editorial comment/note
Honesty in the workplace is no longer a strange topic. Some employers falsely recruit, but they change their minds after sending the employment notice; When the probation period expires, people will be laid off; Failure to pay overtime pay and insufficient payment of social security fees make workers "very hurt". At the same time, some workers’ dishonest behaviors are frequently "spit out" by the unit — — Resume fraud, only to find that the ability is not competent after joining the company; Open a fake case to soak up sick leave, even maliciously sue after "flashing words", and play "professional labor touch porcelain" … … All these have cast a layer of "smog" over the workplace environment.
With the rapid development of the national credit system, the role of "encouraging by keeping promises and punishing by breaking promises" has become increasingly prominent. We appeal that on the one hand, it is the key for enterprises to standardize employment, and at the same time, workers should also strengthen professional quality education. At the same time, relevant law enforcement departments should also strengthen cooperation and jointly increase the punishment for dishonesty. This edition has specially launched a series of reports on "Paying attention to workplace integrity", so please pay attention.
Chen Jun (pseudonym) worked in tangyin county Branch of a communication engineering company in Henan (hereinafter referred to as "tangyin county Branch") for 18 years from 1999 to 2017, when he was awarded the opportunity to study abroad as an advanced company. If he hadn’t been killed by an accident during the visit, he might have continued to work in this enterprise — — As a "dispatcher".
The embarrassment of this kind of labor status made Chen Jun controversial about the identification of his work-related injury and who should bear the responsibility for the work-related injury after his death. A recent survey by the Workers’ Daily reporter found that under the circumstances that the law strictly restricts the dispatch of labor, and it is clear that the number of dispatched workers used by employers should not exceed 10% of their total employment, some employers "use the name of labor outsourcing to dispatch labor", reducing the proportion of labor dispatched, evading legal responsibilities, and making workers the biggest losers.
I have worked for 18 years and have been a dispatcher.
In 1999, Chen Jun went to work in tangyin county Branch. He signed a labor contract with a labor dispatch company, and according to the labor dispatch agreement, he was sent to a communication engineering company in Henan to work in tangyin county branch.
In June, 2017, Chen Jun was awarded a study abroad because he was commended by tangyin county Branch as an advanced individual in the "Spring Scale Breakthrough" labor competition. However, it happened unfortunately in this process, and Chen Jun died after being rescued.
However, the process of identifying work-related injuries is not easy. The existence and relationship of a labor dispatch company, communication engineering company and tangyin county branch make Chen Jun’s family unclear. Who should he claim the treatment for work-related injuries?
By inquiring about employees’ salaries and sign-in forms, Chen Jun’s wife and daughter found that Chen Jun signed labor contracts with labor dispatch companies, tangyin county Branch managed, assessed and fixed salaries for employees of the same nature as Chen Jun, and it was tangyin county Branch that established factual labor relations with Chen Jun.. Chen Jun’s wife and daughter believe that Chen Jun was "falsely outsourced and really dispatched" by tangyin county Branch.
In reality, "fake outsourcing and real dispatch" does exist and is not uncommon.
Because outsourcing can quickly reduce the proportion of labor and is easy to operate, some enterprises reduce the proportion of labor dispatch workers by "business outsourcing", but this outsourcing is not a standardized business outsourcing. For example, the employer outsources a certain business as a whole, and the unit that undertakes the outsourcing business is still the original labor dispatch company, and the workplace of the workers is still in the original unit, and it is still managed by the original unit. Its essence is still labor dispatch.
"This kind of behavior called outsourcing the actual labor dispatch is considered as ‘ Fake outsourcing and real dispatch ’ 。” Xie Yanping, a lawyer at Beijing Daocheng Law Firm, said.
Enterprises steal the column to deal with the new regulations
Liang Yanling, a lawyer of King & Wood Law Firm, told reporters that labor dispatch is a supplementary form of employment, and its advantage lies in meeting the needs of employers in terms of flexibility and seasonality in employment. Since this form entered China, labor dispatch has been gradually adopted by some employers on a large scale, and even abused.
