Can ＂Cooperation Agreement＂ Avoid ＂Labor Relations＂？
Who is responsible for the traffic accident on the way to work? Similar problems still plague many "riders". Recently, Beijing Tongcheng Bing Technology Co., Ltd. lost a lawsuit in a motor vehicle traffic accident liability dispute trial, which caused more than 20,000 yuan to the plaintiff in traffic accident compensation, and was also recognized as "having a labor relationship with the courier". However, in the cooperation agreement signed between the courier and the company, Tongcheng Bing Company still defines the business model of "platform+individual" as "business cooperation relationship", which is not adjusted by labor laws and regulations. To this end, many couriers have questioned whether such a cooperation agreement is reasonable and legal.
◎ Text/Figure Shandong Business Daily Su Bao News Network reporter Sun Wei Li Yuxin
A courier on the streets of Jinan
After the flash was awarded more than 20 thousand yuan, the plaintiff dropped the lawsuit
A few days ago, a civil judgment issued by the Dongcheng District People’s Court in Beijing showed that on March 25, 2021, a traffic accident occurred between the citizen He Mou and the flash driver Li Mou, causing the plaintiff He Mou to be injured and the contact part of the vehicle damaged. The traffic management department determined that Li, the flasher, was fully responsible for the accident, and He sued Beijing Tongcheng Bing Technology Co., Ltd., the company to which the flasher belongs, for compensation.
In this regard, the same city Bing Company argued that there was no employment relationship with the flasher Li. However, after the court heard the case, it was determined that the company had an employment relationship with the courier Li, and the same city Bing was sentenced to pay He 20,770 yuan.
However, Bing Company in the same city appealed the verdict again last month. According to the judgment document of the second instance published on March 8, after the appeal of the same city Bing Company, the plaintiff He Mou applied to the court to withdraw the prosecution. As for the reasons for withdrawing the lawsuit, the reporter sent a letter to consult the Flash Brand Department, but as of press time, he did not receive a reply.
Flash delivery has been listed as the person subjected to execution for many times due to accident disputes.
The reporter found out that this kind of traffic accident liability dispute has become the main legal risk of Bing Company in the same city. Sky Eye Survey shows that the top three cases in the company are motor vehicle traffic accident liability disputes (95 cases), labor disputes (37 cases), and disputes over life, health and body rights (31 cases). In the first three months of this year alone, there were 19 court announcements or civil judgments issued by Tongcheng Bing Company.
It is noteworthy that Tongcheng Bing was listed as the executor by the local court several times. Eye-catching investigation shows that Beijing Tongcheng Bing Technology Co., Ltd. was enforced by the court seven times for failing to fulfill its legal obligations on time, at least four of which involved traffic accident liability disputes of flashers.
In August last year, the flasher Jiao Mou collided with the plaintiff, and the same city Bing Company proposed to recognize Jiao Mou’s accident in the process of sending "flashover" and agreed to bear the losses within a reasonable range of the plaintiff. The Chaoyang District People’s Court of Beijing ruled that Jiao and Bing Company in the same city jointly bear more than 5,000 yuan in compensation. However, on December 13, 2021, Tongcheng Bing Company and Jiao Mou failed to fulfill their legal obligations and were listed as executors with an execution target of 5,304 yuan.
Regarding the determination of the labor relationship of the "flash worker", Flash once replied to our reporter in September 2020 that the legal relationship between the flash worker and the platform is still inconclusive at the legal level, and the current effective judgments all determine that there is no labor relationship. However, after a year and a half, now looking at the trend of court decisions, it seems that the company can no longer easily "throw the pot".
Cooperation agreement can not avoid the identification of labor relations.
The reporter learned from the mouth of the courier that the basis for the "throwing pot" of the courier comes from the "Cooperation Agreement" signed between the courier and the platform. The agreement stipulates that the platform and the courier establish a business cooperation relationship, and there is no labor relationship between the employer and the laborer, which is not adjusted by labor laws and regulations.
In this regard, many flashers openly questioned on the platforms such as Post Bar and Zhihu, emphasizing that the company needs to purchase specified equipment for single quantity assessment, which obviously goes beyond the so-called "cooperative relationship".
Is such a "cooperation agreement" reasonable and legal? Ma Sicheng, a lawyer of Shanghai Duanhe Duan (Jinan) Law Firm, said: The cooperation agreement does not conform to the provisions of the labor law. Now the legal judgment on such issues is in a transitional period and cannot be treated with a fixed eye. However, common problems such as injuries caused by riders, whether it is labor relations or labour relation, should be borne by the platform. At present, the people’s courts judge similar cases by using the legal provisions that laborers cause damage to people and providers cause damage to third parties.
At the National People’s Congress in 2022, Pi Jianlong, member of Chinese People’s Political Consultative Conference and director of Beijing Jintai Law Firm, pointed out in the proposal that the development of flexible employment and platform employment deformed the original "standard labor relations" and led to the establishment of multiple labor relations. In July, 2021, the Ministry of Human Resources and Social Security and other eight departments jointly issued the Guiding Opinions on Safeguarding the Labor Security Rights and Interests of Workers in New Employment Forms, but Pi Jianlong pointed out that the Guiding Opinions are policy norms and are not legally mandatory. It is necessary to further determine the protection of the rights and interests of workers in new formats in law and give them "strong protection" in the labor law.