The Two Sessions • Voice of the Rule of Law
Obviously, he is a courier brother and a takeaway rider, but he is registered as an "individual industrial and commercial household"; he signs a contract with company A, but company B pays wages; the algorithm dispatch is unreasonable and sets a strict delivery time... These are the real dilemmas faced by people in flexible employment.
In recent years, with the rise of the Internet, the number of flexible employment personnel in the mainland has reached about 200 million. Among them, many of them are also caught in labor disputes and difficult to protect their rights due to the layers of subcontracted labor relations and complex algorithm systems.
How to solve the problem of determining the labor relationship of flexible employees, and how to solve the dilemma controlled by the algorithm system? During the two sessions of the National People's Congress, Nandu reporters interviewed He Xiaorong, vice president of the Supreme People's Court.
He Xiaorong said that at present, the whole society is paying attention to the issue of employment in new formats, and the SPC will gradually introduce rules for the application of law with relevant departments in view of the difficulty of identifying labor relations in new formats, clarify the standards for judicial adjudication, and will also take the establishment of the Suzhou Labor Court as an opportunity to promote the professionalization of labor dispute adjudication in a timely manner according to local conditions, strengthen the adjudication of labor relations cases, and truly protect the legitimate rights and interests of workers from the legal level.
He Xiaorong, vice president of the Supreme People's Court.
Talk about the identification of new business forms of labor relations
Gradually clarify the rules for the application of law that urgently need to be harmonized
Nandu: In recent years, the phenomenon of flexible workers' difficulty in safeguarding their rights has attracted much attention, especially the problem of identifying labor relations with platforms, and the identification varies greatly from place to place, how to view this phenomenon?
He Xiaorong: With the vigorous development of the platform economy, various flexible employment models have absorbed many labor employment. According to the National Bureau of Statistics, in 2021, the number of flexible employment personnel in the mainland has reached about 200 million; the number of takeaway riders on some platforms has reached more than 4 million; and the number of anchors and related practitioners has reached more than 1.6 million, an increase of nearly 3 times over the previous year. The new economic format will inevitably produce new contradictions and disputes, and will also bring challenges to the people's courts in trying relevant cases.
New formats of workers working hours, workload, management methods, remuneration payment, etc. have new characteristics, the legal relationship between platform enterprises and workers is diversified, different from the traditional and typical labor relations, traditional labor relationship identification standards and work injury insurance and other systems, it is difficult to fully apply to the trial of new format disputes, and the labor dispute trial is more professional, policy-oriented, the trial of new formats of labor cases is more complex and complex, and the judicial ability and level of judges are also put forward higher requirements. In the current judicial practice, there are indeed difficulties in how to unify the application of law.
Nandu: Specifically, how does the court determine the labor relationship?
He Xiaorong: Based on the facts of employment, the court shall comprehensively consider the degree of the employee's independent decision on working hours and workload, the degree of control of the labor process by the platform enterprise, whether the employee needs to abide by the work rules of the platform enterprise, labor discipline and reward and punishment measures, the duration of the employee's work for the platform enterprise, and whether the employee can decide or change the transaction price, and other factors, and prudently determine the labor relationship in accordance with law. It is necessary to protect the legitimate rights and interests of workers in the new form of employment, and to protect the healthy and orderly development of the platform economy.
Nandu: What is the SPC's solution to the current problem of determining labor relations?
He Xiaorong: For the determination of new business forms of labor relations, it is urgent to improve the rules and systems, and in judicial practice, the people's courts should adhere to the combination of protecting the rights and interests of workers in new formats and protecting the orderly development of the platform economy.
On the one hand, the platform economy has spawned many economic growth points and made great contributions to society, and it is necessary to reasonably define the rules for the responsibility of platform enterprises, ensure the healthy and orderly development of the business that supports the platform, and avoid impact on the platform economy; on the other hand, it is necessary to strengthen the protection of the rights and interests of the majority of new business workers, especially the protection of basic labor rights and interests such as occupational injury protection.
