The lack of an employer-employee relation in the gig economy deprives gig and platform workers of their basic labour rights. There is an urgent need to recognise this and reclaim employment relation in the gig economy.
The Supreme Court had sought the Union government’s response on a plea seeking social security benefits for gig workers employed by food delivery and taxi apps like Zomato and Uber and their recognition as unorganised workers. This was in response to a writ petition filed by Indian Federation of App-based Transport Workers (IFAT), seeking social security for gig and platform workers.
The petition contended that formal employment relation does not exist in the gig economy and workers are denied basic labour rights and social security. Gig employers prefer to call themselves as aggregators and treat their workers as partners.
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IFAT says denial of social security to these workers has led to their exploitation through forced labour within the meaning of Article 23 of the Constitution and added that the right to livelihood includes the right to work on decent and fair conditions. Appearing for the petitioners, Senior Advocate Indira Jaisingh sought a declaration that the drivers and delivery workers are actually workmen in the classical sense of the word.
The petition said that the failure to register them as unorganised workers or to provide them social security violates their rights under Article 21 of the Constitution that protects the right to work, right to livelihood, and right to decent and fair conditions of work. It also denies them the right to equality before law and equal protection of laws. They are in a similar situation to all other workers covered by social security laws including the Act of 2008. Denial of protection of these rights amounts to violation of Article 14 of the Constitution, the petitioners submitted.
The fact that workers in the gig economy are also included under the newly enacted Social Security Code 2020 was mentioned by the petitioners. Under section 114 of the Social Security Code 2020, the Union government is to formulate social security schemes for gig and platform workers. Life and disability cover, accident insurance, health and maternity benefits, old-age protection, and creche facilities are the benefits provided under social security schemes.
To avail these benefits, gig and platform workers are supposed to register in the e-Shram portal, which was recently launched by the ministry of labour and employment. Social Security Code 2020 still awaits its implementation date as rules are being finalised.
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Gig economy getting bigger
In the last decade, digital labour in the gig economy proliferated in India and other parts of the world. This new form of employment created employment opportunities, but employer-employee relation is ambiguous and workers lack protection under labour laws.
Digital labour platforms have increased five-fold worldwide in the last decade. In the second half of 2018-19, 13 lakh Indians joined the gig economy. India currently accounts for $1 billion of the global market. While the US leads the race with 53 million independent workers, India has 15 million gig and platform workers.
With a large young working population, an overall workforce which grows by over four million every year and a lack of decent job opportunities in the formal sector, more and more job-seekers are enrolling themselves as gig and platform workers. The industry prefers to term these workers freelancers or self-employed.
While digital labour engaged in the gig economy can offer new opportunities, it also raises some important questions. As employer-employee relation in such new forms of employment is at best ambiguous, the status of workers remains unclear. They are also sometimes perceived as self-employed. Gig and platform work is done by workers, yet many of these workers have become invisible in labour market framework. Most of these workers don’t see the gig economy as a full-time option due to job insecurity.
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Global developments
In recent times, there have been agitations by Uber/Ola drivers in different cities against cuts in commissions and deterioration in terms of service. In Bengaluru last February, Ola and Uber services in the city were disrupted as drivers intensified their agitation against cab aggregators for a fall in their monthly remuneration. The transport department had called meetings twice. Uber did not attend the meetings.
Delivery workers at Flipkart and Myntra held demonstrations and struck work, citing poor working conditions. There are complaints against all aggregators regarding long working hours, poor working conditions and meagre pay/commission. Swiggy and Zomato delivery workers also held agitations protesting fall in delivery prices. These aggregators claims to treat their workers as partners. However, people who are working for them allege a high level of exploitation.
In an important judgement, the British Supreme Court ruled that Uber is an employer and should be responsible for providing certain labour rights to its drivers. Amendments to labour laws in Ontario and California have shown a move towards granting employee status to platform workers, thus guaranteeing minimum wage and welfare benefits. This is also the view propagated by agencies in the EU, including the European Trade Union.
Ensuring labour protection
Labour protection and technological innovation can be compatible here too if the employer-employee relation is put in proper perspective. Presently, technology is being used deliberately to create a blur between employers and employees. There is an urgent need to recognise that it is indeed work and that the work should be decent. Labour protection just needs to be adapted. Such questions were addressed during two sessions at the Fourth Conference of the Regulating for Decent Work Network, held at the ILO on 8-10 July 2015.
A tripartite effort by the state, companies, and workers to identify where workers fall on the spectrum of flexibility and regulation is critical. The way forward for platform workers is through a socio-legal acknowledgement of the heterogeneity of work in the gig economy and the ascription of joint accountability to the State and platform companies towards ensuring labour rights.
Efforts should be made to reclaim employer-employee relation in the digital labour market. Terms of employment and conditions of service should be clearly expressed. Basic norms of international labour standards must be followed. Collective bargaining and social dialogue should be encouraged such that a consensus can be arrived at with regards to basic issues of employment relation. Gig economy workers are too important to be left out of protective legal framework.
Dr Kingshuk Sarkar is an associate professor at the Goa Institute of Management. He has worked as a labour administrator with the government of West Bengal. He earlier served as a faculty member at VV Giri National Labour Institute, Noida and NIRD, Hyderabad. Views expressed are personal.