Survey of the Rights Protection of the New Format: Who will protect the rights of the migrant workers?

The platform economy and the digital economy are booming, and various new formats have increased significantly. As of now, there are 937,000 registered companies in Jiangsu platform, which has absorbed more than 5.17 million practitioners such as Didi drivers, takeaway brothers, courier, and online anchors.

The new format has become an important "reservoir" for employment. However, the form of new business employment is different from traditional employment and freelance, and employees generally have no fixed time, no fixed places, and no fixed income. In this increasingly huge employment group, the protection of labor rights and interests still has the "blankness" of the system. New things have spawned a new problem- "Three None" to fight workers, who will protect their rights and interests?

Rider is trapped in the algorithm, "Chao Eight Night Ten" is the norm

At 14:47, we took the meal at the store at 14:56, and sent it to the customers who lived in Phoenix West Street, Gulou District, Nanjing ... At 15:00 on September 4th, the reporter saw the rider Chen Guochao When he just took off the 24th single takeaway on the day. From 8 o'clock in the morning, the first order is received, and the work will be collected at more than 10 pm, and the average of nearly 50 orders per day.

Long working time and high labor intensity, which is a general state of new practitioners. The courier brother Xu Chuan worked in Debon for only half a year, and worked for an average of 10 to 12 hours a day. The company implements "basic salary+pieces of pieces of pieces of pieces". Although there are 4 rest days a month, in order to "make more milk powder money" for children who are not one year old, he usually chooses endlessly. The reporter also randomly interviewed 5 online ride -hailing drivers. They worked for more than 10 hours a day. Didi driver Hu Yue said frankly, "Without a base salary, if you want to make more money, you can only sacrifice the rest time."

New business practitioners also face higher occupational risks. "Every order is like pressing the timer." Xiaomeng, a takeaway rider who used to be a takeaway platform, Suzhou Wujiang Pedestrian Street Station, said that the platform's most important assessment criterion for the riding is on time and good service attitude. For example Due to the timeout users gave the bad review, they basically did it in one day. Earlier, he was knocked down by a truck when he was "scrambled against time", causing a fracture, and he lay at home for more than two months.

"Takeaway platforms implement the management of employees with algorithms, predict the arrival time directly affects performance assessment, and unreasonable rules make riders trapped in the algorithm." The relevant person in charge of Nanjing Emerging Industry Trade Union introduced that due to timeout, money is deducted. After the rider grabbed the single speed, retrograde, and even the red light, there were many behaviors, which caused traffic accidents. In recent years, takeaways have been hit by take -out in Shenzhen, Shanghai and other places. A rider's safety guarantee survey showed that there were about 20 accidents per million orders.

During the interview, a number of new business practitioners admitted that "there is no sense of security." Xu Chuan introduced that the company has never purchased any insurance for him. If you pay social security by himself, you have to pay nearly 1,000 yuan per month. Compared with the monthly income of about 7,000 yuan, it is very "not cost -effective". Essence Chen Guochao introduced: "When logging in to a takeaway platform crowdsourced app every day, the account will be deducted from 3 yuan as the cost of buying the day of the day.

Liu Ying, head of the Labor Security Supervision Section of Jianye District, Nanjing City, has exposed to many labor disputes of new business practitioners. In her case, some companies will purchase employer liability insurance and accidental injury insurance, but the payment standard ratio Work injury insurance is much lower, and there are some employees without any insurance. "New business practitioners have a high flow rate, working hours and workplace are not fixed, and it is difficult to participate in the employee work injury insurance system. Say.

On the one hand, the labor rights and interests are absent, and on the other hand, the number of new format employment groups has continued to increase. Taking Nanjing as an example, as of now, nearly 100,000 people in the city have obtained the qualification certificate of online car drivers, and the online distribution staff of various network platforms have reached 401,600. A survey by the Nanjing Human Resources and Social Security Bureau shows that most of the newly formats in Nanjing are 20 to 45 years old. They usually have a college degree and below and the overall income level is unstable. The employees include a large number of new generation of rural household registration.

Li Ruihua, the president of Labor and Personnel Dispute Arbitration Council in Pukou District, Nanjing, said that new business staff, mainly young people, have become an important part of workers. Their work has greatly facilitated people's lives, but employees generally face occupations and High health risks and lack of social insurance rights and interests, stabilize employment and keep people's livelihood urgently need to implement the rights and interests of this group.

The form of employment is complicated, "I can't figure it out for anyone to tell everyone"

The reporter's investigation found that the new business staff is difficult to protect their rights, and the root is the complex and diversified form of employment.

A typical case: After Xiaomeng had a traffic accident on the way to deliver meals, the first reaction was to claim to the company. However, it was not until the lawsuit that he had signed a large number of electronic format contracts through the "good living" app, and the "thin" applied contract was signed by the duty point. The reporter learned that registering takeaway riders into individual industrial and commercial households is the industry's approach; many online car rental platforms in Nanjing also require drivers to register as individual industrial and commercial households.

"By going to labor relations, the main responsibility of employment is avoided." Zhu Li, who hosted the judge and the judge of the Suzhou Labor Tribunal in the second instance of the Xiaomeng case, said that in the trial of the case, the company claimed that the rider was "entrepreneur" instead of "workers". It is the cooperative relationship between the subject of equality. It also submitted a business license for individual industrial and commercial households registered in the name of small Meng, named a studio in Kunshan. This new employment model has a "salary at the bottom of the kettle". Individual industrial and commercial households are no longer a natural person, so they directly lose the qualifications of workers stipulated in the labor law. Packaging business layers is the "public secret" of many platform companies. In January of this year, a rider complained that Nanjing owed a salary of a takeaway platform. After investigation by the Labor Security Supervision Brigade of Jian'er District, Nanjing City, it was found that the three intellectual sending service technology Co., Ltd. of the relevant departments of Shanghai will outsourcing the delivery service to Suzhou Yunting Network Technology Co., Ltd. Between the independent day platform and the rider, there are also three companies including Shanghai Yue Orange Culture Communication Co., Ltd. "After the subcontracting, the labor relationship was disrupted and broken, and the rider couldn't even clarify everyone." Zhang Zhifeng, the organizer of the case.

