Original title: Inadequate occupational injury protection for labor relations (quotation)
General overtime work of workers in new employment forms (theme)
Legal Daily reporter Wen Lijuan Intern Zhang Guanglong
Editor's Note
Recently, the problems of faint, injury and even sudden death caused by long working hours and heavy workload of new employment forms of workers such as online taxi drivers and takeaway riders have attracted continuous attention from the society.
According to data, the total number of employees nationwide is about 402 million, including 84 million workers in new forms of employment. Workers in new employment forms have become an important part of the workforce.
How to strengthen occupational security and better safeguard the legitimate rights and interests of this group? At the approaching of the May Day International Labor Day, reporters walked into the new employment pattern of workers, and communicated with them face to face, felt their work rhythm, deeply understood their problems, explored solutions, and launched special reports. Please pay attention.
Master Zhang, 42 years old, is a full-time online car hailing driver of a platform in Beijing, and has been working for 6 years. His initial idea of choosing to open online car hailing was simple, "free time makes a lot of money".
But the reality ran counter to his original idea. "I usually run about 12 hours a day, and 14 hours or more on holidays, almost all year round. I work every day as soon as I open my eyes, so I can get about 12000 yuan a month."
In recent years, with the rapid development of platform economy, the number of workers in new forms of employment such as Master Zhang has increased significantly. The so-called new employment workers mainly refer to the workers who accept online distribution, travel, transportation, housekeeping services and other work tasks issued by the Internet platform, provide online appointment services according to the requirements of the platform, and obtain labor remuneration through labor, including "online car hailing drivers", "selling riders" and "express boys".
In 2023, the data of the ninth survey of the national workforce by the All China Federation of Trade Unions shows that the total number of workers in the country is about 402 million, of which 84 million are new workers, accounting for 21% of the total number of workers.
The reporter from the Legal Daily recently interviewed a number of online taxi drivers, takeaway riders and other workers in new forms of employment. They generally reflected that they did not have much say in the rules of working hours and how much money they could get for a single job, and could only accept the "rules of the game". Overtime work, lack of minimum wage security, lack of social security, and obstruction of appeal expression mechanism have become common problems for this group.
How to protect the rights and interests of workers in new forms of employment? With questions, the reporter launched an investigation and interview.
Overtime work becomes normal
In order to make money, we have to work together
He leaves at 8:00 in the morning and goes home to have a rest at around 10:00 in the evening. This is the daily work rhythm of Master Zhang. He usually takes a bite on the road when eating. "This is basically the case for the car hailing service on Ganwang."
Master Zhang knows a lot of peers, and after communication, everyone found that everyone's schedule was very similar: every morning at 8 o'clock to receive orders, because this time is the peak of work, there are many orders; After that, he kept the rhythm of taking orders and sports cars until he caught up with the evening rush hour at seven or eight in the evening. After that, some people will choose to finish their day's work, but more people will continue to work for two or three hours in order to make more money.
Master Zhang showed the reporter the latest money received: the platform showed that the passengers paid 17.8 yuan, and finally received 14.8 yuan, and the platform earned about 16%.
"This is still a low platform, even up to 30% high, and you can't make much money after a hard trip, so you have to keep running, so you can get a good income." Master Zhang said that in order to make money, they have to keep running. "This amount is not controlled by our drivers. If you want more orders, you have to give high scores. If you want high scores, you have to run more orders, and you have to run longer. At the same time, you cannot cancel the order."
Speaking of this, Master Zhang took out a cigarette, but quickly put it down, because the fresh air in the car was also part of the score.
Another online taxi driver, Master Wang, works longer every day - at least 14 hours. He eats three meals a day on the bus, earns seven or eight hundred yuan a day, and gets nearly 20000 yuan a month.
Mr. Wang introduced that he is different from other online car hailing drivers. They usually use their own cars and only use the deduction platform to draw a percentage, while he runs a special car, which is more luxurious and more expensive. The car is rented, and the rent is 200 yuan per day, so you must run as much as possible to ensure your income. In order to save time and cost, he rents with others near the city. The living environment is crowded and poor. He goes back to sleep for four or five hours every night. When he is tired, he finds a place to park for a rest.
When talking about this job, Master Wang said frankly that he was "tired, too tired", but he still wanted to do it. Because he did not have a skill, he could not find a stable job in a short time. In order to maintain the family's expenses, he had to do it no matter how tired he was.
The reporter interviewed dozens of new employment workers randomly and found that it was normal for all respondents to work more than 12 hours a day, and some respondents often worked for a week to increase their income.
According to relevant labor laws and regulations in China, employees work 8 hours a day and 40 hours a week; If the working hours need to be extended due to special reasons, it shall not exceed 3 hours per day and 36 hours per month.
Unable to enjoy work-related injury insurance
Commercial insurance claims are limited
Mr. Li, a takeaway rider in Tianjin, said that he spent almost all his waking time delivering takeaway: delivering orders systematically, taking food from the store, and delivering them to customers on time.
After becoming a rider, he arranged for himself to work from 9:30 a.m. to 12:00 p.m. every day, and to rest for half an hour at noon and half an hour in the afternoon.