Since last year, in accordance with the principle of "double protection", the Supreme People's Court has continued to promote the formulation of judicial policies for employment involving new business formats, guided courts across the country to hear and publish some typical cases, and clarified some legal application rules that urgently need to be resolved. In July last year, the Ministry of Human Resources and Social Security, the Supreme People's Court and other eight departments issued special guidance opinions on safeguarding the rights and interests of workers in new formats, and issued 19 measures to fill the normative gap.
Several riders in Qingdao wore safety helmets at the induction ceremony. In 2021, the number of flexible employment personnel in the mainland has reached about 200 million; the number of takeaway riders on some platforms has reached more than 4 million. Xinhua News Agency
Talk riders are registered as self-employed
Legal relations are determined on the basis of ascertaining the true legal relationship
Nandu: Last year, after a large number of flexible employment personnel such as courier brothers and takeaway riders were registered as self-employed, it was difficult to determine the labor relationship with the platform in labor dispute disputes.
He Xiaorong: Last year, the Suzhou Labor Court tried a case, which was also rated as one of the top ten influential cases of the rule of law in Chinese society last year. Sheng mou engaged in takeaway delivery services at a takeaway platform site. When registering through the APP, Sheng mou opened face recognition according to the software prompts and entered the voice of "I want to become an individual industrial and commercial household". On August 24, 2019, Sheng mou had a traffic accident in the process of takeaway delivery. Subsequently, an application for labor arbitration to confirm that the employment relationship was not upheld was brought to court.
After trial, the Suzhou Municipal Labor Court held that Sheng mou registered as a rider through a platform management company, and the company's takeaway delivery service was the main business, the company not only paid him a salary, but also formulated attendance rules for supervision, there were algorithms, routes and other guidance restrictions on the delivery time limit, and the overtime delivery was punished according to customer evaluation, and it should be determined that the company carried out daily labor management for Sheng. As for the voice of The registered individual industrial and commercial household of Sheng, the court held that the platform management company guided Sheng to sign a standard contract of paid labor service online and registered as an individual industrial and commercial household, circumventing the employer's responsibility on the grounds that it did not meet the qualifications of the labor relationship, and could not determine that Sheng had the true willingness to engage in takeaway delivery services as an individual industrial and commercial household. In view of the fact that the legal relationship between the two parties conforms to the legal characteristics of the labor relationship, it was later ruled that there is an employment relationship between the two parties.
Nandu: What do you think of the verdict in this case?
He Xiaorong: The rise of platform employment has brought new challenges to the identification of traditional labor relations. Through the virtual software platform, the employer guides the employee to register as an individual industrial and commercial household, sign a cooperation, subcontracting agreement, etc., and avoid the employer's responsibility in the labor relationship through the civil legal relationship between the formal equal subjects. This case applies the traditional labor relationship identification theory to platform employment disputes, protects the legitimate rights and interests of workers in accordance with the law, and is of typical significance for prudently handling labor relationship confirmation disputes under the labor situation of new business formats. In this case, it is actually clear that if a platform enterprise avoids establishing an employment relationship with an employee by requiring the employee to register as an individual industrial and commercial household and then signing a contract, the court shall make a corresponding determination on the basis of ascertaining the true legal relationship in light of the legal characteristics of the labor relationship, the control of all aspects of the labor relationship by the enterprise, the actual performance, etc., and cannot only make a formal review and judgment.
Establish rules for the "pulse" of the healthy development of the platform economy. Xinhua News Agency data map
Talk about people who are "trapped in the algorithm"
Platform enterprises should also take the initiative to assume social responsibility for obtaining economic benefits
Nandu: In addition to the difficulty of identifying labor relations, the riders trapped in the "algorithm system" have also attracted much attention from the outside world, how to view this phenomenon?
He Xiaorong: Platform companies often dispatch workers through algorithms such as order distribution, remuneration composition and payment, working hours, rewards and punishments, etc. If these algorithm rules do not conform to the rules of thumb of daily life, do not consider the rider's compliance with traffic rules and other factors, and other violations of public order and good customs, the rationality of the algorithm rules itself is worth carefully studying. The Provisions on the Administration of Recommendation of Internet Information Service Algorithms, which came into effect on March 1, 2022, specifically stipulate labor employment algorithms.
