Perspective | Labor Rights Protection and Platform Responsibility in New Employment Forms: Analysis of Two Typical Cases from the Supreme People's Court

The determination of labor relations in new employment forms must be based on "employment facts," the core of which is whether there is "dominant labor management." Specific factors to consider include:

The degree of autonomy of the worker in deciding working hours and workload;

The degree of control over the labor process by the enterprise (such as shift scheduling, attendance, and reward and punishment systems);

Whether the worker needs to abide by the platform's algorithm rules and labor discipline;

Whether the remuneration structure reflects the enterprise's assessment and management (such as basic salary, performance bonuses, etc.).

Signing a contracting agreement or guiding the registration of individual businesses: Even if the enterprise and the worker sign a contracting agreement or require them to register as individual businesses, if there is management control in the actual employment (such as fixed scheduling, attendance, and rewards and punishments), the labor relationship should still be recognized (Guiding Cases No. 237 and 238).

Platform subcontracting and chain subcontracting: If the worker has an employment relationship with the actual management entity of the final business, the labor relationship should be recognized, avoiding the enterprise from evading responsibility through subcontracting (Guiding Case No. 238).

Online anchors and brokerage companies: If the anchor does not need to comply with labor management regulations and has strong bargaining power, it is only an agency relationship and does not constitute a labor relationship (Guiding Case No. 239).

Case 1 If an employment relationship and dominant labor management exist between an enterprise and an online ride-hailing driver, a labor relationship should be recognized. —A certain transportation company v. Yang Mou labor dispute case

Case 2 Whether it belongs to "work related to the business" in the relevant liability insurance for new employment forms should be determined by comprehensively reviewing the specific claim situation, combined with the necessity of the relevant behavior for completing the business work.—A certain catering delivery company v. a certain insurance company liability insurance contract dispute case

Case 3 After obtaining occupational injury protection benefits for new employment form personnel, workers have the right to request a third party to bear tort liability in accordance with the law. —Feng Mou v. A certain property management company body right dispute case

Case 4 If a new employment form worker causes damage to a person while performing work tasks, and the relevant commercial insurance is liability insurance, The victim may claim compensation from the insurer in the tort liability dispute in accordance with the law. —Chen Mou v. Zhang Mou, a certain logistics company, and a certain insurance company non-motor vehicle traffic accident liability dispute case

Basic Case Facts: Yang Mou worked for a certain transportation company engaged in concrete transportation. The two parties did not have a written labor contract. After Yang Mou started working, he first received orders from the transportation company through a WeChat group, and then registered an account on a certain platform and bound it to the company. After being approved by the company, he received orders from the company through the platform. The transportation company paid Yang Mou transportation fees monthly based on the number of orders, the amount of transportation, whether it was overtime, and whether there were any fines. A dispute arose between Yang Mou and the transportation company, and Yang Mou applied for labor arbitration, requesting confirmation of the labor relationship. The labor arbitration ruled that a labor relationship existed between Yang Mou and the transportation company. The transportation company was dissatisfied with the arbitration ruling and sued the court.

Trial Result and Reasoning: The first-instance court ruled to confirm the existence of a labor relationship between Yang Mou and the transportation company. The transportation company was dissatisfied and appealed. The second-instance court ruled to dismiss the appeal and uphold the original judgment.

The effective court judgment holds that the main point of contention in this case is whether a labor relationship exists between the transportation company and Yang Mou. Article 7 of the Labor Contract Law of the People's Republic of China stipulates that "an employer establishes a labor relationship with a worker from the date of employment." Based on this, the people's court should determine the legal relationship between the enterprise and the worker based on employment facts. The essential characteristic of labor relations is dominant labor management. In this case, firstly, the transportation company confirmed that the account Yang Mou registered on the platform must be bound to the company and approved by the company. During the work process, Yang Mou needs to obey the arrangements of the transportation company ，the transportation company has the behavior of labor management such as deducting fines from Yang Mou. Yang Mou does not have the power to independently decide the transportation tasks and prices. Secondly, the transportation company and Yang Mou settle wages monthly ，the transportation company confirmed that Yang Mou received orders almost every day, and the relevant transportation income constituted Yang Mou's main economic source. Thirdly, Yang Mou's work was concrete transportation, which is part of the business of the transportation company . In summary, there are employment facts between the transportation company and Yang Mou, constituting dominant labor management, and it should be determined that there is a labor relationship between the two parties.

