Determination of labor dispatch and employment

　　The Labor Contract Law, which was implemented on July 1, 2013, strengthened the control of labor dispatch by law. On January 26, 2014, Ministry of Human Resources and Social Security promulgated the Interim Provisions on Labor Dispatch (implemented on March 1, 2014), which not only further clarified the three characteristics of "temporality, assistance and substitutability", but also controlled the total amount of labor dispatched by employers within 10%. In order to circumvent the provisions of the Labor Contract Law, many labor dispatch units have adjusted their business and changed the original labor dispatch agreement into an outsourcing agreement. In addition, some non-labor dispatch companies have signed outsourcing agreements with other companies, such as security outsourcing agreements between security companies and enterprises. In practice, some outsourced workers and dispatched workers are easily confused. Article 27 of the Interim Provisions on Labor Dispatch stipulates that if an employer uses laborers in the form of labor dispatch in the name of contracting or outsourcing, it shall be handled according to these provisions. This raises the question: what is the criterion for judging the employment of labor dispatch?

　　First, the essence of labor dispatching employment relationship

　　Before the implementation of China’s Labor Contract Law, labor dispatch was often regarded as the behavior of labor dispatch units providing labor services to employers. Employers only had a civil contract relationship with labor dispatch units and had nothing to do with dispatched workers, so they did not need to bear any responsibilities. In fact, the special feature of labor dispatch is that the dispatched workers must assign tasks and supervise and direct them within the organization of the employer, and their work is an integral part of the employer’s business work, and "command" is the fundamental symbol of the "subordination" of labor relations. This is also an important reason why people argue about "who is the employer of the dispatched workers". It can be said that in labor dispatch, the labor dispatch unit does not provide labor service behavior, but temporarily gives its employees to the employer for a certain period of time. The object of dispatch is "laborer or its implied labor force", and the dispatched laborer provides "subordinate labor" for the employer, rather than civil service behavior. The essence of labor dispatch is the separation of traditional employer functions, that is, "employment" and "use" belong to different subjects respectively. The labor dispatch relationship forms a "triangle relationship" because of the existence of the three parties.

　　Triangular relationship is not uncommon in the form of labor employment. In addition to the dispatch of workers by labor dispatch agencies that hire workers specifically for the purpose of dispatch in this paper, there are other forms, such as secondment contracts. These triangular relationships involve three parties, and there will be some problems in practice, but they are not normal, only happen occasionally and are short-term, so it is easy to define employers and allocate rights and obligations, and will not affect the interests of workers too much. The formation of some triangular relationships, such as the so-called labor dispatch relationship in this paper, the purpose of the labor dispatch unit is to provide labor for the employer, and the realization of the labor process is more closely related to the employer. It seems unreasonable to completely exclude the employer’s employment obligations, and there will naturally be disputes over the employer’s responsibility. In order to better understand labor dispatch, it is necessary to analyze the legal attributes of the triangular structure formed by labor dispatch:

　　(1) A civil contractual relationship is formed between the labor dispatch unit and the employing unit based on the labor dispatch agreement.

　　The labor dispatch agreement is essentially a labor lease agreement, that is, the labor dispatch unit rents its hired workers to the employing unit for use with compensation through the dispatch agreement, and obtains a certain profit, and the employing unit obtains a certain claim for the use of labor by paying a certain rent.

　　(2) Labor relations are formed between labor dispatch units and dispatched workers based on labor contracts.

　　The purpose of employing workers by labor dispatch units is not for their own use, but to meet the needs of employers. Based on the purpose of labor contract in labor dispatch to provide labor for the third party, some people think that labor contract in labor dispatch is an altruistic contract, and the opinions on altruistic contract are divided into non-real altruistic contract and real altruistic contract. In the former, the employing unit, as the third beneficiary, basically has no right to directly pay for the labor services of the dispatched workers. In the latter case, the employing unit has an independent and primitive claim for labor services to the dispatched workers. This argument has no practical significance in our country, and there is still doubt whether the current legislation in our country is beneficial to the provisions of other contracts. Judging from the main purpose of concluding a labor contract between the labor dispatch unit and the dispatched worker, it is not a contract for a third party. Labor contracts are only the basis for establishing labor relations between dispatched institutions and dispatched workers. Due to the existence of the labor contract, the labor dispatch unit becomes the employer and enjoys the complete functions of the employer. Labor dispatch units send laborers to employers to provide labor for them, which is the performance of dispatching units as employers to exercise labor control. The dispatched workers are also fulfilling their labor payment obligations to the employer by providing labor for the employer. Therefore, a labor contract does not directly involve a third party and cannot be regarded as an altruistic contract.

