Behind the "streaking" of the rider's life, where is the "pain" of the 200 million flexible employees?

  ➤Driven by commercial interests, corporate platforms find legal gaps and put on "invisibility cloaks", almost staying out of labor disputes

  ➤Compared with the traditional employment relationship, most flexible employees have complicated employment relationship, and the existing laws and regulations cannot effectively cover

  ➤Flexible employment has characteristics of flexibility in terms of work location, time, and employment relationship, which brings challenges to the traditional social security system

  Article | Liu Juan and Wei Yuhong, reporter of "Liaowang" Newsweek

  "The company requires me to sign an agreement to let me voluntarily give up social insurance and other benefits during my work." Not long ago, Mr. Chen from Zhaoqing, Guangdong encountered such a request when he applied for a Meituan delivery person.

In this regard, the person in charge of the takeaway site said that not buying social insurance for the rider is "you love me."

  Coincidentally, recently, a delivery worker died suddenly while delivering the meal. The only protection was the commercial personal accident insurance that he purchased 1.06 yuan per day.

  Insufficient protection makes it difficult to put the sense of security of flexible employment groups.

  Flexible employment is a growing group.

According to information from the Ministry of Human Resources and Social Security, flexible employment has become one of the main employment channels in my country. The number of employees such as express delivery, housekeeping, online car-hailing, maintenance, and food delivery is as high as 200 million.

Since the outbreak of the new crown pneumonia epidemic, on the food delivery platform, 12,000 post-00 college students have started part-time delivery of food. The Didi travel platform has added more than 1.5 million online ride-hailing drivers in 8 months...

  Enterprises also favor flexible employment.

According to the Blue Book of the "China Flexible Employment Development Report (2021)" led by the School of Labor and Human Resources of Renmin University of China, the proportion of flexible employment adopted by enterprises in 2020 will increase by more than 11 percentage points year-on-year to 55.68%.

  Different from traditional employment methods, flexible employment is a typical gig economy.

Its flexibility, short-term nature, mobility and non-contractual nature, as well as the legal and regulatory gaps that still exist in the new labor-employment relationship, make workers suffer from unstable career prospects, unstable wage levels, and non-proportionate treatment and constraints given by the employment platform , Difficulty in identifying labor relations, lack of social security, and difficulty in defending rights when suffering injustice.

Four routines for platforms to evade labor relations

  At the end of 2020, the 43-year-old takeaway rider Han, fell on the way of delivering the 34th takeaway that day.

After his death, his mobile phone was still ticking, and the order timeout fine information popped up one by one.

  Han's family contacted platform for compensation, but was told that Han had no labor relationship with

The latter provided 2,000 yuan out of humanitarian concern, plus 30,000 yuan paid by the insurance company, and the Han family received a total of 32,000 yuan in compensation.

Then amidst public doubts, announced the provision of 600,000 yuan in pension.

  Why can't Han get high compensation before public opinion ferments?

  The reporter learned that Han registered as a rider through the Hummingbird crowdsourcing platform owned by and did not sign a labor contract.

Therefore, since the labor relationship cannot be identified, it is difficult to identify Han as a work-death and cannot obtain compensation.

  The word "crowdsourcing" is very mysterious.

According to reports, crowdsourcing refers to the practice of a company or organization outsourcing tasks previously performed by employees to unspecified public volunteers in a free and voluntary manner.

Take the crowdsourcing of a takeaway distribution platform as an example. As long as workers register themselves and pass identity verification, they can become riders and earn money by grabbing orders.

  In a sense, "crowdsourcing" is a commercial design of some employers, which can save huge labor costs and stay out of labor disputes.

  Some researchers have calculated that assuming that the monthly social security payment base for each flexible employee is 6000 yuan, and the payment is based on 100%, the platform bears 12% of it, which is 720 yuan, which is 8640 yuan in one year.

If there are currently 3 million riders on a certain platform, if each rider pays social security by the platform based on this base, then the platform's social security expenditure for one year will reach 25.92 billion yuan.

  In order to reduce costs, some companies have adopted "routines" to avoid signing labor contracts with flexible employees, and also avoid corresponding legal obligations.

  These "routines" include: subcontracting, in which a third-party company with a low risk tolerance level signs "contracting contracts" and "cooperation agreements" and other non-labor contracts with workers; the aforementioned crowdsourcing allows flexible employees to register directly on the platform Start work, eliminating the need for contracting procedures; the intermediary system, withdrawing from itself, signing a three-party intermediary contract with the worker, avoiding direct employer responsibility; dispatching, arranging flexible employees to sign a labor contract with a labor dispatch company, and changing the direct employment to labor Dispatch employment.

