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Rostrum’s Law Review | ISSN: 2321-3787

EMERGING CHALLENGES TO LABOUR LAWS AND THE FUTURE OF WORK VIS -A -VIS CONSTITUTIONAL RIGHTS OF GIG WORKERS IN INDIA

  • Authored by - Ruchi Singh
  • Issue - RLR (2024) Volume VIII Issue I

ABSTRACT

Since the emergence and adaption of technology in market space, its impact analysis has been a serious concern for policy and Law Makers. The inclusion of the non-traditional nature of works devoid of the basic tenets of an employer- employee relationship in the new Labour Codes in India is an enabling signal to transform laws as per social transformation initiated by use of technologies. The flexibility in work conditions and low education requirement is catalyst for the rapid growth of this gig economy in India. What would be the challenges before labour laws and what would be the future of work in modern India ratifying international labour standards is a crucial question as India awaits the date of implementation of the New Labour Codes. The traditional employee concept does not extend to gig workers and their work is categorised under independent contractors which is dicey and debatable. Their work resembles more of bonded nature and qualifies no test for independence as listed by courts across the globe for independent contractors. The author would argue around the myths of this economy and how it disrupts the entire idea of Labour Laws and worker protection. The first part of the chapter shall conceptualize and explain the term ‘gig workers. The second part would thereby substantiate arguments around the nature and analysis of the work contract of gig workers showing it akin to that of an employer and employee. In the third part, the author shall argue for the proposition that not recognising Gig Workers as ‘Employees’ shall amount to violation of their Constitutional rights and towards the end of the chapter ,the author shall trace the current legal status quo of gig workers in India and discuss the development of law in this regard and analyse them under the purview of the recommendations given by ILO in this context.

 

Keywords: Gig Workers, Platform Workers, Social Security Code 2020, Constitutional Rights, Digital Platform, Future of Work.

INTRODUCTION

Internet today has brought the world at fingertips with ready access to all personal needs and whims. In this fancy cyber world everything is just a touch away, if you wish to have your favourite food it’s just a click away if you want to book a cab it’s just a pick away. But this beautiful dream like world has dark secrets too. The digital world has changed the social fabric of the society and has posed various legal challenges before us which needs immediate attentive solution.

Privileges of the virtual world but the food is delivered to us manually by a delivery agent. This agent who is ready to be available for us at a click of fingertip is a human labour who is a part of the digital labour platform and has basic rights and freedoms as every other citizen. The major transformations in the world of work over the past decade has been the emergence of online digital labour platforms which is all around us in varied areas of daily life such as travel, rental, education and food delivery services. This new business model has somehow already impacted existing employment and business models and has disrupted the way millions of wage earners across the globe worked traditionally.[1]

The digital labour platform provides a lot of flexibility to workers. They can work from any place and can decide their own hour of work and also the maximum time of work, also they can take up jobs after analysing the nature of work and if the job does not suit them they are free to leave anytime.

All these traits of flexibility seems very attractive and conducive at the very outset, but when dug deeper it takes us into a world of declining adequate wage parameter and pose a lot of other risks regarding status of employment, social security protections, nature of remedies available to them on breach of the contract of employment which they enter into with their respective companies or organisations which decides the terms and conditions of work for them.

Post COVID there is a steep rise in this form of work in the entire world. Today India is the largest supplier of workers on the online platform[2]. The United States, the United Kingdom, Australia and Canada were the first among other nations from where the online-platform work originated. Today the proportional involvement of workers for such work is much more from the developing countries, led by India, which now accounts for about 20% of the world’s total share.[3] “Workers from India are the largest suppliers of global labour; India’s share of total supply rose by about 8 percentage points between 2018 and 2020, while it declined in other developing countries.[4]

1.1. Raising the Concern to Work World with Acceleration of Digital Processes

Ironically, with the acceleration of digital processes and online business modes India can become the gig-worker capital of the world in the coming future.[5] India’s gig economy is continuously on boom and is estimated to triple over the next 3-4 years to 24 million jobs in from the presently existing 8 million.[6]

 

‘Gig economy’ is among the most widely used terms in the business world today. While gig work[7] has been around for a long time, it has gained momentum recently with the success of platform-based companies like Ola/Uber (in ridesharing), Zomato/Swiggy (in food delivery), and Urban Company (in personal services, home renovations and repair).  Now if we talk specifically of India gig work would not be a new concept for us. Informal economy technically known as ‘unorganised sector’ under India Labour laws always had the equivalent of gig work across urban and rural India from casual workers in any labour segment to household help.

