2021 New Guidelines for Workers' Rights Protection in New Employment Forms

Drawing: Wu Fan

  For workers with new forms of employment, how can their legitimate rights and interests be protected?

It is undoubtedly a topic of continuous concern in the field of labor relations and even the whole society in 2021.

  With the rapid development of the sharing economy platform, the number of workers participating in it is also increasing.

However, with the rapid development of the platform economy, problems such as unclear platform responsibilities, blurred relations between platforms and workers, and lack of protection of workers' rights and interests have become increasingly prominent.

  Under my country's existing legal framework, an important manifestation of standard labor relations is the signing of labor contracts between laborers and enterprises.

According to the "Annual Report on China's Sharing Economy Development" released by the National Information Center, the number of people participating in sharing economy activities from 2017 to 2019 was 700 million, 760 million, and 800 million, showing an upward trend year by year.

Among them, about 90% of workers in the new form of employment do not have traditional labor relations.

  Faced with the "new" demand for the protection of workers' rights and interests in new forms of employment, in 2021, relevant departments will issue multiple documents to point out the direction on how to protect the labor security rights and interests of employees in new forms of employment.

  "No breaks and vacations"

  ——"Overtime work" ends when

  Social microcosm:

  On August 15, Wenzhou, Zhejiang.

  A courier brother drove a tricycle while drunk and was investigated, and he took the initiative to express to the traffic police "seeking arrest".

The traffic police asked the reason. The man said, "If you don't catch me, I won't have to rest."

It turned out that the man was too tired to resign due to work, and hoped that he could take a few days off when he was arrested.

  Rights Protection Guide:

  In July of this year, the State Council’s executive meeting reviewed and approved the "Guiding Opinions on Safeguarding Labor Security Rights and Interests of New Employment Forms", which focused on improving labor remuneration payment and rest systems, and clarified that companies must not set assessment indicators that harm the safety and health of laborers. , Which provides a strong guarantee for the rest rights of workers in new forms of employment.

  Regarding food delivery personnel, in July this year, the seven departments jointly issued the "Guiding Opinions on Implementing Online Catering Platform Responsibilities and Effectively Protecting the Rights and Interests of Food Delivery Caters" mentioned that online catering platforms should further improve the order distribution mechanism and optimize food delivery. The return route of the food delivery staff reduces the labor intensity.

Scientifically determine the degree of order saturation, and give full consideration to safety factors when dispatching orders to delivery couriers.

Reasonably control the online working hours. For those who have continuously sent orders for more than 4 hours, the system will give a fatigue alert and no orders will be sent within 20 minutes.

  In response to online car-hailing drivers, in November, the eight departments jointly issued the "Opinions on Strengthening the Protection of the Rights and Interests of Employees in the New Form of Transportation", stating that "Relevant departments in various regions should urge online car-hailing platform companies to scientifically determine the working hours and labor intensity of drivers. , To ensure that they have enough rest time. Urge online car-hailing platform companies to continue to optimize the dispatch mechanism, improve the operational efficiency of the vehicle online service period, and not to induce drivers to work overtime by means of redemption rewards.”

  News Watch:

  Not only the courier brothers, but also some online ride-hailing drivers. Since the beginning of this year, due to long, high-intensity work, news of sudden physical illnesses and even deaths from overwork has appeared from time to time. Experts bluntly said that workers in new forms of employment "work overtime." "Dang Zhi.

  The boundary between work and rest is not clear. Daily work exceeding 12 hours has become the norm for workers in the new form of employment. This not only violates the workers’ right to rest, disrupts the balance between work and life, but also violates related labor. Laws and regulations.

  The "State Council Regulations on Working Hours of Employees" clarifies that employees work 8 hours a day and 40 hours a week.

According to the provisions of the labor law, if the working hours need to be extended due to special reasons, the extended working hours shall not exceed 3 hours per day, but shall not exceed 36 hours per month under the conditions of ensuring the health of the workers.

  "There are many reasons for fines"

  ——Platform companies should improve the assessment mechanism

  Social microcosm:

  During Double Eleven, Beijing.

  Xiao Zhang, an 18-year-old courier, is a courier at a YTO Express site in Beijing.

He set the alarm clock at 5:15.

It's still dark, the temperature is around 0 ℃, and he needs to rush from the dormitory to the courier station as soon as possible.

At 6 o'clock, the site owner will take pictures there, and the courier who is not in the picture will be deducted at least 50 yuan.

Xiao Zhang didn't want to be the one who was not in the photo. In August, he was fined more than 1,000 yuan for being late.

The fine that Xiao Zhang faces is more than just "being late."