Typical Significance: The addition of Internet platforms and digital technology elements has changed traditional labor management methods to a certain extent, but it has not changed the nature of labor management. Referring to the key points of the judgment in Guiding Case No. 237, "Langxi Certain Service Outsourcing Co., Ltd. v. Xu Mou Shen Confirmation of Labor Relations Dispute Case," dominant labor management is the essential characteristic of labor relations. How to determine the existence of "dominant labor management" can refer to Guiding Case No. 237, "Langxi Certain Service Outsourcing Co., Ltd. v. Xu Mou Shen Confirmation of Labor Relations Dispute Case," Guiding Case No. 238, "Saint Certain Huan v. Jiangsu Certain Network Technology Co., Ltd. Confirmation of Labor Relations Dispute Case," Article 7 of the Supreme People's Court's Opinion on Providing Judicial Services and Guarantees for Stable Employment (Fa Fa [2022] No. 36), and Article 1 of the Notice of the Ministry of Labor and Social Security on Matters Related to the Establishment of Labor Relations (Lao She Bu Fa [2005] No. 12), etc., to make a determination. Therefore, whether there is a labor relationship between the enterprise and the online ride-hailing driver, Substantive review should be conducted based on the facts of employment, comprehensively considering whether the enterprise manages drivers through the establishment of reward and punishment rules, whether drivers can independently decide on transportation tasks and prices, whether labor remuneration constitutes the main source of income for drivers, and whether the transportation work performed by drivers is an organic part of the enterprise's business, etc. If there are facts of employment and constitute dominant labor management, the existence of labor relations shall be legally determined.

Basic Case Facts: A certain catering delivery company insured employer's liability insurance with a certain insurance company. The insured is a certain catering delivery company, with insurance amount (per person limit) of 650,000 yuan, and the employee type is a food delivery rider, with one employee, "Kan Mou". The "Special Stipulations" column of the policy states that this policy adds personal third-party liability: covering the direct actual losses caused by accidents or negligence of the insured and employees other than the insured during the validity period of this insurance policy when engaging in work related to the business stated in this insurance policy, resulting in death or injury to a third party or property loss, with a coverage limit of 400,000 yuan. Kan Mou, assigned by a certain catering delivery company, was riding an electric bicycle to a designated company hospital to obtain a health certificate, and collided with Qian Mou on the way, causing Qian Mou to be injured. The traffic police determined that Kan Mou was entirely responsible for the accident, and Qian Mou was not at fault. After a certain catering delivery company actually compensated Qian Mou 71,000 yuan, it applied to a certain insurance company for compensation. A certain insurance company believes that the traffic accident did not occur while Kan Mou was delivering food, and obtaining a health certificate does not constitute engaging in "work related to the insured's business"; therefore, the compensation liability for this traffic accident is not within the scope of insurance liability, and refused to compensate. A certain catering delivery company sued the court, requesting that a certain insurance company compensate 71,000 yuan within the scope of insurance liability.

Trial Result and Reasoning: The first-instance court ruled that a certain insurance company should compensate a certain catering delivery company 71,000 yuan in insurance money. The first-instance judgment has taken effect.

The effective court judgment holds that the main point of contention in this case is whether the insurance accident in question falls within the scope of liability of the employer's liability insurance with added personal third-party liability insurance, that is, whether the food delivery rider Kan Mou obtaining a health certificate constitutes engaging in "work related to the insured's business" as stated in the "special stipulations" of the policy. In determining "work related to the insured's business," the insured's business scope, the worker's type of work, the necessity of the work involved for completing their business work, and whether it was assigned by the enterprise should be comprehensively considered. Article 45 of the "Food Safety Law of the People's Republic of China" stipulates that food production and operation personnel engaged in work that contacts food directly entering the mouth should undergo annual health checks and obtain a health certificate before they can take up their post. Therefore, a health certificate is a necessary certificate for catering workers, including catering food delivery personnel; whether or not a health certificate is obtained is closely related to the main work of the food delivery rider and directly affects whether they can subsequently take on orders and delivery tasks. In addition, in this case, Kan Mou's visit to the designated hospital to obtain a certificate was also assigned by a certain catering delivery company. Therefore, Kan Mou's obtaining a health certificate should be considered work related to the business of a certain catering delivery company. The accident causing personal injury that occurred during this process falls within the scope of liability of the additional personal third-party liability insurance in question, and a certain insurance company should pay the insurance money to a certain catering delivery company according to the policy agreement.

