Page 14 - Voice and representation of platform driver in VietNam

8 CHAPTER 2: Defining the relationship of platforms and drivers

fixing the fees (Decree 10, Art. 35). At the moment, relationship between platform drivers and platform
Fast Go is the only ride-hailing and delivery platform companies. Firstly, the platform driver is not the one paid
that offers fixed rates of fees for users and drivers, by the platform company, but receives transportation
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while others adjust fees unilaterally. This means the fees from consumers. Secondly, they are not subject
ride-hailing platforms do not fully meet the criteria to to the management, operation and supervision of the
register as software providers only. platform company, manifesting in the fact that drivers
have the right to actively, that is discretion to turn
There is also an important difference between car- off/on the application, declining a work assignment.
drivers and bike-riders in terms of legal status. Decree Thirdly, the platform company’s code of conduct that
10 requires that car-drivers must register either with app-based drivers must comply with is not imposed
a transportation service provider or a transportation by the platform company unilaterally, but instead is an
cooperative to provide ride-hailing services, while this agreement between the two parties. Finally, app-based
requirement does not apply to bike-riders. This means drivers are seen by platform companies as ‘business
there are two types of car-drivers working across the partners’ rather than workers. The main basis of these
platforms: (i) drivers of transportation companies (such arguments is Article 3(1), Labour Code 2019, which
as traditional taxi companies) who also receive orders defines EE as “an employee who works for an employer
from platforms that partner with their companies (for as agreed upon, paid and subject to the management,
example, Grab has GrabTaxi, Fast Go has Fast Taxi). administration and supervision of the employer.”
In this case, the drivers are primarily employees of
taxi companies, (ii) self-employed drivers registering The VGCL has not made an official statement on the
as members of transportation cooperatives, but only issue. However, some VGCL leaders and experts have
working for the platforms. In the latter case, drivers publicly expressed their views towards viewing app-
have to pay a registration fee and annual fees for based drivers as EE. In a recent statement, VGCL Vice
cooperatives to get a license for providing ride-hailing Chairman Ngo Duy Hieu expressed his support for
services, although cooperatives do not have actual the view that app-based drivers were employees and
relationships with them. their relationship with platform companies was an
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employment relationship. Explaining this view, he said:
The official perspective of whether or not platform
drivers/riders are employees is expressed in Report No. “[Regardless of] the fact that platform companies
45/BC-BTP to the Prime Minister by the Ministry of always consider drivers as partners, but [the] daily work
Justice (dated March 17, 2021): “Drivers for platforms of drivers-workers must comply with their instructions
such as Grab are not paid by Grab but receive on the division of ‘rides’, on handling labour discipline,
transportation fees from service users (consumers) as well as on safety, uniforms, hours clearly show the
through the platform after subtracting the service fee employment relationship at the enterprise.” 28
for the platform. On the other hand, more importantly,
drivers for platforms such as Grab are not subject to With the same view, another VGCL expert – Le Dinh
Grab’s management, operation and supervision as a Quang – also emphasized:
traditional worker, drivers have the right to turn off/
on the app to participate in providing services when “This is clearly not a cooperation contract, but a
needed, have the right to refuse to pick up or even relationship between the employer and the employee.
cancel the car after receiving. Grab’s Code of Conduct Grab is taking advantage of strict labour regulations to
is considered an agreement between Grab and drivers give drivers the form of cooperation contracts.” 29
as drivers must agree to this Code of Conduct when
participating in the platform[.] Grab also calls drivers Quang also referenced Article 13 of the 2019 Labour
who join its platform ‘driver partners’, i.e. consider Code to show that it was not important how a driver
them business partners and not workers. As analyzed is defined by the platform itself, but that between the
above, depending on the specific case as prescribed by driver and company there was an agreement on paid
law, the nature of the contract relationship between employment.
the service provider and the connected platforms is still
a commercial contract (be it a brokerage contract or an In our survey, drivers were asked to define their
authorisation contract). 26
relationship with the platforms. Most drivers defined
themselves as ‘business partners’; yet, a much higher
In other words, the Ministry of Justice stated four rate of bike-riders (40.15 percent) identified as being
factors for determining that there is no employment in an ‘employment relationship’ with platforms than

25 https://www.brandsvietnam.com/18154-Cuoc-chien-ve-gia-cuoc-giua-cac-dich-vu-goi-xe-cong-nghe
26 Department of Justice, p. 16. This report consulted with numerous agencies, including the Ministry of Labour, Invalids and Social Affairs.
27 Interview with PTL (Zoom, 25/3/2021); Interview with LĐQ (TPHCM, 6/4/2021). See also: https://laodong.vn/cong-doan/tong-ldldvn-se-nghien-
cuu-ky-ve-kien-nghi-doi-voi-nld-la-xe-om-cong-nghe-861872.ldo
28 https://tuoitre.vn/goi-tai-xe-cong-nghe-la-doi-tac-cach-goi-luon-lach-20210322222647495.htm.
29 https://zingnews.vn/tai-xe-la-lao-dong-cua-grab-post1164432.html.

Voice and representation of platform drivers in Vietnam