"Because the workload is directly linked to the income: every order completed can earn an average of four or five yuan. It is necessary to ensure that 50 orders are received every day to make the income passable. In addition, there are usually fewer riders who go to take out after 10 p.m., and there are more orders for supper, so the competition is not as fierce as in the daytime." Mr. Li said.
In his work, Mr. Li is most afraid of encountering customers who do not answer the phone. Once, he met a shopkeeper who was slow to serve food. At the same time, he was sent other orders by the platform. It was not easy to get the food. When he arrived at the place, he could not contact the customers. As time went by, he was like an ant on a hot pot. Finally, two bills were fined 20 yuan for overtime. "I really wanted to cry."
The reporter found that in order to avoid overtime, some takeout riders often exceeded the speed limit, went retrograde and ran through red lights, which led to traffic accidents from time to time. A reporter once witnessed a traffic accident: at about 11:00 that day, in a residential area in Chaoyang District, Beijing, a delivery rider riding an electric bike focused on the mobile phone navigation. A passer-by walked right in front of him. The rider turned sharply and hit the roadside fence. The delivery in the incubator was scattered everywhere, and the rider also fell onto the road.
For takeaway riders, the occupational injuries they often face occur in various traffic accidents. In addition to causing injury to others, the rider himself is often in danger. Since China's current social security system is based on standard labor relations, this means that some riders cannot identify work-related injuries. For part-time crowdsourcing riders, the takeaway platform generally buys commercial insurance for them, but there are also certain restrictions on claims settlement.
Mr. Liu, a takeaway rider in Beijing, has a 5cm long scar on the outside of his arm, which was left after he was hit by a car when delivering takeaway. "The driver has insurance, and the insurance company asked me to provide an income certificate to calculate the lost wages. My monthly income was about 10000 yuan at that time. When I asked the platform for an income certificate, the platform said it had nothing to do with them, and finally the insurance company paid according to the minimum wage standard."
Another part-time takeaway rider, Ms. He, told the reporter that she had seen a picture in the social group of riders, which was an electric car with a broken front and fell to the ground. It was sent to the group by a rider after he had an accident at the intersection. He rode an electric bike straight ahead, but the car turning opposite didn't slow down. The rider braked sharply and collided head-on with the car. One third of the head of the electric bike was lost. The rider sat down on the ground and scraped himself. Fortunately, there was nothing wrong with him. The solution given by the insurance loss adjuster is that if you are anxious to go back to make money, you can talk about reconciliation, make quick compensation, and pay 300 yuan for two days' work delay.
"At present, the payment of industrial injury insurance and identification of industrial injury in China are based on labor relations, but there are often disputes about whether there is labor relations for platform employment, which has become the biggest obstacle for riders to identify industrial injury," said Shen Jianfeng, a professor at the Law School of Central University of Finance and Economics.
Algorithm squeezing is in trouble
It is difficult to determine the subject of employment
In Shen Jianfeng's view, the new form of employment is flexible and strictly managed by the platform. This is the inevitable result of the new form of employment, an unorganized and organized form of employment, which will also lead to the new form of employment workers being easily squeezed by employment rules and algorithms, and to a certain extent, into trouble.
Master Li, who runs an online car hailing service in Beijing, feels the same way. On one occasion, he received an order that was far away. He was very happy. The passenger side showed that the order price was 37 yuan, and the platform could take 7 yuan according to the proportion. As a result, in order to compete with other platforms, the platform attracts passengers with preferential price, but the amount of preferential price is not platform subsidies, but directly deducted from the money received by the driver. In the end, only 27 yuan is left for a single purchase of 37 yuan.
"In the field of platform employment, contracting, outsourcing, franchising, labor dispatching and other methods are often used, and multi-level franchising, outsourcing and other phenomena often exist. What's more, in some cases, new employment workers are registered as self-employed businesses, becoming operators who bear their own risks and profits and losses." Shen Jianfeng said, When disputes arise due to these factors, workers are often unable to determine who is the employer. Even if a specific subject is identified as the main body of employment, it is not appropriate to assume responsibility only by this subject when other subjects also have certain management over workers, which makes it difficult to determine the nature of legal relations and the main body of employment, even if the enterprise and workers have identified labor relations, Many new characteristics and forms of employment in the new employment form cannot be taken into account by the existing labor law, which will also bring difficulties to the protection of the rights and interests of new employment groups.
Shen Jianfeng said that in the case of platform employment, many evidences are in electronic state, which makes it difficult for workers to provide evidence after disputes. The separation of the registration place of enterprises and the working place of workers often occurs. After the infringement of rights and interests, labor security supervision is often required to enforce the law in different places, which increases the difficulty of law enforcement. In the case of litigation and arbitration, there are also difficulties in determining the jurisdiction.
In November 2023, in order to support and standardize the development of new forms of employment, and strengthen the protection of the rights and interests of workers in new forms of employment, the General Office of the Ministry of Human Resources and Social Security issued the Guidelines for the Protection of the Rights and Interests of Workers in New Forms of Employment, the Guidelines for the Publicity of Labor Rules for Workers in New Forms of Employment, and the Guidelines for the Protection of the Rights and Interests of Workers in New Forms of Employment.
