Protecting the rights of ‘new form’ labourers in Guangdong

By Shaw Zhao and Mia Wang, Jingtian & Gongcheng
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Rapid development of the platform economy in recent years has created an encouraging boost in job opportunities. Significantly more new labourers are making a living as online order deliverymen and couriers, online ride-hail and truck drivers, internet marketers, and other novel positions facilitated by internet platforms. This article introduces new national and local regulations that protect the rights of these so-called ‘new form’ labourers.

NATIONAL AND LOCAL POLICIES

Shaw Zhao, Jingtian & Gongcheng
Shaw Zhao
Partner
Jingtian & Gongcheng

Aiming to uphold the legitimate rights of labourers under these novel models, the Guiding Opinions on Protecting the Labour Rights and Interests of Workers Employed in New Forms was jointly promulgated by a total of eight ministries and commissions including the Ministry of Human Resources and Social Security, the National Development and Reform Commission, the Supreme People’s Court and the All-China Federation of Trade Unions.

For the first time, the above-mentioned guiding opinions point out that, ’in circumstances that do not completely fall under the establishment of labour relations, enterprises that nevertheless perform labour management should be guided to enter into written agreements with the labourers and reasonably determine their respective rights and obligations‘.

Practically, most commonly known forms of employment are based on either labour or civil relations. Labour relations in its broader sense includes labour dispatch, while civil relations also includes labour through agency, outsourced labour and equal co-operation.

By putting forward the concept of ‘not completely labour relations’, the guiding opinions broke through the conventional labour and civil dichotomy, signalling national concern for the legitimate interests of novel labourers, as the well as clarification and implementation of rules that seek to protect their rights.

Furthermore, the guiding opinions provided that the protection accorded to the rights of novel forms of labourers should be enhanced, including in terms of the elimination of employment discrimination, equal employment, wage security, leave, labour security, pension and medical insurance, and occupational injury protection.

In response to the promulgation of the guiding opinions, corresponding rules of enforcement were issued in succession in various regions.

On 30 May 2022, eight provincial departments in Guangdong – including the local Department of Labour and Social Security, the Higher People’s Court and General Labour Union – jointly issued the Implementation Opinions on Protecting the Labour Rights and Interests of Workers Employed in New Forms (Guangdong opinions).

TYPES OF NOVEL LABOURERS

Mia Wang, Jingtian & Gongcheng
Mia Wang
Paralegal
Jingtian & Gongcheng

Under the Guangdong opinions, ‘workers employed in new forms’ are classified into labour relations workers, novel relations workers and civil relations workers.

In particular, labour relations workers refer to labourers who rely on internet platforms to achieve employment, including those that establish labour relations with platform companies, partner companies that carry out platform businesses via franchising, agency or contracting, or talent dispatching agencies. After signing labour contracts, they are subject to the Labour Law and Labour Contract Law.

Novel relations workers refer to labourers under flexible employment, the circumstances of which do not completely fall under labour relations. They rely on platforms to complete tasks and receive labour management from new forms of employers. After signing new forms of labour relations agreements, they are subject to the guiding opinions and local enforcement rules.

Civil relations workers refer to labourers who rely on platforms to carry out independent operations or freelancing activities, such as labour or consultancy, and establish equal civil relations with new forms of employers. After signing civil agreements (labour contracts, service contracting agreements, etc.) they are subject to the Civil Code.

JUDGMENT STANDARDS

In the absence of a definite or written agreement, how is labour relations defined as conventional or novel? The Notice of the Ministry of Human Resources and Social Security on Matters regarding the Establishment of the Labour Relation, and the Guangdong opinions, provide the basis for making a judgment.

Even if the employer did not enter into any written labour contract with the labourer, labour relations is deemed to exist if: (1) both the employer and labourer have the apt qualifications required by laws and regulations; (2) the labour rules and regulations lawfully formulated by the employer apply to the labourer, who accepts labour management from the employer and provides remunerative labour; and (3) such labour forms part of the employer’s business.

If the parties did not enter into a definite or written agreement (contract), novel labour relations is deemed to exist if it does not fully fit the characteristics of labour relations and the following three conditions are met: (1) work carried out by the labourer relies on information provided by the platform, and the labour or service is conducted in the name of the platform company; (2) while the novel employer engages in labour management, the labourer has relative free rein in deciding if or when such labour or service will be rendered; and (3) the labourer receives payment from one or multiple novel employers, with the payment calculation and period determined by the platform’s transaction rules.

If conditions for determining neither conventional labour relations nor novel labour relations are met, and the novel employer does not conduct labour management with regard to the labourer, the relations will generally be deemed civil.

Echoing the guiding opinions for the purpose of the safeguarding basic rights and interests of novel labourers, authorities in Guangdong further issued eight protective measures targeting the rights to fair employment, regulation of platform algorithms, labour relations agreements, basic rights to remuneration, rest days and leave, the safety and health liability, rights to social insurance and protection against occupational injury.

Shaw Zhao is a partner and Mia Wang is a paralegal at Jingtian & Gongcheng

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