　　(3) The employing unit obtains the right to claim the labor service of the dispatched workers based on the labor dispatch agreement, and the relationship between the employed and the employed is formed due to the actual use behavior.

　　The dispatching unit sends the workers to the employing unit through the dispatching agreement to complete the dispatching task. In order to realize the right of labor payment, the employer must manage and dominate the dispatched workers in the process of labor. The employment of labor dispatch units and the direct use of employers constitute a complete labor relationship in the traditional sense, so employers should fulfill their employment obligations and responsibilities. Articles 62, 63, 64 and 92 of the Labor Contract Law clearly stipulate the employment obligations and responsibilities of the dispatched units.

　　 Second, the nature of labor outsourcing employment relations

　　According to the Interim Provisions on Labor Dispatch, the legal liability for the excessive use of dispatch is an administrative penalty of "imposing a fine at a rate of 5,000 yuan to 10,000 yuan per person". In order to circumvent the law, employers often choose to change the actual labor dispatch to contracting and outsourcing through written contracts. Labor dispatch is still an important employment method in China. At the same time, in the outsourcing relationship, the business outsourcer is responsible for hiring people and taking all the employment risks, and the employer only needs to pay the price of the product, and no longer undertakes the obligations of safety protection management in the employment process, let alone joint and several liability. This kind of fake contracting and outsourcing can make the real labor dispatching employer completely pass on the employer’s responsibility. Although the revised Labor Contract Law has added administrative examination and approval procedures and increased the registered capital of dispatching units, the dispatching companies of leather bag companies still exist in China. In order to avoid the failure of the legislative purpose of the Labor Contract Law, Article 27 of the Interim Provisions on Labor Dispatch establishes the basic principle of "emphasizing substance over form" in judging the employment of labor dispatch. The written contract is only one of the evidences of labor dispatch and employment, and it is not the key evidence, and the substantive judgment of the nature of employment relationship is the key. It is necessary to analyze and compare labor dispatch and labor outsourcing, and sort out some specific rules for examining labor dispatch, so as to make Article 27 of the Interim Provisions on Labor Dispatch operable.

　　At present, only Article 36 of the Regulations on Labor Contracts in Jiangsu Province (revised in 2013) makes a distinction between labor dispatch and outsourcing. Paragraph 3 of this article stipulates that "if an enterprise contracts out its business to other units, but the workers of the contractor use the facilities and equipment of the enterprise in the production and business premises of the enterprise, provide labor according to the arrangement of the enterprise, or provide labor in the name of the enterprise, and other labor outsourcing is actually labor dispatch, the number of workers shall be included in the proportion calculation specified in the preceding paragraph." According to this regulation, the specific criteria for distinguishing labor dispatch and business outsourcing in Jiangsu Province should be: (1) whether to use the facilities and equipment of enterprises in their production and business premises; (2) Whether to provide labor according to the arrangement of the enterprise or in the name of the enterprise. In practice, there are problems with this criterion. For example, some professional outsourcing, such as software development outsourcing of some modules, in order to meet the overall requirements of the outsourcing unit, the contractor sends professional software developers to work in the contracting unit, uses the computer and other equipment of the contracting unit, and accepts the supervision of the contracting unit. The dispatched personnel are obliged to accept the instructions of the contracting unit to adjust and modify the software according to the outsourcing contract. It is really controversial if this kind of software outsourcing is regarded as labor dispatch. For example, the hospital’s cleaning outsourcing, the cleaning staff is employed by the cleaning company, and the cleaning company sends the hired cleaning staff to the hospital according to the outsourcing contract. The cleaning contract stipulates that the cleaning company sends cleaning staff to provide cleaning work according to the requirements of the employer. Does this constitute the provision of labor by the hospital? Worth considering.

