Who Will Pay The Overtime Wages Of The Dispatched Personnel?

Brief introduction of the case

In August 2006, Zhang was dispatched to a company in charge of mobile phone distribution as a salesperson. Zhang often worked overtime during holidays, but he never received overtime payments from a labor dispatch company or a mobile phone distribution company. Six months later, Zhang asked the mobile phone distribution company to pay overtime fees during his holidays, but was refused because the labor law stipulates that the overtime wages should be paid by the units that set up labor relations with them. The labor dispatch agreement signed by the mobile phone distribution company and the labor dispatching company, as well as the labor contract signed by the labor dispatching company and Zhang, did not stipulate that the mobile phone distribution company has the obligation to pay overtime wages for the dispatched personnel. So Zhang asked the labor dispatching company to get overtime payment, and the labor dispatching company refused to arrange for Zhang to work overtime on holidays. Unfortunately, Zhang had to send labor dispatch companies and mobile phone distribution companies to the labor dispute arbitration committee, requiring the two defendants to jointly pay. Overtime pay 。

Judgment result

After investigation, the labor dispute arbitration committee found out that Zhang actually did not work overtime during the holidays, but the labor dispatch agreement signed by the labor dispatching company and Zhang did not clearly stipulate the obligation to pay overtime wages for the dispatched personnel.

Finally, the Arbitration Commission decided that Zhang's overtime payment should be paid by the mobile phone distribution company (the employing unit), and the labor dispatching company was jointly and severally liable.

Expert comment

Focus one: do the dispatched workers have the right to get overtime pay?

In this case, although Zhang is dispatched, but as a normal employment worker, and there is evidence that it works overtime on holidays, according to the relevant provisions of the "labor law", it also has the right to get overtime pay.

Focus two: Overtime pay Who should be paid?

The labor law and the labor contract regulations of the labor market do not stipulate clearly the issue of overtime payment for labor dispatched workers. However, according to the analysis of the focus one, workers should pay overtime fees according to the state regulations when working overtime on holidays. For the dispatched employees, the employers have dual nature, and the labor dispatch units and the actual employment units are the main body to pay overtime wages. However, the specific payment shall be made according to the agreement between the labor dispatch unit and the actual employment unit or the labor dispute arbitration committee according to the specific circumstances. It is generally recognized that the overtime wage should be paid by the actual employing unit, or paid by the employing unit to the sending company, and then the dispatched company shall pay the laborer.

In this case, due to the fact that there is no agreement between the mobile phone distribution company and the labor dispatching unit for the overtime wages of the dispatched employees, the arbitration committee has discretion. According to the actual situation, the arbitration committee can determine that Zhang is working overtime under the arrangement of the mobile phone distribution company, creating a certain value for the company, and the overtime payment should be paid by him. This decision is reasonable.

Advice and advice

In fact, there are many disputes in real life that are similar to those which do not have a prior agreement on overtime payment. Because the legal relationship between the three parties, such as laborers, labor dispatch units and the actual employing units, is not clear, it often leads to unclear responsibility subjects, and also causes the difficulty of safeguarding the rights of workers, and the consequences of disputes arising from arbitration. In view of the above problems and some employers' abuse of labor dispatching system to infringe upon the legitimate rights of laborers, the new labor contract law has made special regulations on the form of labor dispatch. The time limit for labor dispatch contracts is defined, and the obligations of employing units should be clearly defined when the labor dispatching units are clear. And when the rights and interests of the dispatched workers are damaged, the labor dispatching units and the employing units shall bear joint and several liability for compensation.

Obviously, Labor contract "Law" has increased the protection of the dispatched staff, and has also put forward higher requirements for the dispatching units and the actual employment units. After the implementation of the new law, the number of labor dispute cases will rise significantly, and the employing units should make preventive measures in advance and standardize the daily management. For example, the new law clearly stipulates that the overtime payment of dispatched employees should be paid by the employing unit, and for the arrears of wages, the employee can apply directly to the court for payment order, which can be said to be a green channel for workers to claim compensation. Therefore, for overtime work, the employing unit should improve the overtime examination and approval system in the rules and regulations. If there is no support from relevant systems, the court will support the staff's proposition, and the employing unit will be very passive. The dispatching units should also clearly stipulate mutual responsibilities and obligations in the agreement with the employing units, and urge the employing units to implement them so as to protect the staff dispatched, and try to avoid joint and several liability arising from the disputes.