Determination Of Employ Relationship Between Delivery Platforms And Delivery Worker Under The Algorithm Management

At present,the employment of Internet takeaway platforms has produced many social contradictions in reality,because the determination of the employment relationship of takeaway platforms has encountered difficulties in the application of labor laws.Balancing the interests of employers and workers has become a hot issue at present,and the logical premise for dealing with this issue is the establishment of employment relations.In order to accurately judge the employment relationship of takeaway platforms,two solutions have been proposed by academia and practice.The first is to expand the interpretation of "labor subordination" under the position of the labor dichotomy,that is,to expand the interpretation of "labor subordination" in the two-division structure of "labor relations-civil labor relations",so as to bring all takeaway platform workers into the scope of labor law norms.However,this method has shortcomings,first,it is easy to blur the boundary between labor relations and labor service relations,resulting in confusion of applicable objects;Second,it is easy to cause the generalization of labor relations;Third,the conclusion reached from the "labor dichotomy" is "all or nothing",which has long been criticized by the academic community.The second is to learn from overseas legislation and judicial practice,break the existing dichotomy between labor relations and labor relations,build a "third type of workers",and form a "labor trichotomy" employment relationship structure,that is,"labor relations-third types of workers-labor service relations".This adjustment method based on the concept of hierarchical classification has mature experience and operation mode outside the region,but it is still in the initial stage in China.In view of this,we should advocate the position of "labor trichotomy" and analyze the employment of takeaway platforms from the perspective of algorithm management.From the perspective of algorithm management,the employment of delivery platforms needs to focus on analyzing its main uses.After research,algorithm management,as a technology,plays a crucial role in the external shaping of takeaway platforms and the internal changes of their employment relationships.Firstly,algorithm management should conform to the basic characteristics of "labor management" in the labor field in the employment of takeaway platforms,and play the role of command,decision-making,supervision and punishment of delivery workers in the process of employment.Secondly,algorithm management is the core means of production of takeaway platform enterprises,which promotes the socialization of the employment relationship of takeaway platform,and as individuals,the bargaining power of delivery workers is low,resulting in an imbalance of interests in the employment relationship of takeaway platforms.From the perspective of algorithm management,it is found that there are also rigid algorithms and flexible algorithms in algorithm management,and the degree of imbalance of interests is also different according to the degree of control of delivery workers,which reflects different degrees of subordination.In view of the role of algorithm management in the employment of food delivery platforms,more targeted legal measures should be formulated in practice to achieve a balance between the interests of food delivery platform enterprises and delivery workers.First of all,on the basis of choosing the position of "labor trichotomy",we should build an employment system that does not fully conform to the establishment of labor relations and civil labor relations.Secondly,the identification standards of the employment relationship of takeaway platforms should be improved in combination with the specific characteristics of algorithm management,mainly considering the impact of algorithm management when judging dependent attributes,and at the same time enriching the content of dependent attributes and refining other identification factors.Third,the presumption rule of employment relationship should be established,and when the evidence provided by both parties is insufficient to prove the establishment of labor relationship,but the delivery worker has provided preliminary evidence to prove the existence of employment relationship,it should be deemed to be incomplete labor relationship.In order to protect vulnerable groups,if it is to be recognized as a civil labor relationship,it is necessary to increase the burden of proof for the takeaway platform enterprise to prove that both parties have the same bargaining power.Finally,delivery workers who "do not fully comply with the situation of establishing labor relations" should be provided with necessary labor standard protection,occupational injury protection,and algorithm design supervision of takeaway platform enterprises according to their needs,so as to better protect the rights and interests of workers.