Keywords: labor dispatch; tripartite legal relations; remedial measures
I. Introduction
Labor dispatch is a non-standard way of labor employment, labor dispatch and collective contract, part-time employment together with special provisions in the Labor Contract Law. Since John B. Ai Jingsheng and others first proposed the term "labor flexibilization" in 1984, labor dispatch has become a new strategy for enterprises in the human resource management system. In China, forced by the state-owned enterprises laid off workers, the employment situation is grim and other realities, labor dispatch with its flexibility and relative norms to adapt to various forms of labor demand, and thus has been widely developed.
But after nearly a decade of development, labor dispatch has been overly abused, and has become a form of alienation of the standard way of employment. Various types of employers in order to avoid the risk and save money, have been in the normal job setup in the form of labor dispatch, completely deviated from the original intention of labor dispatch is only suitable for temporary, auxiliary and alternative jobs, to avoid the social responsibility that should be borne by the legitimate rights and interests of the workers have been seriously undermined. In recent years, there have been more and more cases of serious damage to the rights and interests of workers, such as China's first labor dispatch case - Xu Mou, a dismissed employee, v. KFC, Walmart's emergency layoffs to labor dispatch and so on. As a result, it is necessary to reflect on the labor dispatch system and find out the measures to make it return to normalization, this paper is intended to analyze the topic.
Two, the legal relationship of labor dispatch
Labor dispatch, is a labor dispatch unit and the dispatched workers signed labor contracts, and then sent to the employer of the employee, so that it is in the employer's workplace to work, accept the employer's command, supervision, in order to complete the labor force and the means of production of a combination of a special way of employment, a human resource allocation, but also a form of employment, a form of labor dispatch. Is a form of employment, a labor economy.
The legal relationship of labor dispatch involves three parties: the labor dispatching unit, the dispatched workers, and the employing unit. Unlike the one-to-one linear legal relationship of "laborer-employer" under the traditional employment method, the three parties in labor dispatch form a triangular legal relationship. The dispatched workers are those who are employed by the labor dispatching unit and provide labor for the employer, and the dispatched workers are the object of labor dispatch. As a result of the tripartite legal relationship, we find that labor dispatch actually forms the legal relationship described by Taiwanese scholar Jiao Xingkai as "three parties and two places". Tripartite also refers to the subject of the three parties, two places refers to the labor force employment and use of separation, appear in two places. The result is a transfer of labor dominance for the employer, and a change of status for the worker.
The legal relationship of "three parties and two places" is, first of all, the relationship between the dispatching organization and the dispatched worker, and its content is very similar to that of a traditional labor contract, including the working conditions, such as general conditions of salary and compensation, allowances, and vacations, and the special conditions under which the employed person is informed that he or she will be dispatched to work at the organization to which he or she is to be dispatched. Under a labor dispatch, the dispatched worker is paid by the employer, not by the dispatching organization, and is subject to the employer's direction and supervision. However, the employer does not establish a labor relationship with the dispatched workers, so why do they have to obey the supervision of the employer, and the employer does not give the price of labor payment directly to the workers. This is the theory of labor dispatch most need to improve the place, but also often the most mistakes, practice has proved that the defects of labor dispatch can be found here.
Third, the defective analysis of the legal relationship of labor dispatch
From the formal point of view, the dispatched unit seems to be a third party outside the labor contract, based on what legal reason, the right to the dispatched employees to command and supervise and accept the payment of labor? This dispute relates to the dispatch unit and the labor unit who to assume the obligation, the theory of the existence of three kinds of answers: the dispatch unit to assume the employer's obligations, the labor unit to assume the employer's obligations, the dispatch unit and the labor unit **** with the employer's obligations. In practice, it is filled with many employers and labor units to avoid obligations, shirking each other's business, or some enterprises directly violate the provisions of Article 67 of the Labor Contract Law.
Laborers are in a weak position in this tripartite relationship, tripartite two places not only realize the transfer of labor dominance and the conversion of the identity of the workers, but also make the labor force payment has the nature of the leased object, and a series of contracts of labor dispatch has the nature of the lease. In the era of Roman law, because the workers do not have complete personal freedom, legal personality and labor force has not yet been separated, and thus the relationship between them and the exploiters, is not a pure labor relationship, in fact, is a lease relationship, its own lease, and adjusted by the civil law. Theoretically, there is no lease for those who have subjective qualifications, however, labor dispatch has these qualities. The "silence" of the laborer needs to start from the tripartite relationship. Labor disputes caused by labor dispatch cases, workers are especially vulnerable to the root cause is mainly due to labor dispatch companies and employers of different mechanisms, the formation of fuzzy zone, "one-to-one" labor relations into a complex "triangular relationship", easy to Caused by the main body of responsibility is not clear, leaving a lot of "tug of war" space between the labor dispatch company and the employer "kicking the ball"; and the workers face the complexity of the relationship is even more helpless, coupled with the awareness and ability to defend the rights of the limitations of the basically more winners than losers.
The legal relationship of labor dispatch has led to the following drawbacks in practice: First, the number of labor dispatch agencies is huge, and their qualifications are uneven; second, the tripartite labor relationship between the labor dispatch company, the laborer and the employer is unclear; third, the payment of wages is opaque, and the employer earns a secret "management fee"; fourth, the employer has no labor protection policy in place, and the dispatched employee has no right to work for the employer. Fourth, the employer's labor protection policy is not in place, and the legal rights and interests of dispatched employees are harmed; fifth, different pay for the same work. Dispatched employees are often engaged in hard, dirty, tiring and heavy work, with low remuneration, and do not enjoy the bonuses and benefits of the employing organization. One of the most prominent problems is the "subcontracting of labor services". Some unregulated human resources outsourcing companies, due to their own strength is not enough, can not open branches, but through the so-called "partners", "outsourcing alliance" and so on, mutual cooperation and mutual agency, thus resulting in the phenomenon of subcontracting of the layers of labor dispatch, which brought about a large number of potential labor disputes, a serious problem of labor disputes. A large number of potential labor disputes, seriously affecting the normal development of labor dispatch in China.
Therefore, the linkage between the obligations of the dispatching unit and the employing unit is the most important part of the legal regulation of labor dispatch.
Four, on the abuse of labor dispatch evaluation and analysis of the reasons
Labor dispatch is widely used by employers, is through labor dispatch can reduce the enterprise's human resources costs, and not only is the legal cost of human resources management, and more importantly, it can be avoided legal obligations and responsibilities, transfer of employment risk, will be borne by all the disadvantaged position of the workers. Although the Labor Contract Law has made provisions, it does not have practical significance. The Labor Contract Law is unable to regulate standard labor contracts, and naturally, it cannot expect to protect workers better in the case of non-standard labor dispatch. There is nothing to criticize the enterprises for reducing the cost and transferring the risk of employment for the benefit of the enterprises, such as the use of human resources through outsourcing; on the part of the workers, especially the younger ones who have received higher education, they may not be willing to accept the constraints of the traditional employment relationship and prefer to be employed under flexible employment, and hope to have a more leisure family life or social life. However, cost reduction and risk transfer should not be premised on the avoidance of statutory obligations and responsibilities. Companies need to comply with China's labor laws when implementing their own human resource management.