In order to support and standardize the development of new forms of employment, effectively safeguard the labor security rights and interests of workers in new forms of employment in Shanghai, and promote the healthy and sustainable development of platform economy, eight departments including Shanghai human resources and Social Security Bureau recently jointly issued the implementation opinions on safeguarding the labor security rights and interests of workers in new forms of employment. The implementation opinions focuses on the prominent problems in the protection of workers’ labor rights and interests in the new form of employment in Shanghai, aiming to clarify the responsibility of workers’ rights and interests protection, make up for the shortcomings of workers’ rights and interests protection, optimize workers’ rights and interests protection services, and promote higher quality employment
source: Official Website of Shanghai human resources and Social Security Bureau
In recent years, with the rapid development of platform economy, new employment forms have become an important way for workers to obtain employment, especially flexible employment. Due to the relatively flexible employment forms of the platform and new employment forms, the employment methods of workers are difficult to be simply incorporated into the adjustment of China’s current labor laws, and the protection of workers’ rights and interests is facing new situations and problems.
supplement the weakness of workers’ rights and interests protection
The implementation opinions focuses on the prominent problems faced by the protection of the rights and interests of workers in new business forms, improves the system of fair employment, labor remuneration, rest, labor safety, social insurance and other aspects of workers in new employment forms that are in line with and not completely in line with the establishment of labor relations, and clearly focuses on relevant platform enterprises, Carry out the pilot of occupational injury protection for flexible employees on the Shanghai platform, requires the platform to optimize the algorithm principle, prohibit the platform from taking the strictest algorithm as the assessment requirement, and curb the “substitution of punishment for management”.
clarify the responsibility to protect the rights and interests of workers
The implementation opinions requires enterprises to employ in accordance with the law, actively fulfill the responsibilities of the employing subject, and bear corresponding responsibilities for the protection of the rights and interests of workers in the new employment form that meets the conditions of labor relations and does not fully meet the conditions of establishing labor relations, but the enterprise carries out labor management for workers. If the platform enterprise adopts cooperative employment methods such as labor dispatch and outsourcing, it and the cooperative enterprise shall bear their respective employment responsibilities in accordance with the law. If an enterprise employs in the name of non labor relations, but meets the characteristics of labor relations, it shall bear corresponding responsibilities according to law.
optimize labor rights protection services
The implementation opinions puts forward measures to improve the employment service system, optimize the social insurance agency, strengthen vocational skill training, and improve working and living conditions in view of the shortcomings of workers in the new employment form in enjoying labor security and other public services.
improve the working mechanism for the protection of workers’ rights and interests
The implementation opinions requires all relevant departments in all districts to work together to promote the protection of the rights and interests of workers in the new form of employment, do a good job in policy publicity, give full play to the representative role of trade unions, strengthen the service and protection of trade unions for workers in the new form of employment, effectively mediate contradictions and disputes according to law, strengthen supervision and timely investigate and deal with illegal acts, Earnestly safeguard the legitimate rights and interests of workers in the new form of employment.
Implementation Opinions on safeguarding the labor security rights and interests of workers in the new form of employment
District People’s governments, municipal first and second intermediate people’s courts, District People’s courts and the Federation of trade unions:
In order to thoroughly implement the guiding opinions on safeguarding the labor security rights and interests of workers in new forms of employment (hrsbf [2021] No. 56, hereinafter referred to as the Guiding Opinions) issued by eight departments including the Ministry of human resources and social security, promote the healthy development of platform economy and safeguard the legitimate rights and interests of workers in new forms of employment, the following implementation opinions are hereby put forward with the consent of the municipal government.
