LI Mankui* & LI Fucheng**

 

Abstract: Employees in new business forms face higher occupational injury risks and the plight of “falling in the gap in the protection network” of work-related injury insurance. The existing three types of occupational injury protection models are based on the reflection and reform of traditional occupational injury insurance. The readjustment path of occupational injury insurance is the most desirable among them. Occupational injury protection for employees in new forms of business is based on the concept of human rights protection, with the right to equality, social insurance and occupational safety and health as the direct basis. The top-level design of the system should be based on the appropriate “decoupling” of work-related injury insurance and labor relations, and rely on the technological empowerment of the digital age to explore the establishment of a work-related injury insurance system that is both mandatory and flexible. For the specific system building, in the dimension of mandate, the commercialization of benefits payment should be realized while expanding the statutory coverage of work-related injury insurance; while in the dimension of flexibility, it should be based on the characteristics of employees.Corresponding rules and regulations should be adjusted in terms of management model, work-related injury identification, and treatment calculation and payment.

 

Keywords: employers in new business forms · occupational injury · Work-Related Injury Insurance · rights protection

 

As information technologies such as the internet and big data are being widely and highly integrated with traditional industries, new forms of employment¹represented by the platform economy have emerged to become a new growth area of employment in China,² playing a key role in ensuring people’s well-being and promoting social and economic development. However, employees in new business forms such as ride-hailing drivers and food delivery riders have long been in the “depression” of labor rights protection, especially occupational safety protection. This cohort of workers is exposed to occupational injury risks like ordinary workers, but due to a lack of characteristics of subordination available for typical labor relations,³ it is difficult for them to take out work-related injury insurance which is premised on labor relations, and as a result they fall into the predicament of “work without insurance.” 

 

The issue of occupational injury insurance for employers in new business forms has attracted widespread attention. In 2019, the State Council proposed studying and improving social insurance policies for those in flexible employment, such as the employees of platform enterprises, and piloting occupational injury insurance.⁴ Thereafter, various local governments announced they were launching pilot programs of occupational injury insurance for employers in new business forms. Since 2021, various central government departments have issued documents, stipulating the work on occupational injury insurance for employers in new business forms, and guiding the work on occupational injury insurance for employees of platform enterprises in key industries.⁵

However, the open-ended term “occupational injury insurance” still sparks a debate over the insurance model. Does it refer to the traditional work-related injury insurance model or a new occupational injury insurance model? The policy gap has led to different practices under various pilot programs, and the degree of protection for employees also varies greatly. In theory, discussions on occupational injury insurance for employers in new business forms mainly center on the relationship between labor relations and work-related injury insurance, while the basis for the legitimacy of the various insurance models is rarely explored at the level of rights. The authors intend to first examine the situation of occupational injury risk facing employers in new business forms in China, and then deal with the choice of insurance models in conjunction with the experience of the pilots and scholars’ views, reveal the basis for the legitimacy of occupational injury insurance for employers in new business forms, and ultimately propose the idea of building a special work-related insurance system for employers in new business forms. 

 

 

 

The occupational injury risks faced by employers in new business forms mainly fall into the following three categories. First, the characteristics of new forms of employment mean there are inherent risks. For example, most of the key industries adopting in new employment forms are high-risk occupations, such as construction and transportation. Employers in new business forms have to receive information prompts at all times sent by platforms while working, which distracts employees and increases the likelihood of accidents. Second, there is low awareness of the potential risks among employers in new business forms as well as “interpersonal silos” structure. For the former, as employers in new business forms are generally young, they have little security awareness and cannot accurately assess risks, and therefore they are more likely to mistakenly believe that their work carries little risks. For the latter, most of such employees work alone and do not have social ties with other workers whose experience might help them avoid harm in the workplace.⁶ Third, risks resulting from the abuse of technological control means by enterprises in new employment forms or their failure to perform security obligations. For the former, enterprises in new employment forms leverage algorithms to set tight deadlines for employees, and introduce competition mechanisms and an evaluation system to encourage “fast-paced” work in a disguised form, increasing the likelihood of work-related injury accidents.⁷ For the latter, the activities of employees in new forms of employment are regarded as independent labor, and the employers’ obligations are externalized. As a result, occupational injury risk is transferred to employees. However, in traditional labor relations, employers must conduct a risk assessment and adopt appropriate measures (such as safety skills training) to ensure a safe workplace.

 

 

In new forms of employment, industries based on internet platforms such as mobility, takeaway delivery, and real-time on-demand delivery are key areas for occupational injury. Ride-hailing drivers, takeaway riders and others are at risk of traffic accident injuries because they spend a long period of time driving. A survey based on 1,692 valid questionnaires showed that 43.32 percent of deliverymen sometimes face road traffic risks, 10.87 percent have always been exposed to road traffic risks, and 9.16 percent often encounter road traffic risks.⁸ In recent years, more alarming has been the number of road traffic accidents and casualties for takeaway riders and ride-hailing drivers (as shown in Table 1). 

 

According to the Survey Report of 2019 on Labor Rights Protection for Employers in New Business Forms (hereinafter referred to as the “Report”) released by Beijing Yilian Social Work Office, about 33 percent of employers in new business forms experienced work-related injury. Among them, 78 percent were injured in traffic accidents, 20 percent suffered accidental personal injuries from the third person, 17 percent experienced heatstroke, and 14 percent sustained other accidental injuries.⁹ Moreover, employers in new business forms also meet illness-induced sudden death in the course of work from time to time.¹⁰ It can be seen that, on the one hand, traffic accidents are the most significant occupational injury risk type for employers in new business forms, and on the other hand, the aforesaid risks fall into the existing types of work-related injury. Traffic accidents, third-person infringement or other accidental injuries belong to typical work-related injuries, illness-induced sudden death is regarded as a type of work-related injury, and heatstroke also falls into the type of statutory occupational disease.¹¹

 

 

Employees in new business forms can lodge civil lawsuits for compensation against employers when they sustain occupational injuries. However, because civil compensation is subject to the principle of liability for fault as well as the employer’s capacity for liability, there is insufficient protection. As a key tool for spreading the risk of occupational injuries, work-related injury insurance also faces institutional hurdles in providing occupational injury insurance for employers in new business forms. Employers in new business forms independently register on platforms, provide their own tools, choose whether and when to undertake orders, and work quite independently. According to the standards on personality subordination, it is difficult to ascertain the employment relationship between employers in new business forms and platforms. Under the current law in which labor relations are bound to social insurance, employers in new business forms are not covered by the work-related injury insurance system. As a result, they cannot seek compensation in the event of work-related injuries. 

 

When work-related injury insurance is out of the question, commercial insurance becomes the main mechanism for sharing occupational injury risks for employers in new business forms. Crowdsourced deliverymen, for example, are only covered by accidental injury insurance that is paid based on single order. Compared with work-related injury insurance, commercial insurance is characterized by high premiums, low compensation and little coverage. Coupled with miscellaneous claims procedures, high risks of rights protection¹² as well as exacting escape clauses, only tiny compensation is provided in most cases. According to the aforementioned report, only 11 percent of employees received compensation from employing units, 7 percent were covered by work-related injury insurance, 5 percent were covered by commercial insurance, while the remaining 77 percent were not insured. The existing risk-sharing mechanism plays a limited role in dealing with occupational injuries for employees in new business forms. 

 

 

 

Since the emergence of the work-related injury insurance system at the end of the 19th century, work-related injury has been remedied through work-related injury insurance, and its no-fault, statutory compensation model can provide timely and sufficient occupational injury insurance for workers. China is no exception. However, in accordance with the existing institutional arrangements for work-related injury insurance in China, employees in new business forms face a slew of hurdles to obtaining protection through work-related injury insurance. 

