Is there a labor relationship between "takeout rider" and "delivery company"?

On March 6, 2017, "Meituan takeout rider Liu Mou was hit by Mr. Du's motor vehicle during the delivery. The traffic management department determined that Mr. Du should be fully responsible for the accident. Liu Mou was diagnosed as a comminuted fracture of the right ankle, and on March 13, 2017, an operation was carried out, and was identified as a ten-degree disability. Since then, Mr. Du negotiated compensation with Liu Mou, Liu Mou took Mr. Du to find the person in charge of the delivery station, but the two parties failed, so Mr. Du Mou and "Meituan takeout" operation delivery company sued the court.

The focus of dispute in this case is whether Liu Mou and delivery company have labor relationship.

According to Article 1 and Article 2 of the Guiding Opinions on Regulating the Employment of Online Catering Dispatchers under the New Employment Form (for Trial Implementation) (Ning Ren She Gui [2021] No.4) jointly issued by the Nanjing Human Resources and Social Security Bureau, the Nanjing Market Supervision Administration, the Nanjing Judicial Bureau and the Nanjing Public Security Bureau, the "takeout rider" is divided into "special rider" and "crowd-packaged rider" according to the nature and characteristics of employment. "special rider" is a "takeout rider" that is outsourced by a mobile Internet platform enterprise to a delivery partner in the form of commercial cooperation, and is also divided into "full-time rider", "labor dispatched rider" and "part-time rider". A "crowd-packaged rider" refers to a rider who is outsourced to a non-specific natural person in a free and voluntary manner by the mobile Internet platform enterprise or the labor service outsourcing enterprise it cooperates with, and the natural person registers an APP on the mobile terminal and obtains approval therefor. The delivery partner of a "full-time rider" should establish labor relationship and enter into a written labor contract with the rider. In this case, it can be seen from the content of the "service contract" signed by and between the two parties that the plaintiff belongs to a "full-time rider". In this case, the defendant should establish labor relationship and enter into a labor contract with the rider.

Compared with the traditional labor relationship, the labor relationship in the Internet plus era is more flexible and freer. Therefore, in confirming the labor relationship between an employee and an Internet company or between an employer and an employer, the labor relationship becomes more complex. However, the labor relationship in the Internet plus era is essentially the same as the traditional labor relationship. Whether there is labor relationship between a rider and a takeout platform or its outsourcing company cannot be simply identified, and should be comprehensively determined according to criteria such as whether there is mutual consent to establish labor relationship between the two parties, whether the employee complies with the management of the employer, etc. When it comes to the confirmation of labor relationship of an Internet platform enterprise, attention should be paid to the balance between the protection of the rights and interests of employees and the promotion of the flexibility of the labor market, and factors such as the operation form of the employer's network platform, the employees' employment status, the management level of the network platform over the employees, the income distribution method of the employees, and whether the employees independently bear business risks shall be comprehensively considered to identify whether they are labor relationship in accordance with the law.

Firstly, according to Article 1 of the Notice on the Relevant Issues Concerning the Establishment of Labor Relationship (Lao She Bu Fa [200512] No. 200512), a labor relationship shall be deemed established if all of the following conditions are satisfied: (i) the employer and the employee are qualified as a subject in accordance with the laws and regulations; (ii) the labor regulations and systems formulated by the employer apply to the employee; (iii) the employee is subject to the labor management of the employer, and engages in the paid work arranged by the employer; (iv) the work provided by the employee is part of the business of the employer. Secondly, the main differences between the two types of relationship are: firstly, there is no relationship of administrative subordination between the two parties of a labor service relationship, and there is no relationship of rights and obligations between management and being managed, dominated and controlled. Although the party providing labor service shall also accept the direction and supervision of the employer, it is not bound by the internal rules and regulations of the employer and the two parties are on the same platform. In the labor relationship, the two parties of a labor relationship have subordination. Once a labor relationship is established, a personal dependency characterized by management and being managed is formed between the employer and the worker, including the subordinate nature of personality and the subordinate nature of economy. Subordinate personality means that, during the existence of labor relations, a laborer needs to give his personal freedom to the employer within a certain limit when providing labor for the employer, and the laborer is obligated to comply with the regulations and work instructions of the employer and accept the supervision by the employer. Economic subordinate personality means that the labor relations need to focus on the occupational labor force provided by the laborer, and the payment of remuneration is a necessary condition.

Secondly, in terms of formation, the labor relationship can be established as long as the two parties reach a consensus, which embodies an immediate settlement of the relationship, the employment period is generally short, with the characteristics of temporary. The establishment of a labor relationship is subject to a relatively formal recruitment procedure, which is often expressed in the form of work permit, onboard certificate, etc., with the characteristics of long-term, continuity and stability.

Thirdly, the worker in a labor relationship does not enjoy the minimum wage, working hours, rest and vacation, social insurance, etc., and the contract usually only stipulates the remuneration or the method of remuneration is the core. In a labor relationship, the two parties generally sign a labor contract, which clearly stipulates the contract term, probation period, working hours, working location, labor protection, remuneration payment, social insurance, etc.

