Platform employment and labor relationship should be comprehensively determined

Platform employment and labor relations should be comprehensively determined to be released: 2022-04-2016: 42 Wednesday Source: Rule of Law Daily-Rule of Law Network □ Xiao Zhu Recently, a case announced by China Referee Book Network has attracted widespread media attention. The dining rider on the package platform caused a secondary disability during the meal delivery process. As the primary issue of the rights and interests of platform workers, the labor relationship of platform employment has always been the focus of attention and debate on all parties, formulating the rules for labor relationship identification at the legislative level, and enable it to cover and adapt to employment practices including new formats including new formats. It is the focus of the current and future labor legal system.

In the author’s opinion, the following issues should be paid to the following issues of the employment and labor relations of the platform: First of all, the labor relationship of the platform employment should follow the "facts of facts and priority" to expose "hidden employment", and to protect the workers and explore the people of the people. Commercial co -consent agrees to find a balance between true and consistent.

The Civil Code of my country clearly stipulates that the effectiveness of civil legal acts hidden in false intentions will be handled in accordance with relevant laws and regulations. At present, the form of platform employment has become diverse, and often involves multi -party subjects and multiple legal relations. The agreement between the platform workers and the counterparts is usually named in service, subcontracting, and cooperation. After registering as an individual industrial and commercial households, it signed the above -mentioned name agreement to avoid the responsibility of employers in labor relations.

Adhere to the "facts of facts" in the judgment of the case, and cannot only be reviewed and judged by the name of the provider of the labor provider or the same name. The essential attributes, on the basis of identifying the real legal relations, combine the standards of labor relations, examine the actual situation of the management and control of the platform employment, and make a substantial judgment and identification of the legal relations between the two parties.

Secondly, we must build the "comprehensive evaluation of element" rules for the identification of platform employment and labor relations. Platform employment is not necessarily a new format. In the express delivery and online car rental industries, a considerable proportion of employment is still a traditional standard labor relationship; The difference between the category of "and" crowdsourcing "makes the labor relations determine that it is more complex in the overall context of platform employment and new formats. In the judicial practice identified by my country’s platform employment and labor relations, the referee mainly combines the characteristics of platform employment to comprehensively investigate from the level of employment, attendance, ordering, salary, and evaluation. In the future, the identification of platform employment and labor relations should also comprehensively consider the control of the workers in terms of work rules management, task allocation, labor process supervision and inspection, working time requirements, etc. The degree of autonomous decisions of working hours and workload, to determine whether the relevant subjects’ dependence on means of production (including data) and the source of living sources, etc., determine whether it constitutes a labor relationship, and whether it must be included in labor protection. Finally, the labor relationship of platform employment should also be combined with the platform employment mode and type to avoid the definition of the whole "type".

As an example, the take -out food delivery industry is an example. In judicial practice, the "special delivery" model is more likely to be identified as a labor relationship, but the employment in the "crowdsourcing" model should not be "type" to completely exclude the determination of labor relations. One of the important reasons why this case has aroused widespread concern in society is that the plaintiff is a "crowdsourced" rider. The reasonable economic losses caused by the accident were compensated. It is worth noting that the "Guiding Opinions on Maintaining the Labor Insurance Rights and Interests of Labor Insurance of Labor Insurance" issued by 2021 divided the platform employment into "in line with the establishment of labor relations", "incomplete compliance with establishment of labor relationships" and "personal reliance platform independently carried out independent development Three situations: business activities and free occupations ", among which the situation of" incompletely consistent with establishing labor relations "points more at the policy formulation level. When landing, it should only be used for "limit" for platform employment, and it should not be applied to all labor fields. Judicial practice should play a judicial screening role in the name of "incompleteness to establish labor relations and practical work of labor relations", and effectively protect the rights and interests of workers who essentially constitute labor relationships.

(The author is the executive dean and professor of the Law School of China Labor Relations School) Zhang Meixin.