Dharma Eye | The issue of judicial recognition of labor dispatch for non-"three-gender" positions
【Zhuhai lawyer, Zhuhai legal consultation, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm】
Special statement: This article is reprinted in Beijing Jingshi (Chongqing) Law Firm, and only represents the author's own views.
The author of this article is lawyer Feng Jianbo
Article 66 of the Labor Contract Law of the People's Republic of China stipulates that "labor contract employment is the basic form of employment for enterprises in mainland China. Labor dispatch is a supplementary form and can only be implemented in temporary, auxiliary or substitute jobs.
The temporary jobs provided for in the preceding paragraph refer to posts that last for no more than six months, auxiliary jobs refer to non-main business posts that provide services to the main business posts, and substitute jobs refer to the posts in which the workers of the employing unit are unable to work for a certain period of time due to full-time study, vacation, or other reasons, and can be replaced by other workers.
The employing unit shall strictly control the number of dispatched workers, which shall not exceed a certain percentage of its total number of employees, and the specific proportion shall be prescribed by the labor administrative department of the State Council.
However, in the actual economic production work, some enterprises still implement labor dispatch and employment in temporary, auxiliary or substitute positions, how is this evaluated in judicial practice in law?
Adjudication Opinion 1: Article 66 of the Labor Contract Law of the People's Republic of China is a regulatory norm and cannot be used as a basis for determining the invalidity of a labor dispatch agreement.
Judicial Case 1: The Intermediate People's Court of Huai'an City, Jiangsu Province (2023) Su 08 Min Zhong No. 722 Liu Chao and Huai'an Branch of China Mobile Tietong Co., Ltd. held that China Mobile Tietong Huai'an Branch and Puen Communication Huai'an Branch should not be jointly and severally liable. Liu Chao claimed that he had always had a de facto labor relationship with China Mobile Railway Huai'an Branch, and that China Mobile Railway Huai'an Branch had signed labor contracts with Puen Communication Huai'an Branch and Kunshan Wan** Communication Engineering Co., Ltd. Huai'an Branch through reverse dispatch. In this regard, the court held that the "Framework Agreement on "Integrated" Comprehensive Service Labor Subcontracting of China Mobile Tietong Jiangsu Branch from 2017 to 2019 signed by China Mobile Tietong Jiangsu Branch (Party A) and Kunshan Wan** Communication Engineering Co., Ltd. (Party B) and the framework agreement on the relevant comprehensive business support service centralized procurement project signed by China Mobile Tietong Jiangsu Branch (Party A) and Puen Communication Technology Co., Ltd. (Party B) do not violate the mandatory provisions of laws and regulations, and are legal and valid. The above-mentioned agreement is not a labor dispatch agreement, and even if it is a labor dispatch agreement, Article 66 of the Labor Contract Law of the People's Republic of China is a regulatory norm and cannot be used as a basis for determining the invalidity of the labor dispatch agreement.
Judicial Case 2: Gansu Provincial High People's Court (2019) Gan Min Shen No. 1496
In the civil ruling on the retrial review and trial supervision of the labor contract dispute between Liu Haishi and the State Grid Gansu Electric Power Company Baiyin Power Supply Company, it was held that (1) the validity of the labor dispatch contract was issued. Article 66 of the Labor Contract Law of the People's Republic of China stipulates that labor dispatch is only applicable to temporary, auxiliary and substitute jobs, which is an administrative provision rather than an effective provision. The grounds for retrial of the applicant's application for retrial cannot be sustained.
Adjudication Opinion 2: To circumvent the employment liability of enterprises through labor dispatch and to achieve illegal purposes in a lawful form, the court should strictly determine the validity of such employment contracts in accordance with the law and protect the legitimate rights and interests of the workers in accordance with the law.
