China-Singapore Longitude and Latitude January 27 Title: Guaranteeing New Forms of Employment Can Be "Graded and Classified"
Author Chen Bing Director of the Competition Law Research Center of Nankai University, Professor of the Law School, And Special Expert of the Sino-Singapore Jingwei Research Institute
Recently, the National Development and Reform Commission and other departments jointly issued the "Several Opinions on Promoting the Healthy and Sustainable Development of Platform Economy Norms", which made special provisions on strengthening the protection of the rights and interests of workers in new employment forms. At present, China's flexible employment has reached 200 million people, and the "new employment + platform economy" model has gradually formed new formats and new industries. However, many sharing economy platforms have different degrees of personal and property interest damage incidents based on irregular labor management. Therefore, it is necessary to take multiple measures to standardize and implement the protection of the rights and interests of workers in the new employment form.
The rights and responsibilities of new forms of employment are complex
In the representative scene of the new employment form, network anchors, takeaway delivery workers, domestic decoration workers, etc. have become the main body of the market with "self-determination of income and self-responsibility for risks" through the centralized processing of individual industrial and commercial licenses, enjoying the preferential tax policies implemented by the state in the sharing economy and other aspects, and can increase labor remuneration faster and more directly. At the same time, because the labor demand between the new employment form and the employing enterprise is a market-oriented "cooperative relationship" rather than a "labor relationship" or "labor service relationship" under the current labor law, when the employee has personal injury or infringement of the rights and interests of a third party, the labor service behavior that lacks the responsibility of the employing enterprise as a guarantee can easily lead to compensation disputes.
At the same time, there are also some sharing economy employment service platforms, which provide a wider range of information matching and assume more roles, such as providing one-stop services such as independent job selection, income payment, tax payment, etc. for new individual workers such as riders, cleaners, anchors, etc. Its users cover new employed workers, employing enterprises, government departments, and substantively undertake some of the attributes and functions of each end, such as undertaking outsourced labor services, assigning labor orders, and paying individual tax social security. Moreover, such service platforms have a certain amount of "capital pool" in order to pay remuneration or reserve labor deposits on a regular basis. Relying on the legitimacy and compliance basis of short-term policy dividends, such platforms act on behalf of the legitimacy and stability of social public management functions, and need to further clarify their positioning, rights and responsibilities.
"Hierarchical classification" policy
For all kinds of subjects in the current new format form, in the overall direction, according to the application scenarios, specific industry fields, and professional skills types and other standards to carry out "hierarchical classification" policies, to help the sustainable and healthy development of new employment formats.
First, for workers in new forms of employment, the first level of classification can be carried out according to their "labor labels" such as gender, age, education level, and skilled work type. In high-risk industries such as home improvement, takeaway, and logistics, the obligation to enforce the security of employment should be signed in accordance with the "labor relationship" determined by the labor law, and the indoor cleaning, anchor with goods and online class teachers should bear the employment risks one by one according to the flexible labor service level, and guide the labor and management parties to reach an agreement within the boundaries of the appropriate rights and responsibilities.
Second, the sharing economy employment service platform is classified and managed according to the business field it is engaged in and the amount of data it holds. For platforms that are simply engaged in information matching and providing trading opportunities, the existing network platform service management regulations are used to carry out inclusive and prudent supervision; for service platforms with more users, large market share, and the main business has public management attributes, the license approval and verification standards should be strictly enforced, especially for acts such as collecting and paying individual tax social security and managing users' idle funds, it is necessary to carry out prior prudent supervision and active supervision in the event, and strictly prevent illegal risks such as sensitive information leakage and misappropriation of funds and money laundering.
Third, the sharing economy employment platform and relevant government departments must follow up the development of new employment forms in a timely manner and adjust business decisions and regulatory policies. Focusing on the takeaway, online ride-hailing drivers, and live broadcasting industries that have absorbed a large number of flexible employment, the enterprise side should strengthen the quality training of employees, guide the new employment form of labor personnel to pay attention to their own health and long-term development, and help their practitioners solve the problem of only eating "youth rice"; when adjusting the flexible employment industry policy, the taxation and other departments should maintain the continuity and stability of the policy to the greatest extent under the rule of law procedures when adjusting the flexible employment industry policy, and for the employment guidance policy that really needs to be changed, it should be combined with new individual workers, employing enterprises, The service platform and other multi-party representatives will communicate effectively and implement it after scientific demonstration hearings and public solicitation of opinions.
