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劳动中工伤的责任谁来承担?

针对劳务派遣形式的用工专门作了一节规定,特别规定经营劳务派遣业务,应当向劳动行政部门依法申请行政许可,未经许可,任何单位和个人不得经营劳务派遣业务。同时,《劳动合同法》第九十二条明确劳务派遣单位、用工单位违反有关劳务派遣规定,用工单位给被派遣劳动者造成损害的,劳务派遣单位与用工单位承担连带赔偿责任。
There is a special section on employment in the form of labor dispatch, which specifically stipulates that if you operate labor dispatch business, you should apply to the labor administrative department for administrative license according to law. Without permission, no unit or individual shall operate labor dispatch business. At the same time, Article 92 of the labor contract law specifies that if the labor dispatch unit and the employing unit violate the relevant labor dispatch regulations and the employing unit causes damage to the dispatched workers, the labor dispatch unit and the employing unit shall bear joint and several liability for compensation.
但是实践中,一些用工单位为规避劳务派遣的法律规定,逃脱用工责任,以劳务外包的名义行派遣用工之实,一旦发生工伤事故引发诉讼,便提供劳务外包合同企图混淆劳务派遣与劳务外包的概念,推卸责任。对于两者的区别,应从以下几点进行把握:
However, in practice, in order to avoid the legal provisions of labor dispatch and escape the employment responsibility, some employing units dispatch labor in the name of labor outsourcing. Once an industrial accident causes a lawsuit, they provide labor outsourcing contracts in an attempt to confuse the concept of labor dispatch and labor outsourcing and shirk their responsibility. The difference between the two should be grasped from the following points:
济南劳务外包
第一,劳动者管理的责任主体不同。劳务派遣模式下,员工按照用工单位的组织形式和工作时间安排进行劳动,受用工单位的管理。劳务外包模式下,发包企业对劳务承包单位的员工不进行直接管理,其工作组织形式、工作时间和内容等由劳务承包单位自行安排确定。
First, the responsibility subjects of labor management are different. Under the labor dispatch mode, employees work according to the organization form and working time arrangement of the employer and are managed by the employer. Under the labor outsourcing mode, the contracting enterprise does not directly manage the employees of the labor contracting unit, and its work organization form, working time and content are arranged and determined by the labor contracting unit.
第二,报酬结算方式不同。劳务派遣一般是按照派遣的时间和费用标准,以人为单位进行结算,结算内容包括员工工资、社会保险费、经济补偿以及其他待遇等。劳务外包一般是按照事先约定的劳务单价根据劳务承包单位完成的工作量结算报酬,是以完成的事进行结算。
Second, the payment settlement methods are different. Labor dispatch is generally settled in person according to the dispatch time and cost standards. The settlement contents include employee wages, social insurance premiums, economic compensation and other benefits. Labor outsourcing is generally based on the labor unit price agreed in advance, and the remuneration is settled according to the workload completed by the labor contractor.
第三,资质要求不同。从事劳务派遣必须是依法经行政部门许可的按公司法设立的法人公司,未取得许可禁止从事劳务派遣的业务。劳务承包单位既可以是法人或其他组织,也可以是个人,法律对其没有设定经营准入的限制。
Third, different qualification requirements. Labor dispatch must be a legal person company established in accordance with the company law with the permission of the administrative department according to law. It is prohibited to engage in labor dispatch business without permission. The labor contract unit can be either a legal person or other organization or an individual, and the law does not set restrictions on its operation access.
除此以外,劳务派遣与劳务外包适用的法律不同,导致违法的后果也不同。尤其是劳务外包法律关系决定劳务发包单位不对劳务承包单位的员工承担任何责任,让许多实际用工单位假借劳务外包的虚壳,行用工管理之实,以求规避用工风险。法院在审理这一类案件过程中,主要从合同的内容以及实际履行的情况来认定双方的民事法律关系,用工单位切莫以为合同冠上外包之名就可张冠李戴、弄假成真。
In addition, the laws applicable to labor dispatch and labor outsourcing are different, resulting in different consequences of violation of the law. In particular, the legal relationship of labor outsourcing determines that the labor contracting unit will not bear any responsibility for the employees of the labor contracting unit, so that many actual employing units use the virtual shell of labor outsourcing to carry out employment management in order to avoid employment risks. In the process of hearing such cases, the court determines the civil legal relationship between the two parties mainly from the content of the contract and the actual performance. The employing unit must not think that the name of outsourcing on the contract can be crowned and faked.
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