Judicial case 3: Heilongjiang Provincial High People's Court (2021) Hei Min Zai No. 444 Motherland Fu and Daqing Jiasheng Construction and Installation Engineering Co., Ltd. held that in this case, Motherland Fu's job was the project manager of Jiasheng Company, and he had the qualification of a second-level constructor required by the post, and handled important matters such as the confirmation of engineering materials, the confirmation of engineering quantity, the confirmation of project price, and the confirmation of engineering visa forms on behalf of Jiasheng Company, and belonged to the management personnel in the work. The labor provided by the Motherland Fu in his post does not meet the temporary, auxiliary or substitute characteristics of the above-mentioned provisions. And in the case of Jiasheng company in the motherland and its job, its superior unit has entrusted Daqing Qinghong Human Resources Service Co., Ltd. and Daqing Ronghui Human Resources Service Co., Ltd. to recruit the staff of the position, and the personnel selected by the two companies with the same conditions are still the motherland. In this case, there is no need to replace personnel through labor dispatch, that is, after the implementation of labor dispatch, the actual job position, the nature of the work, and the salary and treatment of the Motherland Fu have not changed, but the wages and remuneration that should be paid by Jiasheng Company to the Motherland Fu and the social insurance premiums that should be paid to the Motherland Fu are handed over to the dispatch company, and then the dispatch company pays the Motherland Fu and pays to the social insurance institution, and the labor dispatch company charges a management fee of 50 yuan per month in the process. In the retrial, the parties should carefully examine whether there is a purpose to evade the employment responsibilities of the enterprise and achieve the purpose of covering up the illegal purpose in a lawful form, and on this basis, the validity of such employment contracts shall be determined strictly in accordance with the law, and the legitimate rights and interests of the workers shall be protected in accordance with the law.
Adjudication Opinion 3: Although the laws of the mainland have restrictions on labor dispatch jobs, it is not inevitable that the parties will actually dispatch the labor unions to comply with the law.
Judicial Case 4: In the civil ruling of the Anhui Provincial High People's Court (2019) Wan Min Shen No. 2694 Xuan Lihai and Chen Li confirming the retrial review and trial supervision of labor relations disputes, the retrial applicant relied that the court of second instance found that there was a labor dispatch relationship between Xu Ben and Hon Hai Company, which violated Article 66 of the Labor Contract Law of the People's Republic of China and Article 3 of the Interim Provisions on Labor Dispatch. The court of second instance clearly erred in applying the law. In accordance with the provisions of Article 200, Items 2 and 6 of the "Civil Procedure Law of the People's Republic of China", a request for a retrial of this case is requested. The Anhui Provincial High People's Court held that although the mainland law restricts the employment of labor dispatch jobs, it is not inevitable that the actual dispatch labor union of the parties will comply with the law, so it cannot be inferred that the relationship between the parties is not a labor dispatch relationship based on the actual dispatch employment situation of the parties. Xuan Lihai and Chen Li's claim that the original trial court erred in applying the law cannot be sustained.
Adjudication Opinion 4: The labor dispatch act does not comply with the provisions of Article 66 of the Labor Contract Law of the People's Republic of China, and should bear administrative liability, which does not affect the validity of the labor dispatch contract.
Judicial case 5: The Intermediate People's Court of Guangzhou Municipality, Guangdong Province (2023) Yue 01 Min Zhong No. 34884 Shen and a company in Guangdong held that if the employer violates Article 66 of the Labor Contract Law of the People's Republic of China and Article 3 of the Interim Provisions on Labor Dispatch, Article 4 Regarding the relevant provisions on the scope and proportion of labor dispatch employment, the labor can be handled by the administrative department of human resources and social security in accordance with the law, and does not affect the validity of the labor dispatch contract.
Judicial Case 6: Intermediate People's Court of Guangzhou Municipality, Guangdong Province (2023) Yue 01 Min Zhong No. 28280 Chen, In the civil judgment of the second instance of labor disputes between a company and others, it was held that with regard to the issue of labor relations and economic compensation, CIIC had labor dispatch qualifications during the period involved in the case, and that after Chen Yonghui joined CIIC in January 2009, he was dispatched to work at Jimagao Company and signed labor contracts with CIIC six times, and the parties actually performed the corresponding contracts for nearly 13 years. It is clearly understood that although the labor dispatch act involved in the CIIC case did not comply with the provisions of Article 66 of the Labor Contract Law of the People's Republic of China, according to the above-mentioned legal provisions, CIIC should bear administrative liability for violating the above provisions, and the Labor Contract Law of the People's Republic of China did not make any provision denying the validity of the labor dispatch agreement and the labor contract.
