About the company outsourcing employees to third parties?

Labor outsourcing is to outsource part or all of personnel management to a service organization, which is legal in itself.

If the company goes bankrupt, it can also get due compensation according to the contents of the contract, but at this time the object of prosecution is the labor service company, not the original company.

From a legal point of view, according to Article 35 of the Labor Contract Law, the employer and the employee can change the contents of the labor contract through consultation. In the process of streamlining and merging, it is necessary to adjust the positions and work places of some employees, which should be the change of labor contracts.

According to Item (3) of Paragraph 1 of Article 40 of the Labor Contract Law of People's Republic of China (PRC), the objective conditions on which the labor contract was concluded have changed significantly, resulting in the inability to perform the labor contract. If the employer and the employee fail to reach an agreement on changing the labor contract through consultation, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an extra month's salary.

The "objective situation" in this article refers to the occurrence of force majeure such as enterprise relocation, merger, enterprise asset transfer, or other circumstances that make all or part of the terms of the labor contract impossible to perform. The alteration of the labor contract by the property company is not implemented in accordance with the above legal procedures, so the alteration of the labor contract is invalid.

Extended data

typical case

Yang Chao has been working as a security guard in a property management company in Wuhan since 20 15. 2065438+In June 2007, Yang Chao was promoted to foreman due to his earnest work and outstanding performance. 2065438+September 2009, the company suddenly sent him a notice to terminate the labor contract, which made him puzzled.

It turned out that the property management company outsourced the security work to a third-party security company for business needs, and the company no longer set up security posts. At the same time, the company gave Yang Chao two choices: either transfer to a third-party security company or get compensation and leave.

Because Yang Chao has worked as a property security guard for so many years, it is hard to accept that the company unilaterally changed "regular workers" into "service outsourcing personnel". After the negotiation between the two parties failed, Yang Chao received a notice from the company to terminate the labor contract and paid him a compensation of 24,000 yuan for four months.

Yang Chao then applied for labor arbitration, and the final arbitration award concluded that the property company did not terminate the labor contract relationship illegally, and only needed to pay economic compensation of 24,000 yuan. In desperation, Yang Chao filed a lawsuit in Wuchang District Court, claiming that the company illegally terminated the labor contract and demanded to pay economic compensation of 48,000 yuan.

The property management company said in court that Yang Chao has been engaged in security work, but the situation of signing a labor contract has changed greatly because the company outsourced the position to a third party company, and the labor contract can no longer be fulfilled.

At the same time, the company also paid the wages and overtime pay in full according to the regulations, and the labor relationship can only be dissolved after negotiation with Yang Chao fails, and the economic compensation has been paid, which is a legal dissolution.

Referee's result:

After hearing the case, the court held that the situation at the time of signing the labor contract had changed greatly after the court was informed. Usually refers to force majeure or other circumstances that cause all or part of the terms of the labor contract to be unable to be fulfilled.

Whether this situation is a "major change in the objective situation" should not be explained in any expanded way, nor should it be abused. The company decided to outsource its services entirely for its own benefit. The court finally ruled that the company terminated the labor contract illegally and should pay Yang Chao 48,000 yuan in economic compensation.