"Not a labor relationship", "Not at the time of receiving orders", "Not a workplace"——
[How to "new questions and new solutions" for work-related injury identification ③] There is a dispute in the identification of work-related injuries for online car-hailing drivers, what is the solution?
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Because it is not a labor relationship, online car-hailing workers such as car-hailing drivers are often in trouble in the identification of work-related injuries.
In addition, when an online car-hailing driver suddenly dies or suffers a serious illness, some online car-hailing platforms will use whether the driver is in the process of receiving the order as the basis for compensation.
However, there is often a dispute between the driver and the platform side about "in and out of service hours".
In the early morning of September 30, an online car-hailing driver in Guangzhou died of a suspected sudden illness on an expressway.
On October 7, in the group of car-hailing drivers in Shenzhen, a video of a car-hailing driver at Bao'an Airport falling ill in the car was reposted by many people.
Every time I read such news, it makes Dong Limin, who is also an online car-hailing driver, nervous.
Dong Limin has been working as an online car-hailing driver in Beijing for more than three years, and he feels more and more that his health is getting worse.
When there were rumors that someone died suddenly after pulling a night train, he couldn't help but think, if such a situation happened to him, would it be considered a work-related injury?
Who to seek compensation for?
Why is it difficult to recognize work-related injuries due to sudden death in order-taking operations?
On May 4, 2021, Master Xia, an online car-hailing driver in Kunming, Yunnan, suddenly died of physical discomfort while taking orders.
Master Xia works 60-70 hours a week.
Although he died after a sudden illness during the delivery of the passengers, the car-hailing company replied to his family afterwards that Master Xia signed the "Contracting Service Agreement".
Because it is not a labor relationship, online car-hailing workers such as car-hailing drivers are often in trouble in the identification of work-related injuries.
In 2018, after Mr. Wang, the driver of an online car-hailing platform, died in a traffic accident in Hunan, the family only received compensation of 10,000 yuan from accidental death insurance.
Mr. Wang's wife believes that the car-hailing platform should be liable for compensation because her husband had an accident during work.
A person in charge of the platform's Hunan branch said that the driver and the platform are only an intermediary service relationship, and the platform does not need to compensate.
Among the 10 typical cases of labor relations confirmation of new employment forms released by the All-China Federation of Trade Unions at the end of 2021, one case clarified the importance of confirming labor relations in determining work-related injuries.
Liu Moumou registered on an online car-hailing platform operated by a technology company, and the two parties did not sign a labor contract.
The platform's "Special Express Service Agreement" stipulates that the company only has an affiliated partnership with all drivers who provide online car-hailing services.
Liu Moumou died of a sudden illness in the registered vehicle he was driving. His relatives applied for arbitration to determine the work-related injury, asking to confirm that Liu Moumou had a labor relationship with the technology company, and then sued to the court.
Neither the arbitration nor the court confirmed the labor relationship.
Dong Mei, the 5th National Outstanding Lawyer for Safeguarding the Rights and Interests of Employees, believes that technology companies require drivers to dress uniformly, check their faces on time, receive training, and be punished for service complaints. These are necessary norms to ensure service quality, and are not enough to determine that they are wrong. The driver manages labor and employment.
Liu Moumou can log on to the platform to take orders on his own, and his work is completely self-arranged. The remuneration is determined by the amount of orders he chooses independently. It is difficult to determine that he has economic and personal affiliation with technology companies.
How to count whether it is "service time" or not
In addition to "does not belong to labor relations", the online car-hailing driver's work-related injury is identified as "obstructive", and under what circumstances are "work-related accidents", which often lead to disputes.
When an online car-hailing driver suddenly dies or suffers from a serious illness, some online car-hailing platforms will use whether the driver is in the process of accepting orders as the basis for compensation.
If the driver has an accident while taking a rest offline, the platform will refuse compensation on the grounds that it is "out of service hours".
In October 2021, a car-hailing driver, Gao, fell to the ground with a sudden illness after delivering passengers to their destination to complete the order.
When Gao’s family members applied to the platform for work-related injury compensation, the platform rejected the family’s compensation application on the grounds that they were out of service hours.
