Research On The Difficult Legal Issues Of Labor Dispatching

As a new kind of flexible and auxiliary form of employment, the biggest difference between labor dispatching and the standard employment is that the founder of labor relations and labor users belong to two main bodies. At present, there still exist the situation that some employers use the traditional standard employment but borrowing the name of labor dispatching. However, this kind of situation is not denied by existing law. During the duration of the labor relations, equal pay for equal work,the right for dispatching workers, is difficult to be realized. The reason is that there is no responsibility mechanism to punish the illegal behavior. In the aspect of joint and several liability between dispatch agency and practical employment unit, rights,obligations and responsibilities are unknown and unclear. All these difficult problems urgently need to be solved by the academic and practical law field.This paper based on the three typical case, study and analysis the current law,then put forward several suggestions to solve the existing problems.First,to determine the effect of labor dispatching:this part uses typical cases to raise the difficult problem of identifying the labor dispatching. Then analyze the legal relationships between the main subjects. The relationships include the lease contract relationship between dispatch agency and practical employment unit, the labor relationship between dispatch agency and dispatched workers, and the special legal relationship between practical employment unit and dispatched workers. Two aspects should be taken into consideration when identify this kind of labor dispatching: first,workers are actually dispatched; second, the outcome of the dispatched workers enjoyed by the employment subject. For the situation that employers use the traditional standard employment but borrowing the name of labor dispatching, the veil should be unveiled and its effectiveness should be denied.Second,during the existence of the labor relations:the second part uses typical cases to raise the problem of the right of equal pay for equal work, which is difficultto identify in the process of performing the contract. First, from the institutional perspective, equal pay for equal work means anti-discrimination; from the perspective of labor standards, equal pay for equal work means that workers who occupy the similar occupation or do the similar work get fairly payment. Here the payment include labor reward and welfare, but exclude insurance. Second, when identify equal pay for equal work, different standards should be used under two different mode. One is hybrid configuration mode, and another is independent configuration mode. Finally,for the shortages of burden of proof and legal liability, this paper suggest that legislative purpose and characteristics of concrete cases should be taken into consideration when allocate the burden of proof, and a breakthrough could be found in the article 92 on the "labor contract law".Finally,combined with concrete cases, the third part studies the problem of joint and several liability when the dispatch agency and practical employment unit breach the lawful duty. The theoretical foundation of joint and several liability is joint employer theory and the current law on joint and several liability is imperfective. By exploring labor legislative intent, balancing interests among dispatch agency, practical employment unit and dispatched workers, the paper suggested that it should be clear when identify the joint and several liability, allocate the burden of proof and confirm the ultimate responsibility.