I. clarify the responsibility for protecting the rights and interests of workers
(I) strengthen supervision and guidance on employment. Guide and urge enterprises to accurately understand laws and policies, employ in accordance with laws and regulations, actively assume the responsibility of protecting workers’ rights and interests, and stabilize the workforce. Enterprises should take the initiative to care for workers, protect their legitimate remuneration rights and interests, strive to improve working conditions, expand career development space, and gradually improve the level of rights and interests protection. Cultivate a healthy and upward corporate culture, enhance professional identity, promote workers to share the achievements of enterprise development, and constantly improve workers’ sense of acquisition, happiness and security. (the municipal human resources and Social Security Bureau, the Municipal Federation of trade unions and all districts are responsible according to the division of responsibilities)
(II) clarify the relationship between rights and obligations. If the enterprise and the laborer meet the legal subject qualification, the enterprise carries out strict labor management on the laborer, and the laborer has a strong subordinate attribute to the enterprise, which is in line with the establishment of labor relations, the enterprise shall conclude a labor contract with the laborer and perform the labor and employment obligations. Where an enterprise employs employees by means of labor dispatch or part-time employment, it shall strictly implement the provisions of the law. For those who do not fully comply with the situation of establishing labor relations, but the enterprise carries out labor management for workers, and the workers’ labor process must comply with the algorithm and other rules determined by the platform enterprise (hereinafter referred to as the situation of not fully complying with the establishment of labor relations), the enterprise shall conclude a written agreement with workers to negotiate and determine the rights and obligations such as work remuneration, working hours and occupational protection. If an individual independently carries out business activities and engages in freelance work relying on the platform, the rights and obligations of both parties shall be adjusted in accordance with civil laws. (the municipal human resources and Social Security Bureau and the Municipal Higher People’s court are responsible according to the division of responsibilities)
(III) consolidate the responsibility of the employing subject. Platform enterprises should choose enterprises with corresponding licenses or business qualifications to cooperate and supervise the protection of their workers’ rights and interests. If the platform enterprise employs by means of labor dispatch, it can only be implemented in temporary, auxiliary or alternative jobs, and shall fulfill the responsibilities of employment proportion and equal pay for equal work according to law; If any damage is caused to the dispatched workers, the labor dispatch unit and the platform enterprise shall bear joint and several liability for compensation. If the platform enterprise adopts outsourcing and other cooperative employment methods, it shall urge the cooperative enterprise to employ according to law and safeguard the relevant rights and interests of workers; If the platform enterprise fails to carry out timely and effective supervision and reasonably disclose the actual situation of the employer, resulting in the damage to the rights and interests of workers, it shall bear corresponding responsibilities according to law. If an enterprise employs in the name of non labor relations, but meets the characteristics of labor relations, it shall bear corresponding responsibilities according to law. (the municipal human resources and Social Security Bureau and the Municipal Higher People’s court are responsible according to the division of responsibilities)
II. Make up for the shortcomings in the protection of workers’ rights and interests
(IV) implement the fair employment system. Implement the fair employment system and eliminate employment discrimination. Establish an employment mechanism for workers to participate in market competition on an equal basis and create a fair market environment. enterprises shall not employ discriminatory conditions such as gender, nationality, registered residence, etc., and shall not collect property from laborers in the form of paying deposits, deposits or other names, and shall not restrict workers’ employment on multiple platforms. for workers who establish labor relations, if they establish labor relations with other enterprises at the same time, which has a serious impact on the completion of the work tasks of the enterprise, or refuse to correct after being proposed by the enterprise, they shall be dealt with in accordance with the relevant provisions of the labor law. (the municipal human resources and Social Security Bureau and all districts are responsible according to the division of responsibilities)
(5) ensure reasonable labor remuneration. Support trade unions to negotiate with industry associations and leading enterprises, conclude industrial collective contracts or agreements, and reasonably determine industrial labor quota standards and piece rate.
