Source: Workers Daily
Labor relations are becoming more and more difficult to identify, where has the employer of the delivery man gone?
In recent years, it has become increasingly difficult to identify the labor relationship of takeaway workers, and the legal isolation effect between takeaway platforms and distributors and crowdsourcing service companies is obvious. The difficulty of identifying labor relations also directly affects the treatment of takeaway workers in terms of work injuries and social security.
On September 17, Beijing Zhicheng Migrant Worker Legal Aid and Research Center released the "Legal Research Report on the Employment Model of Takeaway Platforms", which pointed out that through the analysis of 1907 judicial judgments involving the determination of the labor relationship of takeaway workers generated from April 2016 to June 2021, it was found that platform enterprises are divesting the labor costs and labor risks of takeaway workers, through a series of superficial legal arrangements and cooperation with distributors, crowdsourcing service companies and flexible employment platforms. The labor relationship of the rider is broken step by step, and the labor relationship recognition rate of the takeaway platform is less than 1%.
Xu Miao, a researcher at The Zhicheng Center, said that in recent years, it has become more and more difficult to identify the labor relationship of takeaway workers, and the legal isolation effect of takeaway platforms and distributors and crowdsourcing service companies has been remarkable. The difficulty of identifying labor relations also directly affects the treatment of takeaway workers in terms of work injuries and social security.
Employment patterns are complex
Tong Lihua, director of the Zhicheng Center, still remembers a takeaway worker rights protection case they took over at the end of 2019, the rider fell and was disabled in the work, the takeaway worker went to two places to sue for appeal, so far has gone through four judicial procedures, still can not confirm the labor relationship, and then can not get work injury compensation.
This case is just the tip of the iceberg, "the case has made the lawyer feel desperate several times, but it has also made us realize that behind this case, there is a complex and serious issue." Tong Lihua said, "The takeaway platform has made the rights and interests of workers unprotected through a well-designed system." "More critically, the intricate legal relationship hidden in the takeaway system has not been fully revealed and discussed, which also makes it difficult for relevant parties to intervene."
Xu Miao introduced to the "Workers Daily" reporter that in just 10 years, the employment model of the takeaway platform has undergone rapid changes, and 8 main models in 3 categories have been developed. The first category is the traditional model, before the emergence of takeaway platforms, restaurants are self-employed workers engaged in delivery work, takeaway platforms in the early stage of entrepreneurship, the platform hired riders or labor dispatch riders, which are the 3 specific employment models in the traditional model, restaurant self-employment, platform self-employment and platform labor dispatch. The second category is the crowdsourcing model, after the development of the takeaway platform, the major platforms introduced the "free to receive orders, can be part-time on multiple platforms" crowdsourcing model, the takeaway platform was initially to directly recruit crowdsourced riders, and soon the takeaway platform began to cooperate with crowdsourcing service companies, the cost and risk passed on to the crowdsourcing service company, which is the two employment models in the crowdsourcing model, the platform recruits crowdsourced riders and crowdsourcing service companies recruit riders. The third category is the special delivery model, the platform joint distributor will be the traditional model into the "surface outsourcing, actual cooperative employment" of the special delivery model, because the platform holds the absolute pricing power of the downstream distributor, so the special delivery model and the formation of network outsourcing and individual industrial and commercial model, which has formed a severe challenge to the identification of labor relations and rights and interests protection of workers.
Through the analysis of 1907 judicial judgments, it will be found that employment methods such as platform self-operation and labor dispatch have become very rare in judicial judgments, and the crowdsourcing model is the same, and the cases are mainly concentrated in the exclusive delivery model.
Who will bear the responsibility of the employer
The complex employment model naturally makes it difficult for the delivery workers to determine the labor relationship. Xu Miao said that through the analysis, the proportion of labor relationship recognition of takeaway workers in the special delivery mode has been reduced from 100% to 45% to 60% of the traditional model, and the proportion of labor relationship recognition has been reduced from 81.62% to 46.89% and 58.62% through network outsourcing and individual industrial and commercial household models. In infringement cases, almost all of the employer's liability that the takeaway platform originally needed to bear was transferred to the distributor and crowdsourcing service company, and the self-responsibility rate was reduced from 100% to less than 15%. However, a large number of distributors and crowdsourcing service providers have limited risk tolerance, and once they need to be responsible, their ability to bear responsibility is worrying.
In such cases, the court began to determine whether there was an employment relationship based on the severity of the "scene", such as personal injury, property damage and disability level, and the proportion of work injury cases was significantly higher than that of work remuneration or social security dispute cases.
For this, Zhu Yue, a master of law at the University of Southampton, said that the platform relies on labor contracts to subcontract the employing enterprises outside its system, passing on labor costs and labor risks. In recent years, the precedents of labor disputes have reflected that only among the various subcontracting and subcontracting "employers" can be found to bear the responsibility of the employer in specific cases.
Chang Kai, an expert in labor law and a professor at Chinese Min University, said that the issue of who bears the responsibility of the employer is directly related to the employment status of the platform economy. "At present, the characteristics of platform employment are obviously different from those of traditional enterprises, one of which is 'de-labor relations', through the registration of individual industrial and commercial households, so that workers become independent small individual industrial and commercial households." Another characteristic of labor relations is the invisibility of employers and the decentralization of employers: workers cannot find who is the employer. This creates the illusion that the platform economy has no labor relations. And such an approach has been widely practiced, not only "absurd", but also "subverted by common sense".
Clarify the rules for determining labor relations in new forms of employment
For the situation that the takeaway workers cannot find who is the employer, Tong Lihua suggested that the relevant laws should be improved as soon as possible to clarify the main responsibilities of the platform enterprises. "The platform is the setter of employment rules, with substantial control over the rider through algorithms and digital management. The platform is also the biggest beneficiary of platform employment, and it is inappropriate to shift the responsibility of the main responsibility of the employment to others, and the rights and responsibilities are not uniform."
"With so many riders on the platform using this as their main source of livelihood, how can they not be protected by labor laws?" Chang Kai said, "At present, many formulations in society ignore the existing labor law resources and labor law regulations. This problem is actually not so complicated and should return to the basics. ”
On September 10, the Ministry of Human Resources and Social Security, together with multiple departments, held an administrative guidance meeting for platform enterprises to jointly provide administrative guidance to 10 leading platform enterprises on safeguarding the labor security rights and interests of workers in the new employment form. A few days after the administrative guidance meeting, a head takeaway platform said that it had issued an initiative to thousands of partners, clearly requiring that riders be banned from registering as individual industrial and commercial households.
On September 23, He Rong, vice president of the Supreme People's Court, said at a press conference of the State Council's new office that the rules for determining labor relations in new employment forms should be clarified, and "the healthy development of the economic development of the guiding and regulating platform and the protection of the legitimate rights and interests of workers will be unified."
Zhao Ang