The Guidelines for Rest and Protection of Labor Remuneration Rights and Interests of Workers in New Employment Forms clearly states that the daily working hours include the accumulated time for receiving orders on the day and the extended time determined by taking into account the necessary online order, service preparation, physiological needs and other factors of workers. If the working time of workers reaches the upper limit, the system should push a rest prompt, And stop pushing orders for a certain period of time to ensure that workers get the necessary rest time and prevent excessive labor.
The Guidelines for the Publicity of Labor Rules for Workers in New Employment Forms clearly states that platform enterprises should disclose the rules and regulations, standard contract terms, algorithm rules and their operating mechanisms directly related to the basic rights and interests of workers, such as order distribution, remuneration and payment, working hours and rest, occupational health and safety, and service specifications, to workers in new employment forms relying on the platform. When platform enterprises formulate or revise labor rules directly related to the rights and interests of workers in new employment forms, they should openly solicit opinions from workers in advance through application pop-up windows and other obvious ways, fully listen to the opinions and suggestions of trade unions or workers' representatives, and inform workers of the adoption. It shall be publicized to workers at least 7 days in advance before implementation.
The Service Guide for Safeguarding the Rights and Interests of Laborers in New Employment Forms specifies the specific ways and means of rights protection and relevant channels: the internal communication channels, appeal mechanisms, dispute mediation agencies, etc. set up by platform enterprises or platform employment cooperation enterprises can be used to negotiate with enterprises to solve relevant problems; You can ask for support and help from your trade union organization or local trade union organization; If it is impossible or unwilling to solve relevant problems through consultation with the enterprise, it can apply to the people's mediation committee and various professional labor dispute mediation organizations at all levels for mediation. If they are unwilling to mediate, or if mediation fails, and they fall within the scope of labor dispute arbitration, they can apply to the labor and personnel dispute arbitration institution in the actual place of work for arbitration; If it does not meet the scope of accepting cases for labor dispute arbitration, it may bring a lawsuit to the people's court with jurisdiction in accordance with the relevant provisions of civil litigation.
Perfect the legislation and supplement the weak points
Complete rule design as soon as possible
In order to better protect the rights and interests of workers in the new form of employment, Shen Jianfeng suggested that all regions should further abide by and implement the laws and regulations and guidance that have been issued, summarize problems in the implementation process, and propose more operational rules. According to the actual situation, under the guidance of laws and regulations, local exploration has been carried out. For example, Guangdong, Zhejiang and other provinces have successively issued the Measures for Employers to Recruit Special Personnel Who Do Not Meet the Conditions of Establishing Labor Relations to Participate in Industrial Injury Insurance (for Trial Implementation), trying to incorporate new forms of employment into the industrial injury insurance system, These explorations have gradually improved the system of labor security policies for new forms of employment, and made it more specific and operable. In the process of implementation, we should fully consider the employment characteristics of the new employment form, not only to protect the rights and interests of workers, but also to meet the employment needs of enterprises.
"At the same time, we should constantly strengthen the top-level design. Since the birth of the Trade Union Law in 1992 and the Labor Law in 1994, although China's labor law legislation has made great progress, it is undeniable that China's labor law system has obvious time differences and gaps in the face of changes brought about by the new employment patterns. In the face of the continuous development of new forms of employment, special legislation should be made to supplement the institutional weaknesses of the legal norms of new forms of employment and provide an authoritative and unified legal system basis for the protection of the rights and interests of workers in new forms of employment. At the same time, we should strengthen the research on the rules of the new employment form guided by legislation, so that when the time is ripe, we can complete the rule design of the protection of labor rights and interests of workers in the new employment form as soon as possible. " Shen Jianfeng said.
In the opinion of Pi Jianlong, director of Beijing Jintai Law Firm, digital platform, as the main workplace and income source of new business practitioners, should assume the responsibility of providing them with necessary social security.
He suggested that a flexible and well structured social security system should be established, which could cover a variety of social insurance products and provide all-round and multi-level security options for new business practitioners. Practitioners can choose their own insurance type and guarantee period according to their job nature, income status and personal needs.
From the perspective of platform responsibility, Pi Jianlong believes that it is necessary to strengthen the role of government guidance and supervision. According to the unique employment model of digital platforms, it is necessary to further clarify their responsibilities and obligations in the social security system to ensure that their operations are more legitimate, standardized and reasonable. Clarify the legal status between the platform and new business practitioners, and provide necessary labor contracts and legal protection for new business practitioners; Establish a clear legal relationship between the digital platform and workers in new businesses to ensure that workers in new businesses can enjoy the necessary labor contract protection and legal protection; Standardize the standards and ways of digital platform paying social security fees for workers in new businesses.
"We should make full use of the advantages of the Internet, establish a unified, convenient and efficient social security service platform, and build a dynamic, personalized and intelligent social security payment and treatment accounting mechanism," said Pi Jianlong.