Under the condition of providing normal labor, the labor remuneration converted to hours shall not be lower than the minimum wage standard of this Municipality. Supervise and urge enterprises to pay labor remuneration in full and on time, and shall not deduct or default without reason. guide enterprises to establish a reasonable growth mechanism of labor remuneration and gradually improve the level of labor remuneration. (the municipal human resources and Social Security Bureau, the Municipal Federation of trade unions and all districts are responsible according to the division of responsibilities)
(VI) improve the rest and vacation system. Promote the industry to clarify the labor quota standard, and scientifically determine the workload and labor intensity of workers. Urge enterprises to reasonably determine the rest measures according to the regulations to ensure the rest right of workers in the new form of employment. If an enterprise cannot implement the standard working hour system due to the nature or characteristics of its work, those who meet the conditions may apply for other working and rest methods such as the irregular working hour system or the comprehensive calculation working hour system. urge enterprises to pay reasonable remuneration higher than that during normal working hours on legal holidays or give additional compensation. (the municipal human resources and Social Security Bureau, the Municipal Federation of trade unions and all districts are responsible according to the division of responsibilities)
(VII) ensure labor safety. Improve and implement the labor safety and health responsibility system, and strictly implement the national labor safety and health protection standards. Firmly establish the awareness of safety “red line”, and shall not formulate assessment indicators that damage the safety and health of workers. In accordance with the principle that the industry must be in charge of safety, the business must be in charge of safety, and the production and operation must be in charge of safety, urge enterprises to strictly abide by relevant laws and regulations on production safety, implement the safety production responsibility system of all employees, establish and improve safety production rules, regulations and operating procedures, and equip necessary labor safety and health facilities and labor protection articles, Timely check the safety and compliance status of labor tools, strengthen the education and training of professional ethics, service norms, safe production and occupational health, pay attention to the physical and mental health of workers, and carry out psychological counseling in time. Strengthen labor protection under special circumstances such as bad weather to minimize production safety accidents and occupational disease hazards. (the Municipal Emergency Management Bureau and all districts shall be responsible according to the division of responsibilities)
(VIII) improve the level of social insurance. , in light of the actual conditions of the city, we should actively create conditions for the registered residence of the local people to gradually participate in the feasibility of registered residence in the city. registered residence flexible employment personnel who did not take part in the basic old-age insurance and basic medical insurance for employees, and take part in the basic old-age insurance for urban and rural residents and basic medical insurance for urban and rural residents according to the regulations, so that they should be insured. Urge enterprises to participate in social insurance according to law. Enterprises should guide and support new forms of employment that do not fully meet the conditions of establishing labor relations, and workers should participate in corresponding social insurance according to their own conditions. (the municipal human resources and Social Security Bureau and the Municipal Medical Security Bureau are responsible according to the division of responsibilities)
(IX) strengthen the protection of occupational injury. Focusing on the platform enterprises in the travel, takeout, real-time distribution and intra city freight industry with high social concern and high risk of occupational injury, actively carry out the pilot work of occupational injury protection for platform flexible employees in the city, and the platform enterprises shall participate in it as required. We will adopt a combination of government leadership, informatization guidance and social forces to establish and improve the norms and operation mechanism of occupational injury security management services, actively use Internet thinking to improve the service mode, and accelerate the digital transformation of handling services. Strengthen the operation analysis of occupational injury protection during the pilot period, study and solve new situations and problems in the pilot, and explore and improve policies and regulations on occupational injury protection coverage groups, insurance payment, protection situation, treatment payment and so on. encourage platform enterprises to improve the protection level of flexible employees on the platform and form a diversified and multi-level occupational injury protection system by participating in the exclusive protection of employee mutual assistance and purchasing personal accident, employer liability and other commercial insurance. (the municipal human resources and Social Security Bureau, the Municipal Federation of trade unions and all districts are responsible according to the division of responsibilities)
