Compared with the traditional employment model, the employment of the network platform is more flexible and complicated. Once a dispute arises, how to clarify the responsibility may become a problem——
"Platform + individual", flexible employment cannot reduce the responsibility of the employer
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With the sudden emergence of the sharing economy, there are a large number of service providers on the sharing economy platform, and the forms of employment are complex and flexible. Because of the irregular employment, once a dispute arises, it is difficult to define the responsibilities of either the platform company or the practitioner.
Some lawyers suggested that the employment model of the new business model should be more tolerant, and the employment relationship between the platform and the practitioners should be clarified, so as to achieve the principle of "protecting the legitimate rights and interests of the employees and maintaining the survival and development of the employer."
Should food delivery staff sign a labor contract? Who can defend their rights when there is a labor dispute with an online platform? With the emergence of special car driving, network anchors, food delivery and other industries, new employment methods under the "Internet +" model are becoming more and more abundant. Compared with the "enterprise + employee" model established by signing labor contracts, the "network platform + individual" sharing economy employment method is more flexible, but this flexibility also makes the relationship between workers and platform companies more complicated .
Convenient employment and difficult rights protection
Feng Lei is a part-time delivery rider registered on the delivery platform. He usually works in a bookstore. Every weekend, he opens the delivery platform "online", constantly brushes the "New Tasks" interface to grab orders to deliver food, help run errands, and earn task rewards by completing every delivery order. "The platform does not sign a contract with us, and the site is even more reluctant to sign a contract with us. Therefore, when working, the most worrying thing is traffic accident injury. On the one hand, work is delayed, and on the other hand, the loss caused by traffic accident and the cost of treatment are all You have to bear it yourself."
This seemingly convenient way of employment, once a dispute arises, determining the labor relationship becomes a difficult problem.
Li Jun works full-time on a food delivery platform in Zhenjiang City, Jiangsu Province. In May of this year, he was involved in a car accident while delivering food. "The platform does not compensate me. The reason is that the distribution business of the platform in Zhenjiang area is outsourced to a company in Xuzhou. My salary has always been issued by a labor service company in Anhui." Li Jun told reporters.
"This is a typical phenomenon of'reverse dispatch'." explained Huang Leping, a lawyer from Beijing Yixian Law Firm, "'reverse dispatch' is an image term. It refers to the factual labor relationship between workers and employers. However, instead of signing a labor contract with him, he finds a labor dispatch company to sign a labor dispatch contract. The worker engages in labor in the employer in the name of the dispatched employee. By signing the labor dispatch contract, the responsibility is transferred to the dispatching unit and becomes Workers do not have a third party in the labor relationship." In Huang Leping's view, the complicated labor relationship in this case is related to the chaotic management and lack of supervision after the outsourcing of the delivery platform.
It is difficult to define the responsibilities of platforms and practitioners
In January last year, a Meituan rider died suddenly while delivering meals in Xi'an. The court ruled that the food delivery platform was only an information release service platform and determined that the rider did not have a labor relationship with the aforementioned company.
In April this year, a food delivery man in Zhenjiang, Jiangsu Province suffered a traffic accident during the delivery process, resulting in a fracture. In the determination of work-related injuries, the local arbitration agency believed that the delivery company had to manage the attendance, leave, and attending morning meetings for the delivery courier, and it should determine that there was a labor relationship between the delivery courier and the delivery company.
Reporters searched the Chinese court documents online for takeaway rider traffic accident cases and found that in the litigation process of such cases, the parties who paid for the injured often bucked each other; in the verdict, the platform company, the dispatch company, and the rider themselves should be responsible for compensation. The disputes vary widely. The key basis of the judgment lies in the determination of the labor relationship, and one of the important evidences to determine whether there is a labor relationship is to see whether the two parties have signed a labor contract, but this evidence is often ignored in practice.
