Court Corner: Experts decode plea seeking social security for gig workers

Indian Federation of App-Based Transport Workers (IFAT) on Tuesday filed a plea in the Supreme Court seeking social security benefits for workers associated with app-based companies such as Zomato, Swiggy, Uber and Ola.

The petition argues that gig workers should be declared wage workers under the Unorganised Workers Social Welfare Security Act of 2008.

"The failure to do so is a violation of their right to decent and fair conditions of work under Article 21 of the constitution," the plea said. The IFAT is not alone in making these demands.

In fact, the Supreme Court in the UK has rejected Uber's appeal against an employment tribunal order, saying that drivers should be considered workers and be eligible for minimum wage, annual leaves and insurance.

Even in China, the Supreme Court has said it will help protect the legitimate rights of gig workers. Similar observations have been made in Europe also by an Amsterdam Court saying that Uber drivers are employees and not contractors.

In an interview to CNBC-TV18, Indira Jaising, Senior Advocate at Supreme Court said, "The conditions of work were highly exploitative and determined by what we call the fixed contracts and fine print. These one-way contracts were on which these workers had to literally put their thumb impression failing which there was no scope for them to be workers. So they had no negotiating or bargaining powers. So, I would argue that primarily they must have the right to form unions of their own. The exploitation comes from the fact that the conditions of employment are determined wholly, solely and entirely by these aggregators."

Jaising added, "It is a bit strange that the definition of aggregator has also come very recently under the amended rules of the Motor Vehicles Act. So we don't know whether they are governed by the Information Technology Act because the IT Act has nothing to say about their status, then there is the Motor Vehicles Act and then the Labour regulations. Our case is that these companies exercise supervision and control over these workers and therefore they fall within the classical definition of the employer-employee relationship."

Mishi Choudhary, Legal Director at Software Freedom Law Center said, "The issue everywhere is, whether it is the ride-hailing companies like Uber, Ola etc or others like Zomato, Swiggy in India or InstaCart, DoorDash in the US, all of these companies have ensured that their reliance on various people who work for them are classified as independent contractors and not employees because an employee is entitled to a much larger gamut of benefits and the obligation of the employer is also pretty wide.:

"The idea all these companies were selling was that these new businesses are offering a way for flexible working hours, people could decide whenever they want to work and some of the data released by these companies say that majority of their workers work less than 40 hours in the US and they offer this flexibility. So, there has been a major push from the companies to first resist the classification as an employee and if they don't succeed on that and they cannot continue to classify them as independent contractors, then they have been asking for a separate category which is neither an employee nor an independent contractor. Many of the companies have already said that they will never be profitable if they were going to be treating all the people who make these companies possible as employees. That is why there is such an emphasis on automation and self-driving cars etc," she added.

Alok Prasanna Kumar, Co-Founder at Vidhi Legal Policy said, "In the context of this litigation, social security benefits under the social security code covers aspects which used to be provident fund, employee social insurance and all of that. There was a great opportunity for the Union government to update India's labour laws and make them even more employee-friendly taking into account the situation that we have and removing any doubt that gig platform economy workers are employees of these companies.

"Unfortunately under the four labour codes that we have, only the social security code mentions gig platform economy workers and creates a specific legal regime for them. That legal regime in my view almost gives it as a charity, it does not even say that workers in this category have a right to social security, it just says the central government may create a scheme, the state government may create a scheme, essentially leaving the matter at the mercy of central and state governments and that is not how social security is supposed to work. Social security is the right of the worker in terms of being able to say that I have given so much to the employer, the employer is also required to take care of me in my times of difficulty. To me most important point is unionisation. The code on industrial disputes does not cover platform economy workers, I believe that is a massive mistake. So I agree that they are employees, their rights to unionise should be fully recognised," Kumar added.