Article 27 of the Interim Provisions on Labor Dispatch stipulates, "Employers who use workers in the form of labor dispatch in the name of contracting or outsourcing shall be dealt with in accordance with these provisions." This provision makes labor outsourcing contractors nervous, fearing that their use of labor outsourcing will accidentally be recognized as labor dispatch. Thus, how to distinguish between labor dispatch and labor outsourcing, and how to asphalt the boundaries between the two is particularly important. Zhaoming lawyers combined with legal provisions and practice, summarized the labor outsourcing and labor dispatch of the six major differences, as follows:
1. different legal application. Labor outsourcing applicable contract law, more respect for the autonomy of the parties, the law is not prohibited that is free; labor dispatch is applicable to the labor contract law, labor contract law belongs to the category of social law, with a certain degree of public law nature, more reflecting the vulnerable groups of the care of the workers, such as employers with the legal conditions for the return of the workers can be sent back to the labor dispatch unit, shall not be arbitrarily returned.
2. Different management authority for workers. Outsourcing of labor services, outsourced laborers are directly managed by the contractor, the contractor shall not be directly managed, the contractor's rules and regulations do not apply to outsourced laborers, otherwise it would be equivalent to a foot into the threshold of the dispatch of labor; labor dispatch of laborers, mainly by the employing unit directly managed by the employing unit, the employing unit's rules and regulations are applicable to dispatched laborers. The difference in the management authority of the workers is the core difference between labor outsourcing and labor dispatch, in order to achieve "true outsourcing", the contractor must cut off the direct management of the workers engaged in outsourcing labor services, the contractor's requirements, instructions are best directly to the contractor's outsourcing labor site management personnel assigned.
3. Labor risks are different. Labor outsourcing in the core elements are the results of the work, the contractor is concerned about the contractor to deliver the results of the work, as to how the contractor to complete the work, the contractor does not care, the contractor only in the results of the work in line with the agreed upon to obtain the corresponding outsourcing costs, engaged in outsourcing labor labor risk has nothing to do with the contractor; labor dispatch in the core elements of the process of labor, the labor dispatch unit is not responsible for the work results of the workers dispatched, the labor dispatch unit is not responsible for the work results of the workers dispatched, the labor dispatch unit is not responsible for the work results of the workers dispatched. The core element of the labor dispatch is the labor process, the labor dispatch unit is not responsible for the results of the dispatched workers, the dispatched workers may "succeed" or "fail", the risk of success or failure is borne by the employer.
4. The risk of employment is different. Labor outsourcing, the contractor to recruit workers in the employment risk has nothing to do with the contractor, the contractor and the contractor to bear the risk of their own employment, the risk of their own employment is completely isolated; labor dispatch as a way of labor, the employing unit is a labor dispatch tripartite legal relationship of one of the main body, you need to bear a certain amount of risk, such as labor dispatch unit illegal to the dispatched workers caused damage to the employing unit and labor dispatch unit need to bear a certain amount of risk, such as labor dispatch unit illegal to the dispatched workers caused damage to the employing unit and labor dispatch unit need to bear a certain amount of risk. For example, if the labor dispatching unit causes damage to the dispatched workers in violation of the law, the employer and the labor dispatching unit shall be jointly and severally liable for compensation.
5. Business qualification requirements are different. Labor outsourcing contractors generally have no special business qualification requirements, unless there is a special law; labor dispatch unit must be established in strict accordance with the provisions of the Labor Contract Law, and obtain administrative licenses for labor dispatch of legal entities.
6. Accounting treatment is different. In the labor outsourcing activities, the contractor in the outsourcing costs paid by the contractor to pay labor remuneration to workers engaged in labor outsourcing work, labor outsourcing costs are not included in the contractor's total wages; in the labor dispatch, the total wages of labor dispatched personnel into the scope of the employer's total wages statistics, including the employer's burden of the basic salary, overtime pay, performance pay, and a variety of allowances and subsidies, but does not include the use of labor dispatch units for the use of the total wages. but does not include the management fees and other labor costs paid for the use of labor dispatchers.