What is the ownership of the employment relationship? What is the place of attribution of the employ

Labor dispatch refers to the labor contract signed between the labor dispatch agency and the dispatched worker, and the dispatched worker pays the labor service to the dispatching enterprise, and the labor contract relationship exists between the labor dispatch agency and the dispatched worker, but the fact of labor payment occurs between the dispatched worker and the dispatching enterprise.

Legal basis] Article 58 of the Labor Contract Law states that a labor dispatch unit is an employer for the purposes of this Law and shall fulfill its obligations to 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.

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 ownership of labor rights should be handled by the contractor, and generally speaking, it is possible to understand their relevant situation and handle their labor relations.

1. The salesman of the enterprise management company will be dispatched to your company for the company, and the labor relationship is owned by the enterprise management company (but I think you should check the outsourcing qualification of the other company).

2. In case of work-related injury or labor dispute, the enterprise management company and the actual employer shall be jointly liable.

The place of ownership of the labor relationship is the place where the labor contract is performed, which refers to the actual place of work of the employee.

According to Article 12 of the Rules for the Handling of Labor and Personnel Dispute Arbitration issued by the Ministry of Human Resources and Social Security, the domicile of the employer shall be the place where the employer is registered and registered; The place of performance of the labor contract refers to the place where the employee's actual salary is paid.

Rules for Handling Labor and Personnel Dispute Arbitration Cases issued by the Ministry of Human Resources and Social Security

Article 12 The place of performance of the labor contract shall be the place of the actual workplace of the worker, and the place where the employer is located shall be the place where the employer is registered and registered. If the employer has not been registered or registered, the place where its investor, start-up unit or competent department is located shall be the place where the employer is located.

If there is a change in the place of performance of the labor contract and the location of the employer after the case is accepted, the jurisdiction of dispute arbitration shall not be changed.

Where more than one arbitration commission has jurisdiction, the arbitration commission that accepts the case first shall have jurisdiction.

1. How to confirm the existence of an employment relationship between the two parties.

According to the Notice of the Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations (No. 12 of 2005 issued by the Ministry of Labor and Social Security), an employment relationship shall be established if an employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances:

1) The employer and the worker meet the subject qualifications stipulated by the laws and regulations;

2) The labor rules and regulations formulated by the employer in accordance with the law are applicable to the workers, and the workers are subject to the labor management of the employer and engage in paid labor arranged by the employer;

3) The labor provided by the employee is an integral part of the employer's business.

If the employer has not signed a labor contract with the employee, the following documents may be referred to when determining the existence of an employment relationship between the two parties:

1) Wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums;

2) "Work Permit", "Cover Section Service Certificate" and other documents that can prove the identity issued by the employer to the employee;

3) Recruitment records such as the "registration form" and "registration form" filled in by the employee;

4) Attendance records;

5) Testimony of other workers, etc.

Since many companies have subordinate branches in various places, and according to the relevant provisions of Chinese law, the court accepting labor disputes is often the court of the place where the labor relationship belongs. However, many employees do not understand what is the place of ownership of the labor relationship, in fact, the place of ownership of the labor relationship is the place where the labor contract is performed, and if the employee wants to sue the employer, he or she can directly file a lawsuit with the court where the labor contract is performed.

Legal analysis: The place of ownership of the labor relationship is the place where the labor contract is performed, which refers to the actual place of work of the employee. Stupid.

Legal basis: Rules for Arbitration of Labor and Personnel Disputes Article 12 The place of performance of the labor contract shall be the place where the employee actually works and the place where the employer is located shall be the place where the employer is registered and registered. If the employer has not been registered or registered, the place where its investor, start-up unit or competent department is located shall be the place where the employer is located.

Legal analysis: The proof of termination of the labor contract shall include the term of the labor contract, the date of dissolution or termination of the labor contract, the position of the employee, the number of years of service in the employer, and the reasons for the termination of the labor contract. The employer shall issue a certificate of dissolution or termination of the labor contract upon dissolution or termination, and complete the formalities for the transfer of the employee's file and social insurance relationship within 15 days.

According to the above provisions, the behavior of the employer is illegal, and it can be complained to the local labor inspection or labor arbitration.

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

Article 7 An employer shall establish a labor relationship with a worker from the date of employment. Units that use quietly clear personnel shall establish a roster of employees for future reference.

Article 8 When an employer recruits a worker, it shall truthfully inform the worker of the work content, working conditions, work location, occupational hazards, production safety status, labor remuneration, and other information that the worker requires to know; The employer has the right to know the basic information of the employee directly related to the labor contract, and the employee shall truthfully explain it.

Regulations on the Implementation of the Labor Contract Law》 Article 24 The certificate of dissolution or termination of the labor contract issued by the employer shall clearly state the term of the labor contract, the date of dissolution or termination of the labor contract, the position of the employer, and the number of years of service in the employer.

Legal analysis: The place of ownership of the labor relationship is the place where the labor contract is performed, which refers to the actual place of work of the employee.

Legal basis: Article 12 of the Rules for the Handling of Labor and Personnel Dispute Arbitration Article 12 The place of performance of the labor contract shall be the place of actual workplace of the employee, and the place where the employer is located shall be the place where the employer is registered and registered. If the employer has not been registered or registered, the place where its investor, start-up unit or competent department is located is the place where the employer is located.

Legal subjectivity

What is labor relationship: Labor relationship refers to the legal relationship between the employee and the employer when the employee signs a labor contract in accordance with the law. The worker accepts the management of the employer, engages in the work arranged by the employer, becomes a member of the employer, and receives labor remuneration and labor protection from the employer. "Employer" refers to enterprises, individual economic organizations, private non-enterprise units and other organizations within the territory of the People's Republic of China.

At the same time, it also includes the establishment of labor relations between state organs, public institutions, and social organizations and workers. Laborer refers to a natural person (Chinese and foreign natural person) who has reached the legal age, has the ability to work, takes income from certain social work as his main livelihood, and engages in labor under the management of the employer in accordance with the provisions of the law or contract. The concept of labor relationship refers to the relationship of rights and obligations in the labor process established by the employer and the employee in accordance with the law.

Legal characteristics 1, in order to protect the legitimate rights and interests of workers. Article 1 of the Labor Law: "This Law is enacted in accordance with the Constitution in order to protect the legitimate rights and interests of laborers, adjust labor relations, establish and maintain a labor system suited to the socialist market economy, and promote economic development and social progress."

2. The State creates employment conditions and expands employment opportunities by promoting economic and social development. Article 10 of the Labour Law: "The State shall create employment conditions and expand employment opportunities by promoting economic and social development.

3. The Labor Law is applicable to enterprises and individual economic organizations (including foreign-funded enterprises) within the territory of the People's Republic of China. Article 2 of the Labor Law: "This Law shall apply to enterprises and individual economic organizations (hereinafter collectively referred to as employers) within the territory of the People's Republic of China and the workers who have formed labor relations with them.

The recognition of the labor relationship shall be established from the date of employment. Article 10 of the Labor Contract Law: "A written labor contract shall be concluded to establish an employment relationship.

If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If the employer and the employee enter into a labor contract before employment, the employment relationship shall be established from the date of employment. ”

Legal objectivity