Do not damage the rights and interests of the workers with "reverse dispatch"

In order to avoid legal responsibilities, the employer is required to sign a labor dispatch contract with the labor dispatch company with the designated labor dispatch company, so that the workers will continue to engage in the original labor in the name of sending employees, so as to change themselves to change themselves Successor has no labor relationship with workers. Borrowing the "reverse dispatch", artificially turned labor relationships into labor dispatch relationships, which led to different rewards for the dispatched workers and the employees of the employees.

Retrospective

In April 2021, the Heyang County People's Court of Weinan City accepted such a complaint, please confirm the case of labor relationship disputes.

On January 13, 2016, the plaintiff Zhang entered the defendant China Postal Savings Bank Co., Ltd. to work as a county branch of the Ministry of Credit, received management and supervision, and obtained labor remuneration from the branch. On April 1, 2016, and July 1, 2019, the branch asked Zhang to sign a contract with the two labor service companies respectively, and agreed that Zhang was sent to the branch by the two labor companies to continue the original work.

On June 30, 2020, the branch returned Zhang, who ranked behind the test on the grounds that the reform of the institutional reform was reduced. On July 14, 2020, Zhang applied for arbitration to the labor dispute arbitration commission, requesting confirmation to the labor relationship with the branch and was rejected. Zhang did not accept the decision of the arbitration and filed a lawsuit with the people's court. The case was reviewed by the Heyang County People's Court by the Weinan Intermediate People's Court.

Trial referee

The Heyang County Court of Hearing believed that the plaintiff Zhang was recruited to work in the defendant's unit on January 13, 2016 to serve as a collection officer of the Ministry of Credit, accepting the defendant's management and supervision, and obtaining labor remuneration from the defendant. The basic characteristics, so the plaintiff established a labor relationship with the defendant since January 13, 2016. On April 1, 2016, and July 1, 2019, the defendant arranged the plaintiff with the plaintiff with the plaintiff's compensation with the plaintiff's relationship with the plaintiff and paid the economic compensation. Send the plaintiff to the defendant's unit to continue to work. This approach is actually designated by the defendant to send a labor dispatch company, turning workers who form the factual labor relationship with them into labor dispatch personnel, in order to avoid the legal responsibility and obligations of employers, and prohibit employers from setting up labor dispatch units in the labor contract law. The legislative intention of sending workers to the unit conflict is tantamount to setting up a labor dispatch unit to send workers to the unit. The interests of workers, so the labor contract signed by the plaintiff with the above two companies should be an invalid contract.

According to Article 7 of the Labor Contract Law of the People's Republic of China, the court ruled that the plaintiff Zhang and the defendant China Postal Savings Bank Co., Ltd. had a labor relationship from January 13, 2016 to June 30, 2020 Essence

Expert Reviews

The Deputy Director of the Science and Education and Research Office of the School of Civil Law Law of the School of Civil and Commerce of Northwestern Political Science and Law, the director of the Institute of Disputes of the Disputes of the Civil and Commercial Disputes, and the Ph.D. in Law believe that the labor dispatch is different from the labor contract from the labor contract. The dispatch unit has established a labor relationship with the dispatched workers, and the labor dispatch unit dispatches the worker to the employer to be dispatched to work under the command and management of the employer under the command and management of the employer. In the Labor Contract Law, the establishment of labor dispatch relationships has made corresponding mandatory provisions. The original intention of the establishment of the labor dispatch system is to reasonably reduce the burden and create more employment opportunities for workers, but there are still more unsatisfactory or even illegal situations in practice.

In judicial practice, even if the labor dispatch unit and the employer signed a labor dispatch agreement with the employer, the cooperation model of the two parties can be known that the employer conducts labor management of the workers. Workers pay wages, etc. In this case, there is a real labor relationship between the employer and the workers. The employer and the employees of the unit were not fulfilled, or after the labor contract was terminated with the workers, the labor dispatch units designated by the workers and the unit re -established the labor contract, and the work units were assigned to work, which constituted a broad sense. "Reverse dispatch" should be identified as invalid labor dispatch. In the case, because the employer constitutes a "reverse dispatch" and fake dispatch to the workers, the two should be identified as a factual labor relationship, not labor dispatch.

The "Government Purchase Service Administrative Measures" implemented by the Ministry of Finance from March 1, 2020 clearly stipulates that the state organs are prohibited from working by labor dispatch. The Labor Contract Law clearly stipulates that labor dispatch employment is only a supplementary form of employment in Chinese enterprises. It should have been used as a labor dispatch system for temporary or auxiliary methods. It must not be used by the unit excessive or even deformed. It must protect the basic rights of equal pay for workers in workers.

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