  • Technology and Law: Crossroads And Challenges

Technology today is an enabler and is seen as a necessity for growth but it has encroached upon the human labour space. In this era of social and legal transformation, technology is creating new forms of human and social behaviour which needs revisiting of all the present legal frameworks. The gig economy originated from U.S, U.K and other developed nations and slowly spread throughout the world. Today it’s a mainstream economy in many developing countries including India. When we look into the historical basis of this kind of work we find that countries gradually shaped up their legal system to tackle the complications which arises between balancing the theories of justice as applied to the labours and damages that might stop start-ups and entrepreneurs if gig work is being controlled or stringent labour laws made to regulate them.[8]

  1. CONCEPTUALIZATION OF THE TERM GIG WORKER

2.1. Understanding the Term Gig and Gig Economy

The term ‘Gig,’ coined a few years ago, has gained a lot of popularity and controversy in the world of work in last few years. The word “gig economy” comes from the fact that a specified job and effort are equivalent to a specific “gig.” The gig economy, according to Collins Dictionary, is an employment market in which people who are self-employed or on temporary contracts perform short-term or part-time work.[9] The number of people working as independent contractors in the gig economy has risen dramatically. A gig economy is defined as “all platforms that hire independent professionals, consultants, and workforces in a variety of segments, be it automation, social media platforms or any other digital or online work for promotion and communications, aggregators, food, retails, and creative fields such as art and design.”[10]

“The gig economy’s fast evolution shows that this is the best future employment opportunity.” The gig economy takes its name from the fact that each type of job is analogous to a single ‘gig,’ albeit such activity can have a variety of names. Not every gig economy job title is centred on a digital or online platform. Workforce from the gig economy can also be found in more traditional and traditional enterprises A ‘gig economy’ in today’s context refers to a short-term contractual employment, freelancing or brief contract, or ad-hoc labour that an individual might earn on a job project-by-job project basis, with payment given after the assignment is completed.[11]

2.2. Statutory Recognition of the Term ‘Gig Worker’ In India

The New Labour Codes which have been notified and published in gazette but are awaiting dates of implementation intends to amalgamate nine laws related to social security including The Unorganised Workers’ Social Security Act, 2008. The term ‘unorganised workers’[12] had been used for them since the inception of codified labour laws in India until the new Labour codes passed by the parliament and approved by the president[13] used the term ‘gig workers’[14] and ‘platform workers’[15] for the first time. The social security code defines gig worker as a person who performs work or participates in a work arrangement and earns from such activities outside of traditional employer-employee relationship. This meaning given to the term gives gig worker the status of an independent contractor.[16] Similarly the term “platform worker” also presupposes a work arrangement outside of a traditional employer employee relationship by using online platform,[17] but the technicalities of their work and its nature can only be understood after analysing their specific work contracts. 

These so called unorganised workers termed as gig workers, popularly known as online labour but legally catalogued  as independent contractors if we go into the nuances of contact law are standing in large chunk at the paradox of emerging technologies and vanishing subjectivism of normative legal orders. This problem needs an elaborate study of intersecting points of different laws applied to such workers and scrutinizing them with the social justice lens of labour laws.

The statutory recognition of the term gig workers in the new proposed and notified Social Security Code in India are awaiting date of implementation.[18]

  1. UNDERSTANDING THE WORK CONTRACT OF GIG WORKERS

3.1. Contractual Concerns of Gig Workers/Delivery Partners

After understanding who is a gig worker the next question that comes for consideration is How far the definition of gig worker under Indian labour Laws coherent with the kind of work contract that determines their status? This question raises few ancillary questions as well such as:

  1. How fair is the gig economy and what do these labour platforms do to protect their workers.
  2. What are the working conditions of the gig workers and how can it be regulated?
  3. Does gig work satisfy the conceptual notion of ‘independent contractor’ or is it a misnomer for exploitation of independence?

The advent of the Platform Economy, combined with the development of new digital technology, has supported India’s food delivery sector’s extraordinary expansion. New firms such as Swiggy and Uber Eats have emerged in this market, while incumbent players like as Zomato have adapted their business strategies to meet industry demands. One side where online food delivery (OFD) platforms have created new jobs and expanded the customer base for existing restaurants, the delivery persons who work for them are having challenges with their employment status and relationship with the platforms. [19]Aside from that, there are concerns regarding the long-term viability of small eateries and their access to a competitive market.

To understand these issues we need to read and interpret a work contract.

3.2. Popular Food Delivery Business Models

For the purpose of understanding let us take example of a standard form of contract entered into by food delivery companies such as zomato. Zomato here is a food delivery app and if we look at the entire food delivery business model we can say that food delivery is a courier service in which food is delivered to customers on demand by retailers, restaurants, or third-party applications. Orders are now placed through mobile apps, websites, or over the phone. The Food delivery Business Model can be of many types. The popular models are Platform to Consumer Model[20] and Restaurant to Consumer Model[21]. All these business models have their terms and conditions for delivery partners. For instance Zomato[22] enters into a contract with the delivery partners which has its own terms and conditions.[23]

  • Delivery Partner Terms and Conditions

On reading the Zomato’s agreement the opening statement makes it very clear that acceptance of these Delivery Partner T&C is a condition for engagement with Zomato to use the services of the Zomato DP Platform for all the delivery partners. Some of the key findings after reading these terms and conditions are:

  1. Zomato maintains the right to change, modify, add, or remove these Delivery Partner T&C, in part or in whole, at any time and without notice to you.
  2. It is the responsibility and duty of the delivery partner to review the Terms and Conditions on a regular basis for any modifications.
  3. The delivery partner must acknowledge and consent to the modifications in case they continue to use the Zomato DP Platform after the changes are posted.
  4. Zomato grants them a personal, non-exclusive, non-transferable, restricted licence to enter and use the service on the Zomato DP Platform as long as they comply with these Delivery Partner T&C.[24]

A comprehensive study and interpretation of the terms and conditions for delivery partners to enter into an agreement with Zomato makes it very clear that the delivery partner is considered as a partner and not an employee.