 

These hurdles primarily exist in the following aspects. First, work-related injury insurance is bound to labor relations under the current laws. Employers in new business forms cannot be covered by the work-related injury insurance system because of the lack of typical labor relations, and the compensation relating to the maintenance of labor relations cannot be realized. Second, employing units are obliged to pay insurance premiums, apply for identification of work-related injury, pay work-related injury insurance benefits, and so on, under the work-related injury insurance system. However, because employees in new business forms have no clear employing units, the above obligations cannot be fulfilled. Third, because the workplace and working hours of employees in new business forms are not fixed, it is difficult to identify work-related injury according to the “principles of working hours, workplace and job-related reason,” or it is difficult to investigate and collect evidence. At the same time, because employers in new business forms are highly mobile and may serve multiple platforms simultaneously, it is difficult to determine the premium rate for work-related injury based on industry risks and to require the payment of work-related injury compensation that is paid regularly by a single employer for regular employees. Fourth, for traditional work-related injury insurance, the stable gross payroll of the employer is used as the insurance payment base, and part of the compensation is based on the employee’s salary. In comparison, the income of employees in new business forms is unstable and is also greatly affected by the workload, so it is difficult to apply the current regulations on work-related injury insurance.¹³

 

Despite the fact that the aforesaid plight is directly caused by the mismatch and incompatibility between the new forms of employment and the existing work-related injury insurance system, the most significant reason is the insufficient socialization of China’s work-related injury insurance benefits payment. In other words, employing units that take out work-related injury insurance are still required to pay part of the work-related injury insurance benefits. Therefore, it is important to determine which employing unit pays this part of the benefits to employees, and the criterion for its determination is the existence of an employment relationship. Due to the incomplete risk transfer, it is difficult for employing units to estimate the costs of work-related injury. As a rational agent, employing units of course are not inclined to take out insurance, and the most “legal” way is to avoid labor relations. This avoidance is even more concealed by the fact that employees in new business forms are in a gray area between self-employment and employment. 

 

 

 

There are three main ways to cover employers in new business forms under work-related injury insurance. (1) Build a “citizen” work-related injury insurance system. This approach advocates the inclusion of “employees” with labor relations and “non-employees” engaged in work into work-related injury insurance.¹⁴ (2) Incorporate them into traditional work-related injury insurance but make adjustments. For example, Weifang City¹⁵ and Nantong City¹⁶ include people in flexible employment in work-related injury insurance, but accommodations have been made in terms of payment subjects, identification of work-related injuries, and so on. (3) Implement the “single work-related injury insurance” scheme. For the so-called single work-related injury insurance, workers only take out work-related injury insurance in the form of separate insurance instead of the “five insurances” under the ordinary social insurance participation model. The scheme operates in two modes, namely “single-track approach” and “dual-track approach.” For the former, Guangdong province is a representative case, which stipulates that platform enterprises may take out work-related injury insurance separately for employers in new business forms without establishing labor relations.¹⁷ For the latter, Zhejiang province is a representative case, which adopts the scheme of “single work-related injury insurance + supplementary commercial insurance.” It stipulates that enterprises in new employment forms bear the responsibility for work-related injury insurance, and enterprises can transfer responsibilities by taking out commercial insurance, thus having the tripartite sharing mechanism integrating work-related injury insurance, commercial insurance and enterprises in new employment forms¹⁸. It is being piloted in cities such as Hangzhou,¹⁹ Ningbo,²⁰ Huzhou,²¹ Quzhou,²² and Jinhua.²³

 

 

Occupational injury insurance can be provided for employers in new business forms through social insurance other than the work-related injury insurance system. There are two options. One is the “medical insurance + accidental insurance” program²⁴. This program argues that medical insurance is equal to work-related injury insurance in terms of medical treatment services and benefits, and that medical insurance is more applicable to the principle of no-fault compensation than work-related injury insurance that requires reasons for payment. However, because medical insurance treatment has the disadvantages of a “starting point and cap for payment” and lacks long-term benefits for work-related injuries, enterprises in new employment forms can take out personal accident insurance for employees through a combination of mandatory and incentives to fill the gap as much as possible. The second is an “independent social insurance program.” Based on the stance that labor relations and work-related injury insurance should not be separated, this program advocates the creation of a new occupational injury insurance system for people in new types of flexible employment who are not covered by traditional work-related injury insurance. This system is positioned as social insurance that operates in parallel with the work-related injury insurance system and in accordance with the social insurance mechanism, including compulsory insurance, management by human resources and social security departments, and government subsidies.²⁵ However, the aforesaid programs are still under academic discussion without being implemented. 

 

 

There are two main ways for creating a new occupational injury insurance system outside the social insurance system. The first is the government-led commercial insurance model adopted by the Wujiang District government in Suzhou City.²⁶ This model involves state intervention on the basis of market-oriented commercial insurance, and its profitability is controlled while enjoying certain fiscal subsidies. The second is the welfare-type occupational injury insurance model adopted in Taicang City, Jiangsu province.²⁷ This model incorporates the occupational injury insurance fund into the scope of social insurance subsidies, and the insured and enterprises in new employment forms are not required to pay fees. When the fund is insufficient to pay compensation, the local fiscal revenue will bear the ultimate responsibility. This model has welfare attributes, divorced from the scope of insurance. 

 

 

 

“Citizen” work-related injury insurance can protect all workers in flexible employment, but it is not feasible at present owing to the difficult institutional integration. While the “medical insurance + accident insurance” scheme helps solve the problem of occupational injury insurance benefits for employees in new business forms, it is against the function of medical insurance to bear the benefits of work-related injury and death, because it blurs the boundary between the two types of insurance.²⁸ The independent social insurance scheme is not legitimate because the coverage of the newly established insurance is still within the “occupational injury risk” covered by work-related injury insurance. The welfare-type occupational injury insurance model has the nature of typical administrative benefit, and is only applicable to areas with sufficient financial revenue. Therefore, the above schemes are not suitable. The remaining options are collaborated by corresponding pilot program practices, and which model is preferable should be compared based on their important rules (as shown in Table 2). 

 

a: For example, employers in new business forms in Hangzhou are defined as those who have registered with platform enterprises registered for industry and commerce in Hangzhou, and who fulfill orders through internet platforms by providing takeaway delivery, online car-hailing, real-time delivery (express delivery) labor services in the name of platform enterprise in the administrative region of the city, and who have no labor relations with platform enterprises. 

 

b: For example, Huzhou and Quzhou stipulate that employees should be at least 16 years of age, and should not be more than 65 years of age for males and 60 years of age for females. Quzhou also has the requirements for employment in the city.

 

c: It refers to the average wage calculated by the weighting of the average wage of employees in urban non-private units and the average wage of employees in urban private units in the previous year. 

 

While providing certain protection for employees in new business forms, the above models also have limitations. First, in Weifang and Nantong, as the representative cities for using the modified version of traditional work-related injury insurance system, it is stipulated that employees are bound to the employees’ old-age insurance or medical insurance. This violates the provisions of the Social Insurance Law of the People’s Republic of China (hereinafter Social Insurance Law for short) on people in flexible employment taking out such insurance. Moreover, the benefits originally paid by the employing unit are borne by the employee or the long-term benefit is changed to one-time benefit. It obviously does not offer insufficient protection and should not be used. Second, Guangdong and Zhejiang are the representatives of the single work-related injury insurance model. In general, the use of average wage of the previous year (employees or all employees) as the payment base solves the problem of uncertain gross wages, and it is basically consistent with the Regulation on Work-related Injury Insurances in terms of the identification of occupational injury and compensation, offering a high level of protection. However, its voluntary participation approach does not solve the problems of adverse selection and moral hazards. In Guangdong, the benefits paid by the employing units are resolved through labor-management negotiations, and the effect may not be objective. In Zhejiang, pilot programs in several cities violate provincial regulations by setting restrictions on age and employment area. This is detrimental to the protection of the rights and interests of workers who are over the age limit, and is not easily compatible with the flexible characteristics of new employment forms. Third, Wujiang in Jiangsu, as a representative of the occupational injury insurance model, uses the fixed payment model to help employees take out insurance, but it has three drawbacks. First, it has the flaws of voluntary participation in insurance and insurance restrictions. Second, in terms of identification of occupational injuries, it directly copies the practice of accident injury insurance which limits the scope of identification. Third, in terms of benefits, it is not reasonable for the medical insurance fund to bear medical expenses incurred by work-related injuries (as mentioned above). Moreover, the cancellation of the portion paid by the employing unit will significantly reduce the benefits. According to data, in Wujiang District, with the level of occupational injury being equal, employers in new business forms receive only about 40 percent of the benefits received by regular workers under work-related injury insurance.²⁹

