learning Platform
跳过导航链接 > Home > Learning Platform > Social Accountability Criteria Zone > Events > Industry News  

Ministry of Human Resources and Social Security Releasesthe Interim Provisions on Labor Dispatch

 

Ministry of Human Resources and Social Security of the People's Republic of China said on January 26, the Interim Provisions on Labor Dispatch was deliberated upon and adopted at the 21st executive meeting of the Ministry of Human Resources and Social Security held on 20 December 2013, and shall become effective on March 1, 2014.

The employer shall strictly control the number of dispatched workers it employed, which shall not exceed 10% of the total number of employees. In the event that the number of dispatched workers employed by an employer exceeded 10% of the total number of its employment prior to the effective date of the Provisions, the employer shall develop a scheme for employment adjustments, and reduce the proportion to the specified level within 2 years from the effective date of the Provisions. The employer shall not employ new dispatched workers before reducing the number of dispatched workers prior to the effective date of the Provisions to the specified proportion as required.

The Provisions indicate that an employer shall provide the dispatched workers with the position-related welfare benefits without any discrimination against the dispatched workers. In the event that a labor-dispatching unit in a region dispatches a worker to another region, it shall obtain the social security insurance coverage for the dispatched worker at the place where the employer concerned is located, and pay the social security insurance premium in accordance with the rules at the place where the employer concerned is located, and the dispatched worker is entitled to the social security insurance benefits in accordance with the provisions of the State.

In the event that a labor-dispatching unit dispatching a worker to an employer does not set up a branch at the place where the employer is located, the employer shall complete the formalities for obtaining social security insurance coverage and pay the social security insurance premium for the dispatched worker on behalf of the labor-dispatching unit.

The Provisions also indicate that in the event that a worker dispatched by a labor-dispatching unit is injured in an incident while working for an employer, the labor-dispatching unit shall apply for determination of job injury according to law, and the employer shall assist in the investigation and verification for the purpose of determination of job injury. The labor-dispatching unit shall bear the liability for job injury insurance, but it may negotiate with the employer over the compensatory approach.

During the period of time when the dispatched worker has no job after being returned, the labor-dispatching unit shall pay remuneration to the dispatched worker on a monthly basis at least in accordance with the minimum wage rates set by local people’s government.

Labor Dispatch refers to a kind of new employment methods in which a labor-dispatching unit concludes a labor contract with a dispatched worker, and it may cross region or industry. The employer concerned pay remuneration to the dispatched worker. In 2007, the Labor Contract Law promulgated by China stipulates the labor dispatch regulations. In just few short years, this employment method is flourishing all over China.

 

 

 

Minister of the Ministry of Human Resources and Social Security Labor Relation Department Officer’s answer to reporters’ requests on the Interim Provisions on Labor Dispatch

 

The Interim Provisions on Labor Dispatch (Decree of the Ministry of Human Resources and Social Security, hereinafter referred to as the Provisions) are hereby released in order to implement the revised Labor Contract Law and regulate the labor dispatch practices. Recently, reporters have an interview with Minister of the Ministry of Human Resources and Social Security Labor Relation Department Officer on some related issues.

Q: What is the background and significance of the formulation of the Interim Provisions on Labor Dispatch?

A: At the end of 2012, Standing Committee of the National People’s Congress revised the Labor Contract Law. The Provisions are formulated and released in order to enhance legal operability and implement the law on labor dispatch in a better manner. The provisions are major rules regulating labor dispatch whose promulgation and implementation have great importance on further regulating labor dispatch practices, defining the tripartite rights and obligations of labor-dispatching unit, employer and dispatched worker, promoting enterprises developing in a healthy way, and establishing and developing a harmonious and stable labor relationship.

Q: Could you please give brief introduction on drafting process and main contents of the Provisions?

A: During drafting process, we, through various ways such as field research, forum, public opinion solicitation, patiently listen to suggestions made by the Law Committee of the National People’s Congress, the law office of the State Council, State-owned Assets Supervision and Administration Commission, All China Federation of Trade Union, China Association of Enterprises, All-China Federation of Industry and Commerce and other related departments and units, local human resources and social security departments, ownership enterprises of various forms, labor-dispatching unit and some trade associations, and solicit public opinion on the draft of the Provisions. Within one month of solicitation period, we received over 30 thousand pieces of advices and suggestions. For these suggestions, we collected, sifted through, intensively study and made a sufficient reference and assimilation. At the end of 2013, the Provisions deliberated upon and adopted at the 21st executive meeting of the Ministry of Human Resources and Social Security, are determined to enter into force as of March 1, 2014.

According to the revised Labor Contract Law and Implementation Regulations for the Labor Contract Law and other applicable laws and administrative regulations, the Provisions make detailed stipulations on scope and proportion of labor dispatch employment, conclusion, performance, dissolution and termination of labor contract, social security insurance in trans-regional labor dispatch, legal liability, transitional period for adjusting employment proportion and other related matters.

Q: What is the application scope of the Provisions?