3.4. Terms of Service and Charges

  1. The terms of service and charges makes it very clear that the control of these delivery partners is well in the glitch of Zomato because regardless of anything in the agreement the Delivery Partner must irrevocably authorises Zomato to determine the amounts chargeable by them as Delivery Charges, using any and all methods Zomato deems appropriate, including real-time analysis of the demand for Delivery Services, the availability of delivery partners on the Zomato DP Platform to provide Delivery Services to the Users, traffic, or whatever means Zomato deems appropriate. [25]
  2. Also the Delivery Partner must agree to make himself available on the Zomato DP Platform to provide Delivery Services as and when a User requests them through the Zomato DP Platform, and to provide Delivery Services to the Users to the best of his ability, subject to the terms and conditions set forth in these Delivery Partner T&C and the Agreement.[26]
  • Contract for Service and Consumer Disputes

The terms and conditions of agreement to be entered by Delivery Partners do not give them any protection from the side of Zomato in case a consumer dispute is filed against them. The terms of agreement mentions that the Delivery Partner must agree and acknowledges that, upon acceptance of an order, the Delivery Services provided by him will form a separate contract for services between the Delivery Partner and the User, governed by the Consumer Protection Act, 2019 or any successor legislation, to which Zomato is not a party. This term of agreement is absolving Zomato of any legal liability.

  • Obligations of Delivery Partner

The obligations of the Delivery Partner also at the outset shows that Zomato has a control on these Partners like any other employer.

  1. Terms such as ‘during the course of providing Delivery Services, the Delivery Partner must act with honesty, discipline, and in accordance with all Zomato policies and directions, whether current or future, including but not limited to safety, driving rules, and so on’.
  2. The Delivery Partner must also follow all applicable laws, including the Motor Vehicles Act of 1988 and its implementing regulations
  3. Zomato’s goodwill and reputation are affected by how smoothly and efficiently the Delivery Partner delivers Delivery Services in compliance with these Delivery Partner T&C. As a result, the Delivery Partner commits not to harm Zomato in any manner, to always follow applicable Laws, and to protect Zomato’s brand image, business reputation, or any other asset or property. Now this looks similar to the obligations of all employees working for any establishment which has control over their nature of work and conduct at workplace.[27]
  • Social Security, Compensation and Other Benefits

The terms and conditions of the Zomato Agreement for Delivery Partner makes it clear that they do not have any social security whatsoever in unfortunate circumstances. During the term of the Agreement and under these Delivery Partner terms and conditions, the Delivery Partner is not allowed to claim compensation for any hospitalization/hospital costs incurred by him or his family members while delivering Delivery Services or for any unfortunate incidents or serious illness.

  • Not Employees but Delivery Partners

The entire reading of the terms and conditions thus makes it clear that these Delivery Partners working for Companies like Zomato are not employees. Technically it can be said that there is no contract in place that specifies the duties, benefits, and notice period. Because of the independence and flexibility associated with working for these platforms, the platforms consider these people to be self-employed independent contractors. On the surface, the firm has very little influence over how the services are delivered. Gig workers, on the other hand, claim to be identified as employees because ones they are categorized as employees only then they are protected under most of the labour laws and can benefit from social security provisions.

  • Uber BV and Others v Aslam and Social Security to Gig workers [28]

The most recent decision on platform workers of the UK Supreme Court, Uber BV and others v Aslam and others (2021)[29] has altogether given a new beginning to the vanishing point of protection to platform workers under the veil of nature of their work by clarifying that Uber is not an agency and there are limitations on written agreements of Uber drivers with their company thereby bringing them under the concept of worker.

  • Issues in the case

New ways of working, facilitated by digital platforms, raise serious concerns concerning the employment status of those who perform the work. The central issue in this appeal was:

  1. whether an employment tribunal was entitled to find that drivers whose work is arranged through Uber’s smartphone application (“the Uber app”) work for Uber under workers’ contracts and thus are entitled to the national minimum wage, paid annual leave, and other workers’ rights; or whether, as Uber contends, the drivers do not have these rights because they work for themselves as independent contractors performing services under contracts.
  2. If Uber drivers are employed under workers contracts, another concern was whether the employment tribunal was also consulted. 
  • Decision of the Supreme Court On The Point Of Interpretation of Work Contracts and Agreements

In this case the Supreme Court of UK has unanimously ruled that the Uber drivers are workers. In The United Kingdom there is a distinction between employees, workers, and independent contractors for the purposes of employment law (self-employed). It is possible for a worker to fall into multiple categories. An employee, for example, has the right to pursue an unjust dismissal claim before an employment tribunal; a worker does not. A worker can sue the employment tribunal for discrimination, but a self-employed individual cannot. We consider a variety of elements when determining a person’s job status. The Supreme Court stated clearly in the Uber case that the contract was not the starting point. The Supreme Court ruled that an employment contract is distinct from other contracts in that it is not a standard contractual relationship but rather one defined by subordination.[30]

3.9.3.  The Principle established in Autoclenz Ltd v Belcher[31]

This case was concerned with the protection of statutory rights of workers,  their relative bargaining power under the terms of contract and what would constitute as test to determine whether a person is an employee or not? In When determining whether the contents of any written agreement accurately reflect what was agreed, the parties’ respective negotiating or bargaining power must be considered, and the genuine agreement must often be drawn from all of the circumstances of the case, of which the written agreement is only a portion. This was described as a problem-solving strategy in case of confusion whether a person is an employee or not under interpretation of a written contract.