The revised Labor Contract Law in 2012 imposed strict restrictions on labor dispatch. The Interim Provisions on Labor Dispatch, implemented in 2014, further clarifies that the number of dispatched workers used by employers shall not exceed 10% of their total employment.
"Many enterprises can’t meet the conditions for using dispatch workers and can’t continue to use labor dispatch workers." Xie Yanping introduced that once the employing unit uses dispatched workers in violation of the scope prescribed by law, it is an invalid labor dispatch. In this way, it is "not cost-effective" for employers who bear the wages, welfare benefits and social security fees of workers.
"Therefore, many enterprises think of using outsourcing to avoid the responsibility of the main body of labor dispatch. There is no provision for outsourcing employment in China’s laws. The employer believes that in the event of a labor dispute, the responsibility can be pushed to the outsourcing company. " Xie Yanping said.
Liang Yanling introduced that under the background of the two-year transition period given by the Interim Provisions on Labor Dispatch, many enterprises have transformed the original labor dispatch positions into outsourcing forms.
The definition of "outsourcing" and "dispatching" is not clear. Liang Yanling introduced that judicial practice is mainly based on the following considerations: the mode of employment management, that is, whether the employer has direct employment management for workers; The payment subject of labor remuneration, that is, whether the employer directly pays wages to the workers; Settlement method of contract fees, that is, based on service personnel or service results; Whether the contractor has the qualification of labor dispatch, etc.
Workers become the biggest losers.
"Fake outsourcing and real dispatch" can not only avoid the restrictions on the proportion of use, but in Xie Yanping’s view, employers can also avoid signing open-ended labor contracts.
Under the relationship of "fake outsourcing and real dispatch", workers become the biggest losers. Xie Yanping explained that the qualifications of outsourcing companies are mixed, and workers may be hindered by the low registered capital of outsourcing companies when defending their rights, but there is no legal basis for finding employers to bear joint and several liabilities.
In the case of Chen Jun’s identification of work-related injuries, Xie Yanping believes that no matter how many unit entities appear in the middle, Chen Jun’s work place and work content have not changed, but it is precisely because of the appearance of these entities that his identification of work-related injuries has been blocked. Even if the work-related injury is finally identified, the workers will be exhausted because of the long litigation period.
"From the description of the case and the evidence provided by Chen Jun’s family, it can be seen that tangyin county Branch is actually the main body that forms the closest employment relationship with Chen Jun." Xie Yanping said, "In fact, tangyin county Branch is the party with the least risk, and the people who serve it have also been transformed into ‘ Other people’s employees ’ It is also difficult to determine the responsibility for an injury. "
In practice, many workers only pay attention to the wage standard and the place of work, and pay no special attention to what kind of employment they belong to. They even don’t know what the contract is because they don’t know the law, and they don’t realize it until a dispute occurs.
Therefore, Xie Yanping suggested that workers should keep their eyes open in the process of job hunting and providing labor, and should distinguish whether it is labor dispatch or business outsourcing from the aspects of management subject, compliance with rules and regulations, and assessment.
From the management subject, labor dispatch is managed and supervised by the employing unit, while outsourcing is managed by the outsourcing company, and the employing unit does not manage it; From the point of compliance with rules and regulations, labor dispatch requires workers to accept the management of the rules and regulations of the employer, but there is no requirement in business outsourcing; From the assessment point of view, in labor dispatch, employers can assess the working ability and performance of workers, while outsourcing focuses on the work results, so the units they serve do not assess the workers who provide services.
Xie Yanping reminded that if workers find that their unit is not really outsourced, they should keep relevant evidence of accepting the employment management of their unit, so as to use it when confirming labor relations with the unit and demanding payment of various compensations and compensations in the future.