Labor Contract Law and Labor Dispatch

You are violating the labor law, and the provisions that violate the law are of course not legally valid.

According to Article 26 of the Labor Contract Law of the People's Republic of China, the following labor contracts are invalid or partially invalid:

1) Using fraud, coercion or taking advantage of the danger of others to cause the other party to conclude or modify a labor contract contrary to its true intentions;

2) The employer exempts itself from statutory liability and excludes the rights of employees;

3) Violating mandatory provisions of laws or administrative regulations.

If there is a dispute over the invalidity or partial invalidity of the labor contract, it shall be confirmed by the labor dispute arbitration institution or the people's court. 】

In other words, the content of the employment contract must comply with the law and be legal and valid without the content of the above-mentioned acts.

The unilateral termination of an employee by an employer is in accordance with Articles 39 and 40 of the Labor Contract Law of the People's Republic of China, and this provision is legal and valid.

1. Article 58 of the Labor Contract Law stipulates the remuneration of employees, and the clause written in your labor contract is an agreement on the conditions for terminating the labor contract, and there is no conflict between the two, so the clause is legal and valid.

2. It is invalid only under the circumstances specified in Article 26 of the Labor Contract Law ("The following labor contracts are invalid or partially invalid: (1) using fraud, coercion or taking advantage of the danger of others to make the other party conclude or modify the labor contract contrary to the true intention; 2) The employer exempts itself from statutory liability and excludes the rights of employees; 3) Violating mandatory provisions of laws or administrative regulations. ”

Paragraph 1 of Article 58 of the Labor Contract Law stipulates that a labor dispatch entity is an employer referred to in this Law and shall fulfill its obligations to its employees. In addition to the matters specified in Article 17 of this Law, the labor contract concluded between the labor dispatch unit and the dispatched worker shall also specify the employing unit of the dispatched worker, the dispatch period, the position and other circumstances.

This provision clarifies the requirements for the employer in the labor dispatch and the conclusion of the labor contract. The Employment Contract Law regulates the employment contract relationship, but since labor dispatch is composed of three parties, it is necessary to identify a clear employer in order for many provisions of the Labor Contract Law to be applied to this form of employment. This provision of the Labor Contract Law makes this clear.

This provision has two aspects. First, it clarifies the employer in labor dispatch. That is, the labor dispatch unit is the employer referred to in this Law and shall fulfill the obligations of the employer to the employee.

In other words, in the form of labor dispatch, the labor dispatch entity is the employer, which shall undertake the various obligations of the employer in the Labor Contract Law and other laws and regulations, and conclude a labor contract with the dispatched worker. Second, a labor contract should be concluded to clarify the respective rights, obligations and responsibilities of the labor dispatch entity and the employee. This article stipulates that the employment contract shall not only specify the matters specified in Article 17, that is, the necessary terms and conditions that should be required for the employment and sales of the same labor

The name, address and legal representative or principal responsible person of the employer, the name, address and resident ID card or other valid ID card number of the employee, the term of the labor contract, the content and place of work, working hours, rest and vacation, labor remuneration, social insurance, labor protection, working conditions and occupational hazard protection, other matters that shall be included in the labor contract as stipulated by laws and regulations, relevant agreed matters, etc., shall also indicate the employing unit of the dispatched worker and the dispatch period, job position, etc. If the labor dispatch entity and the dispatched worker have an employment contract that specifies the above-mentioned matters, the relationship of labor rights and obligations between the two is clear and concrete.

Labor Contract Law of the People's Republic of China

Article 66.

Labor contract employment is the basic form of employment in China. Labor dispatch employment 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 positions that last for no more than six months;

Ancillary jobs refer to non-main business positions that provide services to main business positions; Empty skins.

Substitute jobs refer to positions in which employees of the employer are unable to work due to full-time study, vacation, etc., and can be replaced by other workers. The employing unit shall strictly control the number of labor dispatch workers, and shall not exceed a certain proportion of its total number of employees, and the specific proportion shall be prescribed by the labor administrative department.

Legal analysis: To operate the labor dispatch business, it shall apply to the labor administrative department for an administrative license in accordance with the law; If the source is allowed to be destroyed, the corresponding company registration shall be handled in accordance with the law. Without permission, no unit or individual may operate labor dispatch business.

Legal basis: Labor Contract Law of the People's Republic of China

Article 57 The following conditions shall be met for the operation of labor dispatch business:

1) The registered capital shall not be less than RMB 2 million;

2) Have a fixed place of business and facilities suitable for carrying out business;

3) Have a labor dispatch management system that complies with the provisions of laws and administrative regulations;

4) Other conditions provided for by laws and administrative regulations.

To operate labor dispatch business, it shall apply for an administrative license from the labor administrative department in accordance with the law; If it is permitted, the corresponding company registration shall be handled in accordance with the law. Without permission, no unit or individual may operate labor dispatch business.

Article 58 A labor dispatch unit is an employer as used in this Law and shall perform its obligations to its workers. In addition to the matters specified in Article 17 of this Law, the labor contract concluded between the labor dispatch unit and the dispatched worker shall also specify the employing unit of the dispatched worker, the dispatch period, the position and other circumstances.

The labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for a period of more than two years, and pay the labor remuneration on a monthly basis; During the period when the dispatched worker is not working, the labor dispatch unit shall pay him monthly remuneration in accordance with the minimum wage standard stipulated by the local people.

The Labor Contract Law stipulates that labor dispatch is generally carried out in temporary, auxiliary or substitute positions. Labor dispatch requires the signing of a labor dispatch contract or labor dispatch agreement with the employee. In addition, labor dispatch units are not allowed to recruit workers on a part-time basis.

A labor dispatch contract refers to the contract signed between the worker and the labor dispatch company and the contract signed between the employer and the dispatch company, and the relationship between the worker, the dispatching company and the service unit involves three parties. For public institutions, it is used more, and when the general public institution sells the field and does not have the establishment but needs to employ people, it will use dispatched personnel, and the dispatched personnel are the human resources of the labor dispatch company, and they do not belong to the employees of the employer for the time being, and they can be transferred to the employees of the employer after the employer has a establishment. However, the benefits and social insurance enjoyed are the same as those of the regular employees of the employer.

Therefore, if the employee and the employer are dismissed or resigned, the employee first needs to contact the labor dispatch agency and look at the treatment of the dismissal or resignation in the contract. Attached: The subject of the labor dispatch contract stipulates that the subject of the labor dispatch contract includes the labor dispatch unit and the dispatched worker, among which, the establishment of the labor dispatch unit must meet the statutory requirements.

Article 57 of the Labor Contract Mold Matching Law stipulates that "a labor dispatch unit shall be established in accordance with the relevant provisions of the Company Law, and the registered capital shall not be less than 500,000 yuan. According to this provision, the labor dispatch unit shall be a company established in accordance with the relevant provisions of the Company Law, including a limited liability company and a stock ****, which is an enterprise legal person, has independent legal person property, enjoys the property rights of a legal person, and is liable for the company's debts with all its property.

To establish a labor dispatch unit, it shall apply to the company registration authority for establishment and registration in accordance with the law. If the establishment conditions stipulated in the Company Law are met, they shall be registered as a limited liability company or a share by the company registration authority; If it does not meet the prescribed conditions for establishment, it shall not be registered as a limited liability company or a company with limited shares. The business scope of the company shall be stipulated in the articles of association of the company and shall be registered in accordance with the law.

The company may amend its articles of association and change its business scope, but it shall go through the registration of the change.