Labor outsourcing is not a form of employment, and its legal definition is called "contract". Outsourcing contract is a commercial form defined by law, while labor dispatch is only a clear form of employment in labor contract law, and there is an essential difference between the two. Based on this, the two cannot be mixed together.
Labor outsourcing refers to the outsourcing of some of the company's business or functional work content to relevant institutions, and arranging personnel to complete the corresponding business or functional work content according to the company's requirements.
Labor dispatch refers to a form of employment where an employer and a labor dispatch unit sign a labor dispatch agreement, and the labor dispatch unit sends personnel to the employer to engage in the work arranged by the employer.
The commonality between labor outsourcing and labor dispatch is that employers or employers do not sign labor contracts with workers.
Their difference lies in:
1. Different applicable laws. Labor dispatch is governed by the Labor Contract Law, while labor outsourcing is governed by the Contract Law.
2. Labor contracting units can be individuals, legal persons, or other entities. It is not recommended to outsource to individuals. In fact, individual outsourcing is often judged as a labor relationship.
The labor dispatch unit must be established in strict accordance with relevant regulations, with a registered capital of no less than 500000 yuan as a legal entity; The work completed by workers is the business or functional activity of the enterprise.
3. The responsible parties for employee management are different. This is the main difference between the two.
The employer does not directly manage the employees of the labor contractor, and the work organization form and working time arrangement are determined by the labor contractor themselves
Employees of labor dispatch units must work in accordance with the work organization form and work schedule determined by the employer.
4. Labor outsourcing is generally settled based on the predetermined labor unit price and the amount of work completed by the labor contractor, and the subject matter of the contract is generally "work"
Labor dispatch is generally settled based on the agreed number of dispatched personnel according to the dispatch time and cost standards, and the contract subject is generally "person".
The consequences of illegal behavior vary.
The labor contractor shall not bear any responsibility for the employees of the labor contractor. Labor outsourcing is governed by the Contract Law, and the defaulting party is not only liable for breach of contract as stipulated in the contract, but also liable for civil compensation.
If damage is caused to the dispatched workers during labor dispatch, the labor dispatch unit and the employer shall bear joint and several liability for compensation in accordance with the Labor Contract Law.
In practical operation, enterprises should pay attention to the following matters when signing labor outsourcing contracts and labor dispatch contracts:
1. The contract name must clearly indicate whether it is a labor outsourcing contract or a labor dispatch contract.
2. Clarify the subject matter of the contract and the settlement method, whether the subject matter of the contract is "matter" or "person", and whether the cost settlement method is workload or service time.
3. Clarify the management responsibility subject of workers
The labor outsourcing contract may require the labor contractor to comply with the employer's safety management and rules and regulations; However, it should be noted that the contractor shall be responsible for the working hours and content of the workers.
In the labor dispatch contract, the employer requires the labor dispatch unit to sign a labor contract with the employee. In the dispatch agreement, according to the requirements of the Labor Contract Law, the number of dispatched positions and personnel, the dispatch period, the amount and payment method of labor remuneration and social insurance premiums, as well as the responsibility for violating the agreement should be stipulated. Clearly, the labor dispatch unit shall inform the dispatched workers of the content of the labor dispatch agreement.
4. Agree on tax and financial treatment.
In the labor outsourcing contract, it is stated that the handling of labor fee tax can stipulate that the fees paid by the enterprise are the price including tax, and the contractor is required to provide an invoice.
The labor dispatch contract stipulates that the wages and taxes of the workers shall be borne by the workers themselves, and the settlement of dispatch expenses with the enterprise can agree on tax and invoice processing.
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