Enterprise labor of various types and legal definition, we found that enterprises for various reasons, the use of labor is very diverse, very complex, in simple terms, can be divided into three main categories of enterprise labor: first, the contract workers, factual workers, hourly workers, laborers, all belong to the labor relationship , said to call the labor, in fact, constitutes a factual labor relationship; second, itself is a clear labor relationship, the first dispatched workers, divided into Two kinds of workers: one kind of labor dispatch, one kind of workers dispatched due to the need for work between our superior or subordinate units, such as foreign companies have mergers and acquisitions abroad, Chinese executives sent to France, the United Kingdom to do the level, which belongs to the work of dispatching, the domestic group companies are also like this, the group company many people sent to work in subsidiaries, but the labor relationship remains unchanged, this is the dispatch, and labor dispatch has a difference, labor dispatch is to earn money, and the labor relationship is actually a clear labor relationship. Difference, labor dispatch is to earn money, to dispatch people for the purpose of the "Labor Contract Law" said very clearly, the labor dispatch company is a wholesale company, they do not have jobs, batch failed to smash in the hands; the second kind of leasing workers, for engaged in fast moving consumer goods or products to sell in the stores, in the supermarkets and stores a lot of people wearing a vest on behalf of the factory, it may be that the factory hired a person directly assigned to the stores, but also may not need so many people, need to consult with a lot of people to find out how to get a job. Maybe you don't need so many people, you need consultants, you sign an agreement with the store, you hire a group of people to serve my products, wear my vest, I pay you, I rent your employees, there are many ways; the third kind, anti-employment workers, play the retiree's preheating, because you don't have to pay social security; the fourth kind, internships, the incident of KFC and McDonald's reflects not how hourly workers are, how interns are, and the four kinds are very clearly defined in the law as laborers. A single into, there is a contractual relationship, work contracted to you, and I have nothing to do, such as cab drivers, easy to confuse the legal relationship who can not say whether it is a labor relationship or labor service relationship, can not say how to do? I believe that the arbitrator and the judge are not as high as I am, so he can't tell the difference, and neither can I. No one can tell the difference, so what should we do? What can be done? Judge the case on the basis of the principle of favoring the worker, and treat it as a labor relationship. Therefore, we say that it is easy to confuse the labor relationship, it is not clear that it is a labor relationship, and it can be said that the labor relationship, the enterprise today, mixed employment, diverse employment is a result of the expansion of the determination of the labor relationship.

There are two relationships in an enterprise when determining the use of labor: the labor relationship and the non-labor relationship, what is the labor relationship? There are three elements, has been said very clearly, not in detail. Labor relations and labor relations are different: the first equal subject, labor relations and marriage relations are very similar, there is personal dependence, you go there to introduce this is my boss, after the marriage said this is my husband, my boss what do you mean? The county official is not as good as the present management, I will listen to my boss, my husband is a private object, is a personal dependency relationship, labor relations are equal subjects, for example, you take a pair of shoes to repair, how to repair the shoes is the shoe repairer's business, he does not listen to you, you can not assess him; Second, labor relations have the contractual nature of the tool, after the work to be paid, the tools of production is the means of production is the employer to provide, the labor relationship is that you want to move, you have to bring the moving tools, you want to repair the shoes, you have to bring the tools of moving, you have to repair the shoes. Moving tools, you want to repair shoes you have to bring shoe repair tools; third process of independence, labor relations only results do not look at the process of repairing shoes handle broken with you, if you let the company staff to repair your shoes when the injury, that belongs to the work injury, as long as the laborers regardless of the results of the labor, said the unit loss, then you have to pay me money, labor relations is not so, if the final result of the problem can not give money, I theoretically have a lot of differences, and I have a lot of differences in theory. Theoretically, there are many differences, I speak so much I guess you still do not understand, because it is very difficult to distinguish. On the surface can be said clearly, to specific cases when very complex, not clear, how to do? Not to look at the length of time, but to look at the content of the rights and obligations, as long as it meets the three elements, the five major evidence can be recognized as a de facto labor relations, as long as it does not meet the three major elements, there is no evidence of the five major not recognized as a labor relationship, the length of time is not the key to determine the nature of the rights and obligations of the content of the labor rights and obligations of the relationship between the management and the management of the content of the relationship, there is no wages and remuneration is the key to the simple signing of a labor service agreement can not circumvent the obligations under the law. We can't simply sign a labor agreement to circumvent our obligations under the law.