  "I start to take orders every morning and work until 11 or 12 in the evening. I can take a break every day when the number of orders is small in the afternoon." Although he is hungry, he is a crowdsourced part-time rider, but Xiao Zhang has to deliver food every day. Pay more than ten hours of labor time.

He told reporters that most of the riders he knows are registered on crowdsourcing.

  Li Haiming, an associate professor at the School of Law of Central University of Finance and Economics, believes that flexible employment under the platform economy has four characteristics: not establishing a labor relationship with the platform; earning a living on the platform and participating in it for a long time; being able to independently determine the working time and location; Rules and accept supervision.

  From these four characteristics, it can be seen that the employees registered on the platform use platform work as a way of employment, but there is no labor relationship with the platform, and they do not have the status of an employee.

Not only lack of compensation but also lack of protection

  "Not only is there a lack of compensation, but social insurance can only be paid if there is a labor relationship. The company's "routine" prevents many flexible employees from obtaining basic social security after they do not have employee status." Many industry experts pointed out.

  At present, the "threshold" pain points of social security plague many flexible employees.

  One is that it is difficult to pay social security.

Some flexible employment personnel in Beijing, Shanghai and other places reported that because they did not sign a labor contract with the company, they could not pay social security locally. The social security payment record was linked to the point entry, car lottery, and housing purchase. Many people had no choice but to adopt a proxy How to pay social security.

  Second, the scope of relevant guarantees is narrow.

The reporter learned from the social security departments in many places that the current social security for flexible employees only includes basic pension and medical care, and does not include work injury, unemployment and maternity insurance.

The Social Insurance Law has clear provisions on basic pension and medical insurance for flexible employees, but there are no clear provisions on the three insurances for work injury, unemployment and maternity.

  Third, it is difficult to transfer social security accounts.

The reporter found that because most of the flexible employees are employed in different places and their positions are frequently changed, it is difficult to meet the requirement of continuous full-month payment of social security to reach the payment period. They also face problems such as difficulties in transferring accounts.

  "If you can't get flexible protection, how can you call it flexible employment?" said a network anchor engaged in flexible employment "Tucao".

  In this regard, the staff of the human resources and social departments in many places frankly said that flexible employment practitioners have diverse identities, complex labor relations, and different labor styles. They show flexibility and pose challenges to traditional labor relations and social security systems.

The root cause is insufficient legal protection

  Platform companies are keen to design the relationship with their employees as "labor relations", which is closely related to the lack of protection of labor relations by law.

  After being owed more than 20,000 yuan in wages by the steward of the Internet platform enterprise, after repeatedly asking for no results, Aunt Qin, the Beijing childcare sister-in-law, called the labor inspection team in the district for help.

  After receiving the call, the staff of the Labor Supervision Brigade found that Aunt Qin and the Housekeeper Gang had signed a tripartite contract between the housekeeping company, the family he served and the worker himself.

  "The tripartite contract is a labor relationship, not a labor relationship. According to this contract, you are not an employee of the housekeeper's help. At present, there is no relevant clause in the labor law that can solve your salary problem, and we have no way." The labor inspection team staff Say.

  Aunt Qin’s experience is not uncommon.

A survey conducted by the Shanghai Federation of Trade Unions shows that the core role of most flexible employment platforms is information intermediary. The absence of a clear written agreement on labor relations makes it difficult to sort out the labor relations.

  The one-word difference between labor relations and labor relations gives workers the legal protection of heaven and earth.

Yang Shaoxiang, a lawyer at Shanghai Ruize Law Firm, explained that my country's existing various labor protection systems are basically based on the establishment of labor relations.

As long as they are not recognized as labor relations, flexible employees will basically not be able to obtain strong rights and interests protection.

  The reporter searched the judgment document network and found that there are many labor dispute cases where flexible employees are owed wages, and even require compensation due to work-related injuries or deaths on the job. However, the local courts have not made clear and unified determinations on labor relations and labor relations. There are also differences in the identification of different cases.

  For example, in March 2020, in a flexible employment health right dispute case judged by the Shanghai Xuhui District People's Court, the court ruled that and the third-party labor outsourcing service provider jointly compensated.