 

 

The question of occupational injury insurance for employees in new business forms has sparked a debate over the above models because of China’s legislative reality that work-related injury insurance is bound to labor relations. In view of this, it is appropriate to re-examine the relationship between labor relations and work-related injury insurance and even social insurance as a whole from a theoretical standpoint. Social insurance is intended to provide financial security and material assistance for workers and their families, and it is positioned as workers’ insurance. However, binding social insurance to labor relations for historical reasons alone confuses the questions of logic and experience.³⁰ In terms of legal principle, the social insurance law, which belongs to the public law, dovetails with the labor law that primarily regulates the private law relationship, and its “transfer coupling” has economic subordination. However, economic subordination is not unique to labor relations, and may exist in any stable labor supply and demand relationship.³¹ In terms of functions, social insurance is intended to share risks through socialization. In case of work-related injury insurance, for example, as socialized small-scale production model emerges, production risks gradually shift from single labor risks to the coexistence of labor risks and work risks. The work-related injury insurance system, which regards production risk as the “barometer,” should also be adjusted to cover not only injury in labor relations, but to a greater extent work-related injury. 

 

Empirically, as the Social Insurance Law progresses, some social insurance items are not merely applicable to workers, making it the universal insurance.³² In terms of work-related injury insurance, Japan’s work-related injury insurance law introduces the “special coverage” system, which includes those who are not pure salaried workers but who can be compensated with reference to the work-related injury insurance law from the perspective of their work characteristics, the occurrence of accidents, etc., into the work-related injury protection.³³ A new French law stipulates that digital platforms should pay insurance premiums for self-employed workers when they apply for work-related injury insurance, unless otherwise provided in collective contracts.³⁴ The “principal responsibility for employment” practice pioneered in China is also a liability form that is not premised on labor relations, and its extension expressly includes work-related injury insurance liability in its interpretation.³⁵ In conclusion, work-related injury insurance, as a kind of social insurance, should end its absolute correspondence with labor relations at the legal, functional and empirical levels and achieve a moderate “decoupling.” 

 

 

Providing occupational injury insurance for employees in new business forms is essentially a process of allocating and coordinating benefits. Interests can be realized through state power only when they are statutorily recognized as legal rights. Therefore, when discussing the establishment of occupational injury insurance system for employees in new business forms, the rights-based approach is an essential perspective and is also a realistic path to maintaining a dynamic balance between the protection of workers and the development of the platform companies.³⁶ In the long term, the establishment of China’s occupational injury insurance system for employers in new business forms should not be limited to “small refinements” at the level of rules. It should regard the protection of human rights as the fundamental orientation, and expand to protect all workers in terms of some basic rights, irrespective of their employment status.³⁷ On this basis, it is possible to argue in terms of specific human right such as right to equality, right to occupational safety and health, and right to social insurance, providing a direct source of rights and foundation for the top-level design of the occupational injury insurance system for employees in new business forms. 

 

 

One of the most crucial developments in labor law since World War II is the recognition of the fundamental right to equality for workers who are at a disadvantage due to social identities such as race, religion, gender, disability and age.³⁸ Article 1 of the Universal Declaration of Human Rights states that “all human beings are born free and equal in dignity and rights.” This shows that equality is regarded as a fundamental human right³⁹ and affirms that the foundation of the right to equality is the inherent and inalienable dignity of every human being. Therefore, defending the right to equality necessitates equal concern and respect for the dignity of all human beings. Specifically, the protection and realization of the right to equality can be achieved in two ways. 

 

First, protecting the right to equality necessitates equal protection of rights as well as the elimination of status discrimination and disadvantaged treatment. Paragraph 1 of Article 7 of the Universal Declaration of Human Rights stipulates that “all are equal before the law and are entitled without any discrimination to equal protection of the law.” This article also requires equal protection and anti-discrimination, that is, prohibiting any discrimination based on status.⁴⁰ When discussing the “four-dimensional model of equality,” Sandra Fredman, a professor at the University of Oxford, proposes the dimension of identification, which aims to promote equal respect for the dignity and worth of all human beings.⁴¹ All human beings shall be treated equally on the basis of human nature rather than reason, and shall not be insulted or belittled because of their status. Moreover, equality falls into the category of the relation concept, and must be situated in relations for study.⁴² Theoretically, employees in new business forms have a type of status based on their employment pattern, and should have non-discriminatory treatment on the basis of the right to equality. In reality, however, this group generally suffers from “social exclusion,” and their work is called “odd job” rather than informal “labor.” The protection system that applies to ordinary workers is tacitly not applicable to this group.⁴³ Employees in new business forms are exposed to a risk of more complex occupational injury than average workers, but cannot receive effective occupational injury insurance. This means that employees in new business forms are not treated the same as ordinary workers, and are regarded as second-class citizens. This, therefore, infringes on their right to equality based on dignity. 

 

Second, the realization of the right to equality requires a country to take positive measures to protect the dignity of all human beings. Article 1 of the Basic Law for the Federal Republic of Germany stipulates that “all government bodies have an obligation to respect and protect human dignity,” obliging the country to protect the dignity of citizens and giving it the power of intervention to this end. State intervention must take into account the balance between the rights to equality and freedom and economic benefits. From the standpoint of the right to freedom, employees and enterprises in new employment forms exclude occupational injury protection through autonomy of will, and the country has no right to interfere as long as this does not interfere with the rights of third parties. From the standpoint of economic interests, enterprises in new employment forms occupy the “cost depression” by excluding protection against occupational injury for employees in order to obtain extra profits, and social wealth also grows rapidly. However, the pursuit of the right to freedom and economic interests is not superior to the right to equality at all times. The measure of evaluation is human dignity. Employers in new business forms who have sustained occupational injury may face temporary or even permanent loss of ability to work, but they still have the right to enjoy a decent life because of their dignity as human beings. In view of this, the country has the right to nullify the validity of a contract that excludes the occupational injury liability of enterprises in new employment forms, and even has the right to waive some economic interests in order to force such enterprises to fund the establishment of an occupational injury insurance mechanism, which provides employees in new business forms who sustain occupational injury with benefits at a level no less than that covered by traditional work-related injury insurance. 

 

 

Occupational health and safety have been regarded as a basic human right since the beginning of the modern human rights era.⁴⁴ The Universal Declaration of Human Rights states that everyone has the right to just and favorable conditions of work. The International Covenant on Economic, Social and Cultural Rights defines “safe and healthy conditions of work” as fundamental human rights. Article 3 of the Labor Law of the People’s Republic of China also states that workers have the right to occupational safety and health protection. Theoretically, the right to occupational safety and health refers to the right of workers to life safety and physical health, to be protected from occupational injuries or to receive relief after sustaining occupational injuries in the course of work.⁴⁵ The relationship between occupational safety and health and occupational injury insurance is they are “two sides of the same coin.” The former focuses on the prevention of occupational injury risks, while the latter focuses on relief and protection after risks become real injuries in the real labor field. Some scholars think that the right to occupational safety and health includes the right to safe and healthy conditions of work, the right to know safety and health guidelines, the right to work-related injury insurance, the right to civil compensation, and so on.⁴⁶ From the standpoint of social justice, a fair relationship can be established between labor and management only by fulfilling workers’ right to occupational safety and health.⁴⁷

 

For employees in new business forms, it is justified for them to confirm their right to occupational safety and health.

 

First, the right to occupational safety and health is an expanded right of citizens to life and health in the employment field. The right to life and health is part of the right of personality, and is the “natural right” obtained by natural persons on the basis of personal dignity. In view of this, employees in new business forms have equal status with respect to ordinary workers and should be protected against occupational injuries. At the same time, life and health are fundamental for the productive output of labor. For both ordinary workers and employees in new business forms, the purpose of their work is to exchange the output of their labor for payment. The output is inseparable from their physical and mental well-being. If the workers’ life and health is damaged, the productive value of their labor will be unsustainable. Therefore, it is necessary to provide occupational safety and health protection for them. 