How to really use temporary, seasonal and short-term workers? There are three legal ways to do this: First, sign a short-term contract. Does the Labor Contract Law say how many days is the minimum for a labor contract? No, there is no problem with signing a two-day labor contract, no problem with signing a five-day or three-day contract, and a short-term labor contract is perfectly fine, but why don't people want to choose a short-term contract? But why are people reluctant to opt for short-term contracts? It is because full-time workers have to be covered by social security, and even if they sign a five-day contract, they have to be covered by social security, which is legally possible but not practically feasible; secondly, what should be done if the employment is really temporary, seasonal, replacement, or sudden and unspecified? The second way is what to do if it is really temporary employment, seasonal employment, replacement employment, or sudden employment that is not clear. Contracts for accomplishing certain work tasks can be used in three cases: first, contracted employment; second, temporary employment; and third, seasonal employment. For example, if a female employee is pregnant and takes a four-month maternity leave, she can be recruited on a temporary basis, which also belongs to the category of full-time workers who also need to be covered by social security, and hourly workers can be exempted from social security. Hourly workers have a characteristic that they can only work for four hours a day, and cannot work for more than 24 hours a week, which is why they need to be employed in large quantities, so that they can be employed for four hours in the morning, and for four hours in the afternoon, and then for four hours in the morning, and then for the morning of the third day. However, there are requirements for the position, and the temporary, seasonal, and alternative labor can be utilized in these three ways, and hourly labor is the first choice.

Counter-recruitment, interns, seconded personnel, laid-off re-employment is a labor relationship, in addition to these four can be considered a labor relationship, if the use of a farmer to cook, the result of a fall, this is considered a work-related injury, is it a labor relationship? It is a de facto labor relationship. Why? Because farmers do not have the retirement age, we refer to the retired rehired personnel is to apply for retirement formalities; the second interns, universities and colleges have not graduated students, there must be a student ID card, there must be a certificate of internship in the school; the third seconded personnel, refers to the contract with the unit A, because of the work needs, seconded to work in the unit B, we talk about the labor dispatch and the secondment is very similar to the contract with the unit A, the purpose of the contract is to work in unit B, which is a typical secondment. This is a typical secondment, the planned economy called secondment, the market economy called labor dispatch, in fact, a meaning, just the wording of the packaging is not the same, the planned economy called thick-skinned, the market economy called psychological quality, the purpose of the packaging is to let the staff sound bound, the planned economy, when talking straight to the market economy to talk about branding and credit, why? Market economy is an exchange economy, only good others will exchange with you, in the market economy, others say you really have temperament is not a good thing, that you do not look pretty, if you really pretty say you really pretty, and not pretty and no knowledge and no point gentleman and not, others in order to get benefits from you say that this person really have temperament, temperament is not sure of the thing, secondment is to A unit and A unit to sign a contract to work in the B unit. Layoff and re-employment or, say layoff and re-employment again aptly, layoff refers to the original unit and retain labor relations, but not in the post, re-employment is to work for me, including the signing of the agreement to retire, retired, not yet formally retired, including the suspension of pay to stay on the job, do not work in the unit, self-employment, including the agreement to retain the labor relations of these personnel to our unit to establish a labor relationship, in addition to these four kinds of I can't see anyone who doesn't look like a labor relationship, all of them are considered labor relationships. There are two methods: the first exclusion method, excluding these four kinds; the second presumption method.

