Discussion On The Existing Problems And Countermeasures Of Labor Dispatching

Compared with the traditional form of labor and employment, the specificity of labor dispatching is the separation of employment and use. The dispatching agency is responsible for employment, including hiring the dispatched workers, dispatch, records management, registration and payment of social insurance and other non-productive services; the user firm is responsible for labor use, only take productive responsibility, including safety and health management, labor discipline and etc. Therefore, it became the focus of controversy that which party should bear the responsibility of employment, the dispatching agency or user firm.From the perspective of employers'accountability, there are two opposite theories in academia on the law relationship of labor dispatching, one-dimension labor relationship theory and two-dimension labor relationship theory. The one-dimension labor relationship theory is divided into two views, one from the view of dispatching agency bearing the responsibility of employment, the other from the view of user firm bearing the responsibility, also known as double-deck operation in one-dimension labor relationship theory. The two-dimension labor relationship theory is from the view of dispatching agency and user firm sharing the responsibility of employment.China is to develop labor dispatching industry, to encourage dispatching agency and user firm to achieve a win-win. Meanwhile we must take the protection of dispatching staffs'interests into account, which is the core issue of regulating labor dispatching market, and the bottleneck of the healthy and orderly development of labor dispatching industry. Moderate control by the government became the global trend, so Chinese academia reached a consensus that strengthening the legal norms is a fundamental way. Therefore, in the legislative practice, PRC Labor Contract Law and its implementing regulations used one-dimension labor relationship theory in establishing labor relationship, while used two-dimension labor relationship theory in terms of accountability. The use of two standards will inevitably lead to self-contradictory in the legislation.In this paper, based on the analysis of labor dispatching legal relationship framework, the writer looks for the self-contradictory in PRC Labor Contract Law and its implementing regulations, such as the overlapping responsibilities and obligations when payment of dispatching staffs, equal pay provisions are not protected, the requirements of"temporary, auxiliary and Substitute"become a mere figurehead, the absence of return mechanism and the abuse of withdrawal mechanism, and etc. And then the writer analyzes the results on causes of such legislation pattern, including the self-development of China's labor dispatching market, the influence of domestic and foreign laws and so on. The writer supports the two-dimension labor relationship theory, under the considerations of existing laws and dispatching staffs'interests, and focuses on the reallocation of employers'responsibilities and obligations. At the same time, by analyzing the Kentucky case and Carrefour case, the writer further supports the two-dimension labor relationship theory.However, in current status that legal norms are not yet adjusted, the writer suggests clearing the accountabilities of employers under the existing labor relationship framework, and gives the corresponding countermeasures and suggestions to solve the problems in existing legal norms from three aspects: to enhance the accountability of dispatching agency, to improve the internal management of user firm and to strengthen administrative supervision.