배움과 공유의 시간

02. Non-regular Employment Form

The labor contract law obliges life imprisonment if certain requirements are met and strictly regulates companies' unilateral dismissal.
For this reason, companies have avoided regulations under the Labor Contract Act by drastically expanding indirect employment in the form of labor strikes, regardless of industry or position, and actively hiring trainees and retired workers, in order to maintain the flexibility of employment and avoid legal constraints.

However, with the 10% total volume regulation in March 2016, labor dispatch employment has become inevitable. The entity responds by converting a large portion of the work used by dispatched workers into an external supply or other non-regular type of employment.

1. Employment of Labour Members

After the Labor Contract Act went into effect, the Chinese government passed a revised labor contract law focusing on stricter regulations on labor dispatch at the end of December 2013, which limited the employment of dispatched workers to 10 percent of the total number of employees.

(1) Overview of the labor dispatch system

In labour force employment, legal employees and actual users are separated and a three-way relationship is formed between labor dispatch companies, use companies and dispatched workers.
Labor dispatch company said, "Hiring but not using human resources"，
The use company uses human resources but uses them as a bulwark.It can be said that this type of employment is characteristic of labor dispatch.

Legal labor relations in employment of dispatched workers are established between labor dispatch companies and workers, and between labor dispatch companies and companies, and between companies and workers, and between companies and workers, a command-order relationship.

The labor dispatch company sends dispatched workers to the company, and the company pays the dispatched workers once a month, the wages and social insurance fees, and the kitchen public money.

The two dispatched workers pay the cost of managing their labor dispatch work. Usually, the cost of managing the work varies greatly depending on the blue-collar and white-collar jobs, and usually ranges from 100 to 300 yuan per month per person.

Advantages of Labour party

1 Flexibility of workforce employment

Since dispatched workers can continue to be hired in two-year increments, it is easy to adjust personnel during changes in the market environment, order reduction and business restructuring.

2 Avoiding lifetime employment

For full-time employees, after signing two consecutive fixed labor contracts, a non-fixed labor contract shall be concluded upon request by the employee, but the labor force shall not be obliged to conclude a non-fixed contract.

3 Ease of labor management

In the case of certified or on-site service workers, the labor dispatch company shall act as a proxy for the recruitment and employment procedures, and may receive assistance from the labor surveyor in the event of a labor dispute or strike.

(2) Major details of the policy on controlling labor strikes

The Labor Party Restriction Regulations, which are the enforcement regulations for labor strike regulations (enacted from March 2016), provided that its auxiliary post should be set up in consultation with the public society or its representatives, taking into account the industry and characteristics.
In other words, the company was not allowed to arbitrarily set the scope of the auxiliary post by specifying that it should be confirmed through democratic procedures and made public in-house.
In addition to the above-mentioned "precision" regulations, for "quantitative" regulations, the total proportion of dispatched workers was nailed to "10%". This includes not only "subsidiary" posts, but also dispatched workers of alternative and temporary posts.

1 Total amount regulation

The proportion of dispatched workers in auxiliary posts shall not exceed 10% of the total number of employees.
The total number of employees refers to the sum of the number of employees who have signed labor contracts directly with the company and dispatched workers.

[Example] 200 workers for the settlement of labor contract, 30 dispatched workers (22 auxiliary workers, 3 temporary workers, 5 substitutes)

ᄋ Percentage of dispatched workers in accordance with these Regulations:
30÷230 (200+30) = 13% (Total regulatory criteria exceeded by 3%)

2 Setting of the "Auxiliary" post

Only three-star (temporary, substitute, auxiliary) posts are legally available for labor dispatch.
Temporaryity (task within six months), substitution (alternative to full-time vacancies resulting from education, maternity leave, etc.) is very underutilized in real enterprises.
Thus, an absolute majority of the labour force dogs are currently being carried out under the pretext of a "subsidiary" port.

In case of auxiliary post, "subsidies" are available for labor dispatch after prior agreement between labor and management.
The category of "post" must be finalized.

1 In this case, the category of auxiliary voice port and how to use dispatched workers are prepared and the opinions of all employees are collected (e-mail, public notice, etc.).
2 The medical institution carries out the procedure for finalizing the meeting after consulting with the public or a work representative (commissioning the meeting and signing the participants).

In addition, if an entity is caught managing and using workers directly in the form of a labor strike, it is ordered by the authorities to correct it based on the Regulations for Labor-Party Restriction.

Meanwhile, the representative office of a foreign company (the judge's office) is prohibited from direct employment under Chinese law, and only indirect employment through labor dispatch is allowed. Thus, as in the past, the employment of labour force dogs is possible for all posts.

01 Types of Employment

Since the Labor Contract Act took effect in 2008, legal risks for regular employment have increased sharply. The Labor Contract Act was because it significantly strengthened the legal protection of workers by directly linking corporate illegal labor activities to economic compensation to workers in order to ensure stability and long-term labor relations. Given the increased risk of regular employment, it is necessary for an entity to break away from the single shift in regular employment and increase the elasticity of employment by using various types of non-regular employment suitable for the job characteristics.


1. Types of employment patterns

If the company requires cleaning staff, there are various types of non-regular employment as shown below.

1) Contracts with cleaning company are contracted and the cleaning work is entrusted. - Business supply (contract)

2) Employ non-one-time (part-time) staff. - Non-daily employment (direct employment)

3) Hire a retired person. - Retirement inventory (civil accident)

4) Through a labor dispatch company, dispatched workers are employed. - Employment of labor workers (indirect employment)

5) A full-time employee shall be employed as a full-time employee and shall be exclusively responsible for cleaning. - Form of formal employment (direct employment)

From the standpoint of the company, it would be reasonable to choose the employment method of 1),2),3) that has no obligation to pay social insurance or to pay economic compensation, and that can terminate the use relationship at any time. However, most of the company's jobs require professionalism and responsibility, and therefore do not have a variety of options, such as hiring cleaning staff.

