GV Lawyers would like to present you an article by Lawyer Tran Huu Tien, titled “Allowing tech-based delivery drivers to resume their services – the story about the driver’s interests” published in Saigon Economic Times, Issue No. 40-2021 (1,607) dated 30 September 2021.
The Ho Chi Minh City Administration has allowed the tech-based shippers to resume their inter-district operations on condition of complying with a Covid test for every two days according to a combined sample of three people. Tech-based delivery vehicle companies have restarted services after weeks of social distancing. Tech-based delivery drivers look eager to apply for jobs to earn income for their families.
Not just the fear of a “nose poke”
With the current regulation on Covid testing, suffering a “nose poke” has actually become an obsession for those with a sensitive respiratory tract, but they have to accept it to secure jobs. However, what outweighs any controversy lies in the cost of that test. Currently, the cost of a rapid Covid-19 test is VND238,000/sample; PCR test VND734,000/sample (as per the guidance of the Ministry of Health). The cost of testing supplies also accounts for a significant part. In some localities, the testing cost may be higher depending on the surcharge for additional services, time and location of the test. Therefore, the cost of regular and long-term testing is a financial burden.
Given that the average income of a shipper is about VND500,000/day (exclusive of food and fuel costs), the cost of testing accounts for a large part.
Obviously, shippers will have to struggle to provide for an expensive life in the city. When the city Administration allows tech-based delivery services to resume operations, it is understandable that many drivers are concerned about the this testing cost.
Who will pay for the test?
As soon as the city Administration allowed tech-based drivers to travel in the epidemic area, relevant authorities have immediately studied and enabled policies on providing shippers with support for this testing cost until the end of 30 September 2021. In order to facilitate Covid testing, some options may either conduct testing at designated medical stations or organize testing for shippers in the own making of delivery vehicle companies with medical supplies provided by the Department of Industry and Trade from the budget. Notably, these policies are only short-term, specifically until 30 September 2021. Many questions arise: if after 30 September when the city Administration no longer pays for testing costs/supplies, then who will bear this cost; or if the city Administration continues to apply these policies, how far will this support cover and how long can it last? The problem is even more remarkable in light of the fact that the city authorities are considering to gradually put Ho Chi Minh City into a cohabitation with the virus, the number of shippers at that time will be much larger than today.
From a legal perspective, the Government has issued regulations stating that Covid-19 medical examination and treatment will be free. According to Article 48 of the Law on Prevention and Control of Infectious Diseases 2007, the examination and treatment for group A diseases (Covid-19 is a group A disease according to Decision 219/QD-BYT dated 29 January 2020 of the Ministry of Health) is currently free of charge. Official Letter 505/BYT-BH dated 06 February 2020 of the Ministry of Health stating that suspected, possible or confirmed cases of Covid-19 will be exempted from medical examination and treatment costs. On the other hand, according to Official Letter 5378/BYT-KHTC dated 07 July 2021 of the Ministry of Health, from 01 July 2021, costs related to taking samples and returning test results (consumables, workers, electricity and water…) will be spent and settled according to the current allocation of state budget on epidemic prevention. Thus, in principle, the cost of Covid-19 testing will be covered by the state budget within the scope of allocation (with limitations in each locality).
However, it seems that the relevant documents do not stipulate the issue of cost allocation in case of exceeding the allocated budget. If after 30 September 2021, the state budget is no longer sufficient to allow large-scale and long-term testing, the State may decide to stop paying these costs. At that time, drivers may be required to pay for themselves if they do not participate in health insurance (as before the temporary free policy is applied).
Needing to protect the interests of tech-based drivers
After Mr. Le Hoa Binh, Vice Chairman of Ho Chi Minh City People’s Committee, signed and promulgated a document stating that tech-based delivery vehicle companies only organize the testing activity, and testing materials will be provided by the State, this basically means that the companies do not need to pay any costs (only assist in conducting the test). The question is raised: when the State’s budget exhausts and this aid comes to an end, and delivery vehicle companies do not (want to) carry out testing, who will be responsible for this cost? When the city stops this aid, will shippers have to pay for themselves?
In fact, other than temporary policies, there is no clear legal mechanism to support the cost of testing for tech-based delivery drivers in this case, where the drivers are not employees of delivery vehicle companies. In a common employment relationship, the employee performs work in exchange for some remunerations paid by the employer. In this process, the employee can pay some costs for job requirements (such as road tolls, fuel, advance for goods, etc.). These costs are essentially to serve the assigned work, and can be explained as “business expenses.” In principle, business expenses will be refunded by the employer or shared in another form based on the agreement with the employee.
But the partnership between drivers and tech-based delivery vehicle companies is different. As the name “partnership” suggests, a party will on its own cover its costs. This means that the driver has to pay for the Covid-19 test by himself, unless the company is willing to share this responsibility, even though everyone can see that the shipper’s job (including the testing requirement in this period) not only brings income to him/herself, but also generates revenue to delivery vehicle companies.
The interests of shippers are very “unstable” given their relationship with tech-based transport companies. During the epidemic, there are days when shippers are forced to stay home. Compared to employees in companies whose jobs have been stopped due to the epidemic, they may still receive salaries or a particular support, while shippers are forced to accept “no work, no food”, because delivery vehicle companies are not obligated to take care of them.
If an employee of an ordinary company has an accident or gets sick due to work, he/she may be completely covered by the company for medical examination and treatment expenses, receive full salary, accident allowance, or occupational accident and disease insurance payments (Articles 38, 39 of the Law on Occupational Safety and Hygiene). For shippers, as their contracts are made in the form of a partnership, they have no basis to ask the company for support, even though their daily work during the epidemic period is extremely dangerous, not only for themselves but also for their whole family. While the delivery vehicle company may help them out as a act of good will, this is not under their responsibility to do so (unless the partnership contract provides for it).
Shippers also do not have the necessary protection of health insurance. They have to pay for their own medical expenses or buy health insurance by themselves. They also do not participate in social insurance or unemployment insurance to compensate for income when they lose their jobs, get sick, take maternity leave, get occupational accidents or diseases, retire or die. From a legal perspective, these disadvantages may not be against the law as there is a consensus and voluntary agreement between drivers and tech-based delivery vehicle companies. However, this relationship has not been clearly defined and regulated by legal documents. It is fair to admit that in fact, tech-based delivery drivers are at a disadvantage in their employment relationship.
Those disadvantages are even more evident in the epidemic picture, when the life of tech-based delivery drivers is no longer ensured by the motto “The more you work, the more you earn” as before. Perhaps it’s time the State needs to pay more attention to the interests of tech-based delivery drivers who are working as employees but do not enjoy the rights and interests that employees are supposed to have.