3.9.4. The ‘Control Test’ in Uber Driver’s Case

Despite the fact that Uber drivers have flexibility about when they work and that Uber does not mandate their working hours (distinguishing them from employees), Uber work contract terms and condition requires working personally. Personally here implies that Uber drivers cannot substitute their service like other cab services drivers. [32] For example we can say that when we order an Uber, we are given the driver’s name as well as the registration number of their vehicle. Only that driver is permitted to operate the vehicle under the Mini Cab Regulatory Framework.

The master-servant relationship is still very much established in UK employment law. Courts utilise the control test, integration test, and economic reality test to determine if a contract of service exists as opposed to a contract for services. This approach is used by many jurisdictions inspired by English common law to determine the existence of an employment relationship.[33] It’s worth noting that the Courts in Uber BV didn’t examine whether the Uber Drivers were “Employees” in the context of a contract of service rather than a contract for services.

3.9.5. Conclusion of the Court:

The Supreme Court reached the following decisions in the matter of Uber BV and others v. Aslam and Others:

  1. Uber London contracts as Principal with the passenger to complete the booking.
  2. Uber sets the remuneration, and drivers have no influence.
  3. Uber sets the contractual terms under which drivers execute services, and it has extensive control over how those services are delivered.
    • Similarity in terms and conditions of Agreement Entered Into By Uber Drivers And Other Gig Workers Such As Zomato Delivery Partners:

Therefore we can conclude that all these App based workers are basically controlled by their employer in name of ‘independent contractors’ or ‘agent’ and ‘partners’. The control exercised by the employer over the working conditions and remuneration of employees and workers in similar positions to employees is the correlative of their subordination and/or dependency. The Supreme Court of Canada also has made similar observations in the case of where it held that “Determining who is in an employment relationship entails looking at how two synergetic features of the partnership work together: an employer’s control over working conditions and remuneration, and a worker’s corresponding dependency.” Individuals’ work lives are increasingly controlled, increasing their dependency and, as a result, their economic, social, and psychological vulnerability at work.’’[34]

  1. THE CONSTITUTIONAL RIGHTS OF GIG WORKERS

4.1. The Social Observations and Outlook

The online labour market is gaining massive popularity in the entire world including India. If we look at our everyday life even without looking at the datas reports and analysis related to Labours, at almost every traffic signal we can find a Zomato or a Dominos guy impatiently waiting for the green light to achieve his target and make his customers happy. A keen social observations has made the author conclude that almost all of them are young and spirited youths valuable as human resource to the nation at large. Studying all the Constitutional issues related to gig workers for accommodating them in the social securities embarked by labour laws and considering the better economic future of the country coupled with their future is the need of the hour. But with this there is also a rationale not to disrupt the gains to economy or misbalancing the rights of business enterprises uprising using the digital business mode.[35]

The term social security has a different notion altogether when it comes to developing countries[36] and India being one of them it’s important to identify the what sorts of programmes are most suitable for the countries’ holistic economic and social development. Social security as one of the developmental agendas of developing countries and they can only be linked through the Constitutional protection of rights of gig workers. If the Labour Laws does not recognize them as ‘workers’[37] it’s hard to reinforce the Constitutional protection of ‘fair and decent conditions of work’ provided to workers thereby depriving gig workers of social security and violating the right to life.

4.2. Problems Central to labour laws

Inefficiency, flexibility, and regulations or exclusions that favour one labour sector over another have long been criticised in labour policy. There are several external as well as internal challenges (such as empirical realities of the emerging work fields) to labour laws since the inception of Labour Codes in India. The basic question as to what should be the normative premises on which reforms should be based, and what is labour law actually for can only be answered through interpreting and explaining labour laws with reference to changing world of work.[38]

4.3. Raising Constitutional Concerns for Gig Workers

How shall the rights of gig workers be protected the modern Labour Codes do not accommodate them into the definition of workers is the matter for concern because all the provisions of the Constitution related to just and humane conditions of work are provided for workers/employees and not for independent contractors and partners. How to accommodate them and identify them as employees is the modern challenges before labour laws. Due to excessive use of technologies the gig economy boomed but what would the future of gig workers in modern India ratifying international labour standards is the prime question of concern.

4.4. Right to equality of Gig Workers:

It was well settled as early in 1957 itself by Supreme Court of India[39] that the prima facie test of an employer- employee relationship was the existence of the right in the employer not only to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of such control varying depending on the nature or extent of such control. As a result, the proper approach was to evaluate whether, given the nature of the employment, the employer had adequate control and supervision. Given such a test we can say that it is the violation of Right to Equality[40] to not recognise Gig Workers as “Employees.”

4.4.1. Unorganised Workers’ Social Security Act, 2008

In their contracts, gig workers are referred to as “partners.” but a plain reading of the terms and conditions of service and the kind of control exercised on such gig workers shows that the two share a connection akin to that of an employer and an employee. The Supreme Court has made it very clear that[41] the criteria to determine an employer-employee connection must look at who has the authority to hire and fire employees, provide salaries, organise labour, and deduct insurance premiums. Looking at such tests these gig workers can easily be classified as employees but they have not been enlisted as employees or even included in the definition of ‘Unorganised Workers’ under the ‘Unorganised Workers’ Social Security Act, 2008 which is still in force as the new labour Codes await the date of effectiveness. This non-inclusion is a sheer violation of the Equality Principle enshrined under the Indian Constitution as this non-inclusion shall make it impossible for these workers to avail any kind of social security benefits.

