Research On The Legal Regulation Of Shared Employment

Shared employment is a form of flexible employment,which has attracted much attention and developed rapidly under the influence of the new crown pneumonia epidemic,and has become an important way for enterprises to adjust the labor surplus and shortage and stabilize the social employment situation.Shared employment involves a tripartite legal relationship between borrowing companies,lending companies and workers.Compared with standard employment forms,it is more complicated.However,the relevant norms applicable to shared employment under the current labor law and social security law system still lack rationality and pertinence.The shared employment practice faces obstacles such as unclear legal relationship and lack of regulation on the rights and obligations of the three parties.The research on shared employment helps to keep up with the development trend of the employment model under the influence of social conditions,remove obstacles to the sustainable development and innovation of shared employment in the form of law,and allow shared employment to establish a normalized operation mechanism on the basis of compliance and order,thereby promoting my country’s labor market is developing harmoniously and stably.This paper studies the employment mode of shared employment in a narrow sense,that is,a direct agreement between lending and borrowing enterprises to realize employee sharing.In essence,shared employment in my country belongs to the secondment of employees between non-affiliated enterprises.Through the research and analysis of my country’s legislative and judicial status quo,it is found that there are mainly three problems in practice:First,in the identification of shared employment relationship,there are disputes in the identification standards of employment relationship in judicial practice,and the review of laborers’ consent is insufficient.,the law lacks clear stipulations on the matters permitted by the shared employment agreement;second,in terms of the liability of work-related injury insurance,there are internal contradictions in the relevant laws of work-related injury insurance liability,which appear as unreasonable subjects of work-related injury insurance liability and tort compensation for work-related injuries caused by the borrowing enterprise.The responsibilities are contradictory;the third is the payment of labor remuneration,which is manifested as disputes over the payment subject and insufficient protection of labor remuneration rights.The main regulatory paths to solve the above problems are as follows: First,improve the identification standard system for shared employment.In terms of refining the criteria for identifying shared employment,it is necessary to follow the principle of combining formal elements with substantive elements in judicial practice,and focus on reviewing the written agreement for shared employment,and clarify the applicable conditions and deadlines for shared employment in legislation.In terms of protecting workers’ right to know and autonomy,it is necessary to make it clear that shared employment does not belong to the scope of the employer’s transfer rights,and workers can voluntarily decide whether to change the labor contract.In addition,the agreed scope and signing procedures of the shared employment agreement should be improved.Second,clarify the reasonable liability of work-related injury insurance.The borrowing enterprise should be included in the main body of work-related injury insurance liability,and the lending enterprise and the borrowing enterprise should pay a certain proportion of the work-related injury insurance fee respectively,and the work-related injury insurance liability should replace the borrowing enterprise’s civil tort liability for work-related injuries.Third,protect the labor remuneration rights of shared employees.We should strengthen the regulation of the standard of salary and treatment of shared employees,and ensure equal pay for equal work and the right to know.In labor disputes caused by the payment of labor remuneration,in principle,the lending company is the obligatory subject of the right to request labor remuneration.In exceptional cases,the borrowing company shall be jointly and severally responsibility.