We all know that the company's recruitment and employment need to sign a labor contract with the employee, and pay social security for them, enjoy the corresponding social rights and interests protection, if the employer does not pay, it will bear the corresponding legal consequences. There will also be some special circumstances in the actual employment, so that many companies use the employment of "temporary workers", "short-term workers" and "seasonal workers" to meet certain labor demand, thereby reducing labor costs and improving labor efficiency.
Workers involved in such flexible labor demand are faced with an unstable and unprotected working environment, individual rights and interests are in a gray area and there is no way to appeal, and shallow legal awareness causes many peasant brothers to defend their rights and only know how to raise banners and make trouble... So for the social rights and interests of these temporary employees, does the employer need to pay for them? How can their social labor security be properly resolved?
First, we need to know that there is no concept of "temporary workers" in the current law
Article 1 of the Reply letter of the General Office of the Ministry of Labor to the "Request for Instructions on Temporary Workers and Other Issues" stipulates that the reference to "temporary workers" should still be retained. After the implementation of the Labor Law, all employers and employees fully implement the labor contract system, and all kinds of employees enjoy equal rights in the employer. As a result, the names of temporary workers in the past sense relative to regular workers no longer exist. If an employer employs a worker in a temporary position, it shall sign a labor contract with the employee and establish various social insurances for him in accordance with the law, so that he can enjoy relevant welfare benefits, but the duration of the labor contract may be different. That is to say, there is no longer a so-called "temporary worker" in law! Then discussing whether the company needs to pay social security to "temporary workers" is actually a false proposition. However, there is another legal concept in the current labor law system that is very similar to "temporary workers" - "part-time employment". So what is "part-time employment"?
Article 68 of the Labor Contract Law stipulates that part-time employment refers to the form of employment in which the remuneration is mainly calculated by the hour, and the average daily working hours of the employee in the same employer generally does not exceed four hours, and the cumulative working hours per week do not exceed 24 hours.
Full-time employment, that is, the daily working time does not exceed 8 hours, refers to the statutory normal payment of labor time, that is, voluntary labor time, and the work beyond this time is regarded as additional labor, and the employing unit must pay overtime wages. Cumulative working hours of more than 24 hours per week should be considered full-time employment.
The scope of "workers" in Article 2 of the Labor Law is very broad, including both regular employees and temporary workers. Therefore, whether it is a regular worker or a temporary worker, as long as an employment relationship is formed with the employer, even if this relationship exists for only one day, the temporary worker should also enjoy the rights and interests enjoyed by the regular worker. The amendment to the Employment Contract Law is aimed at labor dispatch workers, which refer to the kind of labor dispatch workers who have signed a contract with a labor dispatch company and are sent to the employing unit by the labor dispatch company. Dispatch workers are not exactly the same as what we are accustomed to call temporary workers.
2. What are the forms of employment currently covered by the current Employment Contract Law?
In terms of employment forms, the Employment Contract Law establishes three legal forms of employment, namely full-time employment, part-time employment and labor dispatch employment. Part-time employment is a flexible form of employment, and the differences with full-time employment are mainly in the following aspects:
1. Working hours are different
2. The form of the agreement is different
3. The consequences of terminating the contract are different
4, pay insurance is different 5, wage payment cycle is different
If the company has hired a "temporary worker", similar to part-time employment, does it need to pay social security or only work injury insurance?
This actually needs to be analyzed according to the specific situation, generally speaking, there are the following situations:
The first scenario is that there is an actual employment relationship between the two parties.
The so-called employment or employment relationship generally refers to all continuous service relationships, and the main income or a large part of the income of the employee or employee who provides the service comes from the enterprise in which he works. If the temporary worker signs a labor contract with the enterprise in an actual employment relationship, he or she also participates in the attendance of the unit and obeys the rules and regulations of the unit. Then temporary workers, like regular employees, should enjoy the same treatment, and enterprises need to pay temporary workers according to "wages and salaries", and at the same time need to help temporary workers withhold and pay social security and personal tax.
For example, the company's cleaning and security personnel, although the personnel of this position are very variable, but if the company usually exists in this position, and employees participate in the attendance of the unit, obey the rules and regulations of the unit, then this situation belongs to the existence of the actual employment relationship and has a certain continuity, should be handled according to wages and salaries, and need to pay social security to these employees, of course, if these employees have paid a copy of other units, there is no need to pay repeatedly.
The second situation: temporary workers provide labor services, and there is no actual employment relationship
If the temporary worker does not have an actual employment relationship with the enterprise, does not sign a term-limited labor contract with the employer, and only provides occasional or on-time services, this situation should be handled according to the labor fee. For example, the decoration of houses such as enterprise offices, the invited painters, painters, and porters temporarily found to carry goods, enterprises generally do not set these positions fixedly, and employees provide non-continuous services. Enterprises receiving services are not required to provide social security to those who provide services.
The third case is that an employee is dispatched by a labor service company
Who should pay social security for dispatched employees? The key depends on how the labor dispatch contract between the labor dispatch company and the employing unit is signed. If the contract stipulates that the employing unit directly pays the labor fee to the labor dispatch company, the social security of the corresponding dispatched past employee shall be paid by the labor dispatch company; if the employing unit does not pay the labor service fee to the labor dispatch company, but only pays the labor intermediary fee, the social security of the corresponding labor service employee shall be paid by the employing unit. Article 24 of the current Labor Contract Law, on the payment of social insurance premiums, working conditions and labor protection, working hours and rest and leave, labor discipline, and assumption of responsibility for work accidents, also adopts the doctrine of agreement before statutory.
4. If a temporary worker finds the employing unit to go to work through the employment information of the third-party flexible employment settlement platform, but suddenly dies of illness during the work, does such an accident belong to the responsibility of the platform or the responsibility of the employing enterprise or the responsibility of the flexible employee?
For example: if A finds enterprise B to do temporary work on the flexible employment settlement platform - the trade union, and accidentally dies suddenly in the process of going to the construction site, goes to the construction site for a few days, and accidentally dies suddenly on the way, then this kind of unexpected sudden death that does not belong to the employment site is to be compensated by the employing enterprise or by the third-party platform or the flexible employee himself to purchase accident insurance?
At present, the state is encouraging flexible employment, but it does not advocate flexible employment, and there is no clear legal rights for flexible employees who are not dispatched by labor. In addition to the current main body description of full-time employment, part-time employment and labor dispatch employment, other flexible employment personnel who are independent labor exporters cannot find a clear responsible entity to provide protection once the above situation occurs.
Therefore, based on the flexible employment characteristics of the construction industry, it is also hoped that the state can introduce a guarantee mechanism to regulate the independent labor export of non-labor dispatch workers as soon as possible, so that enterprises dare to use labor flexibly, so that ordinary people are also willing to flexibly employment to reduce the pressure of social employment, so that third-party platforms can also let go of operations and no longer worry about business development risks.
For the new employment platform that can realize shared employment and solve the online labor settlement of flexible employees to reduce labor disputes, the state should also introduce incentive policies and improve the tripartite guarantee mechanism to prevent long-term business risks and help flexible employees find jobs at any time; help enterprises reduce burdens and improve efficiency to achieve worry-free application of short-term workers and skilled workers; so that the platform can make more positive contributions in reducing employment pressure and advocating labor rights and interests.