In the same month, an online car-hailing driver in Qingdao, Shandong fell into a coma after a sudden cerebral hemorrhage after delivering the passenger to his destination.
Because the driver has already sent the passenger to the destination and ended the order, the platform also refused to provide any compensation on the grounds of "not in service time".
What confuses Dong Limin is, for online car-hailing drivers, how should "service hours" and "working hours" be calculated?
Taking Dong Limin as an example, in order to make more money, he basically takes orders every day from 8:00 a.m. to 2:00 a.m. the next day. In fact, he works up to 17 or 8 hours a day, except for meals and sleep time in the middle.
"It is obviously unreasonable for the platform to only regard the time from receiving an order on the software to the end of delivering the passenger to the destination as working time," he said.
"The company has five insurances, including work-related injury insurance." Li Weijie is a taxi driver of Yinjian Taxi Company and has been driving taxis for more than 20 years.
When it comes to the issue of work-related injury identification and compensation, she said that in the traditional taxi industry, work-related injury identification is smoother, and she and her colleagues rarely have troubles such as whether they are "taking orders".
"If you encounter a traffic accident and cause a work-related injury, just follow the procedures after reporting it, and basically you can pay all the compensation."
Xia Hailong, a lawyer from Shanghai Shenlun Law Firm, told reporters that some online car-hailing drivers, takeaway riders and platforms and institutions do not belong to traditional labor relations, but labor or contracting relations.
"On the premise that the relevant legal system does not make major changes in the short term, we can consider flexible use of commercial insurance and other methods to strengthen the protection of new occupational groups."
It is very important to keep the platform dispatching order information
It is even more difficult to identify a work-related injury when an online car-hailing driver has an accident in a non-work setting.
Lao Xu is a special car driver for an online car-hailing company in Xi'an. He joined the company in March 2015 and signed a labor contract.
At about 6 o'clock on December 11, 2016, after getting up, Lao Xu washed and dressed to go to work, and suddenly fell into a coma on the sofa.
At 6:30, emergency personnel arrived at the scene and confirmed that Lao Xu had died.
According to the investigation and verification by the Human Resources and Social Security Department, on December 10, 2016, except for a short break in the afternoon, Lao Xu was working normally from 9:18 am to 19:50 am.
At 19:30, it was working time when he reported to the team leader that he was unwell through the mobile platform.
At 19:10 that day, Lao Xu completed the last passenger-carrying task, and has been waiting for the platform to dispatch orders since then, during which the disease was at work.
According to medical records, Lao Xu's cause of death was sudden cardiac death. The time of death was 6:30 on December 11, 2016. At this time, 11 hours had passed since the day before Lao Xu's onset, less than 48 hours.
In the end, the Human Resources and Social Security Department believed that Lao Xu had a sudden illness during working hours and at his job position, and died within 48 hours after the rescue was invalid, which complied with the provisions of Article 15(1) of the Regulations on Work Injury Insurance and should be regarded as work injury.
"The new form of employment is more complicated, and it is crucial to determine the legal relationship between the practitioner and the platform or unit." In the opinion of Shi Xianguang, a lawyer from Shanghai Lauda Law Firm, traffic accidents that are not the main responsibility of the person on the way to and from get off work should be included in the occupation. scope of injury.
In addition, injuries that occur in the course of work should generally comply with the element requirements of working hours, work locations, and work reasons.
"However, since the working hours, working locations, and working reasons of practitioners in the new employment form are not as fixed as the traditional ones, their 'three jobs' elements have certain flexibility and flexibility, and the actual situation should also be considered when identifying them." Shi Xianguang Say.
In 2021, the three departments of Guangdong Province issued measures to include 8 types of specific industry personnel, including online car-hailing, takeaway, express delivery, etc., into the scope of work-related injury insurance.
Three departments including the Human Resources and Social Security Bureau of Quzhou City, Zhejiang Province issued the "Trial Measures for Occupational Injury Protection for Employed Persons in New Business Formats", which stipulates that in the process of work-related injury identification, the platform should give full play to the role of the main body of workers, and record the dispatching and receiving orders of the platform. As an important basis for identifying working hours, working locations, and working reasons.
Our reporter Rand Hua
"Worker's Daily" (Edition 06, October 27, 2022)