Interpretation of the law by case ｜ Does the ＂driving on behalf of＂ driver have a labor relationship with the platform company？

I am a part-time "driver" and have been working for a year, but the company that operates the "driver" platform has not signed an employment contract with me or paid me social insurance. I went to labor arbitration, but the arbitration did not support me. Can I go to court to sue the company and ask the company to compensate me?

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case review

Mr. Wang sued the company that operated a "driving" platform to the court, saying: Wang recruited online through the company that operated the "driving" platform, and the position was "driving" driver. The agreed basic salary was 3,000-6,000 yuan/month, and there was another commission according to the number of orders received. After joining the company, the company has refused to sign an employment contract and pay social insurance. Wang believes that he joined the company after going through the company’s recruitment, interview, training and other processes, abided by the rules and regulations of the "driving" platform at work, obeyed the command, accepted various punishment measures, and formed a managed and managed labor relationship with the "driving" platform. Therefore, he proposed to confirm that he had a labor relationship with the company, and the company paid him double the wage difference of the employment contract and economic compensation for the termination of the employment contract. In this regard, the defendant company defended that the company developed a mobile phone software to provide "driving on behalf of" service information, which served as a platform for providing information and assumed the role of information transmission. The cooperative relationship between Wang and Wang was an equal civil subject, not a labor relationship. When and where Wang took orders was determined by Wang and was not subject to the constraints and management of the "driving on behalf of" platform; the "driving on behalf of" driver directly collected compensation from customers who accepted the "driving on behalf of" service, and paid information service fees to the "driving on behalf of" platform; the "driving on behalf of" platform and the "driving on behalf of" driver had an agreement on service specifications. If a customer complained about the "driving on behalf of" driver, the driver would have to pay a certain fee to the platform and bear the responsibility for breach of contract.

trial result

According to the "Notice of the Ministry of Labor and Social Security on Matters Related to the Establishment of Labor Relations", the establishment of a labor relationship requires the following conditions: (1) The employer and the worker meet the main qualifications stipulated by laws and regulations; (2) The labor rules and regulations formulated by the employer in accordance with the law apply to the worker, and the worker is subject to the labor management of the employer and engages in the paid labor arranged by the employer; (3) The labor provided by the worker is an integral part of the employer’s business. That is to say, the establishment of a labor relationship requires that the laborer provides paid labor to the employer, the laborer receives labor remuneration and related welfare benefits from the employer, and the laborer and the employer form a subordinate relationship with personal freedom under the control of the employer within the scope of labor, obeying the division of labor and arrangements, observing labor discipline, and accepting the management of the employer as the main content.

As a "chauffeur" driver, Wang could work part-time or full-time, and his working hours were controlled by himself, which did not meet the standards for the determination of labor relations. Although the work license and photos of work clothes submitted by Wang as evidence were marked with the name of the defendant company, they were not enough to prove that the two parties had a labor relationship. Therefore, the Shijingshan Court rejected Wang’s lawsuit. Subsequently, Wang appealed, and the 2nd-Moderround Court upheld the original judgment.

At present, "driver-on-behalf" platforms generally use methods such as entering into cooperation agreements with "driver-on-behalf" drivers, accepting labor dispatch, and recruiting full-time drivers to solve the problem of the source of "driver-on-behalf" drivers. Therefore, the legal relationship established between "driver-on-behalf" drivers and "driver-on-behalf" platforms depends on specific circumstances. That is to say, if you are not engaged in the "driver-on-behalf" industry, you need to consider whether the two parties meet the corresponding circumstances to determine whether the labor relationship is established.

Therefore, when "chauffeur" drivers engage in "chauffeur" work, they should understand the legal relationship clearly in advance to avoid any deviation in understanding and the suspension of social insurance payments.

In addition, "driver-on-behalf" drivers have accidents during the "driver-on-behalf" period, and victimization and injury incidents occur from time to time. In some cases, because the "driver-on-behalf" platform does not have a labor relationship or a labor relationship with the "driver-on-behalf" driver, the "driver-on-behalf" driver cannot enjoy work-related injury insurance benefits or requires the "driver-on-behalf" platform to bear the responsibility of the employer, and can only bear the above losses by himself, so the "driver-on-behalf" driver himself bears a greater risk.

In this regard, on the one hand, the judge suggested that "chauffeur" drivers can improve their safety awareness, consciously abide by various traffic laws, and purchase personal insurance when conditions permit; on the other hand, the judge suggested that the "chauffeur" platform should pay attention to the business training of "chauffeur" drivers to reduce the probability of accidents from the source. In addition, it is hoped that the "chauffeur" platform can provide drivers with relevant insurance products that are more suitable for the "chauffeur" profession while pursuing commercial interests, strengthen the safety protection of "chauffeur" drivers, and eliminate the worries of "chauffeur" drivers.

Contribution | Beijing Shijingshan Court

Editors | Li Xuejie, Wang Xi

The picture comes from the Internet

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