The takeaway brother who was "registered as a self-employed industrial and commercial household" was successfully identified as a work-related injury
"I have obtained a work-related injury certificate and am currently going through the work-related injury level appraisal process. I am very grateful to the trade union for their great help." On March 24, Chu Junhua, deputy director of the Legal Service Center of the Beijing Federation of Trade Unions, received a message from Chen Mouming, a former employee of a network technology company. With the help of the Beijing General Legal Aid Center, Chen Mouming finally confirmed the labor relationship with the network technology company and identified a work-related injury after one trial and two trials.
Chen Mouming joined a network technology company on April 28, 2019. The position is a food delivery rider, and he is engaged in full-time food delivery work. The two parties have not signed a labor contract.
The company designates a special person as the station manager at the work site, and schedules the delivery riders every day, requiring them to log in to the designated APP during the scheduled time period to wait for the delivery order.
According to the settings of the APP, after the takeaway rider goes online, the system will perform big data matching based on his location and the food delivery needs of the merchant, and deliver the meal order to the takeaway rider. The rider does not have the option to accept the order and must complete the delivery order.
The stationmaster counts the attendance according to the online status of the takeaway riders, and the company checks and approves their labor remuneration based on the attendance and the completion of dispatching orders.
The company pays Chen Mouming monthly labor remuneration, and pays accidental injury commercial insurance for him.
In August 2020, the network technology company signed a service agreement with an information service company, stipulating that by registering a natural person as an individual industrial and commercial household, the individual industrial and commercial household would undertake the delivery of the network technology company from the online platform of an information service company. For the meal business, the network technology company paid platform service fees and project service fees to an information service company.
In September 2020, the network technology company notified the "uniform change of payroll tools" in the takeaway rider WeChat work group.
Subsequently, under the guidance of the webmaster, Chen Mouming registered his real name on the APP of an information service company.
The next day, an individual industrial and commercial household with Chen Mouming as the operator was registered.
Since then, Chen Mouming has continued to engage in the food delivery business, and his order receiving method, work content, compensation calculation and other aspects are the same as before.
In November 2020, Chen Mouming had an unfortunate traffic accident during food delivery and suffered a broken leg.
In this regard, the network technology company refused to recognize the existence of a labor relationship with Chen Mouming, and refused to declare a work injury for him.
The network technology company believes that the two parties have not signed a written labor contract, which is a win-win cooperation. Chen Mouming's work has the characteristics of self-labor. The network technology company believes that there is no labor relationship with Chen Mouming.
In November 2020, Chen Mouming came to Huairou District Federation of Trade Unions to apply for legal aid.
The trade union legal aid lawyer Zheng Qingyu inquired about Chen Mouming's situation, sorted out the written materials he brought, and wrote the arbitration application on his behalf according to his claims, helping him prepare all the procedures for applying for legal aid.
The next day, the Huairou District Federation of Trade Unions reported the case to the Beijing Federation of Trade Unions Legal Service Center, and was approved as a legal aid case for the center.
The arbitration was initiated in November 2020, and the legal aid lawyer finally helped Chen Mouming to obtain a judgment result confirming the existence of a labor relationship.
At the end of November 2021, after one year, Chen Mouming finally got the final judgment of the court of second instance, confirmed the labor relationship between the two parties, and could apply for work-related injury determination.
Chu Junhua said that the focus of the dispute in this case is whether Chen Mouming has established a labor relationship with the network technology company.
Although Chen Mouming's work has flexibility and certain autonomy in terms of work place and time compared to traditional labor relations, it cannot change his legal subject qualification with the company; Chen Mouming's food delivery business is the company's business. The company pays him monthly wages; the fact that Chen Mouming accepts the management of the company's webmaster has all the elements to establish a labor relationship according to law.
In addition, Chen Mouming has formed a relatively long-term and fixed labor relationship with the company, which should be recognized as a labor relationship in accordance with the law.
Lai Zhikai