He said that absenteeism, being late for more than 1 hour, not signing in, being complained, and unqualified signing rates can all be reasons for fines.

  Rights Protection Guide:

  In July, the Ministry of Transport, the State Post Bureau and other seven departments issued the "Opinions on Doing a Good Job in Protecting the Legal Rights and Interests of the Courier Group", proposing to formulate guidelines for the calculation of distribution fees, formulate labor quotas, correct differential distribution fees, and curb "penalties". Four aspects including escrow.

The "Opinions" clearly stated that it should guide enterprises to improve the assessment mechanism, curb "penalty management", strengthen the screening and handling of malicious complaints, and broaden the relief channels for couriers.

  In September, the All-China Federation of Trade Unions issued the "Several Opinions on Promoting New Employment Forms of Workers’ Joining Work (for Trial Implementation)". Workers negotiate on labor remuneration, rewards and punishments, working hours, labor quotas, etc., to build channels for workers to express their reasonable interests in a rational and orderly manner, and to protect workers' right to know, participate, and express their vital interests. Rights to strengthen effective supervision of the implementation of labor laws and regulations by platform companies.

  News Watch:

  In September of this year, the "2021 China Courier Rights Protection Questionnaire Survey" released by the express logistics information service provider Express100 showed that the most worrying problem for the interviewed couriers is that they complain about excessive fines. With a fine of more than 200 yuan, 27.1% of couriers were fined 200 to 500 yuan per month, 25.98% of couriers were fined 500 to 2,000 yuan per month, and 4.35% were fined more than 2,000 yuan per month.

  Since the beginning of this year, some netizens have suggested through the “Leadership Message Board” of People's Daily that “abolish the evaluation of express company services by the number of positive reviews, and focus on the complaint rate to reduce the burden on couriers”.

  In response to the above suggestions and problems, the State Post Bureau stated in its response that it will strengthen guidance and supervision to express delivery companies, further promote companies to improve fine management, curb "penalty management", standardize the issue of fines at all levels of the company, reduce the burden on front-line employees, and stabilize The foundation for the healthy development of the industry.

  "Running on the road"

  -No longer being bullied by the strictest algorithm

  Social microcosm:

  August 24, Jinan, Shandong.

  The courier Xiao Li: "The system can't know whether the nearest door can enter. Some community gates are not allowed to enter. The security guards must go around other doors. This time, five minutes or even ten minutes passed." Xiao Li once. It was delivered in a commercial building. As soon as it arrived on the first floor, the system showed that the rider had arrived. Then the second wave of orders came. However, there were many people waiting for the elevator during lunch in the commercial building. 22 minutes have passed, and the first wave of orders was delivered on time, but all subsequent orders have timed out.

  Another takeaway brother said: "In order not to overtime, I almost always climbed the stairs when I arrived in a community without elevators. I didn't feel tired at the time. I felt my legs tremble after a lap."

  Rights Protection Guide:

  The “Guiding Opinions on Implementing the Responsibilities of Online Catering Platforms and Effectively Protecting the Rights and Interests of Food Delivery Crews” pointed out that the “strictest algorithm” must not be used as the assessment requirement for food delivery personnel, and the number of orders, the number of orders, and the Assess factors such as punctuality rate and online rate, and appropriately relax the delivery time limit.

  News Watch:

  The public is constantly questioning the use of the algorithm rules of platform companies. This question ushered in a climax after the report of the article "Takeaway Riders, Trapped in the System" in 2020.

Afterwards, the regulatory authorities criticized the algorithm rules of certain Internet platforms such as food delivery and online car-hailing, requiring the platform to rectify the algorithm, and emphasizing that the platform should reasonably determine the evaluation, reward and punishment elements through methods such as "algorithm selection", and avoid Over-intensified labor and the resulting safety injuries.

  For this reason, some experts suggest building a smart trade union platform with algorithm optimization and supervision as an important content.

On the premise that the underlying logic of the algorithm and commercial secrets are not involved, a data interface is established with the platform to realize dynamic real-time supervision of the labor process and labor rights of the platform laborers, and enhance the ability of rights protection based on big data.

  "Who will take care of an accident?"

  ——Introduction of occupational injury insurance

  Social microcosm:

  On May 4, Kunming, Yunnan.

  An online ride-hailing driver, Master Xia, died suddenly while taking orders.

According to media reports, at around 12 noon that day, Master Xia suddenly felt unwell while driving the vehicle to pick up passengers, and died after the rescue failed.

Master Xia’s weekly working hours are as long as 60 to 70 hours.

