Seven departments issued documents to protect the rights of delivery workers. How do crowdsourcing riders protect their rights?

Recently, the State Administration for Market Regulation, the Cyberspace Administration of China, the National Development and Reform Commission, the Ministry of Public Security, the Ministry of Human Resources and Social Security, the Ministry of Commerce, and the All-China Federation of Trade Unions jointly issued the "On Implementing Responsibility for Effective Maintenance of Online Catering Platforms" "Guiding Opinions on the Rights and Interests of Takeaway Delivery Workers", which puts forward comprehensive requirements for protecting the legitimate rights and interests of takeaway delivery workers. In terms of ensuring labor income, platforms are required to establish an income distribution mechanism that matches work tasks and labor intensity to ensure that the normal labor income of food delivery workers is not lower than the local minimum wage standard. The "strictest algorithm" shall not be used as the assessment requirement. Assessment factors such as order quantity, punctuality rate, online rate, etc. shall be reasonably determined through "algorithm selection" and other methods, and the delivery time limit shall be appropriately relaxed.

In response to this, Meituan responded to the Beijing News Shell Finance reporter that it had received and carefully studied the "Guiding Opinions on Implementing the Responsibilities of Online Catering Platforms and Effectively Protecting the Rights and Interests of Takeaway Delivery Workers." Previously, the company actively cooperated with relevant government departments to conduct multiple rounds of on-site surveys and discussions, and proactively reported and communicated on relevant situations. We have always been committed to compliance operations and strive to protect the legitimate rights and interests of platform-related entities, including riders. The formal promulgation of the guidance will play an important role in promoting the healthy development of the industry as a whole.

With the rise of the Internet era, crowdsourcing platforms have also emerged. On the one hand, there is flexible employment, but on the other hand, there is no "five insurances and one housing fund". The development of crowdsourcing platforms has also been discussed to this day. In the new era, flexible employment affects the original labor relationship recognition. What responsibilities should the employment platform bear? How do crowdsourced riders protect their rights? How should the development of flexible employment be regulated?

Their helmets are printed with Meituan, and their shirts are printed with Are You Hungry

They are crowdsourcing riders with "flexible and free employment"

At 12:00 on January 8, Li Bing Wearing a helmet with the Meituan logo and blue clothes with Ele.me printed on it, he knocked on the door of a household in Daxing, Beijing, and said, "Your meal has arrived."

"With crowdsourcing, no one cares. It doesn't matter what time you go to work." This is the 10th order that Li Bing has delivered today. The weather in Beijing has been cold recently, and Li Bing didn't get up until 9 a.m., "We can go to get off work at any time." There are no fines for punching in after work, but there will be fines for overtime and early delivery.”

At 0:35 on January 9, the temperature in Beijing was already minus 9 degrees Celsius, and 32-year-old deliveryman Xue Yang (pseudonym) was grabbing orders at a restaurant on Qingnian Road. Xue Yang takes orders from Meituan Crowdsourcing and Ele.me Crowdsourcing at the same time. The reason why he chose the crowdsourcing model instead of full-time work was mainly for freedom and lack of restraint.

Within an hour, 6 out of 7 orders were successfully delivered, and one order was returned. He calculated that he earned more than 60 yuan in total. At about 1:40, Xue Yang sent a message saying that he had taken 3 more orders this time.

Li Bing and Xue Yang are both members of the crowdsourcing army. The crowdsourcing model refers to a company or institution outsourcing work tasks that were previously performed by employees to non-specific people on a free and voluntary basis. Take the user agreement of the Hummingbird platform as an example. Hummingbird will sign a user agreement with the user before they register as a crowdsourcing knight.

Xiaotian has also been working in the food delivery industry for many years and is now the person in charge of a food delivery site in Wuhan. He introduced that the current ratio of dedicated delivery riders and crowdsourcing riders on food delivery platforms is basically 6:4. “Crowdsourcing riders are very mobile because no one restricts whether they want to run orders every day or how long they want to run. They belong to that category. You can get it anytime you want, but you can’t get it if you don’t. ”

The high liquidity is related to the low entry barrier.

Xiaotian introduced that as long as the applicant has no criminal record and a health certificate, he can download the Hummingbird crowdsourcing APP and pay a deposit of 99 yuan or 199 yuan after registration to start taking orders. "The order-taking mode is not about the system dispatching orders, but relying on the order-grabbing system; occasionally there will be assigned orders, and the number of assigned orders is related to the amount of deposit paid and the duration of running the order (the longer the running, the higher the level of running the order). The commission for running the order is not Fixed, the closer the order is, the cheaper it will be. "

The commission for the crowdsourcing rider platform is lower, Xiaotian said, "Exclusive delivery is guaranteed by the quality of the delivery service, and any problems during delivery will be eliminated. There are delivery sites, but the platform’s commission is higher. Crowdsourcing riders have a large delivery range, but there is no guarantee of delivery service quality. The platform’s commission is slightly lower, about 17%.

