[Interview file] Not a worker, not a business operator... What if you make platform workers a'third being'?

"The only innovation right now is the fact that it has changed from'You Called a Guest' to'You Called an App Customer'." (Financial Times columnist Isabella Kaminska) At

the center of the 4th Industrial Revolution and technological innovation, the'platform' is at the heart.

However, people engaged in platform work are sometimes defined as being not subject to legal or institutional protection under the name of innovation.

In particular, the industry that is now called'platform labor' in Korea has the traditional way of working, such as delivery or driver.

Can platform workers, sometimes classified as private businesses, be workers protected by labor laws?

There was a discussion on this on January 27th.

At the'Labor Legal Substitution of Platform Labor' symposium hosted by the Labor Law Theory Practical Society and the Labor Law Research Institute Hamill, experts actively voiced voices on the platform labor issue appeared.

Prof. Oh-sung Kwon, who came out as a speaker only when the user

he is

, said that in the case of platform labor, users can be distributed among multiple companies, thereby avoiding the responsibilities of users prescribed by the law.

For example, in the case of'Tada', owning a car was divided into a rental car company Soka, a platform operating VCNC, and a dispatch company that supplies drivers, and it made it difficult to apply the law by'categorizing' the work of a taxi company.

What would be the outcome of making the platform workers a'grey zone' at the border between dependent workers and independent contractors.

Eventually, platform workers are at risk of losing legal protection, and platform companies have the opportunity to circumvent labor laws, Professor Kwon argues.

Professor Kwon assumed that the default value of the working person is'worker', and said that it is necessary to switch the burden of proof so that the party (employer) who wants to break this is responsible for proof that he is not a worker.

In the US state of California, legislation has been passed that presumes platform workers to be workers first and takes responsibility for proving that companies are not workers.

Germany also created a platform labor policy last year to ease the burden of proving workers' judgment.

If the platform practitioner presents only circumstantial evidence, the burden of proof is the responsibility of the operator.

California, USA, where Silicon Valley is located, is also the origin of platform labor, and there has been active discussion of platform labor through litigation and legislation.

Young-ju Lee, a researcher at the Institute of Labor Studies, explained the case centered on this place.

The California Supreme Court adopted the ABC test in the case of Dynamex couriers, a logistics carrier.

In order to claim to be a private business, not a worker, there are three requirements (A. The labor provider is not under the control and direction of the enterprise. B. The labor provider performs tasks outside the normal scope of the enterprise. C. The labor provider is It is customary to demonstrate that you are engaged in a business that is established independently of the company).

Following a state Supreme Court decision, in 2019, the California Legislature passed the'AB 5'bill that included an extended application of these ABC tests.

As a result, platform companies such as Uber and Rift revolted, and to abolish AB 5, they initiated a referendum and poured a large amount of money into a promotional campaign.

Instead of excluding the application of the AB 5 legislation (instead of including workers) for platform workers, platform companies have proposed provisions of overtime restrictions, medical subsidies, medical expenses, and insurance.

Platform companies argued that platform workers exist in a'third position', not as workers or private businesses, and that it is more advantageous to the parties to provide various benefits than to include them as workers.

Eventually, as the platform companies won the referendum in November 2020, the platform workers were not subject to the AB 5 Act.

The researcher pointed out that making the platform practitioners a'third position' was used as a means for platform companies to evade their obligations as users.

for'Basic

Professor Eun-jung Park of Inje University also criticized the method of defining special types of workers and platform workers as'third areas' and protecting them separately.

He pointed out that if platform workers are not included as workers under the existing Labor Standards Act and the Labor Union Act, but a third area is created through a special law, there will always be a problem of misclassification that is not protected because only workers are not recognized as workers. .

As an alternative to this, Professor Park argued that the'Basic Law for Working People' was needed to provide a common minimum of protection for those who make a living through work.

This Basic Law requires that minimum rights, protections and social security be applied to all persons who primarily provide direct labor for the business of others.

, the government has devised protective measures as the problem of heavy work and industrial accidents such as riders became more serious due to Corona 19.

The Ministry of Employment and Labor announced'Platform Worker Protection Measures' on December 21 last year.

The'Platform Worker Protection Act' is being prepared, but it will be proposed to the National Assembly as early as next month.

The draft bill states that if a platform company unilaterally changes or terminates a contract with platform workers, a penalty will be imposed and a written notice must be notified before the contract change, and the content of applying social insurance to platform workers and establishing an organization. It is known to contain.

It is a law that has a level of protection similar to that of the Labor Law, such as prohibiting unilateral dismissal or contract change for platform workers. The important thing is that platform workers are excluded from workers under the Labor Law.

It is a method that provides a certain level of protection by making it a'third position' criticized by researchers earlier.

Protection measures were announced, which is why the two trade unions and Rider Union, which are parties to the protection, oppose.

All three experts presented earlier at the symposium are concerned about making the platform practitioners a third entity, a new identity.

Their common arguments are that'it should be possible to cover them in the existing labor laws rather than special laws' and'the obvious workers should not be misclassified as beings other than workers'.

It's not a fundamental solution by subtracting once that you're not a worker and then adding some protection rights.

In fact, the question of how to classify platform workers is not new.

In 2006, at the time of the Participating Government, the government chose a method of protecting some industries, such as delivery drivers, school teachers, golf course caddies, etc., which are virtually workers but cannot be classified as workers, under the third category of'special type workers'. I did.

Since then, over the past 10 years, there has been confusion about whether or not a worker is a worker for'special notice', and court judgments have been mixed by case.

It is questionable whether the government, who is familiar with this history, is pushing for the same policy again, whether its goal is to protect the platform practitioners or to ensure that platform companies avoid user responsibilities.