□ Chen Lei, reporter of this newspaper
Not long ago, the All-China Federation of Trade Unions released the results of the ninth national workforce survey. Data show that there are 8400 million workers in the new employment form in the country.
Among the new forms of employment, online workers are mainly takeaway delivery workers (takeaway riders), ride-hailing drivers, couriers and other groups. Among them, comprehensive relevant platform data shows that the number of takeaway riders alone exceeds 1000 million. However, the huge number of online workers face a problem, they find it difficult to establish labor relations with platforms, and then it is difficult to protect related labor rights.
Recently, the symposium on "Social Law in the Digital Age: Theoretical Innovation and System Construction" sponsored by the China Social Law Research Association was held, and the problem of identifying the labor relations of online workers has become a focus topic of discussion among the participating experts.
Xie Zengyi, deputy director of the Institute of Law of the Chinese Academy of Social Sciences, believes that with the development of digital technologies such as network information, profound changes have taken place in the field of labor and employment, and digitalization has also brought great challenges to labor law.
In Xie's view, one of the challenges is the digitalization of the concept and recognition rules of labor relations. Taking platform employment as an example, platform technology algorithms constitute a significant feature of platform employment, which is significantly different from traditional employment methods. In addition, some platforms choose to cooperate with third parties to carry out daily management of workers through partners, resulting in complicated legal relationships between platforms, partners and workers.
At the symposium, Tu Wei, associate researcher of the Chinese Academy of Labor and Social Security Sciences, introduced that he had conducted a sample survey of takeaway riders as typical online workers in five cities including Beijing, and collected a total of 5,7680 valid questionnaires. According to his survey, about 84.7% of the respondents had difficulty in clearly identifying their employment relationship.
Supporting this, in November 2022, the Shanghai No. 11 Intermediate People's Court issued the White Paper on the Trial of Employment Dispute Cases in New Formats, stating that from 2017 to the first half of 2022, the court heard 38 cases in which practitioners applied for confirmation of labor relations with platforms or platform cooperative enterprises or labor outsourcing enterprises, of which 8 were recognized labor relations, with an overall recognition rate of 21.05%.
The question that arises is, why can't online workers who are "trapped in the system" establish a labor relationship with the platform party? There are still differences in the academic community on this issue.
One view advocates responding to it with the existing labor system. The professor of the School of Labor Economics of Capital University of Economics and Business believes that in practice, online contract workers and platforms are usually not recognized as constituting labor relations, but in theory, platforms use algorithm control, while ensuring service quality, but also to manage employees, and employees who meet the standards of subordinate labor can be determined to constitute labor relations.
In the view of Professor Tian Ye of Tianjin University Law School, labor management can be determined to constitute labor relations to a certain extent, and platform employment is an algorithm management for practitioners, although it is different from traditional labor management, but also has labor management in the sense of labor law.
Another view holds that labor security must adapt to the development of new employment forms, and labor forms in the digital age cannot adhere to the systems and thinking of the industrial age.
As a representative scholar of this view, Wang Tianyu, deputy director of the Social Law Office of the Institute of Law of the Chinese Academy of Social Sciences, believes that there are two aspects that need attention: first, it should be recognized that this labor form based on Internet platforms and information technology is a new form of labor, and further research is needed as to what is new; Second, it should be recognized that the current labor law system rules, including relevant knowledge and thinking, lag behind and do not adapt to the situation of new formats, new changes and new developments. For example, the "dichotomy" of labor relations prevents courts from determining labor relations in accordance with the law.
Wang Tianyu introduced that under China's labor legal framework, labor relations adopt the "dichotomy", that is, various labor payment activities are divided into "dependent labor" and "independent labor", the labor law regulates the labor relationship with "dependent labor" as the content, and the civil law regulates the labor relationship with "independent labor" as the content. This polarized framework structure lacks a mechanism to protect the labor rights and interests of flexible employees, and there are significant institutional gaps.
