As a relatively new form of employment, what are the differences between the two, and what are the legal risks?
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service outsourcing
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Labor outsourcing is a form of employment in which enterprises entrust some non-core functions or auxiliary tasks to other professional institutions or organizations, and the core projects or functions are organized and implemented by their own personnel. ? Whether labor outsourcing belongs to the management mode of enterprises or a form of employment is still controversial. Judging from the current situation in China, most enterprises outsource repetitive and non-core work as a supplement to formal employment.
Tripartite legal relationship in labor outsourcing
There are three parties in the legal relationship of labor outsourcing: the contracting unit, the outsourcing unit (contractor) and the laborer.
1. The relationship between outsourcing units and workers.
There is a direct employment relationship between outsourcing units and workers, and there may be an employment relationship or a labor relationship between them. There is no mandatory provision in this law, and the outsourcing unit and the workers shall negotiate on their own.
2. The relationship between the outsourcing unit and the contractor.
There is a contractual relationship between the contracting unit and the outsourcing unit, and both parties bear corresponding rights and obligations due to the business outsourcing contract concluded. Generally speaking, in the labor outsourcing mode, the employer pays the remuneration and buys the labor results of the outsourcing enterprise. It is closer to the contract in nature.
According to Article 251 of the Contract Law, "a contract is a contract in which the contractor completes the work according to the requirements of the ordering party, delivers the work results, and the ordering party pays the remuneration." Through the contract, the civil legal relationship between the contractor and the contractor to deliver business results and pay remuneration can be guaranteed and realized. The contractor not only has the obligation to sign contracts, pay wages and pay insurance, but also has a series of responsibilities such as employee management, labor process control and final product and service quality control. The labor relationship between the contractor and the employer is adjusted through civil legal relationship, and the employer no longer involves the social insurance, welfare, overtime pay and other issues of the contractor's employees, which reduces the labor management cost and largely avoids labor disputes.
3. The relationship between contractors and workers.
As far as legal relationship is concerned, the two are not related. Workers only need to provide the labor results required by the contractor. The contracting-out unit has no right to manage the laborers, and the contracting-out unit does not have to bear any responsibility for the laborers unless there is intentional or gross negligence.
Legal risks and prevention of labor outsourcing
1, the risk of selecting an outsourcing unit.
In practice, the service or skill level of labor outsourcing units not only affects the realization of the company's management needs, but also affects the image and reputation of the company.
Therefore, when choosing an outsourcing unit, we should pay attention to whether it has professional qualifications and strong recruitment ability. High-quality and efficient outsourcing companies can complete the outsourcing tasks assigned by customers with good quality and quantity, and achieve a win-win situation for both parties.
2. Risks of outsourcing contracts.
Outsourcing contract is the basis for outsourcing of labor outsourcing units. If the content of the contract is not clear, detailed and thorough, it will easily lead to disputes.
Therefore, enterprises need to establish and strengthen the contract management of companies.
First, the outsourcing contract needs to be clear and comprehensive, and its elements include service scope, service cost, service standard, operation time and operation mode. , and make detailed provisions to avoid unnecessary disputes;
Second, the contract stipulates the relevant terms of terminating cooperation and resolving conflicts, which effectively restricts the cooperation behavior of both parties.
Third, set up a special person to manage the labor contract and establish a contract tracking management system.
3. Risks of information and trade secrets disclosure.
In the cooperation between the company and the outsourcing unit, the information enjoys communication and coordination between the two parties, but there is also the risk that the company's information and business secrets will be leaked.
The Company shall avoid directly managing the Contractor's employees.
Business outsourcing, in actual operation, the employer should take the principle of "no matter", supplemented by appropriate "indirect management" to avoid direct management, that is, the company's requirements for "results", such as quality, specifications and quality, are directly stipulated in writing through the labor outsourcing agreement.
Employers avoid direct management of contractors' employees, because employers directly manage contractors' employees, which is easy to be identified as labor dispatch, and there will be a legal relationship between workers and enterprises (employers), and employers will bear joint and several liability for compensation.
