The identification of labor relations is getting harder and harder. Where is the employer of the takeaway?
In recent years, it has become more and more difficult to determine the labor relationship of food delivery workers, and the effect of legal isolation between food delivery platforms and distributors and crowdsourcing service companies has been obvious.
The difficulty in identifying labor relations also directly affects the treatment of takeaway workers in terms of work-related injuries and social security.
On September 17, Beijing Zhicheng Legal Aid and Research Center for Migrant Workers released the "Law Research Report on the Employment Model of Takeaway Platforms". Analyzing the judicial judgments on the labor relations of the takeaways, it is found that the platform companies are separating the labor costs and employment risks of the takeaways, through a series of superficial legal arrangements and cooperating with the distributors, crowdsourcing service companies and flexible labor platforms. The labor relationship of the rider was broken step by step, and the labor relationship recognition rate of the takeaway platform was less than 1%.
Xu Miao, a researcher at the Zhicheng Center, said that in recent years, it has become more and more difficult to determine the labor relationship of food delivery workers, and the legal isolation effect of food delivery platforms and distributors and crowdsourcing service companies has been significant.
The difficulty in identifying labor relations also directly affects the treatment of takeaway workers in terms of work-related injuries and social security.
Intricate employment patterns
Tong Lihua, the director of the Zhicheng Center, still remembers a takeaway rights protection case they took over at the end of 2019. The rider was injured and disabled at work. The takeaway went to two places to prosecute and respond to appeals. So far, four judicial procedures have been completed. , Still unable to confirm the labor relationship, and thus unable to obtain work-related injury compensation.
This case is just the tip of the iceberg. “The case made the lawyers feel desperate several times, but it also made us realize that behind this case is a complicated and serious problem.” Tong Lihua said, “The food delivery platform provides labor rights through a well-designed system. Not protected.” More importantly, the intricate legal relationships hidden in the food delivery system have not been fully revealed and discussed, making it difficult for relevant parties to intervene.
Xu Miao introduced to a reporter from the Workers' Daily that in just 10 years, the employment model of the food delivery platform has undergone rapid changes, and 3 categories and 8 main models have been developed.
The first category is the traditional model. Before the emergence of the takeaway platform, restaurants were self-employed for delivery work. In the early days of the takeaway platform’s startup, the platform hired riders or dispatched riders on its own. These are three specific employment models under the traditional model. Self-employment, platform self-employment and platform labor dispatch.
The second category is the crowdsourcing model. After the development of the food delivery platform, the major platforms introduced a crowdsourcing model of "free to take orders and part-time jobs on multiple platforms". The food delivery platform initially recruited crowdsourcing riders directly. The outsourcing service company cooperates to transfer the cost and risk to the crowdsourcing service company. These are the two employment modes under the crowdsourcing model. The platform recruits crowdsourcing riders and the crowdsourcing service company recruits riders.
The third category is the special delivery model. The platform and distributors have transformed the traditional model into a special delivery model of "surface outsourcing and actual cooperation in labor". Since the platform controls the absolute pricing power of downstream distributors, the special delivery model has formed a network again. State outsourcing and the model of individual industrial and commercial households, which pose a severe challenge to the identification of labor relations and the protection of rights and interests of workers.
Through the analysis of 1907 judicial judgments, it is found that platform self-employment and labor dispatch are very rare in judicial judgments. The crowdsourcing model is also the case, and the cases are mainly concentrated in the special delivery model.
Who will bear the employer's responsibility
The complex employment model naturally makes it difficult to identify the labor relationship of the delivery workers.
Xu Miao said that the analysis shows that under the special delivery model, the proportion of labor relationship identification of takeaways has been reduced from 100% in the traditional model to 45%~60%. The distributors use network outsourcing and individual industrial and commercial households to determine the proportion of labor relationship identification. Decreased from 81.62% to 46.89% and 58.62%.
In infringement cases, almost all of the employer’s liability that the takeaway platform originally had to bear was transferred to the distributors and crowdsourcing service companies, and the accountability rate was reduced from 100% to less than 15%.
However, a large number of distributors and crowdsourcing service providers have limited risk tolerance. Once they need to take responsibility, their ability to take responsibility is worrying.
Under such circumstances, the court began to consider the severity of the “scene”, such as personal injury, property damage, and disability level, to determine whether there is a labor relationship. The determination ratio of work injury cases is significantly higher than that of work compensation or social security disputes.
In this regard, Zhu Yue, a master of law from the University of Southampton, said that the platform relies on labor contracts to subcontract labor companies out of its system, passing labor costs and labor risks.
In the case of labor disputes in recent years, it is only possible to find the main body that bears the responsibility of the employer in a specific case among various subcontracting and subcontracting "employers".
Chang Kai, a labor law expert and a professor at Renmin University of China, said that who should bear the responsibility of employers is directly related to the current employment status of the platform economy.
"At present, the characteristics of platform employment are obviously different from those of traditional enterprises. One is to "de-labor relations", through the registration of individual industrial and commercial households, so that workers can become independent small individual industrial and commercial households. Another characteristic of labor relations is employers. Stealth and decentralization of employers: Workers can’t find who the employer is. This creates the illusion that the platform economy has no labor relations.” And this approach can be widely practiced, not only “ridiculous”, but even “common sense is subverted” NS".
Clarify the rules for determining labor relations in new forms of employment
For the situation where the takeaway cannot find who the employer is, Tong Lihua suggested that relevant laws should be improved as soon as possible to clarify the main responsibilities of the platform company.
"The platform is the maker of employment rules, and it has substantial control over riders through algorithms and digital management. The platform is also the biggest beneficiary of the platform's employment. It is inappropriate to shirk all the main responsibilities of the employment to others. It is a matter of power and responsibility. Unified".
"So many riders on the platform use this as their main source of livelihood, how can they not be protected by the labor law?" Chang Kai said, "Many references in the society currently ignore the existing labor legal resources and labor legal regulations. This problem is In fact, it’s not that complicated, it should go back to the basics."
On September 10, the Ministry of Human Resources and Social Security held a platform enterprise administrative guidance meeting with multiple departments to carry out joint administrative guidance to 10 leading platform enterprises on the maintenance of labor security rights and interests of new employment forms.
A few days after the administrative guidance meeting, a head food delivery platform stated to the public that it had issued an initiative to thousands of partners, expressly requesting that riders be prohibited from registering as individual industrial and commercial households.
On September 23, the Vice President of the Supreme People's Court, He Rong, stated at a press conference of the State Council Information Office that he clarified the rules for identifying new forms of employment and "unified the guidance and regulation of the healthy development of the platform economy and the protection of the legitimate rights and interests of workers."
Zhao Ang