Labor subcontracting refers to the activity in which a construction unit or a professional subcontracting unit (both of which can serve as the contractor of labor operations) outsources the labor operations of its contracted projects to labor subcontracting units for completion. That is to say: after construction unit A contracts the project, it buys the materials itself, and then asks labor service unit B to find workers for the construction, but unit A still organizes the construction management. ?Labour subcontracting is a common practice in the construction industry now, and is allowed by law within a certain range. However, labor service companies are prohibited from subcontracting or subcontracting the contracted labor services to other companies; subcontracting labor services for the main project is prohibited, and the completion of the main project is exclusive and irreplaceable [1]. ?

In actual operation, labor subcontracting does not have a unified form and lacks unified regulations, resulting in an unclear state of labor relations. The resulting labor disputes are difficult to deal with, which poses a great challenge to enterprises. It causes unnecessary trouble to both the individual and the individual. This article compares several existing forms of labor subcontracting to find a form of labor relations that safeguards the interests of enterprises and individuals and is conducive to the smooth resolution of labor disputes. ?

With the promotion of the project management method, the management and labor layers of construction companies are further "separated". During the construction and production process, the balance between manpower, ship machinery, equipment, etc. is often determined by comprehensive scheduling and balancing. The construction capacity cannot meet the construction needs. At the same time, the contract period is tight, and it is not enough to perform the contract on time without subcontracting. The labor layer has gradually converted from the original fixed employment to the subcontracting form of labor operations. ?Edit this paragraph There are three forms of labor subcontracting. The first form

Bring your own labor contracting. It refers to the formal employees within the enterprise who pass the enterprise training and assessment and become foremen. In principle, the labor personnel are recruited by the foremen. The accommodation, food, transportation, etc. of the personnel are managed by the enterprise. The wages are paid by the enterprise's supervisory foreman or the foreman prepares the wages and pays them. The form is issued directly by the enterprise. [2]?The second form

Scattered labor contracting. It refers to the temporary employment of workers by enterprises, often for temporary recruitment of workers for a project. ?The third form

is organized labor subcontracting. Refers to the contracting of labor services in the form of an enterprise from a construction general contracting enterprise or a professional contracting enterprise to a project, division or unit project site. ?

In the first form, the company hands over part of the project to the company's employees for construction by signing a contract, and the contractor recruits its own workers. As far as the form is concerned, the project The contractor is responsible for the construction and management, and the workers' remuneration is also paid by the contractor. This seems to have formed a labor relationship between the contractor and the workers. However, the key issue is that the contractor is an employee of the company. He performs the contract in the name of the company and has legal relations with others, so the contract is an internal contract. Contracting operation is a change in the internal operation and management methods of the enterprise, and does not cause the problem of changing the entity performing the construction contract. The contractor's recruitment of workers should be regarded as the company's behavior. There is a labor relationship between the recruited workers and the company, but there is no labor relationship with the contractor. ?

In the second form, the legal status of the contractor should not be equal to that of the subcontractor, but should be defined as a labor relationship or a labor service relationship based on whether the party receiving the labor service is qualified or not, that is, labor or labor status. The reason is that the contractor is only a labor contractor, and is generally engaged in a single type of work in the project. His personal income is directly linked to the construction efficiency, but he does not independently manage the construction of the project, nor does he assume lifelong responsibility for the quality of the project. Only the contractor shall be held responsible for "qualified" quality. The contractor is a temporary laborer during the period of providing labor services and cannot be held responsible for injuries or quality and safety issues that occur during the construction period. ?

In the third form, needless to say, the labor contract is essentially a project subcontracting, and the contractor’s status is equivalent to that of a subcontractor. ?

It can be seen that the first and second forms of construction labor can be said to be temporary labor to a certain extent. The subcontracting meaning of labor operations can only include the third type of labor subcontracting, and the other two forms The situations cannot be equated. ?Edit this paragraph Analysis of labor relations

In actual labor subcontracting, due to the non-simple nature of labor subcontracting, the labor contractor and labor personnel are often subject to a certain degree of management and supervision by the subcontractor. Labor relations are complex. When labor disputes occur during the work of laborers, the rights and obligations of the parties are not clearly defined in advance. The three parties of labor subcontractors, labor recipients and laborers (workers) are often entangled. If they are clarified, By understanding labor relations and labor relations, unnecessary trouble can be avoided. ?

Labor contracts and labor service contracts are two types of contracts that are easily confused. Both are contracts with human labor as the subject of payment. A labor service contract is an agreement signed between equal citizens, between legal persons, or between citizens and legal persons for the purpose of providing labor services. A labor contract refers to an agreement between a worker and an employer to determine the labor relationship and clarify the rights and obligations of both parties. There is an essential difference between the two. ?

Labor contract. It is a contract in which the employee provides labor according to the instructions of the employer and the employer pays remuneration. To judge whether a contract is a labor contract, you cannot just look at its name. The key is to see whether it meets the constituent elements of a labor contract. ?