At the same time, the work High flexibility. "When an order comes, the crowdsourced rider can choose to accept the order or not. If the order comes, the merchant has delivered the meal, but there is no rider to accept the order, causing the order to be canceled and the merchant to cancel the order. Made in vain. In addition, if a crowdsourced rider runs an order, money will be deducted for overtime and complaints, but no money will be deducted for negative reviews. " Xiaotian said.

Li Bing also said that crowdsourcing is more free, but there are also delivery people who deliver goods exclusively, "The webmaster is responsible for the special delivery, and he will be in charge of your meetings and other things all day long. We crowdsource it. There is no need for it, but the salary for personal delivery will be higher accordingly." At the same time, crowdsourcing can also accept orders from different platforms, and multiple platforms can be registered without restrictions.

The Internet economy has given birth to the crowdsourcing model

There are many legal disputes and it is difficult to identify labor relations

Services closely related to public life such as takeout, flash delivery, and intra-city delivery are all just-in-time logistics, said logistics expert Zhao Xiaomin. Common logistics fulfillment models include subcontracting, special delivery, crowdsourcing, etc., but crowdsourcing model accounts for more than 70% of them and will remain the mainstream in the future.

School of Labor and Human Resources, Renmin University of China, Renrui. The blue book "China's Flexible Employment Development Report (2021)" released by the Talent and Social Sciences Literature Press shows that the proportion of enterprises adopting flexible employment in 2020 increased by more than 11% year-on-year to 55.68; more than three-quarters of the enterprises were mainly motivated by "reducing employment" "Cost" is the motivation for using flexible labor.

"Basically, the crowdsourcing model can be seen in fields that require large labor forces. Without the crowdsourcing model, industries such as food delivery would not be able to develop so fast. A platform Recruiting millions of people and conducting management training requires a lot of human and financial investment, but by cooperating with this kind of third-party outsourcing company, the workload of the platform is relatively easy. ” Internet observer Ding Daoshi said.

At present, many platforms such as Internet companies Meituan and Ele.me are using the crowdsourcing model. Zhao Xiaomin said that the advantages of the crowdsourcing model are obvious and it can make use of idle social resources. , reduce costs, the platform has high transaction efficiency, diversified fees, and submitted transaction volume. On the other hand, the stability of order delivery will be challenged, legal disputes are common, and it will also face some moral criticism.

The sudden death of a food delivery worker caused controversy. Whether the food delivery platform has a labor relationship with the crowdsourced delivery staff and whether it should pay large compensation has become the focus of public attention. The Beijing News Shell Finance reporter reviewed Hummingbird’s user agreement. The agreement showed, “Hummingbird. Crowdsourcing only provides information matching services, and there is no labor/employment relationship of any kind between you and Hummingbird Crowdsourcing."

Professor Xue Jun, Vice Dean of Peking University Law School, said that regarding the legality of the crowdsourcing model, There is no problem with this, it is a new business format now.

But now there is a big problem in law or policy, that is, how to build a social security system for practitioners in this new business model? Delivery workers may not have a fixed single subordinate relationship, so there are differences from ordinary labor relationships, but the difference does not mean that they should not be protected.

Zhang Jianping, a lawyer at Guangdong Legal Shengbang Law Firm, said that the three standards for determining labor relations, namely subject, subordination, and labor provided, are part of the business. If the delivery person and the platform meet the above attributes, a labor relationship will be established. If the platform does not have a labor relationship with the delivery person, the platform is not bound by the labor law. This is a legal issue, and the judgment of whether it is reasonable and ethical varies.

Ding Xiaodong, associate professor at the Law School of Renmin University of China, said that in terms of labor law or workers’ rights and interests, the first impact brought by the gig economy is the determination of labor relations. As we all know, in our country, the identification of labor relations and labor service relations has a series of different legal consequences. If the relevant relationship in the gig economy is recognized as a labor relationship, the employer must bear many mandatory obligations stipulated in the law. For example, the employer must pay workers a wage higher than or equal to the local minimum wage standard stipulated by the government, etc.; The working hours of workers shall not exceed legal hours; the rights and interests of special groups such as women are compulsorily protected by relevant laws. If it is a labor relationship, basically there is no need to bear corresponding responsibilities.