"In order to avoid the supervision of labor relations, some new business companies often use related companies to confuse the main body of employment through mixed employment, cross -rotating employment, and assignment." Zhang Zhifeng introduced that in the new business labor dispute, many cases have been stripped after layers of layers. The labor relationship is still unclear. There is even a takeaway brother who pays orders on a platform. It is a salary for him. There is an implication of employment.

The reporter's investigation found that in traditional labor relations, a worker corresponds to a employment unit, and under the new format, registered self -service employment has become a common phenomenon, and a employee usually corresponds to multiple employers. For example, online anchors generally bring goods to multiple enterprises at the same time; if they are online, platform companies release information, and practitioners have their own mobile phone registered accounts. Through "grabbing" to undertake business, one person can also accept multiple platform business at the same time. According to the introduction, "drivers generally drive two or three of Didi, Meituan, Cao Cao special cars and small pigs."

"The prerequisite for the protection of labor rights and interests is that workers and employees must determine the labor relationship." Yang Yong, chief of the labor and personnel mediation and arbitration management section of the Human Resources and Social Affairs Bureau of Jianye District, Nanjing, introduced that the autonomy, liquidity, and flexibility of the new business practitioners It is difficult to determine the legal relationship with the employer. The current labor law in my country does not make specific provisions on this "incomplete labor relationship". When the dispute occurs, the labor supervision and arbitration are very limited. Last year, the people's social windows received more than a hundred issues such as arrears and work injuries, but less than 10%of the disputes that were resolved in accordance with the law in accordance with the law of labor relationships, and in accordance with the law.

The system is to be improved, and the labor dispute is "double protection"

my country's existing labor law was introduced in 1994. With the change of labor form, the Labor Contract Law implemented in 2008 issued legal provisions on Africa's full -time work, and it was clear that the working time was not more than 4 hours a day. In contrast, the new business format is more flexible than existing the form of employment, and the relationship between practitioners and employees is more loose, and the relevant terms have been "lagging behind."

Multi -party calling for it. In July last year, the eight departments of the Ministry of Human Resources and Social Security, and the National Development Reform Commission jointly released the "Guiding Opinions on Protecting the Rights and Interests of Labor Protection of Workers in the New Employment Form", which is the biggest breakthrough. The form is divided into three situations: "comply with establishing labor relations", "incompletely consistent with establishing labor relationships" and "personal relying on platforms to independently carry out business activities, and engage in freelance occupations". It changed the identification pattern of "right and not" labor relations. In December last year, Jiangsu also issued the "Opinions on Maintaining the Rights and Interests of Labor Protection of Labor Protection for New Employment", which more accurately regulated and complex new employment relationships.

"Related guidance is a policy norm and does not have legal compulsoryness, and there are still law enforcement problems in practice." Staff staff members of the labor supervision department in Nanjing admit that the most right to protect rights in the process of law enforcement is wage arrears, new new, new How does the business formula do not have attendance in general enterprises? How to calculate the salary of working hours and the "reasonable rest" mentioned in the opinion? The law also needs to be further explained in detail.

It is worth noting that in the case of Xiaomeng's complaint platform company, the Suzhou Labor Tribunal believes that Xiaomeng is not intended to operate the independent operation of individual industrial and commercial households. In the end, it is determined that there is a labor relationship between the two parties, which provides a model for judicial practice to respond to the new employment model. It is also rated as "Top Ten Influence of China Social Law in 2021". Wang Cen, the president of the Suzhou Labor Court, believes that the problems brought about by the new method of employment of the platform economy, although there are currently not very clear legal rules, can not reject the referee because the new system is not perfect or the lack of corresponding basis. The judicial organs must not only protect the workers to enjoy their due rights and interests, but also participate in the formulation and exploration of rules, and continuously enrich the system supply of new business workers in practice.

"It is necessary to improve the current labor law and accelerate the construction of a new type of labor legal system; it is also necessary to promote policy and system innovation and give full play to the role of soft law." Gao Li, a professor of the Party School of the Jiangsu Provincial Party Committee of the Communist Party of China, suggested The coordination system, such as the establishment of a prepaid fund, pays a certain prepaid payment to the platform enterprise based on the number of recruitment, the scale of employment, and the nature of the enterprise, provides a certain guarantee for the priority compensation of the workers' rights and interests, and guides enterprises to regulate employment behavior. When the Nanjing Network Appointment Distribution Industry Association was established in August last year, a number of platforms in charge of the platform reported that there were too many employees. How to do? Liu Qiusu, the Nanjing Arbitration Commission's arbitrator, said that in response to the new issue of labor disputes brought about by the new economy and new format, the Supreme People's Court clarified the concept of "dual protection" of labor dispute trials. The legitimate rights and interests adhere to the concept of tolerance and prudent supervision, and provide a loose development space for the new format.

(Small Mongolian in the text is a pseudonym)

Xinhua Daily · Jiaojiao Point Reporter Lu Lin Gu Min Huang Huan Fu Yanyan

Lear reporter Li Jiahao

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