 

Second, the right to occupational safety and health epitomizes the right to safety in the field of work. Any activity in a risk society must strike a balance between flexibility and safety. While offering time and space flexibility for employees, the “on-demand labor” in new forms of employment also brings safety hazards to varying degrees by the absence of the traditional workplace. In view of this, legislation should provide occupational injury insurance to meet the safety needs of employees and help them avoid apprehension and poverty caused by occupational injuries, thereby reconciling the value of security and freedom. 

 

Third, the right to occupational safety and health is a standard right of labor. Labor standards, as the minimum standards for labor rights, are intended to provide minimum protection for workers. Of this, occupational safety and health belongs to the labor standards that are centered on life and health, and has priority in the protection status. For employers, the use of labor means an obligation to control risks in the workplace, irrespective of whether the work is non-standard employment or not. In view of this, China’s Work Safety Law and Law on Prevention and Control of Occupational Diseases, which are aimed at occupational safety and health, cover employees outside traditional labor relations.⁴⁸

 

 

The Universal Declaration of Human Rights stipulates that everyone has the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his/her control. As a core right among social security rights, the right to social insurance is also a fundamental human right. Article 9 of the International Covenant on Economic, Social and Cultural Rights provides that it recognizes the right of everyone to social security, including social insurance. Article 45 of China’s Constitution stipulates that citizens have the right to material assistance from the state and society, as well as the obligation of the state to develop social insurance system, which constitutes the constitutional basis for the right to social insurance. Comprehending the characteristics of the right to social insurance is vitally important for providing appropriate occupational injury insurance for employers employees in new business forms. 

 

First, the right to social insurance is a fundamental human right. The universality of human rights means that everyone should be entitled to social insurance. In other words, social insurance should cover all citizens. However, China’s current laws only stipulate the right to social insurance for workers, mainly typical workers. The right to social insurance for atypical workers, especially employers in new business forms, is lacking or flawed.⁴⁹ In some areas where a pilot program is being implemented, the right of employers in new business forms to work-related injury insurance is linked to household registration and place of employment. This undoubtedly goes against the human rights attributes of the right to social insurance. In the future, it should be recognized that this group and typical workers have the same right to social insurance based on human rights attributes. 

 

Second, the right to social insurance is a social right. Actually, social rights result from the formation of the social insurance system. To begin with, the right to social insurance, as a social right, has the attribute of a positive right to freedom, and it requires the state to ensure its realization through the intervention of public power. To be specific, the state operates a socialized insurance policy and provides fiscal support to ensure that all citizens have access to financial compensation and material assistance when they suffer a work-related injury. Second, social rights are an identity right, and the identity of vulnerability is the most fundamental precondition for obtaining social rights.⁵⁰ The substance of social rights is “the right of the weak in society to receive aid from the advantaged social groups under the organization of the government.”⁵¹Employee s in new business forms belong to the socially disadvantaged group. As a social right, the right to social insurance requires the state to include advantaged enterprises in new employment forms into the social insurance system, and order them to pay social insurance premiums for a social insurance fund. This ensures that socially disadvantaged employees who sustain occupational injuries can receive financial compensation and material assistance from the fund to overcome their survival predicament and recuperate. This can narrow the competition gap between the disadvantaged group and the advantaged group, so that the former can also enjoy the fruits of economic achievements. 

 

Third, the realization of the right to social insurance is independent. In China, people take out social insurance usually in the form of five types of insurance package, but this is not the “should-be” form of the realization of rights. On the one hand, different types of social insurance play different roles in realizing the basic rights of workers, and there is a legal basis for taking out separate insurance.⁵² On the other hand, social insurance is subject to material constraints. If the level of insurance is too high, the government, particularly employing units, will find the burden financially unbearable.⁵³ Specifically, for employees in new forms of employment, the rights to life and health protected by occupational injury insurance and non-work-related injury and illness insurance are fundamental rights, but such people usually have taken out resident medical insurance in their place of origin. In terms of non-work-related injury and illness insurance, they enjoy a certain degree of protection, but occupational injury protection appears to be more urgent and essential. In comparison, old-age and unemployment insurance largely protects economic rights, and is inferior to the protection of the right to life and health in terms of urgency and necessity. This comparison shows that the right of employees in new business forms to social insurance is particularly important. If enterprises in new employment forms are required to bear all social insurance premiums, the costs will rise significantly, which will have an impact on the healthy and long-term development of China’s new economic model.⁵⁴ Therefore, prioritizing the occupational injury insurance rights and interests for employees in new forms of employment complies with the jurisprudence of the right to social insurance.

 

To sum up, human rights are the legitimate source of occupational injury insurance for employees in new business forms. Employees in new business forms are essentially those who make a living from labor, should enjoy human rights without distinction, and survive by gaining access to occupational injury insurance. The right to equality, right to occupational safety and health, and right to social insurance are the direct foundation for the right of employees in new business forms to occupational injury insurance. These rights imply that employees who do not have labor relations can have access to occupational injury insurance like ordinary workers. These also show that, in order to protect the dignity of this cohort of people and ensure their right to a decent life, the state is given the obligation to intervene when necessary. Specifically, the state should guarantee employees in new business forms have access to a safe and healthy workplace in order to prevent occupational injury. When employees in new business forms sustain a work accident, the state shall provide financial compensation and material assistance for them through the social insurance mechanism. 

 

 

 

For the model of occupational injury insurance for employees in new business forms, the authors believe that work-related injury insurance should be adopted instead of the separate occupational injury insurance model because of the following reasons. First, the occupational risks met by employers in new business forms do not exceed the scope of risks covered by work-related injury insurance. The dilemma of insurance participation caused by a lack of labor relations has been solved by the validated theory of “decoupling” of labor relations and work-related injury insurance. The independence of the right to social insurance has also theoretically cleared the way for employees to take out only work-related injury insurance while avoiding the extra costs of integrated insurance. Second, work-related injury insurance takes precedence over occupational injury insurance in terms of insurance coverage, identification scope, and compensation standards. Moreover, mandatory work-related injury insurance can solve the problems of adverse selection and moral hazards that are difficult to solve by voluntary occupational injury insurance. Third, if occupational injury insurance and work-related injury insurance exist side by side, it will objectively fragment the system. At the same time, platform enterprises may make employees with whom they should have labor relations as employers in new business forms in order to avoid compulsory insurance obligations. As a result, it will cancel the institutional system of work-related injury insurance. Thus, even scholars who advocate simultaneous existence believe that the two systems should ultimately be unified.⁵⁵

 

In order to avoid the conflicting regulatory dilemma after employees in new business forms are included in work-related injury insurance, the work-related injury insurance system should be more inclusive. It is necessary to establish a work-related injury insurance system that is both legally mandatory and flexible.⁵⁶ The former refers not only to the formal inclusion of enterprises in new employment forms in the compulsory coverage of work-related injury insurance, but also to ensuring substantive mandatory implementation by realizing the socialized payment of work-related injury benefits. For the latter, it means that work-related injury insurance must undergo corresponding institutional adjustments according to the flexible nature of new forms of employment, and necessary special laws called special work-related injury insurance should be designed. In this process, it is necessary to give full play to the advantages of information technology such as big data and artificial intelligence to aid the implementation of special laws. 

 

 

The inclusion of employers in new business forms in work-related injury insurance will afford an opportunity for China to make the work-related injury insurance system more socialized. As mentioned above, the most significant reason for the dilemma of employers in new business forms in terms of work-related injury insurance is the insufficient socialized payment of work-related injury insurance benefits in China. Addressing this weakness calls for institutional change and the socialized payment of work-related injury insurance benefits through strengthening collective liability. Under the so-called collective liability, on the premise of paying work-related injury insurance premiums to the statutory body in accordance with the law, employers are no longer required to bear direct liability for damage for work-related injury, while the work-related injury insurance fund bears liability for employees who sustain work-related injury on behalf of all employers.⁵⁷

 

In terms of work-related injury insurance system for employers in new business forms, collective liability has two implications. First, by strengthening the collective liability for work-related injury insurance, it means that enterprises in new employment forms covered by the work-related injury insurance system will legally transfer all work-related injury risks, and will be no longer legally liable for damages to employees. Second, the collective liability for work-related injury insurance implies the “general assumption” of work-related injury by the work-related injury insurance fund. As long as enterprises in new employment forms and employees form labor relations with economic subordination within a certain period of time, the work-related injury insurance relationship is formed. Workers who sustain injuries in an accident or suffer an occupational disease can be compensated by the work-related injury insurance fund, and employers are not required to pay work-related injury insurance benefits. There are three advantages to collective liability. First, all work-related injury benefits are paid by the work-related injury insurance fund, which can solve the dilemma of the lack of parties paying the insurance benefits for eligible employees in new forms of employment. Second, as the “most reliable debtor,” the work-related injury insurance fund can guarantee that the payment of compensation will not be affected by the mobility of employees or their simultaneous service for multiple platforms. Third, since enterprises in new form of employment are not required to pay work-related injury insurance benefits, there will be no labor dispute arising from the payment of benefits between employees and enterprises. This streamlines cumbersome procedures of relief for work-related injury and helps to address the dilemma of inefficient work-related injury relief. 