In this case, the delivery company is the legal employer, and its business is derived from the service agreement signed with Meituan Platform, i.e. Meituan delivery service. The company has the autonomous right to recruit and recruit employees by itself. After the employment of the employee, the delivery company uploads relevant materials to Meituan Website for registration means that the company has a legal relationship with others, and relevant rights and obligations under the service agreement will be performed by the company. There is no legal causal relationship between such registration and recruitment of a new employee. Secondly, the delivery company manages the employees steadily for a long time. In addition to Meituan's rules for takeaway, the employees should also comply with the management rules of the housekeeping company, for instance, login APP system, leave system, complaint deduction system during working hours. More importantly, the salaries of the meal deliveryman are actually paid by the company by card instead of by Meituan Platform. In this case, the delivery company recruited deliveryman to complete its main business, manage and pay salary to the deliveryman. The deliveryman devotes time and energy to the delivery work as his main source of income. The two parties form a long-term and stable relationship, which is in line with the basic characteristics of employment relationship. Therefore, the two parties shall be deemed to have established an employment relationship.

Can the injury sustained by a rider during the delivery be identified as work-related injury?

According to Article 14 (6) of the Regulations on Work-related Injury Insurance, if a work-related injury is identified on the way to or from work, the liability for the traffic accident is the condition for the identification. However, in this case, the traffic accident happened on the way to take delivery, which falls under Article 14 (3) of the Regulations on Work-related Injury Insurance, where Liu is injured by violence due to his performance of job duties during working hours in the workplace and shall be identified as work-related injury according to the law.

Can the Human Resources and Social Security Bureau directly determine that there is employment relationship between Liu, a deceased employee, and the company? The Reply of the Administrative Tribunal of the Supreme People's Court to the Request for Instructions on Whether Labor Administrative Authorities Are Entitled to Confirm Employment Relationship in the Procedures of Identification of Work-Related Injuries ([2009] Xing Ta Zi No. 12) pointed out that, according to Article 9 of the Labor Law and Articles 5 and 18 of the Regulations on Work-related Injury Insurance, the Labor Administrative Authorities are entitled to confirm whether there is employment relationship between the injured employee and the company in the procedures of identification of work-related injuries. Therefore, the Human Resources and Social Security Bureau has the right to directly confirm that there is employment relationship between Liu, a deceased employee, and the delivery company.

Legal Significance of Defining and Maintaining Employment Relationship in New Work Mode

First of all, in the Internet Plus era, the working behavior, working mode and management mode of employees and employers are different from traditional employment relationship and behavior, and the employees and employers are not standard full-time employment relationship but a new flexible employment relationship. Although this kind of working mode is flexible, with no limitation on working hours and workload, the employees receive, pick up and deliver orders through the network platform and agree with the operator of the network platform on the calculation method of remuneration on the basis of the order received, picked up and delivered, so the legitimate rights and interests of employees can be effectively protected, including the relevant regulations of the Labor Law regarding labor remuneration, working hours, rest and vacation, labor protection, etc. After defining the nature of the employee's conduct, the relationship between the employee and the employer or the platform can be clarified and the risk bearing and responsibility allocation for the conduct can be determined, so as to protect the legitimate rights and interests of the employee and the third party, make each party feel the warmth of the law, and guarantee each party feel fairness and justice in the litigation.

Second, compulsory social insurance cannot be replaced by voluntary commercial insurance. Whether to take out commercial insurance or not is subject to any type of insurance, and the amount of insurance is entirely at the discretion of the employer. Therefore, the protection of the insured is arbitrary and uncertain. The platforms purchase commercial insurance for riders without any institutional restriction or law enforcement supervision. Obviously, they cannot replace the institutional function of statutory social insurance or effectively protect the rights and interests of the masses. Through defining whether there is labor relationship between the two parties, the nature of labor behavior, the subject and form of responsibility bearing, so as to protect the rights and interests of the employee and protect the employees to seek legal relief while having commercial insurance, so that the employees can avoid major risks and reduce the amount of responsibility bearing.

Finally, in terms of cost-benefit. The identification of labor relations may make platform enterprises more clearly assume the responsibility of dispatchers' management, and systematically reduce the possibility of traffic violations and illegal dispatching, so as to ensure the travel safety and food safety of the public. Identifying labor relationship, purely, may increase the cost of labor for the defendant. For example, the defendant has to pay social insurance premiums for the dispatcher. On the one hand, however, if there is a labor relationship between them, it is the defendant's legal obligation to pay social insurance premiums, etc. On the other hand, the court confirms that there is labor relationship between the defendant and the dispatcher, such as the plaintiff. To require the defendant to use labor in accordance with labor laws and regulations and provide full labor security for the dispatcher, the dispatcher will have a sense of belonging, and the defendant will be able to better manage and use the dispatcher, so that the parties can establish a harmonious labor relationship and enhance the cohesion and goodwill of the defendant's enterprise to achieve a win-win result.

Relevant Laws and Regulations:

Labor Law:

Article 9 The labor administrative department of the State Council is in charge of the labor work nationwide. The labor administrative departments of the local people's governments at the county level or above are in charge of the labor work in their respective administrative areas.

