ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Labour Laws for Gig Workers in the Context of Labour Law Reforms

In an attempt to incorporate the doctrine of universalisation of social security, the gig workers are brought into the ambit of the labour laws for the first time, with the provision of some welfare measures under the Code on Social Security, 2020. The three other codes are silent on the policies towards gig workers. While the codes are yet to be implemented, there are many questions pertaining to the clarity of the codes and how to implement them effectively to meet the intended objectives.

Across countries, attempts are made to modify labour laws to accommodate the new class of gig workers who emerged with the rise of digitally enabled platforms. The gig economy, which came into being sometime during the 2000s, brought higher flexibility to the labour market. While the size of the gig workforce is on a sharp rise, policymakers have been finding it hard to classify these workers ­under the existing labour laws to regulate their functioning and relationships with the businesses they are engaged in. The gig economy in India is fast growing at a compound annual growth rate of 17% and currently stands at around 15 million, whereas in countries like the United States (US), it has already surged, with 36% of the workforce eng­aged in it (ASSOCHAM 2021). Predicting this class of workers to be predominant in tomorrow’s labour force, it is essential for the policymakers to reach a clear understanding of their nature and functioning for ­arriving at regulations.

The recently drafted labour codes in India bring the gig workers into the ­ambit of the labour laws for the first time, providing for some clauses intended to enhance their welfare. Elsewhere too, in the developed economies, issues relating to this form of labour have not been sufficiently addressed (Collier et al 2017). This article tries to explore how the earlier literature has defined and classified the gig workers, the nature of their relationship with the businesses they are ­engaged in and how the laws elsewhere, ­especially in the developed countries, have attempted to deal with the challenges. The study critically ­unfolds the ideological debate on freedom versus precarity associated with the ­nature of contractual ­relations of gig workers with their business partners. The ­article further ­explores how the new labour codes treat the gig workers and what measures are taken to address their welfare in India.

Who Are Gig Workers?

Gig workers are those who participate in income-earning activities outside the traditional, long-term employer–employee relationships. The Cambridge dictionary defines gig economy as “a way of working that is based on people having temporary jobs or doing separate pieces of work, each paid separately, rather than working for an employer.” The gig economy can be seen as a part of a wider category of “non-standard employment” where the work off­ered is contingent and non-­permanent (Kalleberg 2000). While the usage of the term ‘‘gig’’ and the type of activities carried by gig workers is not entirely new, currently the term is widely used to refer to tasks generated using digital platforms, which have massively scaled up due to technological ­intermediation.

Different approaches are adopted in defining this workforce, like the length of working relationship, legal classification of workers and the type of work they perform (De Stefano 2016). Though platforms facilitating gig work provide good earning opportunities, they have been criticised for heightening the fragmen­tation, commodification, casualisation and precarisation of work (Kalleberg 2009; Bergvall-Kareborn and Howcroft 2014; De Stefano 2016; Standing 2016; Das Acevedo 2018; Woodcock and ­Graham 2020).

Labour platforms can be broadly classi­fied into crowdsourcing and on-demand. If work through crowdsourcing (also called cloud work) typically inv­olves working online from a remote loc­ation, on-demand work is done in person in a stipulated geographical area (De Stefano 2016). Crowdsourced work can further be classified into online freelancing and microtasking. Under online freelancing, platforms faci­litate the client to connect with the worker, but the workers might fix their own rates and conditions with the clients (Woodcock and Graham 2020). Mic­rotask work inc­ludes activities like transcription and image recognition, where the work is highly bundled, simple and monotonous. Other tasks under crow­dsourcing also demand high-skilled workers such as IT coders, web designers and a variety of other professional services. Similarly, in on-demand work, at the lower end of skills are services like delivery, driving, house cleaning, etc, while the higher-skilled workers are home nurses, electricians, lawyers or doctors. In all these models, workers are remunerated acc­ording to the gigs they perform, and they may have more than one contract at the same time. Although the above categories of gig workers can be placed together, for they largely source their jobs using digital platforms, platforms may differ in their nature of contracts, functioning and problems (Bregiannis et al 2017). The risks associated with this type of emp­loyment include uncertainty in receiving adequate income, lack of social prote­ction, difficulty in collective bargaining or absence of other benefits asso­ciated with full-time employment.