4. Legal risks identified as labor dispatch.
There are obvious legal differences between labor dispatch and labor outsourcing, but there are often cases of "fake outsourcing and real dispatch". Workers in the process of outsourcing are not bound by the rules and regulations of the employer. If the company outsources labor services to other units, but the labor process of the outsourced workers is directly managed by the enterprise department, this kind of labor outsourcing still belongs to labor dispatch. Labor outsourcing is recognized as labor dispatch, and the enterprise will probably bear the responsibility of the employer.
The company needs to optimize the internal management and supervision mechanism.
The company should establish an effective management mechanism, constantly update business processes, and promote the improvement of service level of labor outsourcing units; And supervise the labor outsourcing units in time to ensure that enterprises can effectively control the labor outsourcing units and promote the effective implementation of outsourcing matters. At the same time, the daily workload of the human resources department is reduced through outsourcing, but the human resources department should participate and supervise in the outsourcing process.
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Labor dispatch
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Labor dispatch means that the dispatching unit concludes a labor contract with the dispatched workers, and the dispatched workers pay labor remuneration to the dispatched enterprises. There is a labor contract relationship between the labor dispatch agency and the dispatched workers, but the fact of labor payment occurs between the dispatched workers and the dispatched enterprises. The most striking feature of labor dispatch is the separation of hiring and using labor.
Tripartite legal relationship of labor dispatch
1. The labor dispatch organization and the employing unit form a labor dispatch relationship based on the labor dispatch agreement.
The labor dispatch agreement needs to stipulate the number of dispatched employees, the dispatch period, labor remuneration and social insurance premiums, payment methods and responsibilities, etc. The employing unit shall determine the dispatch period according to the actual demand of the post and the dispatching institution, and shall not divide the continuous employment period into several short-term labor dispatch agreements.
2. There is a labor contract relationship between the laborer and the dispatched institution.
In addition to the provisions of Article 17 of the Contract Law, the contract concluded between the labor dispatch unit and the laborer also needs to specify the employer, dispatch period and post of the dispatched laborer.
The dispatching unit shall sign a fixed-term labor contract with the dispatched personnel for more than 2 years and pay the labor remuneration on a monthly basis; During the working period, the dispatching unit shall pay the workers monthly remuneration according to the local minimum wage standard. Therefore, the application of the rules of the labor contract and the general labor contract between the labor dispatch unit and the laborer should belong to the general and special relationship. The labor contract between the dispatched unit and the dispatched worker shall, in principle, be governed by the legal provisions applicable to general labor contracts, including payment of economic compensation and termination of the labor contract. If the labor dispatch unit or the dispatched worker dissolves or terminates the labor contract according to law, which is in line with the provisions of Article 46 of the Labor Contract Law, it shall pay economic compensation.
In addition, the dispatching unit also needs to undertake corresponding obligations, such as: it should inform the dispatched workers of the contents of the labor dispatch agreement; Dispatching units shall not deduct the labor remuneration of workers; Dispatching agencies shall not charge workers' fees.
3. Employees and dispatched institutions form employment relationship based on actual employment.
The employer must bear the obligations arising from employment to the workers, such as the obligations stipulated in Article 62 of the Labor Contract Law.
The difference between labor dispatch and labor outsourcing
1, which is different from the name and content target.
In the labor dispatch relationship, the labor dispatch agency and the actual employing unit shall, in accordance with the relevant provisions of the Labor Contract Law, sign a "labor legacy association" with the wages, service fees and management fees of the dispatched personnel as the target. In the outsourcing relationship of human resources services, according to the main service content of the project, the specific human resources management should be entrusted with production, sales management, technology development and service support in accordance with the relevant provisions of the Contract Law.
2. Different liability risks.
In the labor dispatch relationship, if the dispatched workers cause damage to the third party or labor disputes in the process of labor dispatch, according to the provisions of the Labor Contract Law, the employer, as the actual employer, shall be liable for compensation to the third party, and the labor dispatch agency shall bear joint liability; In the human resource outsourcing relationship, if the management team or outsourcing staff causes damage or labor disputes to the third party in their work, the human resource outsourcing organization, as the actual employer, should be liable for compensation to the third party, and the client organization does not have to bear legal responsibility.