Zhang Lei, a food delivery clerk, told reporters that registering as a platform food delivery clerk is very simple. Download the APP and follow the prompts to complete the registration. Generally, the review does not exceed 5 minutes, after which you can take orders. As for whether or not to sign the labor contract, Zhang Lei said that this is very random. "The labor contract on the platform is all standard. Download it and enter the rider's name and mobile phone number through the mobile phone. But many people find it troublesome and stop signing it. "
So, how effective is the electronic labor contract? Huang Leping told reporters that whether the contract downloaded on the APP is valid depends on whether it conforms to the form prescribed by the "Electronic Signature Law" and other regulations. The Ministry of Human Resources and Social Security issued a letter in March of this year ("Letter from the General Office of the Ministry of Human Resources and Social Security on Issues Concerning the Establishment of Electronic Labor Contracts" Rensheting Han [2020] No. 33), approving the form of electronic labor contracts , But it is required that “data messages in written form and reliable electronic signatures that comply with the “Electronic Signature Law” and other laws and regulations should be used. Employers should ensure that the generation, transmission, and storage of electronic labor contracts meet the requirements of the Electronic Signature Law, etc. As required by laws and regulations, ensure that it is complete, accurate, and not tampered with." When a food delivery person registers on the APP, if only his mobile phone number and ID number are required, the text of the labor contract and the electronic signature cannot meet the electronic signature law. According to regulations, such electronic contracts may be deemed invalid in law.
If a labor contract is either not signed or invalid, if a labor contract is treated at will, how should the labor relationship be determined?
How to "avoid old methods to manage new formats"
On August 1, 2019, the General Office of the State Council issued the "Guiding Opinions on Promoting the Standardized and Healthy Development of the Platform Economy", which clarified a number of basic issues regarding platform employment and mentioned avoiding the use of old methods to manage new business formats.
How to avoid using old methods to manage new formats? Huang Leping believes that in terms of labor relations identification, it is in fact required to strictly distinguish between new employment modes and traditional employment modes, and to be more tolerant of new employment modes, avoiding the broad identification of labor relations, in order to achieve "protection of workers The principle of equal emphasis on legitimate rights and interests and safeguarding the survival and development of employers."
In reality, the practice in various places has been carried out, and the three provinces of Jiangsu, Shandong, and Guangdong have respectively established the principle of strict grasp of the labor relations of new types of employment in the form of meeting minutes, and the principle of handling in accordance with the agreement.
In July 2017, the Jiangsu Provincial Labor and Personnel Dispute Arbitration Commission and the Civil Court of the Supreme People’s Court of Jiangsu Province issued the "Minutes of the Workshop on Difficult Issues in Labor and Personnel Disputes in Jiangsu Province" after discussion. Regarding the issue of labor relations, he clearly stated: "For network platforms that play the role of contact intermediary, workers establish working relationships with enterprises through the network platform, and enterprises provide service information through the network platform, and charge management fees or information fees through the network platform. The two parties should not be treated as labor relations."
In July 2018, the “Several Opinions of the Guangdong Provincial Higher People’s Court, Guangdong Labor and Personnel Dispute Arbitration Commission on the Connection of Labor and Personnel Dispute Arbitration and Litigation” mentioned in Article 2 of “the nature of the employment relationship between network platform operators and relevant practitioners, In principle, it should be handled as agreed. If the two parties are in a self-financing contracting relationship or have entered into a business contract, investment contract, etc., and have established a risk-sharing and benefit-sharing distribution mechanism, the two parties should not be deemed to have a labor relationship. The actual performance is inconsistent with the agreement. Or if the parties have not agreed, it shall be determined based on actual performance."
However, such strict standards have actually brought real difficulties to the protection of the rights and interests of workers in new businesses. The platform and the business outsourcing company manage and operate the backstage of the food delivery platform, including the labor contract or cooperation agreement signed by the laborer, the laborer's work record, the attendance record and other strong evidences stored on the network platform, occupying a favorable advantage. In the event of a dispute, if the outsourcing company or platform directly cancels the account of the food delivery person, the above vouchers will be destroyed in full, which is extremely detrimental to the rights protection of workers.
In this regard, Huang Leping recommends that workers keep other evidence, such as salary payment vouchers, WeChat work records, work certificates issued by the company or some other certificates issued by the company, etc., once a dispute occurs, it will not be unfounded.
Zhou Qian