The signing of the labor agreement, the premise is the application of contract law, the core is the content of the labor, the completion of the way, treatment, the key is the release and breach of contract set , the annex is the proof of the labor relationship, the key is not to mix the management.

Enterprise labor agreement model: I think this labor agreement can basically meet our determination of labor relations, means part: based on party B is the choice of items: A retirees, B students, C and the unit of the survival of labor relations, D seconded personnel. If it is a labor relationship, there will be no sick leave pay, and if you are injured or sick not due to work, the labor relationship will stop during the treatment period, and no labor cost will be paid. Article 14 is very crucial, and the dispute will be under the control of Beijing Arbitration Commission, and there is also a clear agreement at the end that, since you have chosen four kinds of people, you have to bring over the certificate of retirement, the student card and the certificate of internship, and the original unit to maintain the labor relationship. In our opinion, such an agreement is relatively standardized and meets the legal requirements for a labour relationship. We recommend that you use this agreement, because you can't see any characteristics of the labor relationship in it, and it completely avoids the provisions of the labor law on work-related injuries, treatment of work-related injuries, etc. I hope you understand that the labor agreement is not signed by the Ministry of Human Resources, and why is it so? This is a civil law agreement, you think your company with the people are the human resources department tube ah, this is the business sector, the legal department tube, the human resources department is only in charge of people, labor relations, dispatch relations should not be managed, Nokia and Air China have reached an agreement on the human resources department out of anything to let the Ministry of Law to review the Ministry of Law after the review of the Ministry of Human Resources is not responsible for, in our country People's University should be the Whampoa School of Human Resources Management, but the Ministry of Human Resources should be the only one in the country to review the Ministry of Human Resources, the Ministry of Law should be the only one in the country. In our country People's University should be the Whampoa Military Academy of human resources management, but in the process of human resources management training in the Labor Law is minimal, resulting in enterprises engaged in human resources management on the law is relatively thin, engaged in the law does not understand the labor law, the two departments can not be organically integrated, we suggest that the process of controlling a bit.

Labor dispatch secondment is the most complex relationship, is a tripartite relationship, there is another employer, labor dispatch is the focus of the labor norms, the reasons for the dispatch of a variety of: wage sin control type, there is to reduce the cost of employment type, in order to work for the same work, different pay, the type of outsourcing of personnel services, the company does not need to set up a human resources department of 110 companies, the outsourcing process of the company in the growth of the company, their own no specialized agencies and personnel, by the outsourcing company, the company has no specialized agencies and personnel, the outsourcing company has no specialized agencies and personnel. Specialized agencies and personnel, dispatched by the outsourcing company, corporate social responsibility type, which is the characteristics of state-owned enterprises, an enterprise to lay off 100,000, the local government does not do, the layoffs continue to work in the company, sign a labor agreement, 800 yuan a month, in order to meet the social stability. I expect China's labor dispatch to develop greatly after January 1, 2008, because today a large number of enterprises are employing workers illegally, so what should we do? What should we do? We should legalize labor dispatch first and then we will do it, which is what many enterprises are going to do.

