Since two deliverymen were killed in two separate accidents within just four days of each other, food delivery platforms have come under scrutiny for ignoring couriers’ labor rights and for not providing them with labor and health insurance.
Under pressure from the public, the Ministry of Labor decided, in less than a day, that food delivery couriers working for platforms such as Uber Eats and Foodpanda are to be defined as employees, instead of contract workers, while the authorities fined the platforms.
After the fine, Foodpanda immediately released a statement saying that it merely provides job-matching opportunities to businesses and workers, whom it regards as contract workers, not employees.
With artificial intelligence booming over the past few years, e-commerce start-ups with new economy business models have grown. A qualitative change in the labor market has highlighted similarities, differences and even overlap between traditional salaried employment and modern cooperation models, with some models involving a dual relationship of contract worker and employee simultaneously.
If a job-matching mechanism uses an app as a tool to provide a business opportunity to specific targets according to their needs, one or more people might receive the same message simultaneously, with the person responding the fastest securing the opportunity.
With such an operating model, it is difficult to argue that the platform and all receivers are in an employment relationship, or that the platform should direct and supervise them.
Specifically, receivers click a message voluntarily for an opportunity to cooperate and create income from “benefit sharing.”
For two parties in a relationship like this, whether the operator (capital) and the partner (labor) are in an employment or contractual relationship remains inconclusive until such a time as the status of the workers is clarified legally.
The ministry has recognized such workers to be employees — they are now offered employee protections — but it has left the way open for the determination to be challenged by other businesses.
Job-matching operators that use apps serving purchasing agents, job banks and headhunting companies, as well as Web sites matching tutors with students, work on commission as they offer business opportunities to workers. If such services are defined as an employment relationship, should the tutoring Web sites or apps be expected to offer labor and health insurance, or even retirement pensions, to the tutors?
The nation’s regulations have been lagging the innovations industry, which is detrimental to the development of start-up technologies. A prior controversy over whether Uber should be categorized as a taxi service is a perfect example of this.
Although the two couriers who died deserve people’s sympathy — and workers do need greater protection — the authorities are favoring the workers before the relationship of the two parties is clarified legally.
The ministry needs to adopt a more objective approach when defining the relationship as one of employment, which punishes the operators.
Similar to the way in which the policy of “one fixed day off and one flexible rest day” caused problems, a poorly thought out labor policy would only force employers to pay employees by the hour or to restrict their total working hours. That being so, workers’ incomes would only be reduced and their employment would become more insecure.
Tracy Chen, chairwoman and president of Chuchu Labor Law Consultant Co, is a labor law and human resources consultant.
Translated by Eddy Chang
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