Original title: "umbrella" for workers in new employment form

At present, the new form of employment has become an important "reservoir" to absorb employment, and the workers of the new form of employment have become an important part of the labor group in China. At the same time, the health rights and interests of workers have been damaged, the income standard has changed at will, and the formulation of labor rules is not open and transparent, which has aroused widespread concern. Not long ago, the General Office of the Ministry of Human Resources and Social Security issued a series of documents such as the Guidelines for the Rest and Protection of Labor Remuneration Rights and Interests of Workers in New Employment Forms, the Guidelines for the Publicity of Labor Rules for Workers in New Employment Forms, and the Guidelines for the Protection of Workers' Rights and Interests in New Employment Forms. The occupational environment of workers in new employment forms has been constantly improved and the development environment has been constantly optimized.

New situations and new problems faced by the protection of workers' rights and interests in the new form of employment

The employment form and characteristics of the new employment form are beyond the scope of the labor security related laws that mainly regulate the traditional labor employment relationship, which makes the protection of workers' rights and interests face a series of new situations and new problems. First, it is difficult to identify labor relations. The protection of the rights and interests of workers in China's current labor law is based on labor relations. To determine whether there is a labor relationship between the employer and the employee, the arbitration and judicial authorities mainly judge whether there is a necessary personal subordination, economic subordination and organizational subordination between the two. But different from the traditional "enterprise+employee" model, workers in the new employment form are more flexible in working hours, working places, management requirements and other aspects. If the above three "dependencies" are used to judge, workers in the new employment form may not be included in the protection scope of the labor law.

Second, it is difficult for individuals to safeguard their rights. In the new employment form, workers are employed as "individuals", lacking corresponding organizational support, and are in a relatively weak position in terms of negotiation, exchange and expression of their own labor rights and interests. At the same time, according to relevant laws and regulations, the local labor supervision department of the employer is responsible for monitoring the protection of the rights and interests of local workers. However, when the platform enterprises need the relevant departments to intervene in the investigation of labor disputes, it often involves cross regional or even cross provincial situations, which increases the difficulty of safeguarding the rights of workers in new employment forms.

Third, it is difficult for workers to participate in insurance. The current social insurance system is mainly aimed at traditional employment and is based on the stability of employment and the sustainability of payment. However, the part-time, short-term, remote and diversified employment characteristics of the new employment pattern workers are difficult to adapt to the current social insurance system. Although workers in the current new employment form can participate in endowment insurance and medical insurance as flexible employees, there are still problems of low social insurance coverage and incomplete insurance types.

Fourth, it is difficult to supervise platform enterprises. The new form of employment is closely related to the platform. The platform should assume some basic functions of employment carriers such as organization and management, labor protection, vocational training, and career planning. However, at present, most platforms have made it clear in the agreements on crowdsourcing and the registration of full-time workers that the platform only provides information matching services, does not have any form of labor relations, labor dispatch or labor employment relations with employees, and does not assume the responsibility of the employment subject that is compatible with the reality. Although the relevant competent authorities in China have taken various measures to strengthen the supervision of platform enterprises, such as fines, interviews, orders for rectification, the punishment is relatively small, and the deterrent force of the law has not been fully exerted.

Work hard on the details and accuracy of the system to help workers in new forms of employment safeguard their rights according to law

To solve the above problems, we should respect the development laws of relevant industries, continue to work on the details and accuracy of the system under the guidance of China's existing labor laws and relevant policy documents, help workers in new forms of employment safeguard their rights according to law, and make them more dignified, secure, and developed.

Clarify the legal status of workers in new forms of employment, and determine labor relations according to law. At present, China's laws and regulations on the protection of the rights and interests of workers in the new form of employment are not sound enough, especially around the issue of whether the most basic workers and platform enterprises have labor relations, it is urgent for relevant laws and regulations to be scientifically standardized. In addition to labor relations and civil relations, the Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Forms of Employment establishes that "the situation of incompletely conforming to the determined labor relations", which provides policy guidance for regulating platform employment and provides a basis for formulating relevant laws and regulations. On this basis, we should timely revise and improve the labor law, social insurance law and other laws, formulate labor laws and regulations that adapt to the characteristics of the new employment pattern, clarify the rights and obligations between employers and workers, and formulate standards that are consistent with the actual situation in terms of salary, working hours, rest and vacation, so as to truly eliminate the legal blind spots of the new employment pattern, Clarify the main responsibilities of all parties involved in disputes in the employment process, effectively guarantee the legal status of workers in the new employment form, and gradually form a labor legal system with universal adaptability that can give consideration to the dual requirements of promoting the development of new business forms and regulating the management of new employment forms.

