| In 2020,the global outbreak of the new crown pneumonia epidemic,the labor market has shown a two-fold situation.On the one hand,hotel and catering companies have shut down production and business,and a large number of laborers have been idle.On the other hand,online shopping platforms such as takeaway e-commerce are seriously understaffed.In order to solve this problem,labor shortage companies represented by Hema Xiansheng and Hisense Video announced the implementation of a shared labor plan to receive surplus labor from companies that have suspended production due to the epidemic to solve their own labor shortage.This move has ignited the shared labor market,and major companies have followed suit.Shared employment is not a new product that only appeared this year.Similar employment models have long appeared in China.It is a new employment model in which enterprises coordinate and allocate idle labor resources to achieve labor sharing and win-win results.The demand for labor fluctuates between enterprises due to the production cycle or other reasons,and the peaks and valleys of labor between different enterprises complement each other,and the idle labor resources are seconded from the exporting enterprises to the enterprises with manpower gaps within a certain period of time.The labor agreement provides labor for enterprises lacking labor.After the sharing agreement expires,the laborer returns to work in the original unit.In September 2020,the General Office of the Ministry of Human Resources and Social Security issued the "Notice on Doing a Good Job in Shared Employment Guidance and Services",stipulating that the labor relationship between the original enterprise and the shared employees should remain unchanged,and work-related injuries should be handled with reference to secondment.However,there are still many problems in practice: first,the legal relationship between lack of work and shared employees is not clear,and some lack of labor companies define the relationship between other shared employees as labor relations or other legal relationships,evading legal obligations;second The content of the shared employment agreement is not clear,the workers’ right to know and the right to choose independently are damaged,and the rights and interests of the shared employees are insufficiently guaranteed;then,if the workers cause damage to others in the process of providing labor services,the subject of compensation for tort liability cannot be determined,resulting in third party damages.The liability for tort compensation for people who encounter shared employees is not clear;finally,regarding the proliferation of "disguised shared employment",units that do not have labor dispatch qualifications use the name of shared employment to conduct illegal labor dispatch behaviors,and employment companies pretend to be labor shortage companies to avoid signing labor contracts.Contracts and some platforms induce workers to register as individual industrial and commercial households for employee sharing,thereby evading legal supervision and infringing on workers’ rights.By studying relevant cases,interpreting local policies,and learning from practical experience,the main solution to the legal problem of shared employment is as follows: on the basis of clarifying the termination of the labor relationship between the original unit and the shared employee,the lacking unit and the shared employee establish a fixed-term labor relationship.,the labor relationship can be converted according to the shared employee agreement or some legal reasons;on the premise of ensuring the laborer’s autonomy and right to know,the laborer,the original unit,and the lack of work unit reach an agreement,sign a cooperation agreement,and clarify the parties.The rights and obligations of the main body,fully protect the rights and interests of shared employees;in accordance with the principle of the consistency of rights and obligations,the actual employer,that is,the lack of labor companies,bear the responsibility for the damage caused by the shared employees to the third party;strengthen supervision and supervision,clarify the implementation standards of shared employment,from the contract.The substantive nature of the parties and the subordination of the parties to share whether the employee and the employer constitute a labor relationship,so as to prevent the abuse of shared labor. |