  In another case in May 2020, a rider in Wuhan encountered a traffic accident while delivering food. The rider applied to the Wuhan Municipal Labor and Personnel Dispute Arbitration Commission for arbitration, requesting confirmation of the labor relationship between the food delivery platform and him.

Both the first instance and the second instance of the court held that Hummingbird crowdsourcing only provides information matching services between riders and customers, and is not personally dependent on riders. It is fundamentally different from employment management in labor law.

In the end, the rider's appeal was rejected.

Incorporate new employment relations into legal protection as soon as possible

  Obviously, it is urgent to speed up the incorporation of new employment relations into legal protection.

  At the National Two Sessions in 2020, Gao Xiaomei, member of the Standing Committee of the Chinese People's Political Consultative Conference and vice chairman of the National Revolutionary Committee of the People's Republic of China, suggested speeding up the process of flexible employment legislation.

She believes that although the concept of flexible employment has appeared in government documents for about 20 years, it has not yet been fully incorporated into the scope of supervision by labor administrative departments. Labor regulations and labor security cannot be followed, and it has become a high incidence of labor disputes.

Under the requirement of guaranteeing employment, the demand of flexible employment practitioners to enjoy social security has become more prominent, and it is necessary to speed up action, advance legislation, and establish guarantees.

  "At present, it is urgent to study how to define the relationship between the employer and the worker under the new business conditions, so as to clearly regulate the rights and obligations of both parties. The principle of standardizing while developing, regulating while developing and solving outstanding problems as soon as possible should be followed. It is necessary to effectively protect the legitimate rights and interests of workers to prevent the continued occurrence of vicious cases such as unmanaged work-related injuries and deaths of employees. At the same time, it is also necessary to ensure the further survival and development of the industry platform, and to properly supervise, regulate and promote development." Said Su Hainan, a special researcher of the Chinese Labor Association.

  At present, in the relevant laws and regulations issued for flexible employment, the protection for migrant workers in the construction industry is relatively complete.

  On May 1, 2020, my country’s first special regulation "Regulations on Guaranteeing the Payment of Migrant Workers" came into effect.

The regulations impose strict restrictions on the funding arrangements before the project starts, the project issuance, subcontracting, subcontracting, etc., which are likely to cause wage arrears.

  Several interviewed experts suggested that for flexible employees with a large number of employees engaged in food delivery and housekeeping, they can refer to the relevant laws and regulations of migrant workers in the construction industry to formulate rights and interests protection regulations for them.

For example, you can refer to the way that migrant workers in the construction industry participate in the project to open up a special channel for takeaway riders to pay work-related injury insurance.

It is reported that the construction industry in Lanzhou, Zhongshan and other cities has participated in work injury insurance coverage of more than 90%.

  In response to the current systemic problem of the lack of social security faced by flexible employment, the interviewees suggested that the basic idea of ​​“social insurance can be paid if there is a labor relationship” should be studied to adjust the social security policy, and a policy system that can pay insurance without a labor relationship should be established. , And broke the household registration threshold for flexible employees to pay social security.

  Xue Jun, deputy dean of Peking University Law School and director of the E-commerce Law Research Center, believes that for flexible employment in the Internet platform economy, in addition to incorporating flexible employment into the labor inspection or protection system, a new type of employment relationship system guarantee system is gradually established , And should also use penetrating supervision to consolidate the responsibilities of the platform party, "Do not let the platform go through layers of subcontracting, or get out of the building of a legal relationship."

  The interviewed experts pointed out that, compared with platform companies, flexible employees have weak individual strength, hardly have "bargaining power", and are easily trapped in platform business model design.

Therefore, platform companies should assume the social responsibility to protect the labor rights of flexible employees, improve management methods and algorithm design, and seek a balance between the three-party rights of capital, consumers and flexible employees, so as to make business development more humane care. .

  In order to avoid the resulting increase in employment costs of platform companies, increased flexible employment thresholds, and increased unemployment risks, Zhu Xueqin, Shanghai’s first migrant worker representative to the National People’s Congress and chairman of the labor union of Shanghai Huari Garment Co., Ltd., suggested that the “platform "Payment + government subsidy" model.

  “Relevant departments should not only increase the supervision of the flexible employment methods of platform enterprises, but also consider encouraging compliant and high-quality platform enterprises through tax incentives and adjustments in the proportion of social security payments, and are guiding the promotion of the development of new forms of employment. Fully protect the rights and interests of employees." Su Hainan said.