Labor contract. It is a type of contract with labor services as the subject matter, which includes contract contracts, capital construction contract contracts, transportation contracts, technical service contracts, entrustment contracts, trust contracts and intermediary contracts, etc.

From the narrowest point of view, a labor service contract is a contract to provide labor services to others based on the obligation of others to provide certain services according to one's own instructions. The more common ones are secondment contracts between units, labor export contracts, etc. ?

Judging from the prescribed content. The labor contract stipulates that the employee, as a member of the employer, undertakes certain types of work or job duties, and abides by the employer's internal labor rules and other rules and regulations; the employer is responsible for allocating work or types of work, according to the quantity and number of labor of the employee. We pay labor remuneration for quality and provide various labor conditions, social security and welfare benefits in accordance with labor laws, regulations and mutual agreements. According to the provisions of the Labor Law, a labor contract should have the following provisions: labor contract period, work content, labor protection and labor conditions, labor remuneration, labor discipline, labor contract termination conditions, liability for breach of labor contract and other necessary provisions. The content of a labor service contract stipulates that one party provides services and the other party pays remuneration. It is agreed upon by the parties within the scope of the law under the principle of autonomy of will, and the law does not make mandatory provisions. ?

From the perspective of applicable legal norms. Labor contracts are regulated by labor legal norms, while labor service contracts are regulated by civil legal norms. Since the applicable laws are different, some basic principles of applicable laws are also different. During the process of conclusion and performance of a labor contract, the principle of equal status of civil subjects must be followed. When signing a labor contract, workers in the labor contract must follow the principle of equality and voluntary consensus, and the legal status of both parties is equal. During the performance of the labor contract, workers must participate in the employer's labor organization, hold certain positions or types of work, obey the administrative leadership and command of the employer, and abide by labor discipline. There is a subordinate relationship between the two parties. ?

From the perspective of legal liability consequences. Labor subcontracts shall be supervised and managed by the construction market management department, while labor contracts shall be supervised and managed by the labor management department. An employer that violates a labor contract may bear administrative liability, civil liability or even criminal liability. For example, if an employer insults, corporally punishes, beats, illegally searches, or detains workers, the public security organs shall detain the responsible personnel for up to 15 days, fine them, or give them a warning; if a crime is constituted, criminal liability shall be pursued in accordance with the law. Violations of labor contracts generally only bear civil liability for compensation and do not involve administrative or criminal liability. ?

From other aspects. First, the employer is different. The employer of a labor contract must be a state agency, an enterprise, an institution, a social group or an individual industrial and commercial household; the employer of a labor contract is wider, and in addition to the above-mentioned units, it can also be a natural person or a family. Second, the main qualifications of the employees are different. The employed party of the labor contract must be an employee who is over 16 years old (special industries must undergo approval), the male is under 60 years old, the female is under 55 years old (female workers are under 50 years old), and has not completely lost the ability to work; labor contract The employed party only needs to have civil capacity. Third, social insurance premiums must be paid in accordance with the law in labor contract relationships; in labor service relationships, this is not required. Fourth, the conditions for termination or rescission are different. Termination of a labor contract should comply with the provisions of the Labor Law, and the important basis for terminating the labor contract relationship is the agreement between the parties. Fifth, the employed party in a labor contract relationship must accept the labor management of the employer, but in a labor service contract relationship, there is no need to accept the labor management of the employer. Sixth, the labor contract relationship has restrictions on overtime hours and overtime wage payment, while the labor relationship does not have the above restrictions, etc. ?

It can be seen from the above that in the form of self-owned labor contracting and scattered labor contracting, in essence, workers and construction labor subcontractors often form a labor relationship. Because in-house labor contracting and scattered labor contracting are both scattered labor methods, the following situations exist in both methods: First, the general contractor or subcontractor or subcontractor will undertake certain parts of the project, such as bricklaying or carpentry labor Contracted to a craftsman, the craftsman will convene and organize migrant workers to provide labor services. The second is that the subcontractor or subcontractor contracts out bricklaying or carpentry services for a certain part of the subcontracted or subcontracted project to several craftsmen, and obeys the subcontractor or subcontractor's management to complete the designated workload. Third, the subcontractor or subcontractor assigns a certain work of the contracted project to a craftsman or several craftsmen. The craftsmen need to complete the work within the designated time, obey management, and ensure quality and quantity. ?

These labor subcontractors do not have the function of independently managing the project. Many labor contracts are called "project subcontracting". In fact, the project management department is responsible for management, technology, quality, materials, etc. The subcontractor is only engaged in earthwork and concrete casting work, while engineering operations, construction procedures and other technical The problem is completely handled under the guidance and supervision of engineering and technical personnel sent by the project department, and they can only provide labor services and management services. In terms of project quality, the labor subcontractor only assumes "qualified" quality responsibility for its labor work to the contractor, and it is marked by the acceptance and approval of the supervising engineer. The labor provider does not bear lifelong responsibility for the quality of the project. ?

