To protect the rights and interests of workers in the new form of employment, the platform economy is expected to introduce a wage negotiation mechanism

Reporter | Xi Xiaodan

Edit | Zhai Ruimin

Nine departments, including the National Development and Reform Commission, recently issued the Several Opinions on Promoting the Healthy and Sustainable Development of Platform Economy Norms (hereinafter referred to as the "Several Opinions"). It is proposed to strengthen the protection of the rights and interests of workers in new employment forms, and implement relevant policies and measures to protect the rights and interests of workers in new employment forms, such as online delivery workers and online car drivers.

The "Several Opinions" said that it is necessary to guide platform enterprises to strengthen consultation with workers in new forms of employment, reasonably formulate systems and algorithm rules that directly involve the rights and interests of workers, such as order distribution, piece price unit price, and percentage, and publicly release them to ensure that the system rules are open and transparent.

In recent years, the protection of workers' rights and interests in the new form of employment has been a hot issue of concern to the outside world. New employment form workers refer to the progress of modern information science and technology such as the Internet, big data, etc., relying on the Internet platform to achieve employment, and their employment methods are different from the traditional stable employment and flexible employment of workers, online delivery workers, online car drivers, substitute drivers, Internet marketers, Taobao shop owners, etc. are typical of the new employment form workers.

Previously, on July 23, 2021, the Ministry of Human Resources and Social Security and other eight departments jointly issued the "Guiding Opinions on Safeguarding the Labor Protection Rights and Interests of Workers in New Employment Forms", emphasizing the establishment of a working mechanism for the protection of workers' rights and interests, improving the system of fair employment, labor remuneration, rest, labor safety, social insurance and other aspects of workers in the new employment form that is in line with the establishment of labor relations and not fully in line with the establishment of labor relations, and also requires trade unions to intervene to safeguard the legitimate rights and interests of workers.

"On this basis, the newly released "Several Opinions" emphasizes the openness and transparency of the platform employment system and algorithms." Shen Jianfeng, a professor at the Law School of the Central University of Finance and Economics and dean of the Law School of the China Institute of Labor Relations, told Interface News. Jiang Qiping, director of the Informatization Research Center of the Chinese Academy of Social Sciences, believes that this is a new type of distribution relationship emerging from the sharing economy in the form of platform ecology, and it has taken a big step towards shared development and common prosperity by promoting one-time distribution fairness.

Shen Jianfeng pointed out that the "publicity" related to the wage system of workers can be posted within the enterprise in the traditional sense, the enterprise OA system is announced, etc., and the emphasis on "public release" in the "Several Opinions" means that it should be open to the society and the public, and it is not only open, but also requires transparency, "that is, so that workers and the public can understand and understand, which is also a higher requirement." ”

Liang Zhengze, a professor at Tsinghua University's School of Public Policy and Management, believes that algorithm disclosure in the full sense can neither be done nor necessary, "For workers, the details of the algorithm of income do not need to be fully understood, just like the "secret salary system" is widely existed in ordinary industries." The key is to require the platform not to use its dominant market position to detract from the rights and interests of workers, especially not to provide discriminatory treatment. ”

It is worth noting that the "Several Opinions" has added content such as "platform enterprises to strengthen consultations with workers". Liang Zheng said that this means that a labor-management co-determination mechanism has been introduced in aspects involving the major interests of workers, giving workers a certain right to negotiate individually or collectively.

Shen Jianfeng introduced that because the platform contract adopts a "click contract" (Editor's note: the click contract refers to the contract in which the platform operator makes an offer through the Internet, and the employee expresses a commitment with its "click" behavior to reach a consensus of intention), this is often overlooked.

From the perspective of the current law, the requirements of reasonableness, openness and transparency, and the requirement of consultation and consent are the basic requirements of Article 496 of the Civil Code on the conditions for the entry into force of standard contracts. Shen Jianfeng believes that the consultation proposed in the "Several Opinions" is to re-emphasize the consensual basis of the rules and the important significance of the will of the workers in the effectiveness of the rules, so that the workers have the opportunity to influence the generation of the rules.

How should the platform negotiate with workers? Shen Jianfeng said that from the perspective of labor law, consultation can be the participation of the laborer side through the collective interest representative, which can eliminate the lack of negotiation power of individual workers and strengthen the significance of the collective will of the workers in these rules.

Interface News noted that with regard to the consultation mechanism, Beijing Municipality issued the "Implementation Measures for Multi-channel Support for Flexible Employment by the Beijing Municipal Human Resources and Social Security Bureau" in 2020, which put forward specific consultation methods, "for new employment forms of personnel, guide Internet platform enterprises, affiliated enterprises and workers to negotiate and determine labor remuneration, rest and leave, occupational safety and security and other matters." Support and encourage industrial (industry) trade unions to negotiate with enterprises or industry associations or industry enterprise representatives to formulate industry labor quota standards, working hour standards, and other norms, and determine minimum protection standards in terms of service hours, remuneration, rest and leave, labor protection, etc. ”

The "Several Opinions" make it clear that "improve the criteria for determining the labor relationship between workers in the form of new employment, platform enterprises and employment cooperative enterprises, explore the criteria for determining that the situation of establishing labor relations is not fully met, and reasonably determine the rights and obligations of enterprises and workers." Does this mean that new standards may be introduced for the definition of labor relations in the platform economy?

Liang Zheng introduced that the Ministry of Human Resources and Social Security is indeed formulating new standards for the identification of flexible employment and employment relations. He said that the vast majority of existing social security, including the labor relations system, are still born out of the industrial age and are suitable for workers who work in fixed places and at fixed times. "At present, the rise of the sharing economy and the gig economy has made fundamental changes in the form of labor, and there is a great flexibility in the working hours of workers, and they can also choose to use multiple platforms to provide services, which are quite different from the traditional labor employment relationship, so new identification standards are needed."

According to the "China Flexible Employment Development Report (2021)" released by the School of Labor and Personnel of Chinese Min University, more than 60% (61.14%) of enterprises used flexible employment last year, and most enterprises used more than two types of flexible employment. Compared with the survey results in 2020, the proportion of flexible workers in the mainland increased by 5.46 percentage points.

The relevant person in charge of the Labor Relations Department of the Ministry of Human Resources and Social Security also revealed that the Ministry of Human Resources and Social Security intends to jointly compile typical cases of labor disputes in new employment forms with the Supreme People's Court, and introduce specific criteria for the determination of labor relations in case handling at a later time. In this regard, Liang Zheng suggested that the new standards for the identification of labor relations can be led by industry associations and formulated on the basis of extensive solicitation of opinions from platform enterprises, workers, consumers and other parties.

The "Several Opinions" also make it clear that it is necessary to improve the minimum wage and payment guarantee system to ensure that workers in new forms of employment receive reasonable labor remuneration. Carry out pilot projects for occupational injury protection for flexible employment personnel on the platform, and explore mechanisms such as the purchase of commercial insurance by employing enterprises. Implement a universal insurance plan to promote the participation of workers in new forms of employment in social insurance. Strengthen training on safety awareness and legal awareness for workers in new forms of employment.