Source: China Labor and Security Journal (Theoretical Edition), 3rd edition, December 12, 2023

Xue Huiyuan & Wu Xinyun

The report of the 20th National Congress of the Party proposed to "improve the protection system of workers' rights and interests, and strengthen the protection of flexible employment and new employment forms of workers' rights and interests." On July 16, 2021, the Ministry of Human Resources and Social Security and eight other ministries and commissions jointly issued the "Guiding Opinions on Safeguarding the Labor Security Rights and Interests of New Employment Forms of Workers", which for the first time put forward the situation of "not fully consistent with labor relations". There is also a misunderstanding that "not fully conforming to labor relations" is neither labor relations nor labor relations, so the "binary" labor legal framework is no longer applicable, and a "third law", that is, a "three-component" labor legal framework, should be established for new types of workers. This view forcibly equates the "three classifications" of labor relations with the "three classifications" of labor legal framework, which exceeds the original intention of the document and is very easy to mislead the reform direction of labor rights and interests protection. In fact, "three points" is not the mainstream international practice, there are inherent drawbacks and future problems. At present, most of the new employment modes have not broken away from the duality of "employee-employer", and the basic form of labor legal framework can still adopt "dichotomy", but the scope of application of labor laws needs to be appropriately expanded.

It is not appropriate to promote the transformation of labor legal framework to "three parts"

First, the "three points" will lead to more uncertainty in the identification of labor relations.

"Three points" can not fundamentally solve the problem of the definition of labor relations of the "third type of workers", but lead to more uncertainty. There was originally only one "gray zone" between labor relations (protected by labor law) and labor relations (protected by civil law), but after the "three points", it has become two, and the ambiguous space of the definition of the identity of workers has become larger. Moreover, it is very difficult to adopt what kind of standards for determining labor relations for the "third type of workers" : whether the subordinate characteristics of labor relations are still applicable, whether the criterion should be complete or incomplete, which is the weight of economic subordination and personality subordination, and how much should the income proportion of economic subordination be determined? "Three points" will not solve the current problem, and will even lead to more problems.

The bipolar structure of the "binary" may seem inflexible, but it is still the mainstream practice in the world, and it has its own reason. The few countries with a "third category of workers" system arrangement, such as Germany's "category of employees", the United Kingdom's non-employee workers, Spain's self-employed workers, Canada's dependent contractors, etc., can be seen from the name alone, the actual reference and system design is different. It would be uncritical to regard the practical experience of these countries as an international reference for the "three parts" of our labor legal framework, not to mention that these countries also place the "third group of workers" under the protection of labor laws.

Second, "three points" will lead to bias in the setting of workers' rights and interests.

The core reason for the criticism of "binary" lies in the all-or-nothing rights and interests of workers. Most of those who support the "three points" take this as an argument, hoping to alleviate the polarization caused by the "one-size-fits-all" by setting up a middle ground for the protection of workers' rights and interests. However, the "three points" of labor legal framework cannot avoid the problems of labor rights and specific standards corresponding to different types of workers. Countries with the "third type of workers" system arrangement have different Settings on this issue: if the "third type of workers" tend to be employees, they need to be given more labor rights and interests, which will increase the cost of employing platform enterprises, reduce the competitiveness of enterprises, and even the "third type of workers" who will benefit in the long run will complain and protest due to short-term income decline. If "Category 3 workers" tend to be self-employed, platform companies have a strong incentive to relegate regular employees to "Category 3 workers."

Some people believe that the labor rights and interests of fair employment, labor remuneration, rest, labor safety, and social insurance mentioned in the "Guiding Opinions on Safeguarding the Labor Security Rights and interests of new Employment Forms of workers" are "high-intensity Settings that tend to be employee-like" for new forms of workers with "incomplete labor relations". In fact, the original statement of the document never corresponds to the above labor rights and interests with "incomplete labor relations", and what rights and interests can be enjoyed by "incomplete labor relations" and what standards are still to be discussed.

Third, the "three points" may legalize hidden employment practices, and more and more workers are outside the labor law.

The "three points" will not only exacerbate existing covert employment practices, but may even legitimize them. Hidden employment is a common phenomenon in the labor market. This kind of institutional arbitrage occurs with the birth of labor law, and it cannot be simply regarded as a loophole in labor law enforcement. It can be imagined that once the labor relations identification standard of the "third type of workers" is established, the platform enterprise can "aboably" demote the original formal employees to the "third type of workers". In the long run, this third group of workers will continue to expand.

Suggestions on strengthening the application of existing labor laws to new types of workers

First, keep pace with The Times and expand the scope of protection of labor law.

The scope of application of the labor law should be amended in due course to include "incomplete labor relations" as a special type. At present, the main basis for the judgment of labor relations is the Notice on Matters related to the establishment of labor relations. This standard lacks specific interpretation and has great room for subjective judgment. The legislative level is low and cannot be directly invoked as the basis for judgment. It has been 18 years since its introduction, lagging behind new changes in the Labour market.

Therefore, it is necessary to moderately expand the object of protection of labor law, and include "incomplete labor relations" in the form of a special chapter to avoid "incomplete labor relations" and "de-labor relations".

The second is the fact priority, in the labor relations in the judgment of the return to the nature of employment.

The "new" of the new business form is nothing more than the change of the combination of market elements, but the labor force is still an indispensable part. In judicial practice, the new form of employment is complicated, too much emphasis on the characteristics of the new form of employment, ignoring its commonness, will lead to a large number of workers are wrongly classified. Some employers can induce workers to sign non-labor contracts with them in various ways to cover up labor and employment facts. The principle of "written agreement has priority" and the judgment practice of "emphasizing writing and neglecting facts" are not beneficial to the protection of workers' rights and interests.

Therefore, we should return to the essence of labor employment, adhere to the principle of fact priority, and judge the labor relations of new types of workers according to the actual operation of rights and obligations in the labor process.

The third is classified discussion, based on labor obligations to determine the rights and interests.

First of all, it is necessary to clarify which enterprises belong to platform enterprises and define the boundaries of platform enterprises, and it is not possible to simply regard all enterprises with the connotation of information exchange as platform enterprises.

Secondly, the list of platform enterprises should be formed and properly classified. Those that only play the role of information exchange and transaction facilitation should be regarded as autonomous platforms. The more deeply involved in order and labor operation should be regarded as an organizational platform, and multiple business lines on the same platform can have different labor modes.

Finally, it discusses what specific rights and interests should be enjoyed by workers in the new form of "incomplete labor relations" based on labor behavior rather than worker status. For example, if occupational injury risk is caused by labor behavior, workers should have the right to enjoy occupational injury protection. Taking the diversified labor subjects in the new business as a flat whole to conduct a one-size-fits-all discussion is not conducive to deepening research and enhancing consensus, because it is more convincing to take labor obligations rather than worker status as the basis for expanding workers' rights and interests. In addition, the proper definition and classification also provide the target and direction for the labor inspection of the labor process of the subsequent platform enterprises.

(Author's employer: Social Security Research Center, Wuhan University)