论劳务派遣人员权益保护
发布时间：2019-07-05 07:24
【摘要】：劳务派遣作为一种典型的特殊雇佣劳动形式,在我国的发展历史并不长。2008年《劳动合同法》中用法律形式将其合法化后,劳务派遣就因其灵活的用工方式、降低企业用工成本、减少企业劳动争议败诉风险等特点,受到大量企业的青睐,出现蓬勃发展的趋势,并对我国严峻的就业压力起到缓解作用。但近几年来,由于许多企业滥用劳务派遣用工方式,加之《劳动合同法》及《劳动合同法实施条例》中的规定在实践中操作性不强,造成劳务派遣用工方式中存在诸多问题,例如劳务派遣人员同工不同酬、社保权益受损、用工单位使用劳务派遣人员超出三性岗位、劳务派遣机构资质偏低等,致使劳务派遣人员的合法权益被严重侵害,己背离了劳动合同法规范劳务派遣用工的立法初衷。2012年12月28日全国人大常委会通过了关于修改劳动合同法的决定,修改后的劳动合同法将于2013年7月1日起正式实施。尽管此次修改提高了劳务派遣机构的准入门槛,对经营劳务派遣业务实施行政许可,对三性岗位、同工同酬均作出了说明,并且加大了对违法行为的处罚力度,但是对目前实务操作中涉及劳务派遣人员社会保险缴费额偏低、主体不适格的劳务派遣以及退回机制中存在的侵害劳务派遣人员合法权益问题仍然较为突出,亟待解决。本文主要从实务角度出发,运用归纳、比较分析的方法,结合《劳动合同法》中相关规定及典型案例,从介绍我国劳务派遣基本情况着手,对目前我国劳务派遣中存在的劳务派遣机构通过异地派遣降低社会保险缴费费率致使劳务派遣工社保权益受损,非正规就业组织的劳务派遣造成劳务派遣人员维权困境,以及退回机制中对劳务派遣人员权益侵害的问题进行探讨,提出劳动者权益保护方面的实践情况和法律问题,为劳务派遣制度的发展和完善,切实保护劳务派遣人员合法权益提出相应建议,对构建和谐劳动关系,维护社会稳定具有指导意义。具体来说,本文的结构主要分为以下四个部分：第一部分,我国劳务派遣发展基本情况。该部分主要是针对我国劳务派遣的定义、特征、兴起原因、发展历程和现状进行介绍,从而引出目前我国劳务派遣中存在的问题。第二部分,异地派遣对劳务派遣人员社保权益侵害,结合典型案例分析异地派遣兴起的原因,及异地派遣的劳务派遣人员维权困境,并提出建议。第三部分,非正规就业组织对劳务派遣人员权益侵害问题。该部分主要通过介绍该组织产生的原因,性质及发展现状,结合案例分析该组织中劳务派遣人员权益保护缺失的原因,并提出如何解决该困境。第四部分,退回机制对劳务派遣人员权益侵害问题。该部分主要从《劳动合同法》劳务派遣专章中对劳务派遣人员可以被退回的规定入手,结合典型案例,分析退回产生的原因,及被退回劳动者维权困境,并提出建议。
[Abstract]:As a typical special form of wage labor, the development history of labor dispatch in our country is not long. After legalizing it in the labor contract law in 2008, labor dispatch has been favored by a large number of enterprises because of its flexible employment mode, reducing the cost of employment and reducing the risk of losing labor disputes, which is favored by a large number of enterprises, showing a vigorous development trend, and plays a role in alleviating the severe employment pressure in our country. However, in recent years, due to the abuse of labor dispatch employment mode by many enterprises, coupled with the fact that the provisions of the Labor contract Law and the regulations on the implementation of Labor contract Law are not strong in practice, there are many problems in the employment mode of labor dispatch, such as unequal pay for equal work for labor dispatch personnel, damage to social security rights and interests, employment units using labor dispatch personnel to exceed three-sex posts, and low qualifications of labor dispatch agencies, and so on. As a result, the legitimate rights and interests of labor dispatch personnel have been seriously infringed, which has deviated from the original legislative intention of labor contract law regulating labor dispatch employment. On December 28, 2012, the standing Committee of the National people's Congress adopted a decision on amending labor contract law, and the revised labor contract law will be formally implemented on July 1, 2013. Although this revision has raised the entry threshold for labor dispatch institutions, implemented administrative permits for operating labor dispatch business, explained the three jobs and equal pay for equal work, and increased the punishment for illegal acts, the amount of social insurance contributions involving labor dispatch personnel in the current practical operation is on the low side. The problem of infringing the legitimate rights and interests of labor dispatch personnel in the improper labor dispatch and return mechanism is still prominent and needs to be solved urgently. This paper mainly from the practical point of view, using the method of induction, comparative analysis, combined with the relevant provisions of the Labor contract Law and typical cases, starting from the introduction of the basic situation of labor dispatch in our country, the labor dispatch agencies in our country at present reduce the social security rights and interests of the labor dispatch workers by sending different places to reduce the social security payment rate. The labor dispatch of informal employment organizations causes the dilemma of safeguarding the rights and interests of labor dispatch personnel, and probes into the infringement of the rights and interests of labor dispatch personnel in the return mechanism, puts forward the practical situation and legal problems in the protection of workers' rights and interests, and puts forward some corresponding suggestions for the development and perfection of labor dispatch system and the practical protection of the legitimate rights and interests of labor dispatch personnel, which is of guiding significance for the construction of harmonious labor relations and the maintenance of social stability. Specifically, the structure of this paper is mainly divided into the following four parts: the first part, the basic situation of labor dispatch development in China. This part mainly introduces the definition, characteristics, causes, development process and present situation of labor dispatch in our country, which leads to the problems existing in labor dispatch in our country at present. In the second part, the social security rights and interests of labor dispatch personnel are infringed by different places, combined with typical cases, this paper analyzes the causes of the rise of labor dispatch personnel in different places, and the dilemma of safeguarding the rights of labor dispatch personnel in different places, and puts forward some suggestions. The third part is the infringement of the rights and interests of labor dispatch personnel by informal employment organizations. This part mainly introduces the causes, nature and development status of the organization, analyzes the reasons for the lack of protection of the rights and interests of labor dispatch personnel in the organization, and puts forward how to solve the dilemma. The fourth part, the return mechanism to the labor dispatch personnel rights and interests infringement problem. This part mainly starts with the provisions that labor dispatch personnel can be returned in the Labor contract Law, and analyzes the causes of the return, as well as the dilemma of protecting the rights of the returned workers, and puts forward some suggestions.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.5