3. The measurement standards of work results are different.
In the labor dispatch relationship, the employer pays the management fee and service fee to the labor dispatch company according to the number of workers dispatched by the labor dispatch company, working hours, working intensity and other factors directly related to the dispatched workers; In the service outsourcing relationship, the employer pays the outsourcing service fee to the contractor according to the completion of the outsourcing business. As for the number and time of service personnel used by the contractor, it is generally not directly related to the amount of outsourcing service fees paid by the employer.
4. Different business qualification requirements.
In the labor dispatch relationship, according to the requirements of the amendment of the labor contract law, the labor dispatch company must obtain the administrative license of the labor administrative department, with a registered capital of more than 2 million yuan, and obtain the labor dispatch business license; In the relationship of human resource outsourcing, if the content of human resource outsourcing project does not involve the content of franchise industry stipulated by the state, special administrative license of state organs is not needed.
5.？ Different labor contract requirements
When employing employees, labor dispatch agencies sign fixed-term contracts with dispatched workers for more than two years according to the relevant provisions of the Labor Contract Law, and the employment contracts are strictly stipulated by law. When signing labor contracts with employees, human resource outsourcing institutions do not strictly require specific contracts to be signed. According to the actual needs, human resources outsourcing institutions can sign fixed-term contracts, open-ended contracts and contracts with the completion of certain tasks as the deadline. Resumes of labor relations are more diverse and flexible.
Legal risks and prevention of labor dispatch
1. Legal risks of joint liability.
Joint and several liability means that when the legitimate rights and interests of the dispatched personnel are infringed, the labor dispatching unit and the employing unit bear joint and several liability for the employed personnel, that is, when a dispute occurs, the dispatched personnel can bring a lawsuit or arbitration against the dispatched personnel and the employing unit, or they can bring a lawsuit or arbitration against the dispatched personnel or the employing unit alone.
This kind of joint liability has brought the greatest protection to the rights and interests of workers, but also brought certain legal risks to employers and labor dispatch units. Article 92 of the Labor Contract Law clearly stipulates the joint liability of the employer. In the practice of joint and several liability, many factors make it difficult for enterprises to prevent and control. For example; The legitimacy of the establishment of the labor dispatch unit itself, the operating status and debt status of the enterprise, etc. Will give employees certain joint and several liability for compensation. In addition, due to the particularity of labor dispatch, when a labor dispute occurs, employees usually bring a lawsuit or arbitration to the employer rather than the labor dispatch unit. Therefore, it is difficult for enterprises to prevent and control disputes.
In the process of using outsourced employees, try to avoid direct personnel management, sign no written agreement with them, and pay wages and social security directly. Signing a standardized outsourcing agreement with a labor outsourcing enterprise to avoid inappropriate terms will be recognized as a labor dispatch agreement by the court.
2. The legal risks of dispatching posts in the application of labor dispatch
Labor dispatch involves the legal relationship of three parties, the employment relationship between the dispatching unit and the laborer, and the factual labor relationship between the employer and the laborer. This has caused the problem of possible application for labor dispatch posts. The most typical situation is that the appearance of factual labor relations leads to the aggravation of the legal responsibility of the employer. Article 66 of the Labor Contract Law also stipulates that labor dispatch posts are generally temporary, auxiliary or alternative. As for what are temporary, auxiliary and alternative posts, there is no explicit provision in the law, and there will be great risks in the process of continuous improvement of the law. Therefore, the behavior beyond the post regulations often occurs, and it is difficult to deal with disputes once they occur.
3. Independently undertake the responsibility of dispatching personnel.
The employing unit may independently send personnel to bear legal responsibilities. In the practice of labor dispatch, workers are in direct labor contact with employers, so there may be various negligence and improper strategies in actual operation, which makes some legal responsibilities that should be borne by employers and dispatching units be directly and independently passed on to employers, which increases the legal risks of employers. For example, the employer may not be clear about its rights and obligations and various normative contract terms, which will make the obligations that it should not bear, and it will be responsible for itself because it is not implemented in accordance with the regulations.
With the increasing diversification of flexible employment forms, labor outsourcing and labor dispatch will surely become the necessary forms for enterprises to operate in the future. Only by truly understanding the difference and risk management between labor outsourcing and labor dispatch can we make the right choice when choosing enterprise management mode.