 

 

 

Based on the principle of equal protection of rights, work-related injury insurance should cover all laborers workers in new forms of employment, and should not exclude them from the uniform work-related injury insurance system because of the nature of their work.⁵⁸ Specifically, employees who have labor relations with enterprises in new employment forms are covered by employee work-related injury insurance, while employees who do not have labor relations with enterprises are covered by their inclusion into special work-related injury insurance. On the one hand, the coverage of the special work-related injury insurance should be expanded as far as possible, covering not only those who work for platforms for a living, but also those who hold regular jobs but only occasionally work for platforms. Some Chinese scholars advocate including employees only with economic subordination in the scope of work-related injury insurance by referring to the term of “employee-like persons” in German law, and for this reason, they have discussed whether the determination of economic subordination should be based on the standard of income proportion or the standard of time proportion.⁵⁹ However, the authors hold that the determination of these standards is controversial, and it may cause uncertain coverage, because the wages and working hours of employers in new business forms fluctuate on a monthly basis according to the number of orders fulfilled. They inevitably take out “insurance intermittently,” increasing the operating costs of the system. From this viewpoint, instead of determining the coverage of employees through economic subordination, it would be better to find a “deep pocket” that assumes responsibility. For example, we can draw on the experience of China’s construction industry in taking out insurance on a project-by-project basis, which separately determines the payment base regardless of the total wages. This can realize the steady payment of premiums, and also ensure that any employee who works through the application program can obtain work-related injury protection, thereby achieving full coverage of workers. On the other hand, unnecessary restrictions on the coverage of employers in new business forms should be avoided, such as excluding them on the basis of household registration, age (but not lower than the legal minimum age for working), and place of employment. Moreover, given the legal principle of independence for the right to social insurance, participation in basic oldage and medical insurance should not be required as a prerequisite for the inclusion of platform employees in work-related injury insurance. 

 

 

In terms of the operation mode, some scholars have argued that given the consideration of fairness, efficiency and quality, as well as the matching with new employment forms, it is a reasonable and pragmatic choice to involve commercial insurance institutions in handling the service.⁶⁰ However, the authors believe that work-related injury insurance for employees in new business forms should be handled by public social insurance agencies established by the government. This is based on two considerations. First, it is legitimate and reasonable for a public social insurance agency to handle the service. The work-related injury insurance for employees in new business forms has the nature of a public good or quasi-public good which indicates that it should be provided by the government which plays the role of the ultimate player.⁶¹Compared with commercial insurance institutions, public institution agencies are socially oriented and non-profit, which can solve the problem of adverse selection and ensure the payment of benefits. 

 

Second, upon analysis of the suggestions made by some scholars, it was found that only non-essential links such as payment claims, information exchange and service publicity are handled by commercial institutions, while important functions such as handling insurance applications, collecting premiums and resolving disputes are still processed by public social insurance institutions. To put it another way, the introduction of commercial insurance institutions does not change the main player under the public social insurance institution operation mode. Furthermore, the establishment of work-related injury insurance system for employees in new business forms affords an opportunity to improve the service competence of public social insurance agencies. In view of this, the general idea is to leverage the internet and information technology to speed up the management and service of “internet + social insurance handling.” Specific suggestions are as follows: First, build a unified national social insurance service platform. Insurance handling resources will be integrated, and regional coordination will be achieved for services such as social insurance transfer and continuation, ensuring that employees enjoy equal social insurance services despite their mobility. Second, create a social insurance big data sharing platform for government and enterprises. The handling agencies can keep abreast of changes in the employees registered with platform enterprises as well as the occurrence of work-related injury accidents, and approve the payment base, premium rate and payment amount for enterprises. Enterprises and employees in new employment forms can also check the insurance, pay premiums and apply for identification of work-related injury through the platform. Finally, in professional and auxiliary areas such as investigation of work-related injury and publicity on work-related injury prevention, the government purchases the social services of commercial insurance institutions, so as to encourage social forces to participate in the provision of public services and improve the comprehensive effectiveness of the work-related injury insurance system. 

 

 

In terms of insurance participation rules, enterprises in new employment forms should register with the local social insurance handling agency and take out work-related injury insurance first. In order to guarantee that employees are entitled to the right to social insurance equally, the legislation should prohibit the setting of conditions for employees such as place of employment, age (but not lower than the legal minimum age for employment) and the forced participation in other social insurance programs. If an employee establishes labor relations with an enterprise in new employment forms or its franchisees, it shall be deemed as automatic surrender. 

 

In terms of payment rules, the legislation should stipulate that enterprises in new employment forms should be obliged to pay insurance premiums. If an employee works for more than one enterprise or platform, these enterprises or platforms should pay work-related injury insurance premiums for them separately. Most of current studies suggest that employees should make individual payment or make joint payment of insurance premiums with enterprises in new employment forms because those enterprises have no or only limited control over employees. However, the authors are of the opinion that it is difficult to quantify the extent of control, and the question of how to share premiums is bound to add new difficulties. It is therefore reasonable for enterprises in new employment forms to bear premiums. Because: (1)Employers Employees in new business forms essentially work for the economic benefits of enterprises, and the payment of premiums by enterprises complies with the “beneficiary pays” rule. (2) The legal field involving work-related injury in new forms of employment should be biased towards the assumption of responsibility by the platform enterprises companies.⁶² Because rational employees often will not seek intentional injury at work, and their risk-taking behavior mostly stems from the inappropriate management and assessment system of enterprises, enterprises’ assumption of principal responsibility for employment, including the payment of premiums, can prompt enterprises to ensure the safety of employees. (3) Payment of premiums by enterprises in new employment forms is also the embodiment of urging them to fulfill their corporate social responsibility on their own.⁶³ In terms of the payment base, by drawing on the experience of the construction industry in taking out insurance on a project-by-project basis and in conjunction with the operating model of enterprises in new employment forms, legislation should stipulate that the gross income of all orders fulfilled by enterprises in new employment forms in the previous month in the area corresponding to the coordination level of work-related injury insurance shall be used as the payment base for monthly payment. In terms of the premium rate, the benchmark premium rate should be determined on the basis of actuarial studies, with consideration to the risks inherent in the employees’ industry, the affordability of platforms, expected loss, and so on, allowing for fluctuations as appropriate. Fourth, in terms of payment methods, enterprises in new employment forms should apply and pay premiums on a monthly basis. To lessen the burden on enterprises, the government can give certain financial subsidies in the early stage. 

