[Frontier Observation] Registered individual industrial and commercial households cannot conceal the reality of labor and employment

  Wang Feitong's small standard "Worker's Daily" (September 27, 2021 07 Edition)

  Labor relations should be clear and clear, but in recent years, with the diversification of employment forms, labor relations have become more and more complex, hidden employment methods are constantly being renovated, illegal labor dispatch, illegal business outsourcing and other phenomena frequently occur.

Recently, there have been media reports that platform companies or platform outsourcing companies and cooperative companies, in the name of flexible employment, require riders who deliver meals to the platform to register as individual businesses and sign a "cooperation contract" with the platform, otherwise they will not be registered.

As a result, the subordinate labor relationship that should have been established becomes an equal cooperative relationship, which is also a new means of concealed employment.

  In the past few days, the relevant state departments have successively issued the "Guiding Opinions on Maintaining the Labor Security Rights and Interests of Workers in New Employment Forms" and the "Guiding Opinions on Implementing the Responsibilities of Online Catering Platforms and Effectively Protecting the Rights and Interests of Food Deliverymen", etc., clarifying that platform companies should bear Responsibilities, make up for shortcomings, optimize services, improve working mechanisms, and continuously improve the protection level of the rights and interests of food delivery staff.

However, some platform companies not only do not actively implement the above policies, but instead evade responsibility by requiring riders to register as individual industrial and commercial households.

Under the premise that the basic facts of the platform actually dispatching work tasks and directing and supervising the labor process remain unchanged, attempts to achieve actual "employer liability exemption" through formal "identity conversion" are serious violations of workers. Rights and interests must be stopped.

  First of all, the "transformation" of riders into individual industrial and commercial households does not meet the substantive conditions stipulated by the law.

Article 54 of the Civil Code stipulates that natural persons engaged in industrial and commercial operations shall be individual industrial and commercial households after being registered in accordance with the law.

It can be seen that the core prerequisite for becoming an individual industrial and commercial household in accordance with the law is to engage in industrial and commercial operations.

In reality, riders do not have their own markets, customer groups, and cannot set trading conditions. They are obviously not engaged in industrial and commercial operations.

Riders provide labor in accordance with the instructions of the platform and obtain remuneration through labor, which does not meet the substantive conditions for becoming an individual industrial and commercial household as stipulated in the Civil Code.

  Secondly, the agreement requiring riders to register as individual industrial and commercial households violated the law and public policy.

The agreement between the platform and the rider seems to be the consensus of both parties, but in fact it violates the relevant provisions of the labor law and labor contract law.

Labor law is not a private law, but a social law. It is of a public law nature. Some content cannot be agreed upon by the parties. This includes the establishment of labor relations.

The labor law provides a statutory system for establishing labor relations, that is, direct signing of labor contracts, labor dispatch with certain conditions, and part-time employment. In addition, the law does not provide other systems.

The requirement for riders to register as individual industrial and commercial households exceeds the institutional supply provided by the labor law.

Safeguarding the rights and interests of workers in accordance with the law is the country's basic public policy.

For riders, the agreement of registered individual industrial and commercial households deprives workers of the compulsory protection provided by the labor law, which will cause them to lose a series of rights and interests such as vocational training, labor protection, rest and vacation, and social security, and are more vulnerable to injury during labor. The agreement violates the national public policy and should be negatively evaluated in law.

  In addition, relevant clauses may be deemed invalid standard clauses.

Article 497 of the Civil Code stipulates that if the party providing the standard clauses unreasonably exempts or reduces its liability, aggravates the responsibility of the other party, restricts the main rights of the other party, or the party providing the standard clauses excludes the main rights of the other party, the standard clauses are invalid.

If the platform will register as a self-employed individual as a prerequisite for individual registration as a rider, so as to exempt the employer from the responsibility and exclude the rider’s labor rights, the clause should be an invalid standard clause.

The relationship between the two parties should still be determined based on the actual performance. As long as the employment situation meets the requirements of the labor relationship, it should be recognized as a labor relationship in law, and the platform enterprise shall bear the responsibility of the employer.

  In fact, the reason why food delivery platform companies can collect check-in fees, advertising fees, commissions, etc. from merchants, and collect delivery fees, membership fees, value-added service fees, etc. from consumers, is inseparable from the delivery labor of the riders. The platform is out of social responsibility. Should also undertake the obligation to protect the rights and interests of the riders.

If the phenomenon of riders registering as individual industrial and commercial households continues to expand, laws and policies will fall to no avail, resulting in a lack of labor security for riders.

What's more serious is that this phenomenon may undermine the confidence of other enterprises that want to establish labor relations in accordance with the law, and trigger imitation.

This should be taken seriously and banned.

  As the country has fully incorporated the labor law systems such as fair employment, wage payment, rest and vacation, safety and health, social insurance, and trade union organizations into the platform’s employment policies, platform companies should assume the responsibility of protecting the rights and interests of workers as soon as possible, and cannot pass other labor laws. Way to be exempted.

Labor law is a closely connected whole, and the flexibility of labor employment is flexible within the scope of laws and policies.

Platform companies are still employers in the sense of labor law, and the new business format is not a "safe haven" for platform companies to use illegal labor.

  (Author's unit: People's Court of Changning District, Shanghai)