Nandu: How to deal with the relationship between platform enterprises to obtain economic benefits and assume social responsibility?
He Xiaorong: I believe that platform enterprises should take the initiative to assume social responsibility while obtaining economic benefits, on the one hand, platform enterprises should strictly abide by laws and regulations, on the other hand, they should guide and educate workers to abide by national laws and regulations through management and reward and punishment measures, maintain social order, and form a good atmosphere of "preferring to slow down and abide by the law".
At present, the whole society is paying attention to the employment of new employment forms, strengthening governance in related fields, and paying more attention to the role of industry norms and industry self-discipline. We have also seen some platform companies issue a statement to the whole society that "it is strictly forbidden to induce and force riders to register as individual industrial and commercial households", which also reflects that enterprises pay more attention to fulfilling their sense of social responsibility.
The Suzhou Labor Court held a hearing on the labor dispute case.
Talk about the construction of labor courts
Promote the establishment of specialized adjudication of labor disputes in accordance with local conditions
Nandu: Last year, the SPC set up a Suzhou Labor Court to strengthen the protection of workers' rights and interests.
He Xiaorong: In the past three years, the average number of labor dispute cases heard by courts in the first instance across the country has reached 450,000 per year, and it has shown an increasing trend year by year. The proper trial of these cases is of great significance to safeguarding the legitimate rights and interests of workers, balancing the interests of workers and employers, and implementing the results of the reform of the labor system and the social security system. In this context, on July 16, 2021, the Suzhou Labor Court, the first labor court in China, was established with the approval of the Supreme People's Court.
The purpose of the Supreme People's Court to establish this court is to better safeguard the legitimate rights and interests of workers, maintain the order of enterprise employment, promote the construction of harmonious labor relations, and promote healthy economic and social development. We also hope to rely on the Suzhou Labor Court to strengthen the study of legal issues in typed cases and new types of labor disputes, release typical cases with rule significance and leading significance in a timely manner, and timely refine the experience and practices of effectively balancing the rights and interests of both parties, protecting the legitimate rights and interests of workers in new formats, and standardizing the healthy and orderly development of the platform economy into adjudication rules with universal applicability, so as to provide adjudication guidance for the handling of similar cases.
Nandu: Why Suzhou?
He Xiaorong: Suzhou is an economically strong city and a large manufacturing city at the forefront of reform and opening up, with a high level of economic and social development, many labor jobs and rich types, and is currently making every effort to promote the digital economy and digital development. It is hoped that the Suzhou labor court will rely on the advantages of good geographical development to accelerate the iterative upgrading of trial thinking, mechanisms and methods, timely summarize good experience and good practices in the trial of labor dispute cases, refine forward-looking and guiding adjudication rules, and strive to create more labor dispute trial experience that is loud, standing and pushing open in the country.
Nandu: In the next step, how will the court hear complex labor dispute cases?
He Xiaorong: The SPC will unify adjudication standards by formulating judicial policies and issuing typical cases, so as to better promote the harmonious development of labor relations in new formats and protect the legitimate rights and interests of employing enterprises and workers.
Strengthen the capacity building of specialized adjudication, comprehensively enhance the comprehensive ability of labor dispute judges to resolve contradictions and disputes, cope with complex situations, and do a good job of mass work, and strive to cultivate a team of high-quality, professional, and composite judges who can stand at the forefront of judicial theory and practice of labor disputes, and are proficient in both law and familiar with economic development and social security policies.
I believe that with the further improvement of the legal norms for platform employment, the basis for judicial adjudication and adjudication rules will become more and more perfect and clear. In the next step, the SPC will continue to listen to the opinions of all parties extensively and continue to promote the application of unified laws.
Written by: Nandu reporter Jiang Xiaotian, Guo Ruomei, and Liu Yan from Beijing