time limit for sending workers. In terms of the existing laws and regulations of our province, there is no problem. However, the fortieth article of the labor contract law (Draft) promulgated clearly stipulates: "when a laborer is sent to the receiving unit for 1 years, the labor contract concluded between the labor dispatch unit and the worker who has been accepted by the unit continues to use the labor contract, and the labor contract is concluded between the receiving unit and the labourer. If the receiving unit no longer uses the worker, the worker shall not use other laborers in the way of labor dispatch. Therefore, from the perspective of legislation, we should stipulate the term of service for the dispatched workers in the labor dispatch contract signed by the employer in the existing and future needs. Otherwise, after the implementation of the labor contract law, the laborers may ask for a labor contract relationship with the employing unit and sign a labor contract. Of course, the appointment of a shorter period of service is bound to lead to increased mobility of dispatched posts, and it will also affect the number of dispatched posts to be dispatched by the employer to the sending enterprises. For a highly skilled post, of course, it should not be outsourced, and the scope of outsourcing is limited to non technical and simple jobs.