4.4.2. Loss of Non Inclusion under ‘Unorganised Workers’

It’s a mandate for the Central Government under the Unorganised Workers Social Security Act, 2008 to offer social security programmes for unorganised workers. Gig workers are not classified as “workers” under social security rules due to the nature of their job and contracts with service aggregators. Thus they stand disadvantaged in comparison to similarly situated workers who are recognised as ‘workers’ since they are recognised as such. This is the violation of their right to equality.

4.4.3. Right to Life of Gig Workers:

Presently gig workers are not getting any social security benefit under any legislation in India which simply defeats the purpose of social welfare legislations which ensures protection to workers. Individuals are clearly granted fundamental rights by the Constitution, which must be asserted and enforced by them whenever those rights are violated. However, the Constitution’s higher goal in conferring fundamental rights is to protect the community’s wider interests, not just individuals’.[42] A large chunk of workers consists of gig workers, here we can say that an entire community is involved [43]and seeks protection of their Constitutional Right to Life.

Gig Workers’ Right to Life under Article 21 includes their right to livelihood and just and humane conditions of work. The right to livelihood is an equally vital aspect of that right to life because no one can survive without the means of survival, that is, the means of livelihood. If the right to livelihood is not recognised as a component of the constitutional right to life, the simplest method to deprive someone of their right to life is to take away their means of subsistence.

Article 39 (a) of the Constitution, specifies that the state must pay special attention to its policies in order to ensure that individuals, both men and women, have the equal right to a means of subsistence. Another guiding element is Article 41[44], which states that the State must effectively safeguard the right to work in the event of unemployment within the limits of its economic capabilities and development. Articles 39 (a) and 41 provide concepts that must be considered equally important in comprehending and interpreting the meaning and content of basic rights. It would be unthinkable to omit the right to sustenance from the content of the right to life if the state was required to provide persons with enough means of subsistence and the ability to work.[45] Therefore we can say that it’s not just workers right to seek social securities but it’s also State’s duty to provide for the same.

Therefore we can conclude that the right to livelihood is an element of the right to life, according to the Supreme Court in Olga Tellis v Bombay Municipal Corporation.[46] For protection of right to life of gig workers the argument that can be raised is that the right to a decent living includes the right to work in just and humane conditions. Because gig workers are not considered employees, they are unable to enforce ‘fair and decent working conditions,’ excluding them from the application of social security provisions and infringing on their right to life.

  • Right against exploitation and forced Labour

A precise reading of the terms and conditions of the agreement entered into by gig workers which has been discussed in the chapter above we find that the service aggregators implement standards for workers, such as minimum work hours and a code of behaviour for these workers called as partners or independent contractors under their contract. These Workers are also not allowed to refuse jobs or bargain for better pay or substitute other worker at their place. When we look closely they’re all around us. They whiz around on their bikes nonstop as “delivery riders,” gathering up orders from restaurants or retail chains in order to reach daily targets. As cab drivers for transportation aggregators, they pick up and drop off customers in the hopes of making a decent living after the company’s deductions. They are the new face of employment in India. Many of them are well-educated, but due to a lack of regular employment possibilities that match their educational qualifications, they have turned to the gig economy, which works in the grey area. [47] Despite the fact that the agreement states that workers are free agents, it can be alleged that they are expected to “take it or leave It.” and because the contracts do not allow for the adjustment of terms and circumstances, we can say that this amounts to forced labour under Article 23[48].

  1. RECENT LEGAL DEVELOPMENTS IN INDIA CONCERNING GIG WORKERS

5.1. Myths and Challenges of Gig Economy in India

With the flexibility in work conditions and low education requirement is catalyst for the rapid growth of this gig economy in India[49] and the truth of the economy is that it not skill based but skill biased. An intersectional hypothetical understanding of the author suggests that it’s also gender biased and disrupts the entire idea of labour laws and worker protection.[50]

Though the Central Government has promised certain social security to these workers hardly any would have been in function implemented. The truth that is established with the doctrinal and empirical study on the subject shows that even in the role played by platforms in determining employment relations, there is a wide variation within and across platform categories and between cities, states, and nations. No uniformity of practice or workers protection shall be found.[51]

5.2. The Need of the Hour

This kind of economy needs extreme regulation which seems like an impossible goal in practicality due to multiple levels of intervention which the government shall have to choose if it wants to control or regulate gig sector.[52] The author projects the hypothesis that workers are primarily on boarded onto gig work by learning about it from other workers. The low levels of education and digital literacy continue to impact gig labour by creating a strong informational asymmetry between workers and platforms.  This economy might lead to a large chunk of scarcely educated low earning youths and thus India shall as ever be the supplier of cheap labour to the world.

5.3. The Social Security Code 2020

The goal of the Code on Social Security, 2020 is to revise and unify the 9 legislations[53] relating to social security in order to expand social security to all employees and workers in the organised and unorganised sectors, as well as for subjects related to or incidental to those sectors.

