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Analysis on the advantages and disadvantages of the service outsourcing of the property company
Text \/ Xiao Yufeng Jiangsu German law firm
Compared with the older generation of owners, the new generation of owners of strong economic capacity, pay more attention to the quality of service, pay attention to the property management services brand, quality and service content. At the same time, the property management market continues to mature, the competition between Property Management Company has developed to a full range of market competition, competitors and competitive strategies emerge one after another. Smart owners know how to understand the pricing standards, understand the content and quality of service standards, if the property management is not up to standard, it will be replaced by competitors.
For property management, the quality of service standardization, standardization is a kind of intangible assets, can not be compared to any advertising. In order to establish a quality brand, in the eyes of the customer utility, Property Management Company will be part of the business subcontracted to downstream property management professional companies, such as: a certain quality and ability of professional cleaning company, landscaping company, equipment maintenance companies, to improve their service level, to achieve maximum win-win and benefit, but also reduce labor costs and avoid the risk of employment. However, if the service outsourcing strategy is not used properly, it will bring additional risks.
One case: invalid overall subcontracting behavior
Case description: a property companies and property companies signed the property service b right transfer agreement, the two sides agreed a property company in July 1, 2011 will c residential property management services all over to the property company B. B property company due to the owners owed property charges to the court.
The court held that: property management regulations, property services companies shall not be entrusted to the property management area of all property management. A property company will be entrusted to be involved in this case all residential property services to B the behavior of the property belongs to the whole subcontract behavior, in violation of the provisions of administrative regulations. Therefore, the parties entered into the transfer agreement on the right to property services on behalf of the owners of the district is invalid, B property companies can not in accordance with the provisions of the contract to the owners involved in the right to claim.
Lawyers point of view: Property Management in the development and construction of the region at the beginning of the real estate administrative departments in accordance with the application of the division, and after the announcement, with a relative certainty. Property management regulations mandatory provisions of an area can only be managed by a property management services, is to take into account the property management and services with the overall supply, collective consumption attributes. So the cross coverage area, property services, the employer should pay attention to the legitimacy of the outsourcing behavior, avoid the whole subcontract is invalid circumstances, the Contractor shall refer to the property management regulations to fulfill the relevant legal procedures, it can also be appropriate in the correction, and re entered the owners of property services contract, and inform the relevant property services subject to change service level and charging standard.
Case two: false outsourcing has become a true dispatch
Case description: a property company in December 1, 2009 as a Nanjing C villa property services, in December 8, 2009 after the villa order maintenance work is outsourced to the property company B, fan and later entered the villa engaged in security work, but a and B property company did not sign a labor contract, nor pay social insurance fee. After a fan due to overtime wages, economic compensation and other matters with a property company consultation fruitless, sued to court.
The court held that: a property company to provide property services for the hotel, foreign companies are in the name of a management services, rather than B. According to fan provided by the work clothes, work cards, as well as the testimony of witnesses, can be identified in a fan from December 1, 2009 to May 17, 2014 in a property company services. Labor outsourcing service agreement court of a company and B company signed the authenticity to be recognized, but the company a and company B did not provide evidence in the signing of the agreement after the contents of the agreement and the owner told fan. According to fan and witness statements, Lee is responsible for the daily management of the villa, and the work of the fan arrangements, payroll management. Although the company is a subsidiary of the legal representative of the company, but a company and the company did not provide evidence to prove that this situation has been a fan and the owner, fan believes Lee Department of a company’s managers are reasonable. Although the company offered a salary table covered with B company seal, but the fan and fan B companies have said is not signed, but others paid when signing, a company and B company did not provide other evidence that has informed the fan Department of company B to the payment of wages. According to the fan Work Department of a company service area, the district name wearing work clothes, hanging with a company name cards work, considered fan Work Department of a company, the fact that labor relations between the company and a. A and B two companies called labor outsourcing, in fact, should be jointly and severally liable.
Lawyer’s point of view: Generally speaking, the real outsourcing should have the following characteristics: (1) the contract between the employer and the contractor is the principal-agent relationship. The object of outsourcing shall be directed to the results of the work rather than the people; (2) the Contractor shall directly manage the workers and exercise the power of command. (3) the remuneration paid by the contractor to the laborers.
These features indicate that, as the employer’s property company if still according to the business model and the existing management methods to handle outsourcing business, it is difficult to be identified as it outsourcing in the legal sense, so how to prevent was identified as fake outsourcing, true Dispatch Legal Risk?
(1) to confirm whether the contract between the contractor and the workers really signed a labor contract within the validity period, whether the full payment of social security and housing provident fund.
(2) to determine whether the contractor has the business scope of the contractor.
(3) by the employer for workers to avoid direct command, can be agreed by the employer based on fire protection, security, quality of service, order management and other aspects of the workplace and workers need to exercise part of the contractor management right.
(4) the Contractor shall formulate, publish and implement rules and regulations in accordance with the law. The Contractor shall, according to the rules and regulations, carry out the daily management of the working hours, holidays, overtime, performance, examination and punishment, etc., so as to avoid the labor management of the employer.
In these cases, it is because of a company without prior confirmation of company B and whether the fan signed labor contracts, while still in the normal employment form of fan management, assessment, wage settlement, which was identified as fake outsourcing, true dispatch, bear the legal liability should not bear the.
Write in the end
The use of part of the property outsourcing strategy, such as the use of properly, is a unique advantage, legal and can avoid certain legal risks. On the one hand, the nature of the behavior belongs to the service outsourcing, and the relationship between the employer and the Contractor shall apply to the relevant provisions of the contract law. In general, the staff of the employer to outsource service without the need to assume responsibility, also do not need the obligation of outsourcing staff welfare, personnel management, reduce the legal risk on personnel management and labor relations. On the other hand, will be part of the property outsourcing work to have excellent qualifications and professional competence of the company, the employer can concentrate its limited resources, and can use the Contractor’s resources, so as to continuously improve their service levels, establish brand effect.
Although the establishment and improvement of outsourcing strategy contributes to the core competitiveness of enterprises, the property management is to provide quality engineering, security, cleaning, greening, reception, catering and other service to win profit. However, once a part of the property of the employer work outsourcing, it is difficult to control the Contractor’s service level, if the service is not qualified to property poor results, according to the principle of contract relativity, for the owners, eventually still bear the consequences of the employer. At the same time, some contractors will contract the property service subcontract again affect the property service level. Therefore, in addition to the above two cases, in certain property services outsourcing, the employer must pay attention to the contractor in the contract agreement shall not further subcontract, and clearly agreed quality assessment and quality assessment in accordance with the payment of service fees etc..
Please reply to de CE public class in the public number, access to the content of 1, the labor dispute arbitration and judicial practice of processing – Chen Dongming 2, property management in Industrial Park legal analysis – Xu Yuwei
3, the advantages and disadvantages of property services outsourcing company – Xiao Yufeng
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