However, Ding Xiaodong also said that more and more courts around the world have developed a new understanding, that is, it does not have to be recognized as a labor relationship before the platform can be determined to be responsible. "Even if it is not a labor relationship, relationship does not mean that the platform does not have to bear responsibilities, especially when it comes to personal safety and security."

“ Platforms should at least bear minimum security obligations. This is not only stipulated in labor law, but also mentioned in tort law and many related laws in our country. This is a very important principle. " Ding Xiaodong believes that the platform cannot be exempted from liability just because it is a crowdsourced delivery person.

Han Xiao, a lawyer at Beijing Kangda Law Firm, said that in recent years, tort cases involving food delivery riders causing injury and labor dispute cases involving work-related injury and death claims for food delivery riders are not uncommon. There is no clear trend in the identification of labor relations and labor relations. This may be related to the differences in the actual management methods and payment methods of different food delivery riders by platform companies and delivery companies, resulting in differences in the identification of different cases.

Crowdsourcing riders “can only solve anything if anything happens by themselves”

3 yuan of insurance premiums will be deducted every day, but I don’t know what is included

January 8, The Beijing News Shell Finance reporter interviewed more than 10 delivery workers. About half of them said they had heard about the sudden death of their colleague. Many delivery workers said that doing so was "very inhumane." A full-time delivery person said, "2,000 yuan is a bit too much."

After hearing this, one of the crowdsourced delivery workers said, "Before anything happened, we were all employees. If something happened, we would just ignore it." Another deliveryman who delivered medicine said, "We are crowdsourced and part-time. There are all kinds of things, but this is definitely the responsibility of the platform.”

It is understood that the income of crowdsourcing riders mainly consists of commissions from running orders, plus distance subsidies and time period subsidies (late night snacks). , breakfast), bad weather allowance, etc. According to Li Bing, the average delivery fee for each order in summer is 4.5 yuan, and the average delivery fee for each order in winter is 8 yuan.

Crowdsourcing riders do not have five insurances and one housing fund, and they do not sign any labor contracts. Xiaotian said, “There is almost no protection for the rights and interests of crowdsourcing riders. If anything happens, they can only solve it by themselves, including but not limited to: if the vehicle breaks down during delivery, they can solve it by themselves, if there is a traffic accident, they can go through the insurance process by themselves, and by themselves, merchants and customers can deal with various issues. All problems are solved by oneself.

”

When it comes to insurance, the Beijing News Shell Finance reporter found that many delivery workers did not understand what aspects their insurance included, nor did they understand the claims situation. They also revealed that they handed in their insurance every day. The 3 yuan insurance premium is their "only guarantee". "We don't have five insurances and one housing fund, but we do have accident insurance, which deducts a few yuan a day."

At the same time, most of them were interviewed. Most of the delivery people are not sure what the specific protections included in their insurance are. One full-time delivery person said that dozens of dollars of accident insurance are deducted from his salary every month, but he also said that " I don't know what all these insurances are for. Another part-time delivery worker said that 3 yuan of insurance was deducted every day, but he "didn't look too carefully" at what was covered. Most of the others said, "I haven't applied for it, so I don't know." "

Xue Yang's understanding of this insurance is that it mainly protects accidents, "Whether someone else bumps into you or you bump into someone else, it is considered an accident and is covered by this insurance. "But at the same time, he also believed that this insurance was of little use, because "the maximum coverage seems to be only 60,000," and he said he did not understand the specific content.

Not long after doing crowdsourcing, Xue Yang came to the family I suggested buying other accident insurance and medical insurance for myself. "The platform has many rules. Sometimes they play word games. We are all illiterate. If you can't play with them, you might as well get your own insurance." "

A delivery boy who works part-time throughout the day said, "Even if something goes wrong, you can't find anyone. "He said he didn't know exactly what the three yuan insurance premium deducted every day was for.

Wang Haiyi (pseudonym) is also a part-time publicist on two platforms: Ele.me and Meituan Waimai. As a delivery boy, he said, "Every day I go online, I will deduct 3 yuan. If I work for two companies at the same time, I will deduct 6 yuan every day." Wang Haiyi said that he didn't know what the 3 yuan deduction included, but the platform would deduct 3 yuan every day. There has been no need to make a claim.

“The current insurance for express riders is about 120 yuan per month, and the maximum claim amount is 1 million. Crowdsourced riders have insurance, which costs 3 yuan per day, which is deducted from the commission of the first order every day. There is indeed no labor relationship between crowdsourcing riders and the platform, and the insurance process is very cumbersome. If the crowdsourcing riders don’t know how to go through the insurance process themselves, it will basically be useless if something goes wrong. " Xiaotian introduced.