5.3.1. Salient features of the Code:

  • Unorganized workers cannot claim substantial benefits such as minimum salaries, hours of work, overtime, or leave because there is no particular legislation for them. The new code provided the same possibilities and safeguards to other employees (government and private sector) as are provided under other Indian labour laws.
  • The Central Government and State Governments have the authority under the Code to create and notify social security plans for such workers in subjects like as life and disability insurance, accident insurance, health and maternity benefits, old age protection etc. The schemes may be sponsored collectively by the central government, state governments, aggregators[54], scheme beneficiaries, or corporate social responsibility.
  • The legislation requires the Central Government to establish a National Social Security Board[55] to look after the welfare of unorganised workers, as well as gig and platform workers, and to recommend and supervise programmes for them. For the wellbeing of such workers, the Central Government would establish and oversee a social security fund.
  • The code mandates that every unorganised worker, gig worker, and platform worker register[56] in order to profit from the relevant scheme outlined in the code.

5.3. The Indian Federation of App Based Transport Workers (IFAT) v Union of India[57]

5.3.1. Origin of the Case:

IFAT took inspiration from the decision of the U.K. Supreme Court in Uber BV vs. Aslam which was decided on 19.02.2021 in the Supreme Court maintained the tribunal’s judgement that Uber drivers are “workers” under the law, entitled to minimum pay, paid yearly leave, and other benefits basing its reasoning into the amount of Uber’s control over drivers in terms of rates charged, conditions of the Uber-driver contract, monitoring drivers’ performance, prescribing routes that drivers must follow, and banning personal communication between drivers and clients. The Supreme Court found that Uber has such tight control over its drivers that they were forced to work long hours on Uber’s terms in order to improve their financial situation.  The learning from the decision for drivers across the world was that Uber, being a multinational entity, must treat all its drivers across the world the equally as they perform same nature of work under same contract. Relying on this judgment IFAT filed a case in the Supreme Court of India.

5.3.2. Facts of the Case:

This case was jointly filed by the petitioners[58], alleging that the agreements between service aggregator companies and gig workers violate Articles 14, 21 and 23 of the Indian Constitution of 1950. Employees of service aggregators such as Ola, Uber, Swiggy, and Zomato are represented by the Indian Federation of App-based Transport Workers (IFAT) which is a trade union established in the year 2019. During the COVID-19 lockdown in 2020, IFAT organised peaceful rallies to demand safety equipment and new payment methods.

5.3.3. Issues raised in the case

In this case filed by the petitioners in the Supreme Court of India they have raised all the Constitutional issues that has been discussed already in part 4 of this chapter i.e claims of violation right to equality under Article 14, right to life under Article 21, exploitation and forced labour under Article 23 and have claimed to include gig workers under the definition of ‘unorganised workers’ under Unorganised Workers Social Security Act , 2008.

5.3.3. Relief Sought By the Petitioners

The petitioners in this case have filed for the following reliefs:

  1. They have asked the Supreme Court to direct the government to recognise all gig workers as “unorganised workers” under Section 2(m) of the Unorganised Workers’ Social Welfare Security Act, 2008 and to declare that the service aggregators who are the respondents in this case have infringed the right to equality, right to life, and freedom from forced labour of gig workers.
  2. The petitioners have prayed for financial reliefs from the respondents and have prayed before the Supreme Court to Direct service aggregators must deposit a proportion of their yearly turnover as a payment to social security programmes, with the government contributing as a cess.
  3. Direct service aggregators to follow the Motor Vehicle Aggregator Guidelines, 2020, which include insurance, defined working hours, minimum remuneration, and grievance remedies.
  4. Direct service aggregators must provide monetary relief to gig workers until December 31, 2021, or until COVID-19 is no longer in effect.

5.3.4. Notice Given To the Centre by the Supreme Court

    On 13th December 2021, The Supreme Court issued notice to the Centre in furtherance of the public interest litigation (PIL) filed by IFAT seeking social security benefits for gig and platform workers employed by internet platforms like Ola, Uber, Swiggy, and Zomato, among others. The case was listed before the division bench consisting of Justices L Nageswara Rao and BR Gavai.[59] The notice shall be replied by the Central Government before the next hearing of the case.

5.3.5. Future of Gig workers in India in light of the much awaited decision of Supreme Court

The decision of the Supreme Court shall now decide whether or not gig workers shall be considered ‘unorganised workers’ under the Unorganised Workers Social Security Act 2008, and what shall be their status when compared to a normal employer-employee relationship thus determining their Constitutional Rights and access to social security benefits under the New Labour Codes awaiting date of implementation in India. Hoping for a positive construction of rights in favour of gig workers we shall rest our arguments substantiating the rights that must be given to them considering the future of gig economy and gig workers in India.

  1. GLOBAL CHALLENGES TO GIG WORKERS AND ILO’S RECOMMENDATION[60]

Despite these promising initiatives taken up by the Supreme Court of India the difficulty of managing globally dispersed gig workers crowd should not be overlooked.[61] Currently, there are no government regulations for managing these online platforms, instead the platforms’ terms of service agreements determines working conditions of these workers.

