2023-02-24 15:38:52
Human resource outsourcingIt involves two layers of legal contact: contractual communication between the client and the contractor, and legal labor communication between the contractor and its "workers engaged in outsourced operations," whereas there is no labor, service, or other employment communication between the contracting party and the outsourced employee.
1. Analysis of Legal Issues in Human Resource Outsourcing
Compared to human resource dispatch, legal communication in human resource outsourcing is relatively simple, primarily involving civil rights and responsibilities between the contracting unit and the outsourcing unit.
Currently, Chinese laws and regulations have not yet established detailed legal rules for human resource outsourcing. Contractors and outsourcing units generally sign human resource outsourcing agreements to regulate the rights and responsibilities of both parties. Essentially, under the form of human resource outsourcing, the primary responsibility of the outsourcing unit is to complete relevant tasks according to the requirements of the contracting unit and deliver the results of the tasks, while the primary responsibility of the contracting unit is to pay remuneration according to the contract.
In detailed matters, the contracting unit primarily supervises and inspects the outsourcing unit's operational effectiveness, but does not handle the relevant personnel or detailed operational progress of the outsourcing unit. It is evident that human resource outsourcing and contracting liaison are essentially consistent. In practice, the legal liaison established between the contracting unit and the outsourcing unit is generally regarded as contracting, while the rules of the Contract Law regarding contracting contracts are applied to safeguard and realize the civil rights and responsibilities of the parties such as the delivery of affairs and payment of remuneration.
However, since most human resources outsourcing is still within the client's factory premises and the client needs to control product quality, the client generally carries out a certain degree of processing. However, it is important to distinguish between the authority and method of handling the worker. The difference in labor handling authority lies in the distinction between human resource outsourcing and human resource dispatch centers.
It must be strictly distinguished from human resource dispatch. The client must stop direct handling of outsourced workers. The client's requirements and instructions should be directly issued to the contractor, who then instructs the contractor and their personnel at the labor site to handle the outsourced work, thereby indirectly achieving control intent. The client's rules and guidelines should also be required in relevant contracts to be appended or otherwise required, so that the contractor handles outsourced employees according to the client's standards and requirements.
2. Practical Considerations in Human Resource Outsourcing Operations
1. When enterprises regulate human resource outsourcing, it is necessary to strictly distinguish between the handling interface between the client and the contractor. It is necessary to clearly recognize that once the relevant affairs are contracted, they become part of the contractor's production and business operations. The contracting party must withdraw from the detailed handling of the matter, at least through the following steps:
(1) Recruitment of outsourced workers, signing, modification, termination, and exemption of labor contracts. The outsourcing party is an independent civil entity, and the above operations should be performed and undertaken by them, not by the client.
(2) Confirmation and verification of compensation standards for outsourced employees. Confirmation of employee compensation standards and performance checks are part of the company's operations and should be handled by the outsourcing party. Details also include rewards and penalties for employees, selection of outstanding individuals, and more
(3) Labor protection, occupational hazard protection, and social insurance processing, etc.
(4) Detailed arrangements for production and business operations. This includes staff scheduling, work hours, rest and leave, detailed assignment and scheduling, etc. However, if the contractor's arrangements become disorderly or unreasonable, which may prevent them from completing the outsourcing audit and tasks as agreed, the client should require the contractor to rectify the arrangements, but not directly schedule or arrange the outsourced personnel's operations.
(5) Other matters that may cause disrupted labor communication or blurred employee identity verification.
2. The client's handling of outsourcing matters should primarily reflect the following:
(1) Formulate inspection and inspection standards for outsourced operations and verify the effectiveness of operations according to the standards;
(2) Based on the inspection results of outsourced matters, determine the remuneration payable to the contractor and the sanctions measures for breach of contract;
(3) Responsible for confidentiality of client data and other information touched by the outsourced firm;
(4) Responsible for communication and liaison with outsourcing parties and coordinating related matters;
(5) Based on the outsourcing contract, supervise outsourcing affairs and handle other tasks stipulated in the contract.
3. Carefully select contractors and avoid risks.
(1) For any qualification requirements encountered in outsourcing matters, the outsourcing party must possess the corresponding qualifications; otherwise, the contract will be invalid, and the contractor and contractor will bear joint liability for personnel casualties and other matters;
(2) The outsourcing party must have the capability to handle production arrangements in accordance with legal requirements, have safety production handling guidelines and corresponding safety production handling personnel, ensure safety production equipment meets requirements, and provide labor protection supplies in place. Any "three-no" company without a workplace, without proper staff, or without guaranteed financial support will be deemed to lack safe production conditions; Otherwise, according to Article 86 of the Safe Production Law: "If a production business unit subcontracts or leases its production business projects, premises, or equipment to units or individuals that do not have the conditions or qualifications for safe production, it shall be ordered to make corrections within a specified period and illegal gains shall be confiscated; …… If a production safety accident causes harm to others, the contractor and lessee shall bear joint and several liability for compensation. ”