 

 

First, regarding application for work-related injury identification, the current law provides that the employing unit should apply firstly, which can ensures the authenticity of work-related injury and help the handling agency to learn about the work-related injury. Thanks to Internet internet technology, it is not difficult to achieve these two goals if it is individual employees make individual that applications apply. Furthermore, as employees work in different areas, it is difficult to address the geographical barrier if only platforms can apply for identification of work-related injury.⁶⁴ Therefore, it is preferable to stipulate that employees themselves or their close relatives can apply for identification of work-related injury. To apply for identification of work-related injury, it is only necessary to submit the materials proving their registration on the platform and their work, without the need to provide proof of labor relations with the platform. Of course, to avoid moral hazards, the principal responsibility of the handling agency should be fulfilled, and greater punishment should be given for a false application. Second, the scope of the identification of work-related injury is still subject to Articles 14 to 16 of the Regulation on Work-related Injury Insurances. The “three simultaneous principles,” as a “minor general clause”⁶⁵ for the identification of work-related injury, should continue to play an important role. The extensive use of apps also facilitates the identification of working hours, workplace and the grounds for work.⁶⁶ Working hours should be judged essentially based on the “the laborer’s time is governed by the employer.”⁶⁷ If an employee serves only one platform, the service availability time should be counted as working hours.⁶⁸ If an employee serves multiple platforms simultaneously, and none of these platforms has a dominant market share in the relevant market, the period of time used for fulfilling orders is counted as working hours. If one or more of the platforms have a dominant market position, the period of time when employees are available is counted as working hours in these platforms, and the period of time used for fulfilling orders is counted as working hours in the remaining platforms.⁶⁹ In principle, workplace can be determined according to the location or routes displayed or matched by the system, but in order to prevent the system’s rigid dictating of the order-completion time and routes, reasonable changes within a certain range should be allowed. Platform enterprises should be allowed to prove that this change is not reasonable by producing counterevidence. In addition, smart devices can also monitor in real time the physical health status of employees, thus helping to determine the type and occurrence time of sudden diseases. Regarding work-related injury on the way to and from workplace, employees can begin to work by fulfilling orders through the platform at any time, and there is no strict boundary between working hours and off-duty hours. As scholars said, if an employee who sustains a traffic accident after logging out of the platform software claims that the accident occurs on the way home from work and requires the identification of work-related injury,⁷⁰ identification work is difficult and also carries moral hazard due to a lack of monitoring. Therefore, for the sake of the execution of the system, the authors are of the opinion that such travel can be temporarily excluded from the scope of work-related injury. Finally, the introduction of cooperative investigation mechanism for the identification of a work-related injury may be considered for the confirming of a work-related injury. The government can purchase services and commission commercial insurance companies to investigate and verify the scene of work-related accidents, collect evidence, and so on, thereby ensuring accurate and timely identification of a work-related injury.⁷¹

 

 

In terms of benefits, because employees in new business forms lack the subordination of personality compared to other employees, they should not enjoy treatment highly related to the subordination of personality, such as retaining labor relations, appropriate work arrangement by the employer, and paying premiums of other types of social insurance. Other benefits, whether long-term or one-time, should be enjoyed. In terms of standards for benefits, based on the calculation base, the current work-related injury insurance benefits basically use the following three bases: individual wage of workers, the average monthly wage of employees in the previous year in the areas for coordination, and the per capita disposable income of urban residents nationwide in the previous year. Since the wages of employees are greatly influenced by the number of orders and are unstable, the minimum social insurance payment base, or 60 percent of the average wage of urban employees in the previous year in the area, can be used instead. For the calculation of the one-time work-related death allowance, the per capita disposable income of urban residents in the previous year should be used as the base so as to avoid the question of “the same life with different prices.” Regarding the payment of benefits, all work-related injury insurance benefits should be paid by the work-related injury insurance fund after socialized payment of work-related injury insurance benefits is realized, and enterprises in new employment forms are not required to a make payment. 

 

 

Employees in new business forms have contributed greatly to the development of China’s new economy, but they face the dilemma of “falling through the gap in the protection network” of traditional work-related injury insurance. From the perspective of rights, the authors demonstrate the justification basis of occupational injury insurance for employers in new business forms, and attempt to propose a program of special work-related insurance rules for this cohort of people. The basic viewpoint of this article is that new forms of employment do not bring disruptive changes to the work-related injury insurance system, but the dilemma it exposes offers an opportunity to examine the long-term inadequate socialization of China’s work-related injury insurance system. The new special work-related injury insurance will include employees in new business forms in the coverage of insurance, and also significantly swell the number of the insured under China’s work-related injury insurance in the short term, thus realizing China’s long-term goal of “expanding coverage” of work-related injury insurance. Thanks to the technological empowerment in the digital age, work-related injury insurance should realize institutional transformation to become both mandatory and flexible, and become a veritable safety net with no loopholes. 

 

(Translated by NI Weisi)

 

* LI Mankui ( 李满奎 ), Associate Professor and Doctoral Supervisor at the Economic Law School, as well as deputy director of China Market Economy and Rule of Law Research Center, Southwest University of Political Science and Law.

 

** LI Fucheng ( 李富成 ), Doctoral Candidate in sociological jurisprudence at the Economic Law School, Southwest University of Political Science and Law. This paper is the current stage outcome of China Law Society’s program “Research on legal issues in the prevention and control of occupational injury risks for employers in new business forms” [CLS (2021) D4)].

 

1. This paper argues that new forms of employment refer to a new type of atypical form of employment that is deeply integrated with traditional industries based on modern information technology such as the internet and big data, and realizes the real-time matching of labor supply and demand through 、（Continued on Next Page）（Continued）digital platforms. It should be noted that the composition of employees in new business forms is complex, but they roughly fall into two categories: those with labor relations with platforms and those without (explicit) labor relations. Undoubtedly, the former should be included in the traditional employee social insurance, which is not discussed in this article. However, the latter is the focus of dispute in reality and is also the object of study in this article.

 

2. The number of participants in the sharing economy in 2020 was about 830 million. Of this, service providers are about 84 million, a year-on-year increase of about 7.7 percent. See “Report on the Development of China’s Sharing Economy (2021)”, State Information Center website.

 

3. For specific discussions, Wang Tianyu, “Interpretation Path for ‘Employee-like Persons’ Employed by Internet Platforms and its Normative System”, Global Law Review 3 (2020); Ban Xiaohui, “Labor Law Regulation for Task-based Employment in the ‘Gig Economy’”, Law Review 3 (2019); Wang Quanxing and Wang Qian, “Identification of Labor Relations of ‘Online-based Employees’ in China and Protection of Rights and Interests”, Law Science 4 (2018).

 

4. the Guiding Opinions on Promoting the Regulated and Healthy Development of the Platform Economy, (Guobanfa [2019] No. 38).

 

5. the “14th Five-Year Plan for the Development of Human Resources and Social Security Cause” Issued by the Ministry of Human Resources and Social Security of China, the Guiding Opinions on Protecting the Labor Insurance Rights and Interests of Workers in New Forms of Employment (Renshebufa [2021] No. 56), and the Guiding Opinions on the Fulfillment of Responsibilities by Online Catering Platforms and Effectively Safeguarding the Rights and Interests of Takeaway Deliverymen (Guoshijianwangjianfa [2021] No. 38).

 

6. John Howard, “Nonstandard Work Arrangements and Worker Health and Safety”, American Journal of Industrial Medicine 1, vol. 60 (2017): 1-10.

 

7. Sacha Garben, Protecting Workers in the Online Platform Economy: An Overview of Regulatory and Policy Developments in the EU (Luxembourg: Publication Office of the European Union, 2017), 25.

 

8. Qin Jiaofeng et al., “The Absence of Work-Related Injury Insurance: Invisible ‘Deep Valley’ Behind Them”, xinhuanet.

 

9. the website of Beijing Yilian Social Work Office, “Survey Report of 2019 on Labor Rights Protection for Employers in New Business Forms”.

 

10. “Sudden Death of a 39-year-old Deliveryman in Zhuzhou, Hubei Province: Dying Words ‘Worn out’”, Sohu.com.

 

11. Although the Report states that employees in new business forms suffer from new types of “occupational diseases” (such as gastric diseases, lumbar diseases, arthritis, respiratory diseases, mental diseases, and heart disease), it is difficult to include these diseases in the scope of occupational diseases (except respiratory diseases within the scope of the list) according to China’s current list of occupational diseases.

 

12. According to relevant surveys, workers may lose income-related points or there is a risk of being banned after filing insurance claims. See “Social Insurance for Platform Employees in China: Findings and Recommendations of Two Studies (2018-2019)”, Yang Yang and Hua Ying, ILO website.