Guiding Opinions on Regulating the Employment of Online Catering Service Dispatcher under the New Employment Form (For Trial Implementation):

1. Definition of the employment category of "takeout jockeys" (1) According to the nature and characteristics of employment, the "takeout jockeys" can be divided into "specially delivered jockeys" and "crowd packers". (II) The term "special rider" refers to the "takeaway rider", in which a mobile Internet platform enterprise (hereinafter referred to as the "platform enterprise") outsources the catering distribution business within a certain area to a delivery enterprise (hereinafter referred to as the "delivery supplier") in the form of commercial cooperation and is managed by the delivery supplier; and the term "takeaway rider" is further divided into "full-time rider", "labor-service rider" and "part-time rider". (III) "Crowd packers" refers to the "takeout jockeys", which are outsourced in a free and voluntary manner by a "platform enterprise" (or a service enterprise cooperating with the platform enterprise, hereinafter referred to as "service outsourcing enterprise") to unspecified natural person, who registers for an APP on the mobile terminal and obtains the approval.

II、 Definition of employment relationship with a "takeout jockey" (IV) "Full-time rider" refers to the "takeout jockeys" it recruits directly by a "delivery enterprise". A written employment contract shall be concluded for the establishment of employment relationship between a "delivery enterprise" and a "full-time rider". (V) A "labor dispatched jockey" is a "takeout jockey" who is recruited and dispatched by a labor dispatch entity to work for a "delivery enterprise". The "delivery enterprise" establishes an employment relationship with the labor dispatch entity and forms an actual employment relationship with the "delivery enterprise". A labor dispatch entity shall conclude a written employment contract with a "labor dispatched jockey" and a labor dispatch agreement with a "delivery enterprise". (VI) A "part-time rider" refers to a "takeout jockey" who works no more than 4 hours per day and no more than 24 hours per week at the same delivery enterprise. Where a "distribution partner" is to establish a non-full-time employment relationship with a "non-full-time rider", a written or oral labor contract shall be concluded. (VII) A "crowd-packer" refers to a "takeout jockey" who signs an online dispatcher agreement with a "platform enterprise" or a "labor outsourcing enterprise". It is a flexible employee. It establishes a labor service or contract relationship with a "platform enterprise" or a "labor outsourcing enterprise" but does not have any labor relationship, part-time employment relationship or actual employment relationship. (VIII) Where a "crowd-packer" does not sign any contract or agreement with a "platform enterprise" or its "labor outsourcing enterprise", but can prove that it meets the conditions for ascertainment of labor relationship as prescribed in the Notice of the Ministry of Labor and Social Security on Issues Concerning the Establishment of Labor Relationship (Lao She Bu Fa [2005] No.12) in terms of implementation and compliance with the enterprise's rules and regulations, it may be deemed that a labor relationship exists between the two parties. (IX) When a "platform enterprise" or its "labor outsourcing enterprise" or "delivery enterprise" or its "delivery enterprise" or its labor dispatch entity recruits a "takeout jockey", it shall notify the "takeout jockey" of the legal relationship to be established between the two parties and the type of employment, or shall expressly indicate such information in the labor contract or labor (hired) contract concluded between the two parties through consultation.

Circular on Issues Relating to the Establishment of Labor Relations:

1. Where an employer fails to enter into a written labor contract with an employee, a labor relationship shall be deemed to be established under the following circumstances:

(1) The employer and the employee have the subject qualifications as provided by laws and regulations;

(II) The labor regulations and systems formulated by the employer in accordance with the law are applicable to the employee; The employee is subject to the labor management of the employer and engages in the paid work arranged by the employer; (3) The work provided by the employee is part of the business of the employer.

Labor Contract Law:

Article 3 【Basic Principles】 The conclusion of a labor contract shall follow the principles of legality, fairness, equality, free will, negotiation and agreement, and good faith. The labor contract concluded in accordance with the law is legally binding, and the employer and the employee shall perform the obligations stipulated therein.

Article 7 【Establishment of Labor Relationship】 An employer is deemed to have established a labor relationship with an employee from the date of employment. The employer shall establish a register of employees for reference purpose.

Regulations on Work-related Injury Insurance

Article 5 The administrative department of social insurance of the State Council shall be in charge of the work of work-related injury insurance throughout the country. The administrative departments of social insurance of local people's governments at or above the county level shall be in charge of the work of work-related injury insurance within their respective administrative areas. The social insurance agencies established by the administrative departments of social insurance in accordance with the relevant provisions of the State Council (hereinafter referred to as agencies) shall undertake the practical affairs of work-related injury insurance.

Article 18 When filing an application for determination of work-related injury, the following materials shall be submitted: (1) an application for determination of work-related injury; (2) the evidentiary materials of labor relationship with the employer (including de facto labor relationship); and (3) a certificate of medical diagnosis or a certificate of diagnosis of occupational disease (or an assessment of diagnosis of occupational disease). The application for determination of work-related injury shall include the basic details of the accident such as the time and place of occurrence, the cause of the accident and the degree of injury to the employee.