We will improve the diversified mediation mechanism and promote substantive settlement of labor disputes. At present, in China's labor and personnel dispute settlement system, when workers encounter rights and interests disputes, they have a variety of relief channels, which can be resolved through mediation, arbitration, litigation, or negotiation. To protect the rights of workers in the new employment form according to law, first, we should attach importance to the role of consultation. The Notice on Promoting the Construction of a Consultation and Coordination Mechanism for the Rights and Interests of Workers in New Employment Forms requires that 12 leading platform enterprises in the industries of freight, online car hailing, express delivery, online distribution, etc. should be the focus to promote the establishment of a consultation and coordination mechanism with workers. In this regard, many regional and enterprise platforms have explored with the support of trade unions. From the perspective of source of litigation governance, among the numerous dispute resolution mechanisms, negotiation mediation has the advantages of convenient and rapid dispute resolution, relatively short rights protection cycle, relatively low rights protection costs, and is more conducive to the substantive resolution of labor dispute disputes. It should become the key way for new forms of employment workers to safeguard their rights according to law.

The second is to attach importance to the one-stop mediation of labor disputes. In the past, labor disputes in employment relations disputes in the new employment form were accepted by labor dispute mediation organizations, while civil disputes were accepted by other mediation organizations. This arrangement not only dilutes the mediation resources of labor disputes in the field of new employment forms, but also increases the difficulty of differentiation in acceptance, leading to the possibility that workers may "fail to find a door" when safeguarding their rights. In response to this situation, under the guidance of the Notice on Strengthening the One Stop Mediation of Labor Disputes in New Employment Forms, human resources and social security departments in many regions are working with people's courts, judicial administrative departments and other units to promote the establishment of one-stop mediation centers. Under the premise of establishing the concept of joint mediation, all parties should take the initiative to break the barriers of division of labor among departments, actively carry out coordination, integrate the characteristics and advantages of labor dispute mediation, people's mediation and judicial mediation, and jointly promote the stable resolution of labor disputes.

Smooth the expression of appeals, and improve the mechanism for coordinating interests and safeguarding rights and interests. To safeguard the rights and interests of workers in new forms of employment according to law, it is necessary to listen to the true voice of front-line workers, see their real needs and difficulties, formulate more practical policies, and provide them with practical guidance and help to carry out rights protection. As far as the industry competent department is concerned, it should earnestly perform the industry supervision function, stop and correct the violations that infringe the rights and interests of workers in a timely manner, fully listen to the opinions and suggestions of workers, and actively respond to the requirements of the trade union or workers' representatives when formulating and modifying the system or major matters directly related to the vital interests of workers. Human resources and social security departments should further improve the mediation and arbitration system of labor disputes, strengthen labor security supervision, handle labor rights and interests protection cases of new forms of employment in accordance with the law, and effectively protect the legitimate rights and interests of workers. At the same time, for the workers themselves in the new employment form, they should not only actively participate and speak out bravely, but also reasonably express their demands in accordance with the law when safeguarding their own rights and interests. They should not take illegal and radical forms to create a professional environment conducive to their own development and social harmony.

Clarify the corporate responsibility and secure the bottom line of protecting the rights and interests of workers in the new employment form. Platform enterprises should shoulder the responsibility corresponding to their rights, strengthen their willingness and ability of self supervision, and become an important support and supplement for the government to implement effective supervision. This is not only responsible for workers, but also a long-term plan to promote the development of the platform itself. On the one hand, according to the unique employment model of the Internet platform, further scientifically define the employment responsibilities, ensure the legitimate, standardized and reasonable operation of the platform enterprises, and try to solve the conflicts in the bud by establishing a more convenient and effective online complaint, report and dispute resolution mechanism. On the other hand, actively promote the establishment of industry associations, form industry employment norms and labor standards as soon as possible, and constantly optimize the workload, working hours, labor remuneration and other aspects. At the same time, we should innovate the form of trade union organizations, improve the working mechanism that combines services with rights protection, give full play to the advantages of broad coverage of trade union organizations, flexible ways of rights protection services, and rich means of work, and support the "umbrella" for workers in new employment forms through online and offline complementary organizational methods. (Wang Wei)