Official statistics on the size of the gig market is hard to find, though some studies have compiled a crude picture of gig workers, the conditions they live in, and the challenges they face. According to a report by India Staffing Federation (2019), India stands fifth in terms of flexible workforce, with the average age of gig workers at around 24–38 years in different industries (ASSOCHAM 2021). A survey report by Boston Consulting Group and Michael & Susan Dell Foundation (2021) predicts a sharp growth of this sector in India from eight million jobs currently to 90 million in a decade from now. The survey reveals that more than 50% of gig jobs are driven by dem­and for low-wage, low-skilled work, with only around 30% of the jobs demanding specialised skills. Delivery and ride-hailing are the widely existing services in the gig economy in India. Freelance consulting through gigs in areas of ­design, marketing, strategy and information techno­logy are seen growing among the highly skilled services. The key players in this sector include Uber, Ola, Zomato, Swiggy, Delhivery, Dunzo, Urban Company, Housejoy, Handy, Mr Right, Portea, Flexinglt and Upwork.

Working Relations and the Complexities in Regulation

Tripartite relations in the two-sided platforms: One distinguishing element of gig work that brings complications in regulating gig economy is the triangular relationship between the worker (producer), the end-user (customer) and the digital intermediary (platform provider or the aggregator). There exists some sort of a contract that governs the relationship between the producer and the aggregator. In this new model of work, “a network of contracts” substitutes long-term, stable employment relationship (Rahman and Thelen 2019). Airbnb hosts or Uber drivers have very simple user agreement with their companies, which is only terms of service agreement, unlike an employment agreement. It is often likely that the worker bears much of the risk associated with the job leading to their income instability (Slee 2016; Kaine et al 2017).

There is also ambiguity associated with the relationship between the worker and the end-user that varies across the business models. If the aggregator’s role is only to intermediate, then the worker and the end-user might negotiate on the terms of the agreement. Control is higher in the case of on-demand platforms and less in the case of crowdsourced platforms where work is more customised across the tasks (Stewart and Stanford 2017). Platforms exert control over different aspects of work, the most significant ones being fixing prices and setting wages. The ambiguity in the nature of the contract has often given rise to conflicts between platforms and workers, which provoked debates among the academics and policymakers. First, do gig workers enjoy liberty claimed by many to be the main reason for choice of work in this labour market? Second, is the employment classification important in the gig economy, and should the gig workers be treated as employees rather than independent contractors? Third, are the criticisms claiming the gig ­economy as a “new precariat” justified or have the critics and the policymakers failed to see this as a new form of capitalism, calling for a new regulatory approach?

Liberty versus precarity debate and the need for government intervention: One of the most cited reasons in support of gig work is the flexibility and the freedom from bondage with the employers. While for some the gig economy represents the height of liberty, some others have called it “the new precariat” where the workers are left to fend for them­sel­ves. Scholars who look at the gig economy as a new form of capitalistic exploitation have questioned the labour relations of the gig workers and the nature of liberty asso­ciated with it (Dubal 2017; Das Acevedo 2018; Woodcock and Graham 2020). There are others who believed that sharing economies with their counterparts like the gig economy are alternative forms of capitalism, what they call “coordinated market economics (CME).” They claim that the critics who see these economies as exploitative capitalism have failed to see them as alternative forms of capita­lism (Dyal-Chand 2015).

Zietlow (2020) brings in a few postulates, explaining the liberty associated with the gig economy in the US, the largest employer of the gig workforce. The study questions to what extent the liberty of contract as seen by contract libertarians, and the individual autonomy of workers advocated by labour republicanism hold good to explain employment relationships in the gig economy. Liberty of contract, which formed the central component of abolitionist ideology of slavery, manifested itself in laws supported by the employment-at-will doctrine. The ­at-will employees are at liberty to leave their jobs any time without any bonds attached (Epstien 1984). The contract libertarians advocate that the state should restrain from intervening in contractual relationships as it would disrupt the workers’ autonomies. However, such a liberty of contract is not a symmetrical contract and is insufficient to defend workers’ rights under unequal bargaining power (Barnhizer 2005). Likewise, the labour republicans’ promise of liberty and looking at the entrepreneur as an ideal worker has some bearing for the gig economy, as gig workers are often seen to be independent contractors (Gourevitch 2013; Dubal 2017).

