The question was if the contract between the Platform and the delivery persons was ‘an agreement that established an employer-employee relationship’ with subordination under the Labour Standards Law (labour contract or employment contract).

The Court based its decision on the Guidelines for Determining Employment Contracts (the Lao-Dong-Guan-2-Zi-1080128698 Circular of 19 November 2019 from the Ministry of Labour) which identifies the following criteria for determining whether the facts and the contract as a whole were an employment contract:

(1) the existence of personal subordination: in this case, the delivery persons had only to provide services (by delivering meals from restaurants to customers) and pick up and deliver meals according to the specific instructions given by the Platform, so that they did not have the right to “independently decide how to provide services.” Moreover, the Platform had the authority to discipline and punish the delivery persons for failing to meet the standards or for violating the rules.

(2) the existence of economic subordination: the income of the delivery persons in this case was calculated based on the meal delivery service provided by the persons, who had no need to bear financial risk by themselves.

(3) the existence of organisational subordination: the Court stated the delivery persons also had an organizational subordination, considering the very strict instruction they received from the Platform on service regulations and processes and that they had no freedom to decide how to provide meal delivery services and they are all incorporated into the structure of the Platform with organizational subordination.

(4) performance by the individual in person: delivery persons were required to perform the tasks in person and they could face suspension of rights or other restrictions in case of violation.

The decision, based on the principle that the employer-employee relationship should be factually determined , is valid only for this specific case, but it do provide useful parameters for navigating the complex issue of the nature of the relationship between platform and delivery personnel.

These parameters are also common to those applied by the case law of other countries, as we have previously reported for Uruguay and Belgium.