Legal experts talk about new regulations for protecting workers' rights and interests in new employment forms: suggestions to enhance operability

China News Service, Beijing, October 29 (Zhang Su, Ma Guangzhi) "Measures for the Protection of Workers' Rights and Interests in New Employment Forms (Draft for Comment)" is currently soliciting public opinions. Legal experts and representatives of social organizations, while affirming its breakthrough significance, suggested further enhancing the operability of the clauses and clarifying liability consequences and procedural rules.

This is the first time in China that, in the form of regulations, workers with new employment forms that are not fully consistent with the establishment of labor relations when enterprises implement labor management are included in the protection of the labor law system. The consultation draft makes a number of institutional innovations in aspects such as labor relations identification, algorithm governance, and dispute resolution.

The China Voluntary Service Foundation’s “Intelligence and Legal Watch—Volunteer Service Plan to Protect the Rule of Law for New Employment Groups” recently organized an online discussion. Weng Xiaoping, the initiator of the "Intelligent Law Watch" project and senior partner of Kyoto Law Firm, said that the draft for comments has stipulations on algorithm selection, manual review of stop dispatching and account bans, prohibition of multi-layer subcontracting, and curbs on inducing registered individual industrial and commercial households to evade employment responsibilities, etc., which has a breakthrough and demonstration effect.

Ma Jianyin, deputy secretary of the Party Committee of Beijing Normal University Law School, believes that the draft still has room for improvement in legislative technology. Taking Article 12 of the minimum wage standard as an example, he said that the statement "considering the reasonable costs of workers' own means of production" is too vague, and suggested that costs such as vehicle depreciation, energy consumption, communications and personal protective equipment should be included at least by way of example.

How to identify labor relations has become the focus of this expert discussion. Weng Xiaoping is concerned about the exception clause in Article 53, paragraph 2, which states that “Individuals rely on Internet platforms to independently carry out business activities and engage in freelance work, these measures do not apply.” He suggested that it be clearly limited to situations where “the platform does not accept the management of labor rules and instructions, is able to independently determine work content, working hours and transaction prices, and is responsible for its own profits and losses.” And add a clause that reverses the burden of proof, so that the enterprise bears the burden of proof as to whether it is actual employment.

Lawyer Jia Baojun, a partner at Kyoto Law Firm, suggested that when handling disputes between individual industrial and commercial households and contracting agreements, the relationship should not be examined in the form of appearance, but the actual employment facts and dominant management should be the core features, and the burden of proof on whether to operate independently and accept orders independently should be inverted to the platform.

In terms of algorithm governance, Weng Xiaoping suggested adding executable procedures to Article 29 of manual review, making it clear that the maximum period for banning accounts and suspending orders should not exceed 7 days. Accounts that have not been manually reviewed after the expiration date should be automatically restored, and a hierarchical disposal mechanism should be established.

Jia Baojun proposed that manual review should not just inform the algorithm principles, but should require the platform to inform workers of the specific data and rules of this processing, "open the data black box" and provide a basis for subsequent rights protection.

Chang Xiujiao, an assistant researcher at the Institute of Law of the Beijing Academy of Social Sciences, suggested adding workers’ rights to suggestions and reconsideration of algorithms in algorithm governance, and establishing a group triggering mechanism. When a certain number of people feedback, the government’s mandatory algorithm review can be initiated.

It is worth mentioning that the "Smart Law Watch" public welfare project was established at the China Voluntary Service Foundation and aims to provide artificial intelligence legal consultation, volunteer lawyer case assistance and community legal education services to new employment groups such as takeaway riders, couriers, and online ride-hailing drivers.