Many recent studies question the nat­ure of autonomy and the kind of freedom experienced by the gig workers (Das Acevedo 2018; Dubal 2017; Woodcock and Graham 2020). Is it the lack of opportunities to be employed elsewhere the reason for the gig workers to be occupied in the current jobs they are in? (Das Acevedo 2018). The just-in-time scheduling of work, long working hours leading to the impact on health and disruptions in family life, take-it-or-leave-it contracts, penalties for mismatch in services, control through algorithms and customer reviews, lack of workplace safety, etc, have posed the dark side of the gig work. Woodcock and Graham (2020), with a large set of interviews carried with the gig workers in many countries, show that the flexibility associated with the gig eco­nomy is notional. While in many cases the gig workers are required to end­anger their lives at work, there is a mark of undue coercion (Das Acevedo 2018). Therefore, government intervention in labour contracts is necessary to protect workers against undue coercion that results from the imbalance of power.

Gig economy as an alternative form of capitalism: Scholars, who diverged from seeing platform economies as exploitative capitalism, advocate that they should rather be seen as a different form of capitalism (Hall and Soskise 2001; Dyal-Chand 2015). American capitalism is one of the forms of capitalism, known as liberal market economies (LMEs), featured by competition, privately owned information and formal contracts. In contrast, businesses in CMEs operate on the basis of strategic information, a mode of interaction in which businesses engage themselves through informal contracting (Hall and Soskise 2001). The collaboration here involves commonly sourcing customers and technology and accessing them efficiently through institutional intermediaries, which are typically the providers of technological platforms (website that runs the Airbnb network or Uber platform) that carry the potential to make the system more democratic. By advocating enforcement of informal contracting, Dyal-Chand (2015) argues that policymakers should support them within business networks as long as there is a democratic representation of members. Many have also looked at collective organisations among platform workers and the potential these organisations carry to better labour conditions (Irani and Silberman 2013; Gupta et al 2014; Graham and Woodcock 2018). The most cited of these is Turkopticon, a website that facilitates MTurk workers to provide information on clients or verify the clients’ records before signing for the task (Irani and Silberman 2013). Examples can also be given of Uber drivers, Airbnb hosts or Task Rabbit taskers widely using Facebook pages to express their grievances or to scale up marke­ting. To make coordinated economies successful, companies need to share more responsibility with the businesses in their networks. People who support these eco­nomies advocate the need for additional sharing institutions to regulate the functioning of gig economies rather than dependency on the state for rigid regulatory policies and contracts.

Though the advocacy towards the dem­ocratisation of these large platforms driven by corporate in Cmes is different from cooperative governance, some examples of platforms like Freegle, Eva, Fairbnb.coop and Fairmondo could be provided of cooperative governance, which is highly democratic in nature. The growth of such platforms is, however, in a nascent stage and constitutes a small percentage compared to large corporate aggregators.

Problem with the classification of wor­kers: The presence of control exerted by platforms on gig workers and the ­absence of social security measures led to contentious debates on whether the gig wor­kers should be treated as “employees” or “independent contractors.” While the control exer­ted by platforms is the most imp­ortant legal criterion for deciding the emp­loyee status, the nature of control over the conditions of work is central to regul­ating labour relations in the gig eco­nomy (Collier et al 2017). The higher the ­degree of control exerted by the businesses, the more likely the workers be classified as employees. The factors that support independent contractor classification include work to be highly skilled, workers providing their own equipment, setting their own schedules, and getting paid per project (Carlson 1996). Governments have established many rules and tests to determine if a worker is an employee or an independent contractor. The ABC test, Borello test, the 20-factor test, and the common law test are some that are used in the US. In India, control test and integration test are used to see whether the employer dictates how the work is done or how much the worker is integrated into the employer’s business.

The most contentious case here has been the one with Uber. California passed the “AB5” Law in 2019 that urged Uber to consider its drivers as employees. Tho­ugh Uber lost its appeal, Californians voted 58% in favour of Proposition 22, the alternate model proposed by companies. When the Uber drivers took the case to court again, it was rejected by the California Supreme Court, which concluded that Uber drivers have control over important aspects of their work like their schedules, vehicles, location of operation and their ability to work for competing organisations. They are, there­fore, independent contractors not entitled to employee protections. The United Kingdom (UK) Supreme Court had rec­ently ruled that Uber drivers must be treated as workers. Contradicting the judg­ment in California, this judgment focuses on the control the platforms ­exert over the worker and the assumption that such control also carries with it the responsibilities for their working conditions and well-being.