本文编号：2510354
[Abstract]:As a typical special form of wage labor, the development history of labor dispatch in our country is not long. After legalizing it in the labor contract law in 2008, labor dispatch has been favored by a large number of enterprises because of its flexible employment mode, reducing the cost of employment and reducing the risk of losing labor disputes, which is favored by a large number of enterprises, showing a vigorous development trend, and plays a role in alleviating the severe employment pressure in our country. However, in recent years, due to the abuse of labor dispatch employment mode by many enterprises, coupled with the fact that the provisions of the Labor contract Law and the regulations on the implementation of Labor contract Law are not strong in practice, there are many problems in the employment mode of labor dispatch, such as unequal pay for equal work for labor dispatch personnel, damage to social security rights and interests, employment units using labor dispatch personnel to exceed three-sex posts, and low qualifications of labor dispatch agencies, and so on. As a result, the legitimate rights and interests of labor dispatch personnel have been seriously infringed, which has deviated from the original legislative intention of labor contract law regulating labor dispatch employment. On December 28, 2012, the standing Committee of the National people's Congress adopted a decision on amending labor contract law, and the revised labor contract law will be formally implemented on July 1, 2013. Although this revision has raised the entry threshold for labor dispatch institutions, implemented administrative permits for operating labor dispatch business, explained the three jobs and equal pay for equal work, and increased the punishment for illegal acts, the amount of social insurance contributions involving labor dispatch personnel in the current practical operation is on the low side. The problem of infringing the legitimate rights and interests of labor dispatch personnel in the improper labor dispatch and return mechanism is still prominent and needs to be solved urgently. This paper mainly from the practical point of view, using the method of induction, comparative analysis, combined with the relevant provisions of the Labor contract Law and typical cases, starting from the introduction of the basic situation of labor dispatch in our country, the labor dispatch agencies in our country at present reduce the social security rights and interests of the labor dispatch workers by sending different places to reduce the social security payment rate. The labor dispatch of informal employment organizations causes the dilemma of safeguarding the rights and interests of labor dispatch personnel, and probes into the infringement of the rights and interests of labor dispatch personnel in the return mechanism, puts forward the practical situation and legal problems in the protection of workers' rights and interests, and puts forward some corresponding suggestions for the development and perfection of labor dispatch system and the practical protection of the legitimate rights and interests of labor dispatch personnel, which is of guiding significance for the construction of harmonious labor relations and the maintenance of social stability. Specifically, the structure of this paper is mainly divided into the following four parts: the first part, the basic situation of labor dispatch development in China. This part mainly introduces the definition, characteristics, causes, development process and present situation of labor dispatch in our country, which leads to the problems existing in labor dispatch in our country at present. In the second part, the social security rights and interests of labor dispatch personnel are infringed by different places, combined with typical cases, this paper analyzes the causes of the rise of labor dispatch personnel in different places, and the dilemma of safeguarding the rights of labor dispatch personnel in different places, and puts forward some suggestions. The third part is the infringement of the rights and interests of labor dispatch personnel by informal employment organizations. This part mainly introduces the causes, nature and development status of the organization, analyzes the reasons for the lack of protection of the rights and interests of labor dispatch personnel in the organization, and puts forward how to solve the dilemma. The fourth part, the return mechanism to the labor dispatch personnel rights and interests infringement problem. This part mainly starts with the provisions that labor dispatch personnel can be returned in the Labor contract Law, and analyzes the causes of the return, as well as the dilemma of protecting the rights of the returned workers, and puts forward some suggestions.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.5
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