Zhongcheng Qingtai | HR Legal Corner: Running Little Brother & Streaking Platform-Protection of New Labor Relations Rights and Interests of New Workers
Published:
2021-01-25
[Zhongcheng Qingtai Perspective]]
On September 8, 2020, People magazine published an article entitled "Takeaway Rider, Trapped in the System", which was swiped across major platforms and circles of friends, and a platform company responded in an article, which went on a hot search and drew numerous comments from netizens. However, after the storm has passed, we think again that when platforms, sharing economy, systems, and algorithms are embedded in all aspects of social life, models such as "Internet catering", "Internet medical care", and "Internet online car-hailing" have sprung up, and there must be many new ones. Elements came into being. The development and growth of the group of takeout riders who "take-out brother accompany you in the wind and rain" represents a highly flexible, autonomous and diversified state of "platform individuals", which has brought profound changes to labor employment and management. How do we protect the fast-moving takeaway boys? Maintain the vitality of the platform of the new format? How do we seek to establish a multi-negotiated, warm and rational protection mechanism? These issues are worthy of our consideration.
Case 1]
On May 20, 2019, Yu joined a platform company to work as a food delivery rider. He fell and injured himself on the way to deliver food within one month of his employment. After paying wages to Yu, the company said it did not recognize the existence of labor relations with Yu. Later, Yu applied to the Arbitration Commission for arbitration, requesting confirmation of the existence of a labor relationship. The arbitration award confirmed that the company had a labor relationship with Yu, and the company sued the court. The court of first instance ruled that the company had a labor relationship with Yu, and the court of second instance upheld the original judgment.
referee point of view]
The court held that subordination is the key feature of determining the labor relationship, and to judge whether the employer and the laborer have a labor relationship, in the case that the two parties have not concluded a written labor contract, the following factors should be combined to make a comprehensive determination: whether the employer and the laborer meet The subject qualifications stipulated by laws and regulations; whether the various labor systems formulated by the employer are applicable to the laborer, and whether the laborer is subject to the labor management of the employer, engaging in paid labor arranged by the employer, whether the labor provided by the worker is part of the employer's business. The court held that there was a strong personal and economic subordination between the platform company and Yu, so a labor relationship was established.
Case 2]
Company A is the partner of Company B. The two parties sign a cooperation agreement. Company A will provide take-out product logistics services for take-out platform merchants. The profits generated through take-out platform APP will be enjoyed by Company B. Company B will settle the expenses to Company A according to the agreement between the two parties. After Zhao mou contracted the takeout business of site c from company a, he hired his own personnel to carry out the business and was responsible for the management. Company A settles the commission to Zhao. On April 14, 2016, Wu entered site c after an interview with Zhao mou to work as a food delivery man. the two sides did not sign a labor contract. After joining the company, Zhao mou distributed the take-out platform overalls, work armbands and car boxes to the plaintiff. Wu mou received orders and delivered meals by logging into the account opened by company a. Wu's final work until October 31, 2016. Later Wu applied for labor arbitration, requiring Company A to pay twice the salary and wage difference that had not been concluded in a written labor contract. The Arbitration Commission did not support its request, and Wu sued the court against the ruling, demanding that Company A and Zhao jointly bear the above-mentioned payment obligations. The court rejected Wu's claim that Company A and Yue should pay twice the salary of the unconcluded written labor contract, and ordered Zhao to bear the obligation to pay the relevant salary difference according to the agreement between the two parties and the actual performance. No appeal was made by either party.
referee point of view]
The court held that the labor relationship is the social relationship between the labor force and the means of production that occurs between the laborer and the employer to realize the labor process. The laborer and the employer have the subordinate relationship of property and people. Zhao is an individual contractor of Company A. Wu is recruited, managed and paid by his individual. He has not formed a labor relationship with Company A with personal and property subordinate attributes, but a personal employment relationship with Zhao.
Lawyer comment]
The sustainable development of platform economy and sharing economy is closely related to its flexible, independent and diversified employment mode. If labor relations are simply identified without distinction, it will not only lead to the generalization of labor relations, but also increase the labor security burden of enterprises to a certain extent, which is not conducive to promoting the innovation and development of new business type enterprises. How to accurately identify the labor relations of takeaway workers is the main focus of this kind of disputes, and it is also an important consideration in judicial practice.
The overall employment of the takeaway industry presents the current situation of complex and diverse forms of employment. According to the different forms of employment, it is divided into self-employed riders, crowdsourced riders, outsourced riders, etc. The outsourced rider system platform cooperates with other enterprises and individuals and is recruited and managed by partners, which reduces the labor cost of the platform to a certain extent, but in practice it is most likely to be controversial, and subcontracting at different levels of business has gradually become the norm. The employment management mode is very flexible. Takeaway workers do not need to attend work at a fixed time and place, but complete work tasks in specific areas according to the customer needs of the network platform. The command and control of the employment subject is transferred to the third-party consumer subject. The platform company uses APP and other online methods to carry out work management through big data analysis, GPS positioning technology, specific reward and punishment mechanism and data indicators. The remuneration of takeaway workers is priced and divided by the platform, it is susceptible to a variety of factors such as on-time delivery rates, customer ratings, and fines for violations. In addition, according to incomplete statistics, written certification materials for such disputed labor relations are generally missing, and labor remuneration and reward and punishment rules can only be agreed upon through oral agreement or platform registration agreement. The platform will provide delivery workers with uniform logo-printed work clothes, work boxes, armbands, etc. Sometimes delivery workers are required to bring their own transportation, but most of them have not formed any written materials to prove labor relations during the work.
This new type of labor relations is different from traditional labor relations in many aspects, such as the subject of labor relations, the standard conditions of labor, and the subordinate nature of the subject relationship. Some people think that the traditional labor relations identification standard has lost the scope of application in the new labor relations identification, and even put forward the reconstruction of labor relations identification standards, etc., there are also views that should be based on the traditional labor relations identification standards, pay attention to the substantive review of the subordinate standard to correctly identify labor relations. Through the combing of such cases, the author thinks that the mainstream view in judicial practice is to distinguish between standard labor relations, non-standard labor relations and employment and other civil legal relations, not only to prevent the generalization of labor relations, but also to prevent platform enterprises to avoid business risks to cover up the actual employment facts. For the group of takeaways outside the boundaries of standard labor relations, consideration is also given to appropriately tilting basic protection through classification and stratification, and establishing a referee concept that places equal emphasis on protecting the legitimate rights and interests of practitioners and promoting new economic development.
practical operation suggestion]
Internet platform companies should effectively enhance their legal awareness, risk awareness, and responsibility awareness, and sign labor contracts or other agreements with takeaways in a timely manner based on factors such as the nature of employment of takeaways, and clarify the rights and obligations of both parties. We should keep written records and materials on matters related to the vital interests of practitioners, standardize the employment system of enterprise salary distribution, assessment management, reward and punishment mechanism, fully implement labor standard conditions such as labor safety, rest and vacation, timely pay social insurance or purchase commercial insurance, and actively cooperate with government departments to implement the insurance policy for flexible employment personnel.
In addition, it is necessary to establish a comprehensive food delivery industry supervision mechanism, closely integrate the development characteristics of the industry and the needs of enterprises, give full play to the autonomy, coordination, and dispute resolution functions of industry associations and trade union organizations, explore the establishment of industry labor dispute mediation organizations, and resolve disputes when necessary. Introduce industry mediation forces to promote fair, stable and efficient resolution of disputes.
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