As early as 1996, the Ministry of Labor promulgated the Notice on Several Issues Concerning the Implementation of the Labor Contract System, in which Article 17 stipulates: "When an employer recruits workers, it shall check the certificate of termination or rescission of the labor contract and other documents that can prove that the workers have no labor relationship with any employer before signing the labor contract with them."
Because the dual labor relations are mainly regulated by departmental rules and policies, they are not only unstable, but also ineffective, which is not conducive to the establishment of a stable labor system suitable for the requirements of China's socialist market economy. Therefore, two important laws regulating the labor system have been promulgated successively: the Labor Law and the Labor Contract. By analyzing the relevant provisions on dual labor relations in these two important laws, it further shows the pragmatic attitude of our government towards dual labor relations.
China's labor law does not specifically stipulate that workers can only establish labor relations with employers, but Article 99 of China's labor law stipulates: "If an employer recruits workers who have not yet terminated their labor relations and causes losses to the original employer, the employer shall bear joint and several liability."
The Labor Contract Law, which came into effect on June 65438+1 October1,2008, not only followed the similar provisions of the Labor Law, but also made further provisions on dual labor relations. Article 91 of the Labor Contract Law stipulates: "If an employer employs workers who have not dissolved or terminated the labor contract with other employers, causing losses to other employers, it shall be jointly and severally liable for compensation."
Article 39 of the Labor Contract Law stipulates: "The employer may terminate the labor contract if the employee has one of the following circumstances: (4) The employee has established labor relations with other employers at the same time, which has seriously affected the completion of the work tasks of the unit, or the employer refuses to correct it."
Article 69 of the Labor Contract Law (revised 20 12) stipulates: "A part-time employee may conclude a labor contract with one or more employers; However, the labor contract concluded later does not affect the performance of the labor contract concluded before. "
Article 8 of the Interpretation of Several Provisions on the Application of Laws in the Trial of Labor Dispute Cases stipulates that the court shall handle the cases in accordance with labor relations, such as enterprises leaving their posts without pay, retirees who have not reached the statutory retirement age, laid-off workers who are waiting for their posts, and employees who have stopped production for long holidays due to business operations.
According to the above provisions, China's labor law also indirectly recognizes the existence of dual labor relations. As long as the laborer has not caused losses to the original unit, it is not illegal to establish a labor contract relationship with other units.
There are several main situations of "dual labor relations"
1, the employee is re-employed by other employers without going through the resignation formalities with the original unit;
2 laid-off, work-related injuries, sick leave workers re-employed, the file relationship has not been transferred, but the original employer still pays social insurance for them;
3. Because the employer's labor management is not standardized, workers who leave their jobs without pay, take long holidays and lose contact for a long time go to work in other units and establish labor relations with other employers;
4. During the period of labor relations with an employer, work part-time in other employers, and engage in full-time or part-time labor in other units during rest time that does not affect the work of this unit.
Identification of disputes over dual labor relations
If the first labor relations dispute comes to court, it is generally considered that there is no labor relations dispute. However, how to identify the relationship other than the first labor relationship is controversial. The main points are as follows:
The first view is that all relations except the first one in the dual labor relations should be regarded as labor relations and cannot be treated as labor relations. This is the mainstream view in reality. According to the traditional labor law theory, each worker can only establish labor legal relations with one unit and belong to one employer, but not multiple labor legal relations at the same time. If the dual labor relationship is recognized, it will inevitably lead to the confusion of social insurance relationship and employment management system, which is not conducive to the protection of workers, especially after work-related injuries, workers will face the fate of not being able to obtain work-related injury insurance.
The second view holds that the relations other than the first one in the dual labor relations should be regarded as factual labor relations, not labor relations. Laid-off workers can have dual labor relations. Article 8 of the judicial interpretation stipulates: "If an employee who leaves his post without pay, who retires before reaching the statutory retirement age, who is laid off and waiting for work, or who has stopped production for a long vacation, brings a lawsuit to the people's court according to law because of a labor dispute with a new employer, the people's court shall handle it in accordance with labor relations." . This provision breaks through the limitation of the principle of "single labor relations" and the traditional practice of dealing with labor relations, and gives these special workers special treatment according to labor relations, which is a major breakthrough in this judicial interpretation.
Is it a "dual labor relationship" to implement "* * * to enjoy work" between enterprises that are short of work and enterprises that have not resumed work during the epidemic period?
During the period of prevention and control in COVID-19, the practice of "* * * enjoying work" between the enterprises lacking work and the enterprises with surplus labor spontaneously adjusted the surplus and shortage of labor, which belongs to the secondment of labor, and improved the efficiency of human resources allocation to a certain extent, but "* * * enjoying work" did not change the labor relationship between the original employer and the workers. The seconded enterprise and the original employer shall sign a written secondment agreement in accordance with the relevant laws and regulations such as the Civil Law and the Contract Law, so as to clarify the rights and obligations of both parties. The secondment agreement shall specify the number of secondees, reasons for secondment, duration of secondment, wages and benefits, social insurance and welfare benefits during secondment. Seconded personnel enjoy the same treatment as employees of seconded units in terms of wages, insurance and welfare, and the length of service during secondment and the length of service of enterprises are calculated continuously. Seconded employees should also sign a written agreement with the original employer to change the labor contract according to Article 35 of the Labor Contract Law.
Is labor dispatch a "dual labor relationship"?
Labor dispatch refers to a special employment mode in which the labor dispatch unit signs a labor contract with the dispatched workers, and then sends the workers to the employing unit to work in the workplace of the employing unit and accept the command and supervision of the employing unit to complete the combination of labor and means of production. The labor process is managed by the employing unit, and the wages and social insurance premiums are provided by the employing unit to the dispatching unit, which then pays the workers, and handles the social insurance registration and payment for the workers. The employing unit shall pay the service fee to the dispatching unit for the services provided by the dispatching unit. It is a special form of employment, employment and employment service.
Due to the convenience of labor dispatch, employers can simplify management procedures, reduce labor disputes, share risks and responsibilities and reduce costs. At present, there are a lot of labor dispatch in China. The dispatched workers have formed labor relations with the dispatched institutions, but have no labor relations with the employing units.
Therefore, labor dispatch does not belong to "dual labor relations".