By Shen Po-hsuan
The debate on whether delivery drivers should be considered employees or contractors has been going on for more than two years.
A statement from the Ministry of Labor in October 2019 said that because food delivery drivers “have designated working hours, must report within 24 hours if not available to receive orders, must carry branded uniforms and use branded cooler delivery bags to represent the delivery platform, and must affix the brand sticker to their delivery vehicles’, the drivers and the delivery platform have a certain command relationship and some organizational hierarchy, therefore both parties have a working relationship.
However, countermeasures followed. The delivery platforms immediately reviewed their “contract code” and reviewed all the formulations suggesting the working relationship indicated by the ministry.
Unsurprisingly, after the move, the ministry said the relationship between the food delivery drivers and the delivery hub is largely contractual.
It is understandable that the ministry was reluctant to provide a clear definition to those involved in the odd-job economy. After all, it is a dilemma that leaves the government torn between labor protection and economic flexibility. This reluctance only seems to let delivery platforms continue to avoid laws and regulations.
Two years ago, one of the reasons identified for making employee drivers was that companies “required delivery people to wear branded uniforms and use branded cooler delivery bags.” Although the platform later removed this requirement, it is making a comeback – in the name of the “publicity payment” runners will generally receive, unless they are flagged as violating this rule.
Whatever the agreement, employment, contracting or any newly defined working relationship must be clearly and legally defined by the ministry as soon as possible. Otherwise, it only allows delivery platforms to continue to dodge their legal responsibilities by amending contracts. Once their practices can be interpreted as creating an employment relationship, all they need to do is revise the “contract code” to be able to break the relationship again.
It should not be forgotten that this is not the only case where the framework of a contractual employment relationship has been changed. It has happened before with the so-called “shipping job”.
This change took almost 30 years and went through power struggles of interested parties, as well as many legislative steps, before temporary employment was finally regulated by the Labor Standards Act (勞動 基準 法).
However, the reluctance of legislation during this period allowed the practice of posted work throughout the country. There are already many companies using it, and even the public sector has used posted workers to reduce employment costs.
Will the Ministry of Labor continue to delay addressing the new challenges of the odd-job economy?
Shen Po-hsuan is a lawyer.
Translated by Lin Lee-kai
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