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[Resources] Shared Economy and Labor - Laborability

What is the most sharply divided area in terms of a common economy? Each person may have a different idea, but you can think in two main areas. The first will be the conflict between the existing operator and the shared economic platform operator, and the second will be the position of the workers working in the field of the shared landscape. The first conflict is that in Korea, we are responding by creating a discussion body, such as a social counter-agreement organization. Not long ago, the taxi industry and the shared mobility company, the government and the ruling party agreed to implement carpool using taxis. This is a case where we found a solution to the conflict between the incumbent and the shared economy. 

So how do we deal with the second issue of conflict, the shared economy? In the European Union, there have been regulations such as that it will not allow drivers in shared economic enterprises such as Uber to operate unless labor rights are protected. In Korea, the exact direction of regulation and access to labor issues have not been implemented yet. This time, let's take a look at the shared economy and labor issues. 

Labour and economics are not separable. The shared economy is also part of the 'economic' and labor issues must be included and discussed. But labor in a shared economy has a different pattern from labor in a traditional economy. In this article, we will focus on a shared economy, a platform model that is service-enabled, and a platform model that is paged among shared economies. 

In traditional economic models, workers enter into direct employment contracts with companies and form 'individual labor relationships'. Workers are paid to provide labor to businesses. The relationship between labor and wages is called 'individual labor relations' in labor law. In addition, individual workers who sign employment contracts exercise the right of unity, collective bargaining and collective action in order to improve the working conditions. This relationship between the working group and the business is called collective labor in labor law. 

But in a shared economy, there's a different kind of labor relationship than this typical model. This is because in a shared economy model, the three-sided relationship between platform operators (shared economy), service providers, and service drivers will be unfolded. 

With the emergence of a shared economy, workers can earn additional income by utilizing idle labor and working hours. On the other hand, the growing size of start-ups based on a shared economy has led to problems such as unfair use of the labor force. 

The crux of this problem is workforce. In other words, in terms of the 'individual labor relationship' described earlier, whether or not employees are engaged in service delivery agreements with shared-economic companies. This time, we'll prioritize 'workability'. Whether or not workers are recognized can also be determined whether rights such as the right to unite are warranted for other workers. This is how the labor law system in Korea defines workers. "A 'worker' refers to a person who provides workplaces or businesses for wage purposes regardless of type of occupation." But despite this definition, there have been cases in which the workforce is not clear, such as golf course caddies, hagwon instructors or logistics carriers. Thus, the Supreme Court developed the law to determine the workforce. "To determine whether the contract corresponds to an employee under the Labor Standards Act, whether the form of the contract is an employment contract under civil law or a contract for subcontracting, it should be determined in its substance whether the worker provided the user with a service in a subordinate government place for the purpose of paying the business or business (the Supreme Court 1994.12.99 ruling, and so on)." 

The bottom line is that, regardless of the type of occupation, labor is provided in the second business or business establishment, and labor is recognized for the purpose of the third wage. In a shared economy service, 'substantial' of the above requirements is a problem. According to the case law of the judiciary, the use of the service can be determined by the following criteria: 1. Whether or not the contents of the work are defined by the user. 2. Whether or not the employment rules or the service (persons) rules are subject to the service (persons) 3. Whether the user receives specific and individual supervision in the course of the work process. 4. Whether the work hours and place of work are designated and constrained by the user (the Supreme Court 2006.12.7; the verdict of 2004 is 29367). 

The platform operator does not hire the service provider directly, but the service provider provides the service directly to the service provider. The service user pays a fee to the platform operator. It looks like the platform operator is the employer, and the service provider is the employee's relationship. But the question is, is there a continuing relationship between the platform provider and the service provider? Most platform providers will view service providers as private providers and argue that they are simply limited in service delivery between companies and private businesses. However, university time instructors, department store managers, and video processing personnel have been found to have a practical use relationship despite the above contract format. Not all of them have been recognized for their use. Some cases have been recognized in the positions of some private business operators. And unfortunately, there is still no case in Korea where labor law has become an issue for those who offer Serbyslaw on platforms. 

리프트 노동이슈에 대한 이미지 검색결과

I'd like to briefly introduce a lawsuit like this in the U.S. It's a lawsuit against Uber and Lyft. In conclusion, the California court said that whether they are under right to control is the criterion for determining workerability. In the case of 'lift', the California court considered that the criterion for determining workerability was 'control' and that it could recognize the control of the platform operator even if certain degree of freedom was guaranteed by performing its work through the app. However, the case for the lift ended in January 2016 when the lift price paid 12 million dollars to drivers. In the case of "Uber," the Borello Test ruled that the Uber article was viewed by the California State Labor Commission in June 2015 that the drivers had no control over their work, even if the passengers paid Uber fees and the Uber paid non-negotiable fares to the driver. But the case was also settled. 

우버 노동이슈에 대한 이미지 검색결과

Both of the above cases have limitations that cannot be justified because they have been settled. But it's certainly an example of a court or labor committee recognizing that a service provider has a workforce. This example provides a clue to the problems that may arise in Korea in the future. 

This time, we looked at the first of the 'labor issues in the field of shared economy's work ethic. Next time, we'll learn about the right to decide. 

The above text is based on the "Share Economy and Labor Issues" of Chungjeong, a law firm.