These legislation attempts in California and the UK are an “all-or-nothing” pro­position. Alternatively, few countries have experimented with an interme­diate category, “the dependent contractors” like in Canada, Italy and Spain, but have experienced mixed results. In Italy and Spain, even before the arrival of the platform aggregators, the legislature recognised an intermediate category of workers situated between employee and contractor based on factors like collaboration, length of the relationship, functional coordination with the principal, providing direct services without subcontractors, taking entrepreneurial risk and having ownership of the tools of production (Countouris 2016). Canada and Germany now recognise a “depen­dent-contractor” status for some independent contractors who have an exclusive relationship with one business (Cherry and Aloisi 2017).

Labour Reforms and Laws for Gig Workers

Casualisation of labour and ineffective laws for workers in the unorga­nised sector: Gig workers in India, esp­e­cially the on-demand platform workers, confront problems that are not new to the large unorganised workforce and exhibit many features found in the wider labour market, which include casualisation, precarity and obsequiousness. Exc­luding the gig workers ever since its emergence from the ambit of labour laws in India did not get as much attention as in the developed economies. Eff­orts were made by some of the unions of workers under the digital platforms for securing their rights and demanding ­social security benefits, which have not been very successful.

Though organising labour has somewhat helped improve the lives of the wor­kers through trade unions, the labour enforcement machinery in India has weakened, especially in the post-globalisation period (Advani and Saini 1995; Saini 2010). An interesting observation of capital and labour restructuring in the labour history is made by ­David Weil (2014) who calls the phenomenon of contractualisation of labour as “fissured workplace,” an arrangement that has resulted from strategies of firms to shed in-house workers. It is discussed wid­ely that the labour laws in India have predominantly aimed at protecting the rights of organised workers while workers in the unorganised sector get scant attention. The laws have so many terms and conditions that even a large number of workers in the organised sector fail to get the benefits (Haldar and Deakin 2015; Saini 2010).

As per the estimation of a sub-committee of the National Commission for Enterprises in the Unorganised Sector (NCEUS 2017), the contribution of unorganised sector1 to the gross domestic product (GDP) is about 50%. The Unorganised Workers Social Security Act, 2008 lacks provisions for those workers other than providing some guidelines about the available social sec­urity schemes. Studies show that even within the organised sector,2 there has been sufficient casualisation of labour. Most manufacturing industries have 70% of workforce employed on a contract ­basis. A good number of esta­­b­lishments to which the contract labour act is otherwise applicable are not registered under the act, which makes it hard for workers to benefit from any counteracting power against the contractors or the principal emplo­yers (Saini 2010). Workers in the unorganised worker, in general, suffer from cycles of seasonality of employment, fragmented workplace, lack of employer–employee relationship, dominance of migrant labour, lack of support from trade unions and insufficient lab­our laws. In many ways, gig work is similar to other forms of precarious work, hence the need for regulatory responses to add­ress the entire lot of unorganised and non-employee working class in totality.

Defining and incorporating gig workers under the new labour codes: The four new labour codes enacted by Parliament in 2019 and 2020 have amalgamated 29 laws governing minimum wages, ind­ustrial relations, collective bargaining, occupational safety, and social security (Ministry of Labour and Employment 2020). While the laws under the Code on Wages, 2019 are finalised, those under the Indu­strial Relations Code 2020, Occupational Safety, Health and Working Conditions Code 2020 and Code on Social Security, 2020 are yet to be notified.

Theoretically, three possible appro­aches exist before the policymakers for regulating the gig economy. First, to exp­and the definition of employee status to all workers, so that all workers, irrespective of their employment classification, are secured with full-time employment. Second, allow the market to operate the gig economies but address the problems through litigation and statutory measures. And third, providing a safety net to gig workers, reducing the extent to which workers depend on their employers for their security (Zietlow 2020). In an attempt to incorporate the doctrine of universalisation of social security, India has chosen the third along with the second option. While the codes are yet to be imp­lemented, there are many questions pertaining to their clarity and how to implement them to effectively deliver the intended objectives.

