Is it legal for an employer to transfer an employee s labor notice to a labor dispatch company?

This is illegal, and the subject of the labor relationship is different from signing a contract with a labor dispatch company and signing a contract with the unit. The labor contract is signed directly between the employee and the employer. The labor dispatch contract is signed between the worker and the dispatch company, and the dispatch company dispatches the worker to work at the actual employer.

The term of the labor contract is generally long, and the type of labor dispatch work is generally auxiliary work.

Legal analysis

The employment contract states that the employee is an employee of the employer, and the labor dispatch contract states that the employee is an employee of the labor service company and not an employee of the employer. First of all, the income will be different, the employees who sign a contract directly with the unit will receive more preferential treatment in all aspects, while the income of the employees who sign a contract with the labor dispatch company depends on the overall efficiency of the labor dispatch company, and the income is generally lower. Secondly, the handling of labor disputes is different, if a contract is signed with the employer, then under normal circumstances, its benefits and treatment and dispute resolution are guaranteed to a certain extent.

However, if you sign a contract with a labor company, the employer can often easily infringe on the rights and interests, and it is difficult for employees to protect them. After signing a labor contract with a labor dispatch company, the labor dispatch company will generally send the worker to work in the actual employing unit, and the labor dispatch company will enter into a dispatch agreement with the actual employing unit. Therefore, the actual employer will not conclude a labor contract with the employee.

If a labor dispute occurs during the course of work, the employee can directly seek responsibility from the labor dispatch company, and if the actual employer is at fault and causes losses to the employee, the employee can claim joint and several compensation.

Legal basis

Labor Law of the People's Republic of China

Article 16 A labor contract is an agreement between a worker and an employer to establish a labor relationship and clarify the rights and obligations of both parties. A labor contract shall be concluded for the establishment of labor relations.

Article 17 The conclusion and modification of labor contracts shall follow the principles of equality, voluntariness and consensus, and shall not violate the provisions of laws and administrative regulations. The employment contract shall be legally binding immediately and shall be binding upon the parties, and the parties shall perform their obligations under the employment contract.

This is not legal. If there are no statutory circumstances, the employer can only negotiate with the employee to terminate the labor contract and sign a labor contract with the labor dispatch company to establish a labor relationship, which must be agreed by the employee, otherwise it is a unilateral illegal termination of the labor contract by the employer, and the employee may request the employer to continue to perform the labor contract, but if the employer is not required to continue to perform the labor contract, the employer shall pay compensation according to the number of years the employee has worked in the employer, and compensate two months' salary for each full year. One month's salary will be compensated for less than half a year, and two months' salary will be compensated for less than half a year and less than one year. The base amount of compensation shall be calculated based on the average monthly salary payable by the employee in the 12 months prior to the termination of the labor contract.

The dispatch worker signs a contract with the dispatch company and is sent to work by the dispatch company. There is a big difference between labor dispatch and regular employment. First of all, the file of the regular worker is in the work unit, that is, his personnel relationship is in the work unit, and the labor contract is signed with the unit.

The dispatch worker's file is in the dispatch company, i.e. you are a member of the dispatch company and only work at the workplace. Second, dispatch workers are paid much less than regular workers, and many do not receive even half of their regular wages. Social security and provident fund are available, which is mandatory and can be assured.

As for the living security, as I said above, the treatment of dispatch workers is very poor (of course, it is not excluded that well-meaning units can pay more). If you work locally, live with your parents, it will also meet your basic needs, if you need to rent a house, find a partner, firewood, rice, oil, salt, sauce, sauce, vinegar, tea, and water and electricity bills need to be borne by you, then it is basically recommended that you apply for financial support from your family regularly. As for what you are asked to do and how to do it, this should be assigned according to your specific position, and it also depends on how the contract is written.

It is unlikely that they will work for a lifetime, because the Labor Contract Law stipulates that dispatch workers can only exist in temporary, replaceable positions. The employer will not let you work for a lifetime, because according to the labor contract law, you will have to switch to an indefinite term employment contract, which will go against the original intention of the employer to hire dispatch workers to save labor costs. It is also not recommended that you do the dispatch for too long.

Unless you really can't find a job, it is not recommended to do dispatch, and even if you do, you must change jobs within 3 years at most. Working for a long time not only has an impact on your financial situation, but also a series of effects derived from it are very large.

Labor Contract Law of the People's Republic of China

Article 58.

A labor dispatch entity is an employer for the purposes of this Law and shall perform its obligations to its employees. In addition to the matters provided for in Article 17 of this Law, the labor contract concluded between the labor dispatch form and the dispatched worker shall also indicate the dispatched worker's employing unit, dispatch period, job position, etc.

Labor Contract Law of the People's Republic of China

Article 63.

Dispatched workers have the right to equal pay for equal work with the employees of the employing entity. The employer shall, in accordance with the principle of equal pay for equal work, implement the same method of labor remuneration distribution for dispatched workers and workers in the same position in the same unit.

Labor Contract Law of the People's Republic of China

Article 65.

The dispatched worker may terminate the labor contract with the labor dispatch entity in accordance with the provisions of Articles 36 and 38 of this Law.

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 labor dispatch company is the employer and undertakes all the rights and obligations of the employer. Whether there is an employment relationship between the employer and the dispatched employee is not clear in law, and it is generally considered in judicial practice to be a special employment relationship, or an indirect labor relationship. Because he has both the civil attributes of labor relations and the personal attributes of labor relations.

Generally speaking, the Labor Dispatch Agreement stipulates the wages and other expenses of the labor dispatch personnel, the rights and obligations of both parties, the daily management, the time limit, the modification, rescission, and termination of the contract, and the settlement of disputes. In fact, the labor dispatch enterprise replaces the labor contract signed between the labor dispatch personnel and the employing unit on the basis of the labor contract signed with the labor dispatch personnel. Although it is an agreement signed between a labor dispatch enterprise and an employer, based on the original labor contract, the labor dispatch agreement is also binding on the labor dispatch personnel and the employing entity, so the employment unit and the labor dispatch personnel are indirectly in labor relationship, and there is a relationship between the two employees and being employed.

Article 92 of the Labor Contract Law Whoever, in violation of the provisions of this Law, engages in labor dispatch business without permission, shall be ordered by the labor administrative department to stop the illegal acts, confiscate the illegal gains, and impose a fine of not less than one time but not more than five times the amount of the illegal gains; If there is no illegal filial piety, a fine of up to 50,000 yuan may be imposed. Where a labor dispatch unit or employing unit violates the provisions of this Law on labor dispatch, the labor administrative department shall order it to make corrections within a specified period of time; If the correction is not made within the time limit, a fine of not less than 5,000 yuan but not more than 10,000 yuan per person shall be imposed, and the labor dispatch business license shall be revoked for the labor dispatch unit. If the employer causes damage to the dispatched worker, the labor dispatch unit and the employer shall be jointly and severally liable for compensation.