A: The Provisions apply to the labor dispatch service provided by a labor-dispatching unit and the employ of dispatched workers by an enterprise, and the employ of dispatched workers by a partnership such as an accounting firm or a law firm incorporated by law, a foundation or a private non-enterprise entity.

The employment issues independent of state organ and public institution are being gradually solved in a proper way with the reform deepening and the law developing. The Provisions may not apply to this labor dispatch employment. Next step, we will comprehensively consider, coordinately promote, and gradually standardize it.

Q: How do we calculate the employment proportion of labor dispatch? For some units whose proportion of labor dispatch is relatively high, how to deal with it?  

A: The employment proportion of labor dispatch has become a common concern of society. On the basis of consideration of various aspects and adequate investigation and survey, the Provisions indicate an employer shall strictly control the number of dispatched workers it employed, which shall not exceed 10% of the total number of employees (the sum of the number of labor contract employees and the number of dispatched workers.).In order to strengthen supervision on the employer’s proportion implementation and define the subject liable for employment proportion, the Provisions give definite accounting issues for proportion that is the accounting unit refers to the employer that may conclude the labor contract with workers according to the Labor Contract Law and Implementation Regulations for the Labor Contract Law.  

In order to prompt the employer with relatively excessive dispatched workers to reduce the employment proportion to specified level in a stable manner, as well as lower the impact on enterprises’ production and management, workers’ employment and labor relation, the Provisions render the employer 2-year transitional period that is In the event that the number of dispatched workers employed by an employer exceeded 10% of the total number of its employment prior to the effective date of the Provisions, the employer may reduce the proportion to the specified level within 2 years from the effective date of the Provisions. However, the employer shall not employ new dispatched workers before reducing the number of dispatched workers to the specified proportion as required. The employer with excessive proportion shall develop a scheme for employment adjustments, and take active action for adjustment of employment methods, in order to gradually reach the requirements.

Q: Which procedures shall be performed by the dispatched workers in auxiliary position?

A: In order to enhance the operability of the Labor Contract Law on auxiliary position regulations, the Provisions indicate, before the employer determines an auxiliary position in which dispatched workers will be employed, its employees’ congress or all employees shall hold discussions and provide proposals and opinions, and the employer shall negotiate with the labor union or employees’ representatives on an equal basis, and the matters concerned shall be announced internally.

Q: In which aspects do the Provisions safeguard the equal rights and interest of the dispatched workers?

A: In order to effectively protect the labor remuneration, welfare benefits, social security insurance and other equal rights and interest of dispatched workers, the Provisions add some new stipulations on the basis of the regulations on the Labor Contract Law that the employer shall pay the same remuneration to dispatched workers who perform the same work as direct employees of the same employer. Such as, in welfare benefits, the Provisions indicate that an employer shall, in accordance with Article 62 of the Labor Contract Law, provide the dispatched workers with the position-related welfare benefits without any discrimination against the dispatched workers. In social security insurance, the Provisions indicates In the event that a labor-dispatching unit in a region dispatches a worker to another region, it shall obtain the social security insurance coverage for the dispatched worker at the place where the employer concerned is located, and pay the social security insurance premium in accordance with the rules at the place where the employer concerned is located. These new stipulations reflect the requirement of equal work, equal pay in welfare benefits.

Q: How to deal with the job injury and occupational disease of dispatched workers?

A: Labor dispatch is a special employment method, which transfer the traditional bilateral legal relation with both "employing worker" and "employing labor" to the tripartite one between labor-dispatching unit, employer and dispatched worker. When the dispatched workers suffer job injury or occupational disease during labor dispatch practices, the labor-dispatching unit and the employer, in lack of definite subject of liability, always pass the buck, and result in the dispatched workers' rights and interest of injury insurance can not be guaranteed. In this respect, the Provisions indicate that in the event that a worker dispatched by a labor-dispatching unit is injured in an incident while working for an employer, the labor-dispatching unit shall apply for determination of job injury according to law, and the employer shall assist in the investigation and verification for the purpose of determination of job injury. The labor-dispatching unit shall bear the liability for job injury insurance, but it may negotiate with the employer over the compensatory approach.

Meanwhile, the Provisions also indicate in the event that a dispatched worker applies for the diagnosis and assessment of occupational disease, the employer shall have the duty to deal with the matters relating to the diagnosis and assessment of occupational disease, and provide the materials such as the dispatched worker’s occupational history, history of exposure to the occupational disease and test results of hazardous factors at workplace for the occupational diseases that are necessary for the diagnosis and assessment of the occupational disease in a truthful manner, and the labor-dispatching unit shall provide the dispatched worker with other materials necessary for the diagnosis and assessment of occupational disease.

Q: How do the Provisions deal with the Social Security Insurance in Trans-regional Labor Dispatch?