　　Some people think that outsourcing means that a public institution hands over some of its work to a contracting company for execution, and the contracting company assigns the hired workers to handle the contracted work. There are also views that labor outsourcing, or business outsourcing, service outsourcing, resource outsourcing, etc., refers to enterprises outsourcing some non-core and auxiliary functions or services to external specialized manufacturers based on contracts, and using their expertise and advantages to improve the overall efficiency and competitiveness of enterprises. From the concept and operation mode of outsourcing, outsourcing is similar to contracting. According to the provisions 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. The contractor shall use its own equipment, technology and labor to complete the main work, unless otherwise agreed by the parties. Outsourcing is in accordance with the requirements of the employer, the contractor employs workers to deliver the work results, and the employer pays the consideration for the work results. Formally, the labor outsourcing relationship also involves the employer, the contractor and the laborer, but its legal attribute is fundamentally different from the labor dispatch relationship, and the labor relationship is not divided, but there is a triangular relationship between the contractor and the hired laborer. The labor outsourcing relationship is as follows:

　　(1) The employer and the contractor form a civil contractual relationship based on the outsourcing contract.

　　The employer and the contractor agree to deliver certain work of the employer to the contractor for completion, and the employer will pay the contractor certain remuneration. The contractor delivers the work results, and the employer pays the remuneration for the work results that meet the contract.

　　(two) the contractor and the employee based on the labor contract to form a labor relationship

　　The contractor not only employs laborers, but also directly uses laborers. The performance is that the workers are managed and dominated by the contractor and accept the contractor’s assignment to provide labor services for the employer in the name of the contractor. The employer cannot directly manage and dominate the contractor’s workers.

　　Third, the determination of the specific criteria for judging the employment of labor dispatch

　　The labor dispatch relationship is the result of artificial division of labor relations, that is, the labor dispatch unit employs but does not use it, and the employer uses but does not employ it, while the traditional labor relationship is "employment and use relationship". In the labor dispatch relationship, the employing unit must have the right to use the dispatched workers, which is manifested as the right of management control. There is no division of labor relations in labor outsourcing, and the relationship between contractors and workers is employment and use, which shows that contractors manage and dominate the workers they employ to complete the work delivered by the employer. However, based on the actual needs, it may not be possible to rule out the situation that the workers employed by the contractor enter the contracting unit and are jointly commanded by the contracting party with the workers of the contracting unit. Under this situation, it is quite difficult to identify labor dispatch. Therefore, the core and key distinguishing standard between labor dispatch and labor outsourcing lies in the judgment of management right. Specifically, labor dispatch should meet the following requirements:

　　(1) The dispatching company does not directly use the laborers it employs, but the employing unit directly uses them.

　　When judging whether this requirement is met, there are the following specific identification criteria: (1) The employer directly directs or manages the work of the dispatched workers within the scope of the dispatch agreement, such as directly arranging the work of the dispatched workers, and the dispatched workers accept the instructions of the employer; (2) Working hours and other matters shall be directed or managed by the employing unit; (3) The employer shall provide the dispatched workers with necessary training for their jobs: (4) The dispatched workers shall abide by the rules and regulations of the employer, such as the system of punching in at work, etc. (5) the right to punish the dispatched workers in accordance with the rules and regulations necessary to maintain the order of the enterprise. However, the employer is not the employer of the dispatched workers, and there is no labor contract relationship between the employer and the dispatched workers, and there is no obligation to pay the wages of the dispatched workers. Therefore, the disciplinary power should be limited. Disciplinary powers such as dismissal, salary reduction and fines that affect the nature of labor contracts should be excluded from the disciplinary rights of employers. Article 65 of China’s "Labor Contract Law" clearly stipulates that the employing unit has only the right to quit work but not the right to dismiss.

　　(2) The work that the dispatched workers are engaged in is the business composition of the employing unit rather than the dispatching company’s own business.

　　Labor dispatch is only a pure labor supply, and there is no production and operation business, which is reflected in the business scope registered by labor dispatch units. The dispatched workers are sent to the employing units to engage in the production and business operations of the employing units. The criteria are as follows: (1) All the funds needed for the dispatched workers to engage in production and business operations shall be borne by the employing units; (2) The dispatching unit only supplies labor; (3) The employing unit bears the risks of production and operation, and the dispatching unit only bears the risks and responsibilities of labor supply according to the dispatching agreement; (4) The employing unit shall bear the supply of machinery and materials needed to complete the business; (5) The employing unit shall organize the dispatched workers to complete the business according to their own technology and experience and the enterprise plan.