The report of the 20th National Congress of the Communist Party of China pointed out that support and standardize the development of new employment forms, improve labor laws and regulations, and strengthen the protection of the rights and interests of workers in flexible employment and new employment forms. Experts at the meeting believed that the current problem is that platform employment is not a traditional labor relationship regulated by labor laws, and it is impossible to achieve effective labor rights and interests protection through civil law. In other words, simply maintaining the current labor legal framework is no longer suitable for the actual development of society.
In July 2021, the Ministry of Human Resources and Social Security and other eight departments jointly issued the Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Employment Forms (hereinafter referred to as the Guiding Opinions). Experts attending the meeting believed that this normative document put forward the adjustment idea of the "labor trichotomy" according to the actual situation, that is, on the basis of the "dichotomy", the introduction of "not fully in line with the situation of establishing labor relations" to keep pace with the times.
According to Lou Yu, a professor at the School of Civil and Commercial Economics and Law of China University of Political Science and Law, the "three-point rule" provides a starting point for protecting the legitimate rights and interests of workers, and solves the problem of the lack of labor protection rights and interests of employees who "do not fully comply with the situation of establishing labor relations".
According to Wang Tianyu's research, the Guiding Opinions put forward that "it is not fully in line with the circumstances of establishing labor relations" and regarded it as a type juxtaposed with "labor relations", which means that such labor forms open up a relatively independent policy framework outside the current labor law, and can realize a number of labor rights and interests without relying on labor relations, including a fair employment system, a minimum wage and payment guarantee system, a rest and labor quota system, a labor safety and health responsibility system, a social insurance system, and a collective bargaining and appeal system.
The reform of the current labor legal framework by the "labor trichotomy" has only just begun, and there are still many aspects to be improved.
Shang Jiangang, an associate professor at the Shanghai University of Political Science and Law, pointed out that it is actually difficult for the "three-point rule" to give a special position in labor law, which will bring ambiguity in the implementation of the law. The legal relationship is very clear, and it is easy to achieve judicial uniformity when judges apply it. In practice, the "dichotomy" has already produced many problems in the identification of labor relations, and there may be more problems after the "trichotomy".
Lou Yu said that the "three-way rule" will bring trouble to judges in determining labor relations for the judiciary, and it is necessary to clearly demarcate the boundaries of each other. This requires the accumulation of future judicial trial experience and the improvement of the "trichotomy" through case adjudication.
According to Shen Jianfeng, a professor at the Law School of Central University of Finance and Economics, the labor rights and interests project to be loaded by the "rule of threes", that is, loading labor rights and interests between "dependent labor" and "independent labor", needs to be completed through legislation in the future.
Wang Tianyu regards the "labor trichotomy" as an integral part of the practical process of developing and perfecting the rule of law in society, and he believes that the "trichotomy" cannot be achieved overnight from formation to maturity. Under the premise of acknowledging new situations and coping with new problems, it is necessary to give practice enough time for exploration, and at the same time give enough time for theoretical cognition, and only when practical exploration is sufficient can consensus normative rules be formed.
Tu Wei's suggestion is that the protection of workers in new forms of employment should be mainly based on their economic subordinate characteristics, because this largely determines their wages, working hours, and social security. In addition, it is indeed necessary to improve the social security system for flexible employment personnel in China from the top-level design.
In Xie Zengyi's view, with the rise of new employment forms, the adjustment method of labor law needs to be optimized, the traditional "dichotomy" model needs to be improved, and different levels of protection should be given to different types of workers.
"The current idea is that the future labor code will include eight parts, one of which should add a special labor relations part, in order to reflect the change in the mode of labor relations adjustment and the adjustment of some special labor relations." Xie Zengyi said that digitalization has brought great challenges to labor law, but also injected new vitality into labor law, making labor law or labor code in the Internet era face major opportunities. (Source: Rule of Law Daily)