Typical Significance: The working hours, location, and content of new-employment-form workers are relatively flexible. In judicial practice, whether it constitutes the "work related to the business" stipulated in the relevant liability insurance, should be determined based on the specific claim situation stipulated in the insurance contract, combined with legal provisions, the business scope of the enterprise, the type of work of the worker, the necessity of the relevant behavior for completing business work, and whether it is assigned by the enterprise. The purpose of setting up employer's liability insurance, third-party liability insurance, and other commercial insurance is to distribute the risks of occupational injuries and harm to third parties of new-employment-form workers and to protect the rights and interests of workers and victims. Regardless of whether a labor relationship exists between the worker and the enterprise, or whether the enterprise participates in the pilot program for occupational injury protection of new employment form personnel, enterprises are encouraged to purchase employer's liability insurance, third-party liability insurance, and other commercial insurance to ensure that new-employment-form workers who suffer occupational injuries and third parties who suffer harm due to the performance of work tasks by workers can receive timely medical treatment or economic compensation, etc., to distribute the risks of platform enterprises and platform employment cooperation enterprises and to promote the healthy and standardized development of the new industry economy.

Basic Case Facts: When food delivery rider Feng Mou was riding an electric bicycle into a certain community in Shanghai, he held his mobile phone in his left hand on the handlebar and was hit by an electric gate that was closing at the entrance and exit, causing him to fall and be injured. According to hospital diagnosis, he suffered from cervical spinal cord injury, etc. After the incident, upon application by a certain enterprise service outsourcing company, the human resources and social security bureau of a certain district in Shanghai issued a conclusion on occupational injury confirmation, stating: the accidental injury suffered by Feng Mou meets the provisions of Article 10, paragraph 1, item 1 of the "Implementation Measures for Occupational Injury Protection of New Employment Form Employment Personnel (Trial)" and Article 12, paragraph 1, item 1 of the "Implementation Measures for the Pilot Program of Occupational Injury Protection of New Employment Form Employment Personnel in Shanghai," and falls within the scope of occupational injury confirmation; it is now confirmed as an occupational injury. Feng Mou's injury was appraised by the labor capacity appraisal committee of a certain district in Shanghai as a grade 10 disability due to work-related injury. The Shanghai Social Insurance Business Management Center determined the appraisal and testing fees and one-time disability subsidy for Feng Mou, which were paid by a certain insurance company to Feng Mou, with an abstract of "Occupational injury protection benefits." After this, Feng Mou sued the court, requesting that the property management company of the community compensate for disability compensation, etc.

Trial Result and Reasoning: The first-instance court ruled that a certain property management company should compensate for disability compensation, etc. A certain property management company was dissatisfied and appealed. The second-instance court ruled to dismiss the appeal and uphold the original judgment.

The effective court judgment holds that when a certain property management company was operating the electric gate, it failed to leave sufficient time for Feng Mou to pass safely, causing Feng Mou to be injured when passing through, bearing the main responsibility for the occurrence of the damage, and Feng Mou himself had the behavior of not safely controlling the electric vehicle, bearing secondary responsibility for the occurrence of the damage. According to the "Notice on Carrying Out the Pilot Program of Occupational Injury Protection for New Employment Form Employment Personnel" issued by the Ministry of Human Resources and Social Security and other ten departments and the "Implementation Measures for the Pilot Program of Occupational Injury Protection for New Employment Form Employment Personnel in Shanghai," Feng Mou is a new-employment-form personnel who provides food delivery labor and receives remuneration, and he was injured during work and was determined to be an occupational injury. Occupational injury protection has the nature of social insurance, while the tort liability of a certain property management company falls within the category of third-party tort damage compensation, and the characteristics and functions of these two systems are different. The occupational injury protection benefit compensation items Feng Mou has already received are the one-time disability subsidy and appraisal and testing fees, which are compensation received based on the grade 10 disability due to occupational injury determined by the labor ability appraisal committee of a certain district in the city; Feng Mou filed a lawsuit, claiming disability compensation, etc., from the tortfeasor This liability for infringement compensation is not reduced or exempted by the fact that Feng has already received occupational injury protection benefits. In summary, according to the law, it is determined that a certain property management company shall bear the corresponding proportion of compensation for the damages suffered by Feng, and the rest shall be borne by Feng himself.

Typical Significance: Since the launch of the pilot program for occupational injury protection for new employment forms, the level of labor rights protection has been further improved, and the operational risks of platform enterprises have been effectively dispersed, highlighting the bottom-line nature of the social insurance system. The "Decision of the Central Committee of the Communist Party of China on Further Deepening Reforms and Promoting Chinese-Style Modernization," adopted at the Third Plenary Session of the 20th Central Committee, proposes to improve the social security system for flexible employment personnel, rural workers, and personnel in new employment forms. Next, we will promote the improvement of the social security system for personnel in new employment forms, expand the scope of pilot programs for occupational injury protection for personnel in new employment forms, and further ensure "employment security." When handling cases involving occupational injury protection benefits for personnel in new employment forms and compensation for damages to new employment form workers, the institutional functions of occupational injury protection for personnel in new employment forms should be fully considered, and the results of case handling should be consistent with relevant pilot program arrangements.

