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劳务派遣与劳务外包有哪些不一样?

第一,合同主体不同。劳务派遣公司依据《劳动合同法》第57条[3]以及《劳务派遣暂行规定》的相关规定进行设立,且经营劳务派遣业务的用人单位必须有相关劳动行政部门的行政许可;而劳务外包公司的设立并无特殊规定,只有一些特殊的项目可能会要求劳务外包公司具备某些特殊资质。
First, the contract subjects are different. The labor dispatch company shall be established in accordance with Article 57 [3] of the labor contract law and the relevant provisions of the Interim Provisions on labor dispatch, and the employer operating labor dispatch business must have the administrative license of the relevant labor administrative department; There are no special regulations on the establishment of labor outsourcing companies, and only some special projects may require labor outsourcing companies to have some special qualifications.
第二,法律适用不同。劳务派遣适用劳动合同法,由《劳动合同法》、《劳务派遣暂行规定》调整;劳务外包适用合同法,注重当事人的意思自治。
Second, the application of law is different. The labor contract law shall apply to labor dispatch, which shall be adjusted by the labor contract law and the Interim Provisions on labor dispatch; Labor outsourcing applies contract law and pays attention to the autonomy of the parties.
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第三,关注重点不同。劳务派遣中的核心要素是劳动过程,关注的是派遣员工,即“人”;劳务外包中的核心要素是工作成果,关注的是业务本身,即“事”。
Third, the focus is different. The core element of labor dispatch is the labor process, which pays attention to the dispatched employees, that is, "people"; The core element of labor outsourcing is work results, which focuses on the business itself, that is, "things".
第四,管理方式不同。劳务派遣中的劳动者,主要由用工单位直接管理,用工单位的各种规章制度适用于被派遣劳动者,可以通过培训、考核、奖惩等手段提高劳动者的服务质量;工资既可以由用人单位发放,也可以由用工单位发放。劳务外包中,从事外包劳务的劳动者由承包人直接管理,发包人不直接对其进行管理,发包人的各种规章制度也并不适用于从事外包劳务的劳动者,工资由劳务承包单位负责。
Fourth, different management methods. The workers in labor dispatch are mainly directly managed by the employing unit. Various rules and regulations of the employing unit are applicable to the dispatched workers, and the service quality of workers can be improved by means of training, assessment, reward and punishment; Wages can be paid either by the employing unit or by the employing unit. In labor outsourcing, the workers engaged in outsourced labor services are directly managed by the contractor, and the employer does not directly manage them. Various rules and regulations of the employer are not applicable to the workers engaged in outsourced labor services, and the wages are the responsibility of the labor contractor.
第五,风险承担不同。劳务派遣作为一种劳动用工方式,用工单位系劳务派遣三方法律关系中的一方主体,需承担一定的用工风险。《侵权责任法》第三十四条第二款规定:“劳务派遣期间,被派遣的工作人员因执行工作任务造成他人损害的,由接受劳务派遣的用工单位承担侵权责任”,对劳务派遣工作人员执行工作任务过程中的侵权行为承担赔偿责任。《工资支付暂行规定》第十六条规定“因劳动者本人原因给用人单位造成经济损失的,用人单位可按照劳动合同的约定要求其赔偿经济损失。经济损失的赔偿,可从劳动者本人的工资中扣除。
Fifth, different risk-taking. As a way of labor employment, labor dispatch is the main body of the tripartite legal relationship of labor dispatch, which needs to bear certain employment risks《 The second paragraph of Article 34 of the tort liability law stipulates: "during the period of labor dispatch, if the dispatched staff causes damage to others due to the performance of their work tasks, the employing unit receiving the labor dispatch shall bear the tort liability", and shall be liable for compensation for the tort committed by the labor dispatch staff in the process of performing their work tasks《 Article 16 of the Interim Provisions on wage payment stipulates that "if an employee causes economic losses to the employer due to his own reasons, the employer may require him to compensate for the economic losses in accordance with the provisions of the labor contract. Compensation for economic losses may be deducted from the worker's own wages.
但每月扣除的部分不得超过劳动者当月工资的20%。”由于被派遣劳动者与实际用人单位不存在劳动关系,双方的互相制约程度较低,追偿权很可能无法的到有效实现。
However, the monthly deduction shall not exceed 20% of the worker's monthly salary. " As there is no labor relationship between the dispatched worker and the actual employer, the mutual restriction between the two sides is low, and the right of recourse is likely to be unable to be effectively realized.
另外,劳务派遣单位违法给被派遣劳动者造成损害的,用工单位与劳务派遣单位需承担连带赔偿责任。而劳务外包中,承包人招用劳动者的用工风险与发包人无关,发包人与承包人自行承担各自的用工风险,各自的用工风险完全隔离。
In addition, if the labor dispatch unit causes damage to the dispatched workers in violation of the law, the employing unit and the labor dispatch unit shall bear joint and several liability for compensation. In labor outsourcing, the employment risk of the contractor recruiting workers has nothing to do with the employer. The employer and the contractor bear their own employment risks, and their employment risks are completely isolated.
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