With the labor cost burden of regular employment and strict restrictions imposed on legal dismissal, it is necessary for the company to manage the workforce by combining employment in the form of non-regular workers, moving away from the single employment of regular workers, taking into account their job characteristics, importance and possibility of substitution.

2. Risk of temporary public employment

In China, temporary work is called various terms such as 小 and 钟点工. However, with the promulgation of the Labor Contract Act, it was clearly legally prescribed in the form of "non-one-time" employment. For only a few months, they should either hire full-time full-time workers or in the form of part-time employees. The legal risk is very high if full-time employment is hired on a temporary basis without signing a contract that clarifies the type of employment. Social insurance, including double wages and economic compensation for failure to pass a written contract
It may be required to pay supplemental payments.

[Example] Risk of liability for compensation for temporary public employment

Because the industry is clearly divided between the peak and the off-season, many auxiliary workers are needed during the peak season, and these auxiliary workers are employed at peak times. The president of the company thought that because these workers were not full-time employees, they did not have to sign labor contracts and paid according to working hours.
At the end of the three-month grace period, as the company tried to retire after notifying "temporary workers" of the termination of their work duties, they had demanded that they pay double the wages for the period of non-payment of labor contracts as well as economic compensation.
In court, the company was ordered to pay 0.5 months of economic compensation for each person, two months of unpaid compensation for a written contract and a total of 2.5 months. After all, due to the lack of understanding of the law rather than the workers, they paid the harsh price of hiring for three months and paying 5.5 months of wages.


[working-level measures]

When an entity needs to perform a particular task on a temporary or seasonal basis, approximately four types of choices exist.

1) Non-one-time (Arbyte) Employment: In this way, non-one-time labor contracts are signed.
You can hire. However, working hours are limited to an average of 4 hours per day and 24 hours per week.
Not suitable for full-time work.

2) Labor party recruitment methods: indirect employment through labor dispatch companies. Short-term indirect employment for weeks or months is also possible in cases such as sales promotion sources, but normally for general positions, the contract period of two years is required by the labor dispatch company.

3) Civil accident: Retirement workers after 50 years of age and 60 years of age are not regarded as laborers under labor laws, so they can sign labor contracts and hire them full-time.

4) Delivery of work: Subcontract the entire related work to an outside professional. For example, packing, material injection, etc.

Characteristics of the Labor Law System

With more than 30 local governments on the basis of the socialist system, China operates a labor legal system that is quite different from ours. It has a complicated system that is difficult to understand easily for Korean companies, such as the presence of the central and local laws, written labor contractism and the importance of employment rules. Therefore, it is very dangerous to enter China and manage labor on the premise that it will be similar to Korea. The common sense of Korean labor management is not common in China.

1. The legal system

In China, which has a population and national territory equal to dozens of countries, it is practically difficult to apply the central basic law uniformly across the country because of differences in economic and social development between provinces, the gap in living standards, culture and mindset. Also, after the reform and opening up, the Chinese government has decided to promote economic development.
Under the premise of the "centralization system," the local decentralization, or the local prestige policy of central power, is being implemented.

A case in point of decentralization is the local prestige of the legislative power. The "legislative law" that went into effect in July 2000 allows local governments above a certain level (e.g., provinces, municipalities, and coastal cities) to enact local regulations within the scope of the central law.
The central laws have their respective roles: principle-based (abstract and principled), and local laws (concrete and practical). In addition, the Supreme People's Court frequently promulgates "judicial interpretations" of legal matters related to judicial proceedings, which have a judicial effect and thus are binding on the litigants, as is the law.

Importance of Local Laws

Chinese labor laws are complex and difficult compared to Korea. It is composed of multiple layers of central and local laws, judicial interpretation and administrative regulations, and there are only independent local labor laws in different provinces, even different local law enforcement agencies differ in their application standards.

The minimum wage and social insurance payment rates vary from region to province, and the payment and conditions of high-temperature allowances and heating costs are set differently depending on which climate zone is located. The same labor dispute issues are often subject to different sentencing standards if the region is wrong.
For this reason, China, unlike our country, puts "local law" before "central law" in the actual labor scene. The central law defines only large legal boundaries in principle, and the tax rules for implementation are established and operated independently by each local government. For this reason, the local labor and judicial authorities are also making administrative or judicial decisions by prioritizing local laws. .

Since most of the Chinese labor-related data we encounter frequently centers on the basic laws and administrative laws of the central government, it is not helpful to the labor management of companies operating in certain provinces. Therefore, on-site labor management, it is necessary to check and verify the important local regulations in the areas in which it is advancing, as well as the central laws. Labor management without grasping local laws and administrative notices may face labor disputes or be in a situation where labor costs are overpaid.

administrative notice of local government
Companies entering China must have a clear grasp of the various administrative notices promulgated by the local local government. This is because laws and administrative notices related to labor and social security systems continue to change in content or are updated regularly each year.
For example, for "the average monthly wage of a former worker" which is the basis for the payment of social insurance premiums, the figures are regularly issued by local governments in the form of "notifications" each year. Failure to do so may result in errors in labor-related work, including social insurance payments and calculation of economic compensation. It should also be noted that the payment rates of social insurance, the minimum wage standard and the number of days of legal paid leave are also subject to different local standards, and that the content continues to fluctuate on a regular and irregular basis.