 

13. These obstacles are listed by the authors according to the views of many scholars. For details, Su Weijie, “China’s Occupational Injury Insurance System for Employers in new business forms: Model Selection and Ideas of Establishment”, Human Resources Development of China 3 (2021): 76. Zhang Jun, “Difficulties for Employees in New Forms of Business Taking out Work-Related Injury Insurance and Countermeasures”, China Health Insurance 6 (2017): 58.

 

14. Chen Min, “Analysis of the Inclusion of ‘Non-Employee’ People in the Work-Related Injury Insurance System”, Political Science and Law 2 (2017): 161.

 

15. the Circular on Work-Related Injury Insurance for People in Flexible Employment (Weilaosheban [2009] No. 11).

 

16. the Measures of Nantong City on Work-related Injury Insurance for People in Flexible Employment (Provisional)(Tongrenshegui [2015] No. 10).

 

17. the Measures on Work-related Injury Insurance for Specific Persons Such as Employees Over the Statutory Retirement Age (Trial) (Yuerenshegui [2020] No. 55).

 

18. the Guiding Opinions of the Department of Human Resources and Social Security of Zhejiang Province on Optimizing Labor Employment Services in New Employment Forms (Zhejiangrenshefa [2019] No. 63).

 

19. the Circular on Issuing the Measures on Work-Related Injury Insurance for Specific Persons (Trial) (Hangrenshefa [2021] No. 89).

 

20. the Implementing Measures for Optimizing Labor Employment Services in New Employment Forms in Ningbo (Provisional) (Yongrenshefa [2021] No. 2)

 

21. the Measures on the Trial Implementation of Occupational Injury Insurance for Employees in New Business Forms such as Delivery Companies (Hurenshefa [2020] No. 18).

 

22. the Trial Measures on Occupational Injury Insurance for Employees in New Business Forms in Quzhou City(Qushirenshefa [2020] No. 52).

 

23. the Guiding Opinions on Launching the Pilot Program of Occupational Injury Insurance for Employees in New Business Forms (Jinrenshefa [2020] No. 65).

 

24. Lou Yu, “The Establishment of Legal System on Social Insurance for Platform Economy Employees”, Chinese Journal of Law 2 (2020): 202-204.

 

25. Wang Tianyu, “Thoughts on the Establishment of Occupational Injury Insurance System in New Employment Forms”, Workers’ Daily, March 1, 2021.

 

26. the Measures on Occupational Injury Insurance for Employees in New Business Forms in Wujiang District(Trial) (Wuzhengguizi [2018] No. 1) and the Implementation Rules on Occupational Injury Insurance for People in Flexible Employment in Wujiang District (Wurenshebao [2018] No. 8).

 

27. the Circular on the Measures on Occupational Injury Insurance for People in Flexible Employment in Taicang City (Provisional)(Taizhengfa [2014] No. 81).

 

28. Article 30 of the Social Insurance Law stipulates that medical expenses payable from the work injury insurance fund are not covered by the basic medical insurance fund. Paragraph 4, Article 30 of the Regulation on Work-related Injury Insurances also provides that workers with a work-related injury who are treated for diseases not caused by work-related injury are not entitled to medical treatment for the work-related injury and the measures on basic medical insurance shall apply.

 

29. Shen Yuhong, “Exploration and Reflection on Occupational Injury Insurance for People in Flexible Employment in Wujiang District”, China Health Insurance 7 (2019): 63.

 

30. Chen Bulei, “On the Legal Model of Social Insurance for China’s Employees in Informal Employment: Taking Old-age Insurance as an Example”, Tribune of Economic Law 11 (Beijing: Qunzhong Publishing House, 2013): 214.

 

31. Lou Yu, “The Legal Basis and Institutional Building of Occupational Injury Insurance for Employees in New Business Forms”, Journal of Social Sciences 6 (2021): 23.

 

32. See Zheng Shangyuan, Social Insurance Law (Beijing: Higher Education Press, 2019), 46.

 

33. Guo Xiaohong, Research on Japan’s Labor Safety Management and Work-Related Injury Insurance System(Beijing: China Labor and Social Insurance Publishing House, 2010), 116.

 

34. Gilles Huteau and Gaby Bonnand, ESPN the Made Report on Access to Social Protection of People Working as Self-employed or on Non-standard Contracts (France: Brussels, European, 2016), 14.

 

35. Article 4 of the Circular on Matters Related to the Establishment of Labor Relations (Laoshebufa [2005] No. 12) by the former Ministry of Labor and Social Security of China stipulates that: “Where employers such as construction and mining enterprises contract projects (business) or management rights to organizations or natural persons who do not have the right as principal for employment, the contracting party with the right as principal for employment shall bear the entity responsibility for employment for workers recruited by such organizations or natural persons.” Paragraph 1, Article 3 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance (Fashi [2014] No. 9) provides that if the administrative department in charge of social insurance affairs determines that the following organizations are responsible for work-related injury insurance, the people’s court shall give support: ... (IV) If an employer subcontracts the contracted business to an organization or natural person who does not have the right as principal for employment in violation of laws and regulations, and the worker recruited by such organization or natural person suffers work-related injury or death when engaging in the contracted business, the employer is the party responsible for work-related injury insurance.” In practice, based on the above provisions, some courts hold that if a construction project is illegally subcontracted, the organization that illegally subcontracts the business bears the entity responsibility for employment for any worker who suffers a work-related injury (work-related injury insurance liability), but this does not indicate labor relations between the two. The relevant judgment documents include Intermediate People’s Court of Huanggang City in Hubei Province (2021) E11 Xingzhong No. 51, the Intermediate People’s Court of Hefei City in Anhui Province (2021) Wan 01 Xingzhong No. 264, Chongqing Fourth Intermediate People’s Court (2021) Yu 04 Xingzhong No. 16, Guizhou Provincial High People’s Court (2020) Qianminshen No. 802, Xinjiang Uygur Autonomous Region High People’s Court (2020) Xinminshen No. 202, and Jiangxi Provincial High People’s Court (2019) Ganxingshen No. 344. Moreover, some local judicial rules also adopt the above views, such as Article 2 of the Minutes of the Meeting of Chongqing Higher People’s Court on the Application of Laws Related to Litigation in the Field of Social Insurance, Article 1 of the First Civil Trial Division of the Higher People’s Court of Zhejiang Province and Zhejiang Province Labor and Personnel Dispute Arbitration Court’s “Answer to Several Questions Concerning the Trial of Labor Dispute Cases (II),” and Article 13 of the Circularof the First Civil Trial Division of the Higher People’s Court of Sichuan Province’s “Answer to Several Questions Concerning the Trial of Labor Dispute Cases.

 

36. Lu Haina and Chen Yiheng, “Protection of the Third Category of Workers in the Platform Economy from the Perspective of Social Rights”, Human Rights 1 (2020), 106.

 

37. Lobel Orly, “The Gig Economy & the Future of Employment and Labor Law”, University of San Francisco Law Review 1 vol. 51 (2017): 63.

 

38. Bob Hepple and Bruno Veneziani, The Transformation of Labor Law in Europe (Oxford: Hart Publishing, 2009), 129.

 

39. Bob Hepple, Equality Law, trans. Li Mankui (Beijing: Law Press, 2nd edition, 2020), 32.

 

40. Article 2 of the Universal Declaration of Human Rights: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The same content is stipulated in paragraph 1, Article 2 of the International Covenant on Civil and Political Rights and paragraph 2, Article 2 of the International Covenant on Economic, Social and Cultural Rights.

 

41. Sandra Fredman, Anti-Discrimination Law, trans. Yang Yayun (Beijing: China Legal Publishing House, 2nd edition, 2019), 26.

 

42. Liu Zuoxiang, “The Concept, System and Realization of Equal Rights”, Social Sciences in China 7 (2015): 84.

 

43. Valerio De Stefano, “The Rise of the Just-in-time Workforce: On-demand Work, Crowd-work, and Labor Protection in the Gig-economy”, Comparative Labor & Policy Journal 3, vol. 37 (2016): 477-478.

 

44. Hilgert Jeffrey, “The Future of Workplace Health and Safety as a Fundamental Human Right”, Comparative Labor Law & Policy Journal 3, vol. 34 (2013): 720.