Adjudication Opinion 5: If an employer is reversely dispatched to the unit in the form of labor dispatch, it should make a negative evaluation.
Judicial Case 7: Chongqing No. 1 Intermediate People's Court (2015) Yu Yi Zhong Fa Min Zhong Zi No. 04825 You Guqiang v. Guangzhou Excel Logistics Co., Ltd. Chongqing Branch held that after the Zhihong Branch signed a labor contract with You Guqiang on behalf of Xindahan Company, You Guqiang and Zhihong Branch still had an employment relationship. Main reasons:
First, on July 1, 2014, the process of signing the labor contract between the personnel manager of the company on behalf of Xindahan Company and You Guqiang showed that Xindahan Company did not jointly negotiate with You Guqiang to reach an agreement to establish an employment relationship between them, and the agreement on the important content of the employee's job position was significantly inconsistent with the actual situation, and after the contract was concluded, Xindahan Company did not perform the necessary management duties as an employer or dispatching unit, and the contract was only formal.
Second, You Guqiang joined Excel Company for many years to engage in handling work, and during the existence of the employment relationship between the two parties, Excel Branch signed a labor contract with You Guqiang on behalf of Xindahan Company on July 1, 2014 without terminating or terminating the de facto labor relationship with You Guqiang, and dispatched You Guqiang to the Company to continue to engage in handling work, and the working place and position did not change, and You Guqiang was changed to a non-employee of the unit in the form of a contract. According to the spirit of Article 66 and Article 67 of the Labor Contract Law of the People's Republic of China, labor dispatch employment can only be carried out in temporary, auxiliary or substitute positions, and the employer shall not reverse dispatch the employee who has established an employment relationship to the employer in the form of labor dispatch. The reverse dispatch behavior reversed the relationship between the labor dispatch unit, the employing unit and the employee, changed the ownership of the employee, increased the difficulty of protecting the rights of the employee, and harmed the interests of the employee.
Lawyer's point of view
Feng Jianbo, a lawyer at Beijing Jingshi (Chongqing) Law Firm, believes that if an employer carries out labor dispatch in a position that is not "three genders", it should be regarded as a direct establishment of an employment relationship between the employer and the dispatched worker.
Although some divisions currently hold that Article 66 of the Labor Contract Law of the People's Republic of China is a regulatory norm and that the violation of this provision should bear administrative liability and does not affect the validity of the labor dispatch contract, according to the legislative spirit of Article 67 of the Labor Contract Law of the People's Republic of China and Article 154 of the Civil Code, it should be determined that the labor dispatch agreement concluded between the labor dispatch entity and the employing unit is invalid as a civil juristic act of malicious collusion to damage the legitimate rights and interests of the employee.
On the one hand, it is conducive to the effective realization, protection and development of the legitimate rights and interests of workers, and on the other hand, it is conducive to optimizing the business environment and building harmonious labor relations.
Note: All pictures in the article are from the Internet
Lawyer Feng Jianbo, deputy director of the Youth Working Committee of Beijing Jingshi (Chongqing) Law Firm, is a cutting-edge lawyer, a master of law from a double first-class university, and a national second-level psychological counselor. In recent years, he has participated in a number of bankruptcy reorganization (liquidation) cases, involving more than 100 million yuan, and represented more than 100 litigation and non-litigation cases in the field of civil and commercial law. At present, he serves as the legal counsel of a number of self-media and the public interest lawyer of the online legal service group of Canggou Township, Wulong County.
Intensive legal affairs in the field of civil and commercial law: marriage and family legal affairs, corporate legal affairs, new media legal affairs.
His academic papers include "Research on the Bearing of Civil Liability for Third Party Tort in Marital Relations", etc., and he has published hundreds of professional articles on new media platforms.