A: In order to prevent the labor-dispatching unit from encroaching upon the legitimate rights and interest of dispatched worker and insure that the workers dispatched trans-regionally are entitled to equal pay for performing the same work as direct employees of the same employer, the Provisions define the insurance localities, pay cost standard and payment subject for trans-regionally dispatched workers. The detail is that the labor-dispatching unitshall obtain the social security insurance coverage for the dispatched worker at the place where the employer concerned is located, and pay the social security insurance premium in accordance with the rules at the place where the employer concerned is located. In the event that a labor-dispatching unit dispatching a worker to an employer has set up a branch at the place where the employer is located, the branch shall complete the formalities for obtaining social security insurance coverage and pay the social security insurance premium for the dispatched worker. In the event that a labor-dispatching unit dispatching a worker to an employer does not set up a branch at the place where the employer is located, the employer shall complete the formalities for obtaining social security insurance coverage and pay the social security insurance premium for the dispatched worker on behalf of the labor-dispatching unit.

Q: Under which circumstance does the employer can return the dispatched worker to the labor-dispatching unit? And which kind of dispatched worker shall not be returned?

A: In order to safeguard the employment stability of dispatched worker and prevent the employer from randomly returning dispatched worker without justified reasons, the Provision, based on Paragraph 1, Article 65 of the Labor Contract Law, further define the circumstance that the employer can return the dispatched worker. Under any of the following three circumstances, the employer can return the dispatched worker to the labor-dispatching unit: first, The employer comes under the circumstances specified in Item 3, Article 40 and Article 41 of the Labor Contract Law; second, the employer is declared bankrupt, revoked of its business license, or ordered to close down or cancel registration according to law, or one decides to dissolve in advance or not to continue the business upon expiry of the business period; and third, the labor dispatch agreement is terminated upon expiry. However, in the event that the dispatched worker suffers the diseases stipulated in Article 42 of the Labor Contract Law or the one is in the medical treatment period because of non-work injury, and the female worker is in her pregnancy, confinement or nursing period and other circumstances, prior to the expiry of the dispatch period, the employer concerned shall not return the dispatched worker to the labor-dispatching unit in accordance with Item 1, Paragraph 1, Article 12 of the Provisions.The dispatched worker may be returned only by extending the dispatch period upon its expiry until the disappearance of the circumstances.

Q: How shall the labor-dispatching unit deal with the dispatched worker who is returned by the employer?

A: After a dispatched worker is returned by the employer, the labor-dispatching unit shall, according to the situation, properly handle the labor relation with the dispatched worker in accordance with law. One, in the event that a dispatched worker comes under the circumstances specified in Article 39 and Item 1 and 2, Article 40 of the Labor Contract Law, a labor-dispatching unit can dissolve the labor contract with the dispatched worker according to Paragraph 2, Article 65 of the Labor Contract Law. Another, in the event that a dispatched worker is returned by an employer in accordance with Article 12 of the Provisions, the labor-dispatching unit concerned may dissolve the labor contract with the dispatched worker if the dispatched worker who is to be re-dispatched does not agree with the labor-dispatching unit to maintain or improve the conditions agreed upon in the labor contract; the labor-dispatching unit concerned may not dissolve the labor contract with the dispatched worker if the dispatched worker to be re-dispatched does not agree with the labor-dispatching unit to decrease the conditions specified in the labor contract. Besides, during the period of time when the dispatched worker has no job after being returned, the labor-dispatching unit shall pay remuneration to the dispatched worker on a monthly basis at least in accordance with the minimum wage rates set by local people’s government.

Q: In practice, some employers have transferred the original labor dispatch agreement to outsourcing agreement or contract of hired work, for the purpose of avoiding legal responsibilities. How shall we deal with this situation?

A: We have noticed that, after the release of decision on revising the Labor Contract Law, some labor-dispatching units and employers resort to hire of work and outsourcing to respond to labor dispatch regulations stipulated by law. In order to prevent this kind of legal responsibility circumvention and effectively safeguard the legitimate rights and interest of dispatched worker, Article 27 of the Provisions indicates, the labor dispatch service in disguise of hire of work and outsourcing shall be dealt with according to the Provisions. This regulation will effectively restrain “the labor dispatch service in disguise of outsourcing” plotted by the employer.

Q: Next step which measures will you take in order to better implement the Provisions?

A: The law alone is not enough. After the Provisions are promulgated, we will formulate and issue Notice on Implementation Matters Concerning the Interim Provisions on Labor Dispatch to guiding the Human Resources and Social Security Departments at localities to carry out the following works: First, devote major efforts to training and consensus propaganda, improve the legal administration ability of cadres and employees employed in Human Resources and Social Security System, and enhance the labor-dispatching unit’s and employer’s awareness of consciously law obeying. Second, further carry out thorough investigation on labor dispatch employment proportion of an employer and guide the employer who exceed the specified proportion to develop and implement adjustment employment scheme, to take the transitional period stably and orderly. Third, strengthen the efforts to standard guidance for labor dispatch and employment, as well as guide and urge the labor-dispatching unit and the employer to earnestly perform legal obligations. Forth, reinforce supervision of labor dispatch, timely carry out the special law enforcement examination for labor dispatch, severely punish various behaviors going against labor dispatch regulations, and effectively protect every right and interest of dispatched worker.