The form of labor subcontracting in the established system is also subject to the management of the subcontractor to a certain extent, and even the construction sites overlap. In the labor subcontracting project, the labor relationship is complicated, mainly manifested in two aspects: Two forms, namely labor relations and labor service relations. ?Edit this paragraph Labor relationship model in labor subcontracting

According to the provisions of the Labor Law, dual labor relations are not allowed.

In a labor contract, the labor provider must establish a labor contract relationship with others, otherwise, he will have no labor services to provide to the labor recipient. Therefore, the labor contract in labor subcontracting actually involves two contracts and three parties. One contract is the labor contract between the labor recipient (labor subcontracting enterprise) and the worker (labor provider), and the other is the labor contract between the labor subcontractor and the worker (labor provider). One is the labor contract between the worker and the labor recipient, that is, the labor subcontractor (general contractor or professional contractor). This contractual relationship is very similar to the financial lease contract stipulated in the Contract Law. ?

In fact, the collective labor contract itself involves two contracts and three parties. One contract is a labor contract between the labor subcontractor and the labor contractor, and the other is a labor contract between the worker and the labor contractor. From the perspective of legal relations, after the labor subcontractor and the labor subcontractor establish a collective labor contract, the labor construction can be regarded as a debt of the labor contractor to the labor subcontractor. The labor relationship model in labor subcontracting It is an agreement between the three parties that the debt of the debtor (labor contractor) shall be fulfilled by a third party (worker) to the creditor (labor subcontractor). The third party (worker) directly provides labor services to the creditor (labor service subcontractor), and the creditor (labor service subcontractor) pays the labor service fee to the debtor (labor service recipient). If the third party (worker) provides labor services to the creditor (labor service subcontractor), ) The labor services provided do not comply with the provisions of the labor service contract, and the debtor (labor service contractor) shall bear liability for breach of contract to the creditor (labor service subcontractor). During the performance of the labor contract, the debtor (labor contractor) shall pay labor remuneration, including wages and insurance benefits, to the third party (worker) in accordance with the provisions of the labor contract. Of course, the debtor (labor subcontractor) may also entrust the creditor (labor subcontractor) to pay the labor remuneration to the third party (worker). A third party (worker) pays labor remuneration. ?

It should be noted here that the legal operation of the labor contractor must include two forms: one is to establish a labor service with a construction enterprise with labor service qualifications, that is, a labor service subcontractor (general contractor or professional contractor) Subcontractual relationship. The second is that each worker among a number of natural persons who have received pre-job training in a specific area signs a labor contract. ?

What needs to be discussed is whether the relationship between the labor subcontractor and the worker is a labor relationship, a labor relationship, or no relationship. As mentioned above, the Labor Law stipulates that dual labor relationships are not allowed. It is obviously impossible to form a labor relationship. It is not true to say that there is no relationship between workers and labor subcontractors, because workers are indeed providing labor for labor subcontractors and completing a certain amount of work. Obviously, there should be a certain relationship. However, as far as the current law is concerned, there are no clear regulations. This is also the reason why labor disputes occur in labor service projects. In order to clarify the relationship between the three parties, we might as well apply the theory of "collective contract" and "labor contract" in the labor law. Lawyers believe that when a labor relationship is actually formed between the labor subcontractor and the worker, a labor contract should be established. Clarify their respective rights and obligations in the labor contract. Here, the labor contract between the labor subcontractor and the labor recipient can be regarded as a "collective labor contract", while the labor contract between the worker and the labor subcontractor is an "individual labor contract." Here, collective labor relations are adjusted through collective contracts, and individual labor relations are adjusted through labor contracts. The labor contract and the collective contract are combined, with the collective contract taking the lead. ?

Through the labor relations model diagram in labor subcontracting, the labor relations between the three parties are clear: the workers and the labor contractors have established a labor relationship, and naturally the labor relations between the workers and the labor contractors are The relationship is regulated by the "Labor Law"; the worker and the labor contractor also form a labor contract with the labor subcontractor, and the resulting labor-related legal relations are regulated by the "Civil Law". The validity of the labor contract between the worker and the labor subcontractor should be lower than that of the labor contract between the labor contractor and the labor subcontractor, that is, the standard regarding workers' rights in the "individual labor contract" cannot be lower than the corresponding standard in the "collective labor contract" Standards, when the "individual labor contract" conflicts with the "collective labor contract", the relevant provisions of the "collective labor contract" shall prevail. In the process of labor subcontracting, labor disputes caused by work injuries, remuneration, etc. are easy to handle. It is beneficial to allocate and handle the legal relationships between the three parties according to the provisions of the two contracts and the laws they are based on. Protecting individual rights also straightens out the rights and responsibilities of enterprises? Reference materials?

1. ?According to Article 272 of the "Contract Law" "The construction of the main body of the construction project must be completed by the contractor himself" and Article 59 of the "Regulations on the Implementation of the Bidding Law" "The winning bidder shall, in accordance with the contract or through the tenderer Agree that some non-main and non-critical work of the winning project can be subcontracted to others.

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2. Three forms of labor subcontracting?. New Home Network [cited date 2012-