 

45. Han Zhen and Zhou Yulong, “On the Improvement of the Legal Protection System for the Right to Occupational Safety and Health”, Industrial Health and Occupational Diseases 4 (2014): 309.

 

46. Wu Liping, “Legislative Protection of Occupational Safety of Workers in China in the Context of Human Rights”, Lanzhou Academic Journal 5 (2010): 112.

 

47. Sun Bingxin, “Perspective on the Value of the Right to Occupational Safety”, Contemporary Law Review 5 (2007): 81.

 

48. Paragraph 2, Article 4 of the Law on Work Safety, as amended in 2021, provides that this Law applies to production and business units as well as their employees in emerging industries and fields such as the platform economy. Although the Law on the Prevention and Control of Occupational Diseases covers employing units and workers, paragraph 1, Article 86 of the Law provides that for organizations other than employers, their prevention and control activities for occupational disease may be conducted with reference to this Law. Therefore, occupational safety and occupational health standards can apply to employers in new business forms.

 

49. Zhang Rongfang and Mi Jing, “The Legal Logic and Legislative Approach for the Realization of the Right of Atypical Workers to Social Insurance”, Journal of Hubei University (Philosophy and Social Science) 5 (2020): 153.

 

50. Hu Yuhong, “On the Nature of Social Rights”, Zhejiang Social Sciences 4 (2021): 44.

 

51. Wang Guangbin, “Social Rights in Social Law”, Journal of China University of Political Science and Law 1 (2009): 71.

 

52. Lou Yu, “Legal Analysis and Institutional Building of Labor Rights Protection for People in Flexible Employment in Platform Economy”, Journal of Fujian Normal University (Philosophy and Social Sciences Edition) 2 (2021): 75-77.

 

53. Yang Sibin, “The Legal Attribute of Right to Social Insurance and Social Insurance Legislation”, Academic Journal of Zhongzhou 3 (2010): 96.

 

54. Some scholars take Chongqing as an example. According to the minimum payment standard, calculation shows that the monthly social insurance premium cost in Chongqing in 2019 was RMB 1,550.65. With this data as the base, about 75 million people provided services in China’s sharing economy in 2018, and the annual social insurance premium cost nationwide was RMB 1.4 trillion, accounting for 48 percent of the RMB 2.9 trillion of transactions in the sharing economy in the same year. Hu Jing, “Problems of Occupational Injury Insurance for Employers in new business forms in China and Their Solutions”, Social Sciences in Guangdong 6 (2020): 245.

 

55. Yue Jinglun and Liu Yang, “No Protection for Labor: Multiple Logics of the Lack of Labor Rights protection for Employees in Platform Economy and its Governance”, Journal of Wuhan University of Science and Technology (Social Science Edition) 5 (2021): 526.

 

56. Qiao Qingmei, Occupational Risk and Work-Related Injury Protection in China: Evolution and Transformation (Beijing: The Commercial Press, 2010), 196.

 

57. Li Mankui, Research on Mandatory Work-Related Injury Insurance and its Implementation Path (Beijing: Law Press, 2014), 129.

 

58. Hao Yuling, “Difficulties in Work-related Injury Protection for Employers in new business forms and Countermeasures”, Journal of China University of Labor Relations 6 (2018): 102.

 

59. Lou Yu, “The Establishment of Legal System on Social Insurance for Platform Economy Employees”, 199.

 

60. Zhu Xiaoyu, “Discussion on Occupational Injury Insurance System for Employers in new business forms: A Study Based on Leading Platform Economy Enterprises”, Journal of Huazhong University of Science and Technology (Social Science Edition) 2 (2021): 39.

 

61. Qiao Qingmei, “Restrictions of Labor Relations Should be Removed for Work-related Injury Insurance for Employees in Informal Employment”, Labor Protection 3 (2020): 54-55.

 

62. Ding Xiaodong, “New Thinking on Platform Revolution, Gig Economy, and Labor Law”, Global Law Review 4 (2018): 95.

 

63. the “Proposal on Platform Enterprises’ Concern for Workers.” Article 1 of this proposal stipulates that platform enterprises should respect labor and take the initiative to fulfill the responsibilities and obligations for platform employees. See “14 Internet Institutions Sign ‘Proposal on Platform Enterprises’ Concern for Workers’”, Guangming website.

 

64. Wang Xianyong and Xia Qing, “Theoretical Basis and Institutional Conception of Inclusion of Online-based Workers of Sharing Economy Platforms in Work-Related Injury Insurance”, China Labor 6 (2018): 52.

 

65. Zheng Xiaoshan, “The Path of Establishment of General Clause on Identification of Work-Related Injury”, Chinese Journal of Law 4 (2019): 131.

 

66. Ban Xiaohui, “On the Expansion of Targets of China’s Labor Law Protection in the ‘Sharing Economy’: From the Perspective of Chauffeur-driven Ride-hailing Service”, Journal of Sichuan University (Social Sciences Edition) 2 (2017): 161.

 

67. Theoretically, some Chinese scholars argue that the amount of time employees are available to provide a service at the disposal of employers is the most important factor in counting working hours. Shen Tongxian, “An Analysis of the Criteria for Counting Working Hours”, Law Science 5 (2011): 137.

 

68. It is justified to count the period of time when employees are available on the same platform as working hours. According to a survey, the period of time for ride-hailing drivers awaiting orders accounts for 46 percent of the working hours. More than half of the time is spent in awaiting orders at all times. It shows that platforms have exclusive access to the availability time of employees. Zhang Chenggang, “Current Situation of Employment and Labor Relations of Workers of Sharing Economy Platforms: A Survey Based on Multiple Platforms in Beijing”, Journal of China University of Labor Relations 3 (2018): 67-68. In its judgment in Uber case, the British Supreme Court held that drivers’ availability time is counted as working hours on the grounds of “controlled time.” Its manifestations are that if a driver logs on to the app, it indicates that he is willing and able to accept the itinerary request at any time; Uber can impose the penalty of cancellation for drivers who fail to comply with the minimum workload obligation. Supreme Court: Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5 On appeal from: [2018] EWCA Civ 2748, (Feb. 19, 2021), pp. 37-40. In addition, this view seems to have gained official support in China. Eight government departments including the Ministry of Transport of China issued the Opinions on Strengthening the Protection of Rights and Interests of Employees in New Employment Forms of Transportation (Jiaoyunfa [2021] No. 122) on November 17, 2021, which stipulates strengthening the occupational injury insurance for ride-hailing drivers, ...providing labor safety protection for ride-hailing drivers during the availability period. This provision provides a policy basis for counting availability time of employers in new business forms as working hours for the identification of work-related injury.

 

69. In the aforesaid Uber case, the UK Supreme Court held that if Uber’s market share in London prevented drivers from serving other private taxi operators, they were working for Uber in London when they logged on to the Uber app. However, if drivers can maintain their will like other private taxi operators while waiting for customers, the same analysis will not apply. In a nutshell, the higher the market share, the more likely an employee will receive an order from the platform, and the more power the platform has for controlling the waiting time of employees, which can be counted as working hours. For the identification of market dominance, it can be determined with reference to Article 19 of Anti-Monopoly Law of China. Another goal of this design is to follow the Guiding Opinions on Safeguarding the Labor Protection Rights and Interests of Workers in New Forms of Employment (Renshebufa [2021] No. 56) with regard to the introduction of minimum wage system for workers in new forms of employment (namely employees in new forms of employment in this article). The minimum wage is the minimum remuneration that workers should receive after expending normal labor during normal working hours. In the aforesaid system, the daily minimum wage = local hourly minimum wage standard * working hours of employees on the platform. If employees work for multiple platforms, each platform gives wages according to this formula. Finally, if the monthly wage is lower than the local monthly minimum wage, the difference can be shared by platforms in proportion to the market share. If employees work for only one platform, the platform should make up the difference.

 

70. Wang Tianyu, “‘Single Work-Related Injury Insurance’ in New Forms of Employment”, Social Sciences in China, March 31, 2021.

 

71. Ning Gaoping, et al., “Work-related Injury Insurance + Commercial Insurance: A Preliminary Study of the New Model of Cooperative Investigation on Identification of Work-Related Injury in Tangshan City”, China Insurance 12 (2019): 47-49.