If we look at the International Labour Organization report on “Digital labour platforms and the future of work: Towards decent work in the online world” (2018) which is a survey findings of the ILO and provides one of the first comparative studies of working conditions of the microtask platforms which are web-based labour platform that provide businesses and other clients with access to a large, flexible workforce we find a deep insight into the truth of the working conditions of micro-task platform workers and also advances a series of principles for improving working conditions on digital labour platforms.

In order to ensure decent employment on digital labour platforms, the report proposes 18 criteria.

Some of the important criteria’s are

  1. Correcting misclassification in the workplace.
  2. Allowing workers to exercise their right to collective bargaining and freedom of association. 3. Employing the workers’ location’s current minimum wage.
  3. Ensuring that payments and fees charged by the platform are transparent.
  4. Ensuring that independent platform workers have the option to decline tasks.
  5. Covering the price of lost work due to task or platform technical issues.
  6. Establishing stringent and equitable non-payment rules.
  7. Ensuring that terms of service agreements are published in a clear and straightforward human-readable style.
  8. Educating employees on why they are receiving poor reviews.
  9. Creating and enforcing clear norms of conduct for all platform users.
  10. Ensuring that employees can appeal non-payment, unfavourable evaluations, qualification test results, claims of code of conduct violations, and account closures.
  11. Creating a customer evaluation system that is as thorough as the worker review system. Prior to posting any job, ensure that task instructions are clear and validated.
  12. Allowing employees to access and export their entire work and reputation history at any moment.

These recommendations of the ILO can be taken as a standard for providing just and humane conditions of work to gig workers in India.

  1. CONCLUSION

The past one decade has seen a fivefold increase in the count of digital labour platforms there has been a boom in gig business in the developing countries and India stands among the top few nations as the biggest supplier of gig workers.[62] We need to develop and codify the system of platform management and platform governance with required state intervention.

The most recent decision on platform workers of the UK Supreme Court in Uber BV and others v Aslam and others (2021) has altogether given a new beginning to the vanishing point of protection to platform workers under the veil of nature of their work by clarifying that Uber is not an agency and there are limitations on written agreements of Uber drivers with their company thereby bringing them under the concept of worker. We can take insight from this judgment to interpret work contracts of gig workers in India.

The big questions such as what is the status and realty check of the digital labour platform in the India and what shall be the cause and effect of the same in coming years can only be left to be answered by the Supreme Court in the PIL filed before it seeking social security benefits for gig workers in India.

[1] International Labour Organization, Digital Labour Platforms and The Future of Work: Towards Decent Work In The Online World, (2018), available at https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/—publ/documents/publication/wcms_645337.pdf last seen on 13/05/2021.

[2] International Labour Organization, World Employment and Social Outlook 2021: The Role of Digital Labour Platforms in Transforming the World of Work (February 2021), available at www.ilo.org/publns last seen on 13/05/2021.

[3] Ibid.

[4] Supra 2, (The report draws on the findings of surveys conducted among 12,000 workers in 100 countries).

[5]Raj Swaminathan and Rajendra Srivastava, India Can Become The Gig-Worker Capital Of The World” The Hindu Business Line, (New Delhi 06/08/2021).

[6] Boston Consulting Group (BCG) and Michael & Susan Dell Foundation, Unlocking The Potential of The Gig Economy In India”, (March 2021), available at https://www.dell.org/impact/#reports, last seen on 13/05/2022.

[7] Which broadly comprises work delivered on-demand with little to no formal contracting and over 200 million people are considered part of the gig workforce globally.

[8] Janine Berg, Marianne Furrer, Ellie Harmon, Uma Rani, Michael “Six” Silberman, Working Conditions On Digital Labour Platforms: Opportunities, Challenges, And The Quest For Decent Work (20/09/ 2019), available at https://voxeu.org/article/working-conditions-digital-labour-platforms, last seen on 13/05/2022.

[9] Sarah Kessler, Gigged: The End of The Job And The Future of Work. (1st ed. 2018).

[10] Supra 8.

[11]Amitava Ghosh, Gig Economy in India Rising (1st ed.2020).

[12] Ss. 2(m), 2(n), The Unorganised Workers Social Security Act, 2008.

[13] Though the implementation of the code has been differed till date.

[14] S. 2(35), The Code on Social Security, 2020.

[15] S. 2(60), The Code on Social Security, 2020.

[16] For example, the delivery partner’s terms and condition agreement for Zomato Media Pvt. Limited terms them as independent contractor and sets no precise employer employee relationship rights on them.

[17] Ss. 2(60),2(61), The Code on Social Security, 2020 (NO.

[18] Bhupendar Yadav, 90% States Publish Draft Rules on 4 Labour Codes, Implementation Imminent: Govt, The Economics Times, (27/04/2022), available at https://economictimes.indiatimes.com/news/india/90-states-publish-draft-rules-on-4-labour-codes-implementation-imminent-says-bhupender yadav/articleshow/91128926.cms Last seen on 13/05/2022.

[19] Adya Behera, Harshula, Understanding Food Delivery Platform: Delivery Person’s Perspective, Research Project of School of Public Policy And Governance, TISS, Hyderabad. available at chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://tiss.edu/uploads/files/Online_Food_Delivery_Platform.pdf, last seen on 13/05/2022.

