How should labor dispatch personnel protect their rights and interests?The lawyer gave a professional answer


Elephant news reporter Yan Zidan takeout delivery man, online taxi driver, Courier…With the rapid development of social economy, the number of workers in the new employment form is increasing rapidly.They are on the streets, an indispensable force supporting economic and social development and the smooth operation of cities.According to the National Bureau of Statistics, the number of flexible workers in China had reached 200 million by the end of 2021.Of these, there are about 13 million delivery riders, representing nearly 1 percent of the country’s population.At the end of January 2022, anhui Provincial Department of Human Resources and Social Security and other eight departments jointly issued the Implementation Plan on Safeguarding the Labor Security Rights and Interests of Workers with New Employment forms, focusing on key issues such as employment of platform enterprises, in which delivery workers and couriers must sign labor contracts, which aroused public concern.As a large province of labor export and population, how about the protection of the rights and interests of the laborers in the new employment form?The Reporter contacted the delivery boy and a senior human resource agency to learn about their real life and the problems they encounter at work.Xiao Liu, 27, a college student, felt embarrassed to ask his family for money after graduation, so he delivered food.”I had a general understanding of the takeout industry on various websites before, and I felt that as long as I worked hard to make a lot of money, MY time was relatively free.”However, when Liu became an official delivery rider, he realized that the job was not as simple and beautiful as he had imagined.”I entered a delivery platform through outsourcing. On the first day, the supervisor told me that I did not have social security, five insurances and one housing fund, and the labor contract was signed with a third-party outsourcing company, so I could not be considered an employee of the platform. Moreover, I had no choice but to agree to some of the terms.”Xiao liu said.”What impressed me most was that the leader of the station told me that I had to go to a designated car shop to buy a battery car.I had no choice but to buy the car at the high price of 3880.But later I found that the market price of this car is only about 2200, only dumb people eat coptis.”According to the statistics of the Ministry of Commerce, as of November 2021, China’s service outsourcing has recruited 13.78 million employees, including 8.84 million with college degrees or above, accounting for 64.1%.”I’ve been injured in a bike collision in a hurry, without compensation from the third party companies and platforms that have contracted with me.”Liu told reporters that as long as it is delivered, the vast majority of people have run the red light.Because the time is really too tight, many orders are forced distribution platform, the arrangement is very unreasonable.”Things are much better now that the platform now has customized commercial insurance for every rider, and the algorithm is much more reasonable than before.”Xiao liu said.But this year, the 35-year-old Master Sun has been working as a Courier in a leading self-operated e-commerce enterprise for more than six years. His situation is completely opposite to Liu’s.”Before joining this enterprise, I also worked in other express delivery companies for a period of time in the form of outsourcing, although nothing serious happened, but one thing I can’t stand is that the official staff of the site always have some discrimination against outsourcing employees.So I resigned in the express company for entry to the office now through proprietary type electric business enterprise, the enterprise now and I are the labor contract signed directly, job security, the welfare of the Chinese New Year holiday as many, the most precious of all is to have social security and five social insurance and one housing fund, as far as I know this is only a among the same industry at home.I’m content.”Master Sun said to reporters.Human resources intermediary: use the outsourcing employees is the best choice of the enterprise risk aversion “once and workers sign labor contract directly, means that workers surprises during the work you need to pay big business, this is a lot like take-out platform and industrial manufacturers, such as the provision of high-risk work companies cannot bear.”A senior human resources intermediary in Guangdong and Zhejiang told reporters that the reason why many enterprises and units choose to outsource employees is inseparable from the ability to avoid huge risks.”What’s more, if you are hired formally, you have to pay social security, five insurances and one housing fund, which is a big burden for the company.””In fact, the largest number of workers are still electronics factories, food factories, auto parts production and other enterprises, these positions are often some simple repetitive labor.I once worked in an electronics factory for four months. The basic salary was so low that I had to work overtime for 12 hours. It’s a nightmare to think about now.””For the food delivery industry, riders are always on the road, which is very dangerous. Once an accident causes a dispute, it is not a small expense for the platform to pay compensation. Even if something happens to the outsourcing workers, the platform can directly transfer the compensation to the third party without bearing the responsibility, and at most give some symbolic compensation.At the same time, quite a large part of workers are often unwilling to work in an enterprise to the end, he will compare the market situation, which company in a certain period of time to give a high wage to go to which, even if only for a month, due to come out to find a new job.Over time, companies are more inclined to outsource workers.”The intermediary told reporters.It is understood that there is no clear provision in China that outsourcing personnel must pay social security, five insurances and one housing fund as a form of labor dispatch.According to the agent, only a few regular human resource companies and employment enterprises will buy commercial insurance with lower compensation for the outsourcing employees, and social security and five insurances and one housing fund are far away.On December 30, 2021, the Human Resources and Social Security Department of Henan Province, the Development and Reform Commission of Henan Province, the Federation of Trade Unions and other eight departments jointly issued the Implementation Measures on Safeguarding the Labor Security Rights and Interests of Workers in New Employment Forms, hereinafter referred to as the Implementation Measures.The Measures encourage Internet platform enterprises (hereinafter referred to as platform enterprises) to establish labor relations with workers, increase the proportion of their own employees, and sign labor contracts in accordance with the law.If a platform enterprise employs workers in the form of labor dispatch or relies on its affiliated, agent, outsourcing or other cooperative enterprises (hereinafter referred to as cooperative enterprises), the platform enterprise shall sign written agreements or contracts with the labor dispatch company and cooperative enterprises, and urge and guide them to sign labor contracts with laborers.Lawyer advice: signing contracts need to be careful Henan Guoji law firm Lawyer Li Zhao told reporters, labor dispatch companies will be posted to the labor platform to work, there are three main bodies, that is, labor dispatch units, labor units, workers.The labor dispatch unit is the employing unit.If the laborer is in the job occurrence accident, if belong to inductrial injury or other can regard same as inductrial injury circumstance, dispatch unit undertakes corresponding compensation responsibility.Here, if there is an agreement between the employment platform and the dispatching unit, both parties can share the responsibility according to the agreement.In the signing of labor contracts need to be more cautious, Lawyer Li Zhao said that the signing of the contract to see the main body of the contract and the actual work of the main body is consistent, if there is a dispatch or labor intermediary to introduce the work of the situation, need to clear the actual employing units and their respective obligations of the labor intermediary, so as not to blame each other problems.In view of the current situation that both labor and capital workers are in a relatively weak position, Lawyer Li Zhao analyzes how to change the status quo from three perspectives.In terms of law enforcement, labor supervision departments have strengthened supervision over key industries, such as take-out food delivery, express delivery and construction.We should not only actively accept workers’ labor supervision applications, but also carry out inspections and visits to enterprises within the jurisdiction, so as to truly implement China’s labor protection laws and regulations in place.From the judicial perspective, the proportion of labor dispute cases in which workers win is very large, on the one hand, because China’s labor protection laws and regulations are relatively perfect, on the other hand, judicial organs tend to confirm the facts and laws on the basis of the interests of workers to fully protect.However, in the face of new evasive means, judicial organs should also form relatively unified judgment opinions, such as whether the delivery boy and the platform or distribution station constitute labor relations.Look from usage respect, laborer itself also should learn knowledge of basic labor laws and regulations, know how to undertake basic evidence collection and communication when encountering a problem.(Real names are being withheld at the request of the parties involved.)

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