Improve the safeguard system and clarify the regulatory basis in parallel
Improve the multi-dimensional system of skill cultivation and rights protection for workers in new employment forms. First, workers in the new form of employment need to take the initiative to improve their professional consciousness and rule of law literacy. The second is to introduce mandatory provisions for flexible pre-job training for the sharing economy employment service platform and the sharing economy employment platform with the function of labor factor allocation, and further help workers in the new employment form to clarify their own attribute positioning and possible occupational risks. Focus on solving the "digital divide" problem of the elderly labor force, the "youth meal" problem of high-risk and high-intensity industries, and the problem of "releasing pigeons" for short-term temporary employment. Specifically, through the employment APP, free online courses and employment guidance video materials can be provided for groups with employment difficulties, "digital academies" or "skill examinations" for workers to study before work are pushed from time to time, and the performance mechanism for labor evaluation and the digital recording facilities of the labor process can be improved.
The third is to adjust the current social security policy and regulatory system to adapt to the new characteristics of employment forms and employment. The social security department will take the lead in establishing a system of policies and regulations that can also pay social insurance without labor relations, and promote the "full insurance" of workers in new employment forms. It is recommended that workers with larger risk types of new employment forms be compulsorily insured, such as work injury and unemployment insurance, and social insurance with less risk is encouraged to participate in insurance through policy guidance, such as maternity insurance. In terms of social security jurisdiction, the household registration threshold for workers in new employment forms to pay social security is broken, and the place of participation can be gradually tilted to the place where the labor behavior actually occurs or the location of the payment platform. In terms of payment cycle, a variety of payment methods such as monthly payment, quarterly payment and annual payment can be designed. At the same time, we will speed up the establishment of individual social security accounts and the establishment of a nationally coordinated social security mechanism and database to ensure the interconnection and interoperability of national social security big data information.
Clarify the regulatory basis for the multi-scenario compliance development of the sharing economy employment service platform. The first is to improve the tax policies and regulations for the new employment form. At the central level, under the overall requirements of tax statutory, tax reduction and fee reduction, social security taxation, data taxation, etc., the relevant management measures have been formulated and introduced in a timely manner, and the approval standards and supervision procedures for the authorization of individual tax collection and authorization in various localities have been unified. At the local level, set up special support policies and regulations for tax incentives for local new employment forms employment service platforms according to local conditions, and take labor employment data as a measurement indicator, cooperate with transfer payments to balance regional fiscal revenues and expenditures, and avoid platforms using tax incentives to implement regulatory arbitrage; at the technical level, encourage the new employment form employment industry head platform to use tax big data to assist relevant departments in analyzing and identifying potential high-risk behaviors in new business formats, and timely put forward legal response suggestions.
The second is to innovate new forms of employment and employ new labor relations. It is recommended to update the current labor law system, study and formulate more targeted flexible employment legislation, and provide a basis for determining the subject qualifications and consequences of new individual workers. After clarifying the evaluation elements such as the source of income, the attributes of work types, labor intensity, responsibility distribution, and tort relief for individual workers in different scenarios, the boundaries of rights and obligations between individual workers and flexible employment service platforms are drawn, and the types of platform liabilities and necessary limits are clarified. Through legal compulsion provisions, to enhance the new employment form of employment service platform prior care obligations, the platform should set up labor cooperation agreements according to the working environment, for workers belonging to high-risk occupations, whether as natural persons or self-employed in principle to provide labor contracts, after fully prompting the risk of liability, according to the employees can voluntarily sign labor contracting contracts.
Third, all new business formats in the field of new employment forms should further promote the formation of a joint force of relevant supervision, individuals, enterprises and society under the guidance of the rule of law. The regulatory authorities concentrate on grasping the key data elements of the healthy development of the new employment form employment industry, decentralizing the market, specializing in their own duties, and improving services; establishing trade union organizations under the guidance of the new employment form to speak out and safeguard their rights on behalf of the majority of employees in the new employment form; the new employment form employment service platform and the establishment of industry associations by the employing enterprises to actively broaden the communication channels between labor and management and listen to the urgent demands of workers. On this basis, a flexible employment linkage coordination mechanism composed of regulatory departments, trade unions of newly employed workers, and industry associations will be established, giving full play to the enthusiasm of multiple entities in co-construction, co-governance and sharing, and ensuring the healthy development of new business formats in the field of new employment forms. (Zhongxin Jingwei APP)
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Editor-in-Charge: Ma Jing