Legal issues of labor dispatch, I would like to give you a reminder: First, what law applies to labor dispatch, labor contract law, or contract law, labor dispatch is a quasi-labor relationship, the labor department to check, all according to the labor contract law to check, you must ask yourself why you want to use the labor dispatch, we are lecturing in Shaanxi, Xifei said I am the total wage control, you can use my staff in a pragmatic manner, I will not be discharged, all skilled workers, I will not be discharged, I will not be discharged. I will not terminate them, they are all skilled workers, signing non-fixed-term contracts, and if they are not used, I will pay them all the money, and there will not be any illegal problems. This kind of employment is very simple, and it is a way of circumventing the control of the total amount of wages; secondly, are the labor standards certainly and directly applicable to the dispatched laborers? Whether the rules and regulations are naturally applicable, whether they can participate in democratic management, how to participate in the layoff policy, and how to relieve the losses caused by the employees to the enterprise, for example, if the dispatched employees do not have the permission to jump ship without authorization and cause 100,000 yuan of losses, who will pay for the losses? Now did not say, did not say is the risk; Third, the protection of trade secrets and the application of non-compete, for example, to Air China to send after the South China Airlines to send, to the mobile to send after the Unicom to send, send the process of leaking trade secrets, one of my consultants to two companies to send employees, my consultant is to do the labor dispatch unit, he sent to Wrigley and Cadbury, the results of the sent fainted to the Cadbury sent to send to the Wrigley to send the person, the agreement In the provisions of the agreement does not allow such a dispatch, the company in the management of personnel appeared some confusion, this situation is a lot, the dispatch company itself does not have a post, we have to solve these problems through the dispatch agreement, the dispatch agreement should have such content: the allocation of responsibility between the employer and the dispatch; the division of obligations outside the statutory business; the constraints and prerequisites of the Code of Conduct; the confirmation of liability for breach of contract and the assumption of responsibility for breach of contract by the employee and responsibility for the pursuit of the breach of contract and the determination of responsibility. Liability determination. The dispatching company often wants to sign the agreement in his favor, and the employing unit must do its best to strip out the unfavorable ones when signing the agreement.

Internship cases, internships have been quiet for several years, the results of KFC, McDonald's hourly worker case stabbed up, students to the unit internship, internship fell and injured, this is not work-related injuries? If not, what is it? Student internship is not a labor relationship, do not sign a labor contract, this time KFC, McDonald's hourly workers with boiling hype.

Easy to confuse is the apprenticeship period, what is the difference between the apprenticeship period? Is the establishment of a labor relationship, the internship period is the establishment of a labor relationship before the Xinjiang TBEA a student internship hand fell, the lawsuit requesting the identification of work-related injuries, the unit said that we are not the people, said that in the internship period, the defense handed over to the statutory determination of a labor relationship, identified as a work-related injuries, why? Because you wrote "internship" as "trainee", a difference of just one word can make a huge difference. There is no labor relationship in internship, but there is a labor relationship in trainee, so are you saying that the people's court won't investigate it? The people's court mainly looks at the evidence, and the one who asserts it will adduce the evidence, so if you say that this is a trainee period, not an internship, and that it is a trainee, then I'm sorry, but the court will determine that it is the period of apprenticeship, and the one who says that it isn't must produce the evidence to the contrary. Since many of you here are law students, I would like to emphasize in particular that you have the right to remain silent, and when you speak, you should know what you can say and what you cannot say. If you use trainees or interns, the way to avoid the risk is to sign an agreement. Huawei had another employee suicide, which had a great impact on the company's brand, and it was very difficult to repair the brand recognition, and it would be better to spend tens of millions of dollars on advertisement than to have a dead employee do great harm to the employee, and one of the employees of Neusoft said that one of our students who was on an internship committed suicide after going back to his workplace. The last time I did training, they said they had just recruited an employee who had a mental illness after three months, and the parents were asked to pay 100,000 yuan, so we need to be extra careful when recruiting short-term employees.

Hourly labor is not the same as an internship. Hourly labor is flexible employment, and an internship is not employment; you need to sign an hourly labor agreement to clarify your rights and obligations. Let's look at the content of the hourly wage agreement: this is our consultant unit for the Shanghai F1 event to provide catering services, the agreement period is three years, the school organization meets the requirements of the students to provide services, the operation of the period to comply with the rules and regulations, according to the principle of subsidies for needy students to prioritize the hiring of the arrangement of a medical examination, the provision of uniforms, and so on, the work is over after the end of the hourly fee, during the period of how to terminate the termination of the termination of the agreement is clear. This agreement sets out the rights, obligations, responsibilities, termination of the agreement, and the liability of both parties for breach of contract in a comprehensive manner. Including the peak season promotions, are recruiting hourly workers, to sign an hourly agreement, the only problem to be solved is how to terminate, and the second is how to prevent the risk.