"For commercial insurance of 1 yuan, the maximum claim amount is 1 million. Which insurance company will accept it? "Xiaotian asked back, the 3 yuan insurance the delivery driver paid every day went to the insurance company, and there was no money that was deducted as service fees.

When asked about the sudden death of the delivery driver Wang Hai smiled and joked to reporters, "It's normal. I haven't thought about using insurance. It doesn't matter while I'm young." Then he rode his electric bike and rushed to deliver the next takeout order. .

On January 8, in response to the issue of delivery workers being deducted 3 yuan in insurance premiums per day, Ele.me responded in an announcement that in the current crowdsourcing service contract, crowdsourcing riders will be charged 3 yuan per day before running an order. A service fee of 3 yuan will be paid, which will be collected by the Ele.me platform. The Ele.me platform will pay another part of the fee and hand it over to the human resources provider served by the rider, entrusting it to provide labor management and safety for the crowdsourcing rider. Insurance and other services, among which it is agreed that the human resources provider will insure accident insurance for the knight.

“Riders should actively protect their rights and interests through judicial means”

“Calling on large companies and platforms to introduce third-party insurance”

Lawyer at Beijing Kangda Law Firm Han Xiao believes that from a formal point of view, there seems to be no problem with the legality of the crowdsourcing model. As an independent legal person, the platform has the right to decide independently whether to sign an agreement with other legal persons and entrust part of its business to other companies for operation, and the distribution company also has the right to make independent decisions. Sign the agreement and determine the content of the agreement within the legal scope, etc. If the contracts between the parties under the crowdsourcing model are not invalid, revocable, etc., these contracts should be considered to be established and valid in accordance with the law.

“ So when all contracts under the crowdsourcing model are legal and valid, the legality of the crowdsourcing model itself should be affirmed. Due to the existence of legality, it should be considered whether the platform company has evaded Questions like the suspicion of employer responsibility are too ambiguous and cannot be answered directly at the legal level," Han Xiao said.

“As far as the current situation is concerned, when food delivery riders encounter problems with the determination of labor relations and labor relations in the process of protecting their own rights and interests, they should still actively use arbitration, litigation and other means to request If the judicial authorities review and can prove that a labor relationship is constituted, their rights and interests can be protected in accordance with the relevant provisions of the labor law," Han Xiao suggested.

" Putting aside safety and labor contracts, the crowdsourcing model makes it easier for users to receive products more quickly, which is worth encouraging. However, the current health care and labor system guarantees for this group Internet observer Ding Daoshi believes that employees in the crowdsourcing model do not have five insurances and one housing fund, and the Internet platform will not pay attention to the health of this group of people. If something goes wrong. It has nothing to do with the Internet platform either.

Zhao Xiaomin said that there is indeed a lot of room for improvement in terms of crowdsourcing model security. However, due to the relatively fast development in the past, in order to encourage the development of the entire platform, supervision is flexible and prudent. principles. Nowadays, as the scale of each platform is getting larger and larger, the follow-up protection of employees needs to keep up. We call on large platforms and companies to take the lead in setting an example, such as introducing third-party insurance.

“The fragmentation of labor will also bring growth problems to workers. Workers may have more job opportunities or more opportunities to change jobs, and have higher flexibility in time management, but if labor Those who just do odd jobs without systematic learning or transformation and upgrading of labor skills may be detrimental to the workers’ own growth and may also be a huge challenge to the overall transformation and upgrading of my country’s labor force.” Associate Professor at the Law School of Renmin University of China. Ding Xiaodong said.

As an industry veteran for many years, Xiaotian believes that crowdsourcing is a product that is not in line with the development of the food delivery industry. In the past year, crowdsourcing has become increasingly difficult, because exclusive delivery has delivery quality guarantees and there are enough dedicated delivery personnel for each order, so crowdsourcing orders in the area will be forced to be converted into exclusive delivery orders.

“The crowdsourcing model is a problem left over from the rapid development of the food delivery industry. While it is developing, personnel cannot keep up with the growth in order volume. This is because the food delivery platform is reducing the unit price of special delivery almost every year. "As a result, the rider's unit price has dropped, and riders have gone to crowdsourcing." Xiaotian said that the only way to change is for the takeout platform to increase the pricing of special delivery. If the rider's price is in place and the order volume is stable, no one will do crowdsourcing.

Beijing News Shell Finance Reporter Chen Weicheng Cheng Zijiao Intern Reporter Sun Wenxuan Intern Lin Mengxue

Editor Xu Chao Proofreader Wu Xingfa