[20] Third-party apps, usually through a website or a mobile app, list available eateries close to the customer’s location under the Platform to Consumer Model. Consumers can then place orders with these partner restaurants, and the food will be delivered by either the restaurant or a platform driver. Zomato, Swiggy, DoorDash, UberEats, and Deliveroo are all well-known examples of this model.

[21] The Restaurant to Consumer Model began with the restaurant serving food from its own locations. McDonalds, Burger King, and Domino’s are some of the more well-known examples. To modernise, some businesses began offering food deliveries through their websites, apps, or by partnering with a delivery company. McDonald’s, for example, has its own food delivery network and app in a few countries. It also works with companies like DoorDash to transport food to areas where it doesn’t have a presence.

[22] Zomato’s Terms of Service, available at https://www.zomato.com/policies/terms-of-service/, last seen on 13/05/2022.

[23] Delivery Partner’s Terms and Conditions. available at  https://www.runnr.in/delivery-partner-tandc.html, last seen on 13/05/2022.

[24] Ibid.

[25] Supra 23.

[26] Supra 24.

[27] Supra 24.

[28] [2021] UKSC 5.

[29] The Aslam, Farrar and Others vs Uber was the original Employment Tribunal case which was brought in 2016 by a group of Uber drivers against Uber. The Case was decided on 19th February 2021 by Lord Leggatt.

[30] Autoclenz Ltd v Belcher, [2011] UKSC 41

[31] Ibid.

[32] Ravi Peiris, Ramifications of the UK Supreme Court judgement in Uber B V v. Aslam and Others 3 Labour Law Journal 26,40 (2021).

[33] Ibid.

[34] McCormick v Fasken Martineau DuMoulin LLP 2014 SCC 39; para 23

[35] Digital business is the process of using digital technology to generate new value through products and connect people to objects, insights, and experiences in order to reinvent business models and change a company’s goods and customer experiences. A digital business model is a way of producing value by employing digital technology to produce consumer advantages. The goal of the digital solution is to provide a significant benefit for which clients are ready to pay a premium.

[36] Ehtisham Ahmad, Jean Drèze, John Hills, and Amartya Sen (eds.), Social Security in Developing Countries, (2011)

[37] Olga Tellis v Bombay Municipal Corporation, 1986 AIR 180.

[38] Guy Davidov and Brian Langille (eds.), The Idea of Labour Law (2011), available at https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199693610.001.0001/acprof-9780199693610, last seen on 13/05/2022.

[39] Dhrangadhara Chemical Works Ltd. v State of Saurashtra, 1957 AIR 264.

[40] Art. 14, The Constitution of India.

[41] Ram Singh v Union Territory of Chandigarh, Appeal (civil) 3166 of 2002.

[42] Supra 37

[43] Raj Swaminathan and Rajendra Srivastava, India Can Become the Gig-Worker Capital of The World, The Hindu Business Line, (New Delhi 06/08/2021).

[44] Art.41, The Constitution of India.

[45] Supra 41.

[46] Ibid.

[47]T.k. Rajalakshmi, Gig Workers Vulnerable to Exploitation, Frontline, (25/03/2022), available at https://frontline.thehindu.com/social-issues/gig-workers-vulnerable-to-exploitation/article38454783.ece, last seen on 13/05/2022.

[48] Art. 23, The Constitution of India.

[49] Editorial, Labour Demand and Supply To Digital Platforms Increase In India: ILO, The Hindu Business Line, (New Delhi 23/02/ 2021).

[50] Tarun Sinha, How Gig Economy Is Becoming Mainstream In India, The Tribune, (New Delhi 20/09/2021).

[51] Supra note 12.

[52] John Howe, “The Broad Idea of Labour Law: Industrial Policy, Labour Market Regulation, and Decent Work” in Guy Davidov and Brian Langille (eds.), The Idea of Labour Law (2011), available at https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199693610.001.0001/acprof-9780199693610, last seen on 13/05/2022.

[53] The Code consolidates The Employees’ Compensation Act, 1923; The Employees’ State Insurance Act, 1948; The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952; The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959; The Maternity Benefit Act, 1961; The Payment of Gratuity Act, 1972; The Cine- Workers Welfare Fund Act, 1981; The Building and Other Construction Workers Welfare Cess Act, 1996; and The Unorganised Workers’ Social Security Act, 2008.

[54] As defined in section 2(2) of the Social Security Code 2020, “aggregators” are digital middlemen or market places that connect buyers and sellers of goods or services. A list of aggregators is provided in Schedule 7 of the Code.

[55] S. 6(1), The Social Security Code 2020.

[56] S.113 The Social Security Code 2020.

[57] WP (C) 1068/2021

[58] The Indian Federation of App-based Transport Workers, Tulasi Jagdish Babu who is an Ola taxi driver and Kaushar Khan who a former Ola and Uber driver

[59] Samanwaya Rautray, Supreme Court Issues Notice to Centre on PIL Seeking Social Security for Gig Workers, The Economic Times, (14/12/2021), available at https://economictimes.indiatimes.com/news/india/supreme-court-issues-notice-to-centre-on-pil-seeking-social-security-for-gig-workers/articleshow/88267301.cms, last seen on 13th May 2022.

[60] Supra 1.

[61] See Alek Felstiner, Working The Crowd: Employment And Labour Law In The Crowdsourcing Industry, 32 Berkeley Journal of Employment and Labour Law, 143, 204 (2011).

[62] Supra 2.
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