(x) formulate and improve the rule algorithm . Urge enterprises to formulate and revise the system rules and platform algorithms directly related to workers’ rights and interests, such as platform entry and exit, order distribution, piece rate, proportion, remuneration composition and payment, working hours, rewards and punishments, urge the platform to optimize the algorithm principles, do not take the strictest algorithm as the assessment requirements, curb the “substitution of punishment” and establish a negotiation mechanism, Fully listen to the opinions and suggestions of trade unions or workers’ representatives, publicize and inform workers of the results, and ensure workers’ right to know important matters involving their vital interests. If the trade union or labor representative requests for negotiation, the enterprise shall respond positively and provide necessary information and materials. Support enterprise trade unions to strengthen effective supervision over the implementation of relevant systems, rules and platform algorithms by enterprises. Guide enterprises to establish and improve workers’ appeal mechanism, ensure that workers’ appeals are responded in time and handled objectively and fairly, and effectively maintain the stability of employment. (the municipal market supervision and Administration Bureau, the Municipal Federation of trade unions and the municipal human resources and Social Security Bureau are responsible according to the division of responsibilities)
III. optimize labor rights and interests protection services
(XI) improve the employment service system. Innovate ways and methods, and actively provide personalized services for workers in various new forms of employment. Through the websites of the human resources and social security department and the media such as WeChat official account of Shanghai, we timely release video micro lesson, case analysis, policy interpretation, recruitment and employment service activities information, so as to provide various kinds of occupation guidance for the new employment type workers. Through the “all in one network” platform, provide appointment based career guidance and carry out one-to-one consultation. Give play to the guiding role of interest discount funds of entrepreneurship guarantee loans, strengthen capital guarantee, and support workers to improve labor tools, improve labor efficiency and improve production level. Relying on the volunteer group of entrepreneurship guidance experts, we will provide entrepreneurship guidance, entrepreneurship training, entrepreneurship consulting and other services for workers with new forms of employment, promote online entrepreneurship services, and fully support entrepreneurship and employment. Provide convenient policy consultation services such as labor security, taxation and market supervision for enterprises and workers, and facilitate workers’ job search and employment and enterprise recruitment. (the municipal human resources and Social Security Bureau and the municipal market supervision and Administration Bureau are responsible according to the division of responsibilities)
(XII) optimize social insurance handling. Actively explore the social insurance agency mode suitable for the new employment form, provide more convenient services in the aspects of insurance payment, equity inquiry, treatment receipt and settlement, do a good job in the transfer and connection of social insurance relations, improve the service level of social insurance agency, and better ensure that the insured personnel enjoy all social insurance benefits fairly. (in charge of municipal human resources and Social Security Bureau)
(XIII) strengthen vocational skills training. Establish a vocational skills training model suitable for workers in new employment forms, and ensure their equal right to training services. We will explore and improve the vocational skill training system for workers in new employment forms. Workers who meet the subsidy conditions who participate in vocational skill training or obtain corresponding skill certificates will enjoy training subsidies or skill upgrading subsidies according to regulations. We will promote pilot projects for skills upgrading and employment promotion in new forms of employment, and expand the scale and coverage of training. Expand the supply of online training resources, adapt to the employment characteristics of new business forms, support colleges, training institutions and enterprises to build online training platforms, develop online courses, adopt Wuxi Online Offline Communication Information Technology Co.Ltd(300959) integrated training methods, and organize employees of new business forms with skills improvement needs to participate in relevant technical training. We will improve the vocational skill grading system, support qualified enterprises to carry out vocational skill grading according to regulations, and promote skilled and stable employment of workers in new forms of employment. Improve the professional title evaluation policy and unblock the channels for the application and evaluation of professional titles of workers in new forms of employment. (in charge of municipal human resources and Social Security Bureau)
(XIV) improve working and living conditions. Accelerate the construction of urban comprehensive service outlets and create a good working environment. We will promote the establishment of temporary detention points in the concentrated residential areas and commercial areas of workers with new forms of employment, such as commercial buildings and residential areas, and provide necessary conditions for rest, parking, charging, drinking water and toilet, so as to provide convenience for workers with new forms of employment.
