Analysis on the legality of signing professional labor subcontract between construction enterprises (labor service companies) and team leaders (contractors) and the operation strategies of four actual forms of employment


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At present, 12 provinces, including Shaanxi, Anhui, Zhejiang, Shandong, Jiangsu, Qinghai, Heilongjiang, Jiangxi, Guizhou, Henan, Shandong and Sichuan, have been approved by the Ministry of housing and urban rural development of the people’s Republic of China to cancel the construction labor qualification

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Cancel the examination and approval of construction labor qualification, establish professional operation enterprise qualification, and implement the notification and record system

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I

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legal definition of “professional operation” Article 6 (12) of “opinions of the general office of the State Council on promoting the sustainable and healthy development of the construction industry” (GBF [2017] No

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19) “reform the construction employment system” stipulates: “promote the transformation of labor service enterprises in the construction industry, and vigorously develop professional enterprises focusing on operation, such as woodworking, electrician, masonry and steel bar production

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Item (2) of Article 2 of the guidance on the cultivation of construction industry workers in the new period (Draft) (Jian ban Shi Han [2017] No

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763) “vigorously develop professional operation enterprises.” Regulations: “encourage and guide the existing labor teams or team leaders with certain skills and experience to set up professional companies or registered individual businesses, as the legal carrier of construction workers, promote the transformation of migrant workers in the construction industry to skilled workers, and improve the sense of belonging of construction workers

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Based on the above laws and policies, the so-called “professional operation” in the construction industry refers to the professional operation activities for a certain type of work: steel worker, formwork worker, concrete worker, masonry worker, plasterer, scaffolder, waterproof worker, water, electricity and heating installation worker, painter, external wall insulation worker, etc

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Secondly, the differences and relations between construction labor subcontracting and professional operation labor subcontracting

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1

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Two legal classifications of construction labor subcontracting: clear labor subcontracting and pure labor subcontracting

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According to the provisions of item (7) of Article 1 of “Regulations on the pilot project of replacing business tax with value-added tax” in Appendix 2 of CS [2016] No

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36, providing construction services in the form of clearing and contracting refers to the construction services in which the construction party does not purchase the materials required for the construction project or only purchases the auxiliary materials, and receives the labor cost, management fee or other expenses

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Based on this provision, there are two kinds of construction labor subcontracting: clearing labor subcontracting and pure labor subcontracting

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The so-called “subcontracting” refers to the construction service that the construction party only purchases auxiliary materials and charges labor, management or other fees; the so-called “pure labor subcontracting” refers to the construction service that the construction party does not purchase materials (including main materials and auxiliary materials) required by the construction project and only provides labor to collect labor, management or other fees

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Therefore, the “labor subcontract” mentioned in practice actually refers to the labor subcontract and pure labor subcontract

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2

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The difference between construction labor subcontracting and professional operation labor subcontracting

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According to the previous legal analysis, construction labor subcontracting includes professional labor subcontracting, which refers to the general contracting of various types of work in a construction project

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In practice, it is mainly reflected in the subcontracting or pure labor subcontracting of various types of work signed by the construction labor company and the construction general contractor, the professional contractor and the professional subcontractor

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Professional labor subcontracting is a kind of labor subcontracting for a certain type of work

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3

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The relationship between construction labor subcontracting and professional operation labor subcontracting

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It is legal for the construction labor service company to sign the subcontracting or pure labor subcontracting of various types of work with the construction general contractor, the professional contractor and the professional subcontractor, and then sign the professional operation labor subcontracting of a certain type of work with the team leader (Contractor)

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However, the team leader (Contractor) who signs the professional operation labor subcontracting of a certain type of work with the construction labor service company and the team leader (Contractor) who sign the professional operation labor subcontracting of a certain type of work with the construction labor service company are the same It is illegal for another team leader (Foreman) to sign a labor subcontract for a certain type of work (legal basis: Article 12 (5) of JSG [2019] No

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1 stipulates: “it is illegal for a professional contractor to subcontract his contracted labor service”

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3

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It is not illegal subcontracting for construction enterprises (labor service companies) to sign professional labor subcontracting contracts with team leaders (contractors)

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It is a legal professional subcontracting behavior

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Some people think that according to the notice of the Ministry of housing and urban rural development on printing and distributing the administrative measures for the identification, investigation and punishment of illegal behaviors in construction contracting and contracting (JSG [2019] No

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1), Article 8 (2) According to the regulation of “it is illegal for a contractor to divide all the contracted projects into parts and transfer them to other units or individuals for construction in the name of subcontracting”

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The conclusion is that it is illegal for a construction enterprise (labor service company) to sign a professional labor subcontracting contract with a team leader (Contractor)

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This is a wrong understanding, and the analysis is as follows: first, the labor service company does not belong to the “Contractor” defined in JSG [2019] No

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1

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According to Article 19 of the notice of the Ministry of housing and urban rural development on printing and distributing the administrative measures for the identification, investigation and punishment of illegal acts in construction contracting and contracting (JSG [2019] No

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1), contractors include general contractors, professional contractors and professional subcontractors

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In these measures, the construction general contractor and the professional contractor refer to the unit that directly undertakes the project contracted by the construction unit; the professional subcontractor refers to the unit that undertakes the construction general contractor or the professional contractor’s subcontracting of the professional project

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Based on this provision, the construction labor company does not belong to the “Contractor” specified in Item (2) of Article 8 of JSG [2019] No.1

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Second, the construction labor company will subcontract the professional construction labor of each construction type to the team leader (Foreman), rather than subcontract the project to the team leader (Foreman)

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According to Article 2 of JSG [2019] No.1, item (2) of Article 8 of JSG [2019] No.1, it is illegal to subcontract all the contracted projects to other units or individuals in the name of subcontracting

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The “project” in the regulation refers to the housing construction and municipal infrastructure projects and their ancillary facilities and their supporting facilities Installation of lines, pipelines and equipment

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The labor service company is to subcontract the professional construction labor of a certain type of work in the labor subcontract signed with the construction general contractor, the professional contractor and the professional subcontractor to the team leader (the foreman), rather than the project (the construction project must have the main materials, auxiliary materials, machinery costs and labor costs)

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Based on the analysis of the above two points, according to item (2) of Article 8 of JSG [2019] No.1, it is illegal for the contractor to divide up all the contracted projects and transfer them to other units or individuals in the name of subcontracting

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It is concluded that it is illegal for the construction enterprise (labor service company) to sign a professional labor subcontracting contract with the team leader (Contractor) The conclusion of “subcontracting behavior” is wrong, which is based on the wrong legal basis

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IV

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five illegal behaviors of construction labor subcontracting according to the provisions of JSG [2019] No

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1, the following five kinds of construction labor subcontracting behaviors are illegal

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(1) the first kind of illegal construction labor sub contract is that the professional operation labor sub contract of a certain type of work signed by the professional operation labor company specialized in a certain type of work with the general construction contractor, the professional contractor and the professional sub contractor is sub contracted to the team leader, individual business and labor company of the professional operation.

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