Whether promoting flexible employment or managing traditional labor dispatch, human resources practitioners (HR) need to have strong "red line awareness" and "risk control awareness" in their work. Based on our previous discussion on outsourcing, dispatch, and the German market, I have summarized the core points that HR needs to pay attention to into the following five dimensions:
1、 Pay attention to distinguishing legal boundaries: beware of "fake outsourcing, real dispatch"
This is currently the highest legal risk minefield in enterprise employment. Many companies want to save time by outsourcing their business, but the actual management approach is still like that of their own employees.
Core points to note:
Production outsourcing is about "things": you cannot command the workers of the contractor how to work, you only need to inspect the final phones or clothes.
Job outsourcing/labor dispatch is about managing the 'people': you can manage personnel on-site.
Consequence warning: If you sign an "outsourcing contract" but do "dispatch management" (such as directly giving instructions, assessments, and arranging work schedules to outsourced workers), once a labor dispute occurs, the court may determine it as "fake outsourcing, real dispatch". At this point, the enterprise (contracting party) needs to bear joint and several liability for compensation, and may even be deemed to have a factual labor relationship with the employee, which carries great risks.
HR practical suggestion: Clearly define management boundaries when signing contracts; In practical work, the outsourcing company should assign an on-site manager to manage the outsourced workers, and the company only needs to coordinate with this manager.
2、 Pay attention to the compliance red line of employment ratio
In China, although labor dispatch is useful, it is not about using as much as you want.
Core points to note: According to the Interim Regulations on Labor Dispatch, the number of dispatched workers used by enterprises shall not exceed 10% of their total employment (formal employees+dispatched employees).
Consequence warning: Exceeding the proportion may not only face administrative penalties, but also be deemed as an attempt to evade legal responsibility in the event of work-related injuries or disputes, thereby increasing the compensation liability of the enterprise.
HR practical suggestion: If you find that the proportion of dispatched workers in the company has exceeded the standard, you can consider transferring some positions to business outsourcing. Because outsourced personnel are not included in the 'total employment', they can effectively avoid the 10% limit.
3、 Pay attention to the implementation of "equal pay for equal work"
Whether in China or Germany (where the German Employee Rental Law A Ü G also has strict requirements), equal pay for equal work is the most sensitive and core demand of dispatched employees.
Core points to note:
Salary and benefits: Dispatched employees should enjoy equal labor remuneration and welfare benefits in the same position, workload, and performance as employees of the same unit.
Implicit discrimination: We cannot cut off year-end bonuses, heat subsidies, and holiday benefits just because the other party is a dispatched worker.
Consequence warning: Once identified as unequal pay for equal work, the company not only needs to make up for the difference, but may also face huge fines and reputation damage.
HR practical suggestion: Establish a clear job evaluation system. If there is indeed a salary difference (such as seniority pay for regular employees), there should be clear and quantifiable explanations. Or design a reasonable salary structure through outsourcing service providers to avoid obvious unfairness.
4、 Pay attention to work-related injuries and safety measures
This is a very practical problem. If a dispatched worker is injured in the workshop, who is responsible?
Core points to note:
The dispatch company is responsible for paying work-related injury insurance.
The employing unit is responsible for providing an environment and labor protection equipment that meets safety production conditions, and conducting job safety training.
Consequence warning: Even if work-related injury insurance can cover a portion of medical expenses, if the accident is caused by defective equipment provided by the employer, the employer still needs to bear the main liability for compensation.
HR practical suggestions:
Before joining, it is necessary to confirm that the dispatch company has paid for the employee's work-related injury insurance.
Include dispatched workers in the safety management system of our unit, with signed records for safety training and distribution of labor protection equipment, ensuring that the process is traceable.
5、 Pay attention to the agreement on the "return mechanism"
Labor dispatch provides enterprises with great flexibility, but this flexibility has boundaries.
Key points to note: Under what circumstances can dispatched employees be returned to the dispatch company?
Legitimate return: Employees who seriously violate the rules and regulations of the employing unit and are held criminally responsible in accordance with the law; Or if the employing unit needs to return due to objective circumstances (such as the company changing production, relocation, etc.).
Prohibition of return: If an employee is in the "third period" (pregnancy, childbirth, lactation) or is in the medical period due to work-related injuries, the employer shall not return them at will.
Consequence warning: Random return is considered illegal termination of employment. Once an employee applies for arbitration, the employer and the dispatch company shall bear joint and several liability for compensation.
Summary: Role positioning of HR
In the management of flexible employment and labor dispatch, HR actually plays a dual role of "bridge" and "goalkeeper":
For business departments: tell them how to use people (guide them to distinguish between "managing people" and "managing affairs").
For dispatch/outsourcing companies: Strictly supervise performance (ensure personnel are in place and salary compliance).
For dispatched employees: Provide moderate humanistic care (although their identities are different, they should be treated equally in terms of personality and dignity).
Regarding laws and regulations: maintain a sense of awe (stepping on policy red lines and avoiding turning "flexibility" into "violation").