Referring to Article 3 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases: "For workers of employers who should participate in work injury insurance pooling according to law, if they suffer personal injury due to work injury accidents, and the worker or their close relatives sue the employer in the people's court requesting the employer to bear civil compensation liability, they shall be informed to handle it in accordance with the provisions of the Work Injury Insurance Regulations; if the personal injury of the worker is caused by the infringement of a third party other than the employer, and the compensation claimant requests the third party to bear civil compensation liability, the people's court shall support it." Workers participating in the occupational injury protection pooling for personnel in new employment forms who are injured while performing work tasks, shall be handled in accordance with the relevant pilot program regulations for occupational injury protection; if the injury of the worker is caused by the infringement of a third party other than the enterprise, and the worker requests the third party to bear civil compensation liability, the people's court shall support it. In terms of specific compensation items, the one-time disability subsidy and disability compensation in this case belong to compensation items involving damage to physical, health, and life rights that cannot be measured in money; therefore, the one-time disability subsidy received by the victim cannot reduce or exempt the disability compensation that the third party should bear.

Basic Case Facts: A certain logistics company is authorized to operate the immediate delivery business of a certain food ordering platform in a specific area. Zhang registered as a rider for a certain food ordering platform with the consent of the logistics company, accepted the order delivery tasks assigned by the logistics company, and received wages from the company. The logistics company, as the policyholder and insured, purchased employer's liability insurance from a certain insurance company, including "rider accident insurance and personal liability insurance," with Zhang as the employee. Zhang accepted an order through a certain food ordering platform, and while delivering food on an electric bicycle, collided with Chen, causing Chen's fracture. Chen sued the court, requesting that Zhang, the logistics company, and the insurance company compensate for medical expenses, inpatient meal subsidies, and disability compensation.

Trial Result and Reasoning: The court of first instance ruled that the insurance company should compensate Chen for insurance money, and the logistics company should pay for the remaining amount. The first-instance judgment has taken legal effect.

The effective judgment of the court holds that, Article 65 of the Insurance Law of the People's Republic of China stipulates, "The insurer shall directly compensate the third party for the insurance money in accordance with the law or the contract for the damage caused to the third party by the insured of the liability insurance." "Liability insurance refers to insurance where the insured's liability to compensate a third party according to law is the insurance subject." The "personal liability insurance" included in the employer's liability insurance purchased by the logistics company covers the losses caused to third parties by the rider, and is based on the liability that the rider or his employer as the insured should bear according to law to a third party; this is clearly a type of liability insurance in property insurance. According to the above provisions, the insurer can directly compensate the third party for the insurance money. Considering reducing the litigation burden of all parties and bringing into play the function of insurance in resolving social disputes, it is ruled that the insurance company in this case should directly compensate Chen for the insurance money.

Regarding the subject of compensation obligation for the insufficient part of the insurance compensation. Based on the fact that the rider's basic file information on the food ordering platform shows that the "agent" is the logistics company, and the logistics company pays wages to Zhang, it should be determined that Zhang is under the labor management of the logistics company, and that Zhang was performing the work tasks of the logistics company when the traffic accident occurred; the logistics company is liable for compensating Chen for the insufficient part of the insurance compensation.

Typical Significance: If a delivery rider causes harm to a third party while performing work tasks, and the company has purchased commercial third-party liability insurance, and the parties request that the insurance company that underwrites the commercial insurance be included as a co-defendant, the people's court should grant permission; If the conditions for the victim to directly request compensation from the insurer as stipulated in the Insurance Law or the insurance contract are met, the people's court should rule that the insurance company directly bears the compensation liability, in order to better bring into play the function of insurance in resolving social disputes, and timely and effectively protect the legitimate rights and interests of the victim. For the insufficient part of the insurance compensation, the victim, according to Article 1191, Paragraph 1 of the Civil Code of the People's Republic of China and Article 15, Paragraph 1 of the Supreme People's Court's Interpretation (I) on the Application of the Tort Liability Chapter of the Civil Code of the People's Republic of China, requests the enterprise that assigned the work task to bear tort liability, the people's court should support it; unless the enterprise has evidence to prove that the worker's behavior that caused harm to others is unrelated to the performance of work tasks.