Encourage enterprises to actively take measures to care for and help workers in accommodation, children’s education and special difficulties. (the Municipal Federation of trade unions and all districts are responsible according to the division of responsibilities)
(XV) enhance professional social identity. Ensure the right of the children of qualified new forms of employment workers to receive compulsory education at the permanent residence level. We will promote the opening of public cultural and sports facilities to workers free of charge or at low charges, and enrich the supply of public cultural products and services. Guide the society to form identity respect and professional identity for workers in new forms of employment, improve the integration of the public environment, and create harmonious relations and a good atmosphere. (the municipal development and Reform Commission, the Municipal Federation of trade unions and all districts are responsible according to the division of responsibilities)
IV. improve the working mechanism for the protection of workers’ rights and interests
(XVI) strengthen organizational leadership and work coordination. All districts should strengthen organizational leadership, strengthen the implementation of responsibilities, and earnestly do a good job in protecting the rights and interests of workers in the new form of employment. All relevant departments and units should earnestly perform their duties, strengthen work coordination, implement inclusive and prudent supervision, establish a reporting system for employment of platform enterprises, and encourage platform enterprises to establish a communication and coordination mechanism with employees on labor remuneration and labor protection. Guide platform enterprises to improve the complaint handling mechanism and actively negotiate and solve the reasonable demands of employees according to industry standards. Improve the joint incentive and punishment mechanism for the protection of workers’ rights and interests, and improve relevant policies and measures and legal interpretation. (each department and district shall be responsible according to the division of responsibilities)
(XVII) give full play to the representative role of trade union organizations. Trade union organizations at all levels should expand the coverage of trade union organizations in new forms of employment through various forms, such as separate associations, joint associations, industry associations and regional associations. Promote platform enterprises, especially head enterprises and their affiliated enterprises to establish associations according to law; The combination of sections and blocks promotes the site to establish a trade union group, join the “small secondary” trade union in the street town, and widely organize workers in new employment forms to join the trade union. By strengthening the ideological and political guidance to the workers in the new employment form, uniting the workers to make contributions, cultivating and selecting advanced models, improving the service position of the trade union and building communication and expression channels, the trade union will strengthen the service and guarantee to the workers in the new employment form. Actively negotiate with industry associations, leading enterprises or enterprise representative organizations, sign industrial collective contracts or negotiation agreements, and promote the formulation of industrial labor standards such as labor quota, rest measures, piece rate and proportion. Enterprises should support trade unions to carry out their work and cooperate to provide workers with services such as legal rights protection consultation, policy publicity and interpretation, skill training, psychological counseling, ideological care, assistance in difficulties and warmth. (in charge of the Municipal Federation of trade unions)
(XVIII) handle disputes efficiently according to law. Courts at all levels and labor dispute mediation and arbitration institutions should strengthen the guidance of handling labor dispute cases, smooth the connection between adjudication and trial, reasonably identify the legal relationship between enterprises and workers according to the employment facts, grasp the essential characteristics, and unify the acceptance standards and handling standards of labor dispute cases in the new form of employment. All kinds of mediation organizations, legal aid institutions and other specialized social organizations should provide more convenient, high-quality and efficient dispute mediation, legal consultation, legal aid and other services for workers with new forms of employment according to law. (the Municipal Higher People’s court and the municipal human resources and Social Security Bureau are responsible according to the division of responsibilities)
(XIX) implement the supervision responsibilities of the Department. The administrative departments of human resources and social security at all levels should strengthen labor security supervision, urge enterprises to seriously implement the relevant requirements of labor security laws and regulations and the guiding opinions, investigate and deal with illegal acts such as arrears of labor remuneration and overtime work, and safeguard the legitimate rights and interests of workers. Functional departments at all levels such as transportation, emergency response, market supervision and other competent departments of the industry should standardize the business behavior of enterprises, strengthen supervision, and timely interview, warn, investigate and deal with enterprises that infringe on the rights and interests of workers. (each department shall be responsible according to the division of responsibilities)
All relevant departments in all districts shall, in accordance with the requirements of the implementation opinions, refine relevant measures, strengthen policy publicity, widely gather consensus and ensure the implementation of all work.
The implementation opinions shall go into effect from January 4, 2022 and shall be valid until December 31, 2026.