Afterwards, the online car-hailing company responded to the family members, saying that the "Service Contract Agreement" signed by Master Xia did not belong to a labor relationship, so it did not belong to the scope of work-related injuries and could only be paid by commercial insurance.

  Rights Protection Guide:

  The "Guiding Opinions on Implementing the Responsibilities of Online Catering Platforms and Effectively Protecting the Rights and Interests of Takeaway Food Deliverymen" requires that all platforms are urged to participate in social insurance for takeout food delivery staff, support other food delivery staff to participate in social insurance, and participate in the platform flexibly in accordance with national regulations Pilot occupational injury protection for employed personnel.

  Various localities have also issued corresponding regulations. For example, Nanjing, Jiangsu stipulates that takeaway riders who establish a labor relationship with the employer shall be insured by the employer to participate in social insurance in accordance with the law.

Shandong Jinan encourages and guides new business platforms to purchase accidental injury insurance for employees in flexible employment.

  News Watch:

  Since the current work injury insurance system is based on labor relations, most of the new employment forms of workers such as takeaways and online car-hailing drivers have not established labor relations with enterprises, so the current work injury insurance system cannot be used to protect their rights.

With the introduction of occupational injury insurance in the "Guiding Opinions on Safeguarding the Rights and Interests of Workers in New Employment Forms" issued by the eight departments, and the establishment of a special single-injury insurance system for workers in new forms of employment in some localities, workers in new forms of employment The problem of identifying work-related injuries is being solved.

  In August, some platform companies stated that they would follow the principle of “providing cities with a better work foundation first” to conduct “pilots for rider occupational injury protection”.

  "Do you sign the labor contract?"

  ——The new business is no longer a "safe haven" for platform companies

  Social microcosm:

  May 3, Beijing.

  Tian Lu, a judge of the Third Intermediate People’s Court of Beijing, introduced a case like this: Xiao Liang is an “online cleaner”. He saw the recruitment information of an information technology company on the recruitment network and went to the physical store for an interview. As a cleaner, he did not sign a labor contract, and provided cleaning work in accordance with the company's "Housekeeping" APP. The two parties signed an intermediary service agreement for a period of one year.

The agreement stipulates that Xiaoliang’s monthly minimum salary is 5,000 yuan, and the online duration must be from 8 am to 6 pm.

At the same time, during this period, Xiaoliang cannot refuse to take orders, nor can he take orders without authorization; during the cooperation period, Xiaoliang needs to be given relevant training or safety education.

  Xiaoliang had just been working for 4 months before he was fired from the company.

Xiao Liang applied to the Labor and Personnel Dispute Arbitration Committee for arbitration, demanding that the company pay him the wage difference and compensation for illegal termination of the labor relationship.

However, the company denied that there was a labor relationship with Xiaoliang, saying that the payment to Xiaoliang was labor fees, not wages.

The relationship between the two parties was terminated because Xiaoliang refused the order on the day he was fired. There was a complaint before, but no evidence was submitted.

Both the labor and personnel dispute arbitration committee and the court supported Xiao Liang's request.

  Rights Protection Guide:

  The "Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Employment Forms" mentioned that companies should conclude labor contracts with employees in accordance with the law if they meet the conditions for establishing labor relations.

How to determine whether it has the basic characteristics of labor relations?

Article 1 of the "Notice on Matters Concerning the Establishment of Labor Relations" stipulates that the labor relationship shall be established if the employer does not sign a written labor contract when recruiting employees, but at the same time meets the following circumstances.

(1) Employers and workers meet the subject qualifications required by laws and regulations; (2) The various labor rules and regulations formulated by employers in accordance with the law apply to workers, and workers are subject to the labor management of the employer, and those who engage in the arrangements of the employer Remunerated labor; (3) The labor provided by the laborer is an integral part of the employer’s business.

  News Watch:

  The employment relationship in the Internet + era is more free and flexible. The work content of the new employment form is not restricted by the fixed time. The labor remuneration is settled according to the workload of the independent order. The payment time after the remuneration is determined is determined by The workers make their own decisions.

As a result, there has been a debate about whether workers with new employment forms are labor relations or labor relations, and the fact that workers with new forms of employment cannot be recognized as labor relations also hinders their opportunities to enjoy the protection of labor laws and regulations.

  This year, relevant state departments issued documents clarifying that platform companies should bear the responsibility. In addition to labor relations and civil contract labor, employment forms that are not fully compatible with labor relations have been introduced.

It provides a policy basis for safeguarding the rights and interests of workers in a new form of employment that does not meet the conditions for establishing labor relations, but is not completely self-employed.

  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.

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