Labour laws pertaining to gig workers are covered only under the Code on ­Social Security, 2020. While this class of workers came into the ambit of the ­labour laws for the first time, the first task ­before the policymakers was to ­arrive at an operational definition as to who the gig workers are. Chapter I, Section 2(35) of the Code on Social Security, 2020 defines a gig worker as “a person who participates in a work arrangement and earns from such activities outside of a traditional employer–employee relationship.” The definition, however, lacks cla­rity as to who exactly a gig worker is, but it clearly separates the gig workers from regular employees and other non-employee classes of workers.

There has been no attempt made to classify the gig workers as employees in the new labour codes. Chapter 1, Section 2(26) of the Code on Social Security defi­nes an “employee” as “a person employed on wages by an establishment, ­either directly or through a contractor to do any skilled, semi-skilled, unskilled or any other work, whether the terms of employment be expressed or implied.” All full-time employees in India are assured of certain working conditions such as minimum wages under the Minimum Wages Act, 1948, a set number of hours of work, compensation for termination and statutory protection through laws like the Industrial Disputes Act, 1947 or the shops and establishments act of the state governments.

To treat the gig workers as employees would also call for employment status for millions of contract labourers and unorga­nised workers in the country. Supporting employment status could res­ult in loss of incentives for businesses, loss of ­employment and stifling of innovation of the platform economies. The economic crisis of the 1970s, 1980s and 2008 showed how neo-liberal ideas suppor­ting private property rights, entrepreneurial freedom and free markets facilitated the growth of precarious work, pulling out emp­­loyment protection during the econo­mic downturns (Woodcock and Graham 2020).

One cannot, however, ignore the adv­antages the gig economy brings in, namely the creation of new markets and employment, creating on-demand acc­ess to goods and services easing the lives of millions of consumers, formali­sing the informal sector or increasing the ­female labour force participation rate. In addition to increasing productivity, agg­regator platforms help in price transparency, tracking work quality and creating a motivating force to work. The via­bility of the platform model would also depend on the efficiency the fragmented labour provides, given the highly dynamic supply–demand setting of these businesses.

The survey results from one of our ­recent studies on sharing economies ­reveal that not all gig workers are in fav­our of full-time emp­loyment. While we see that the average earnings for gigs is higher than the minimum wages in India, some Uber drivers are of the opinion that they enjoy good amount of freedom working as gig workers. They would opt for being fully employed if their earnings are high enough and are also free from the control of the emp­loyers. It may not, therefore, be ideal to classify most of the categories of gig workers as employees.

Could the gig workers be treated as ‘‘dependent contractors’’? As discussed earlier, to call a worker a “dependent contractor,” one needs to meet certain criteria, like working for single employer for longer duration, drawing income from the same employer and working solely without any subcontractors or workers. The on-demand platform workers in ­India typically register with more than one platform simultaneously. If ­India goes with the universalisation of social security, it does not matter much whether the gig workers are dependent or independent contractors, since the social sec­urity benefits are drawn from the central pool of funds created by the state rather than from the employers. However, if certain schemes are sponsored solely by the aggregators, such classification of dependent contractors of those gig workers who exclusively depend on one aggre­gator for their livelihood would be useful.

Yet another question that would arise here is: Should the gig workers be treated differently from unorganised workers, contract labour or self-employed workers, who form the other non-employee class of workers? Contract labour and workers in the unorganised sector are employed by an employer through an employment agreement for work with conditions with a regular pay/wages, which is not so in the case of gig workers. Chapter 1, Section 2(75) of the labour code defines “self-employed worker” as “any person who is not employed by an employer but engages himself in any occupation in the unorganised sector, where the enterprise employs workers and the number of such workers is less than 10.” The gig workers are therefore different in their nature and functioning from other non-employee categories of workers.

Though the attempt to provide social security measures for gig workers and bring them into the ambit of the labour laws is a welcoming one, there is lack of clarity on guidelines for the adoption and implementation of these in the code. The definition adopted to define a gig worker as the ‘‘one who performs work or participates in a work arrangement outside of traditional employer-employee relationship’’ is too broad and vague, which would soon lead to problems for inclusion and implementation. While all gig workers derive their tasks from the platforms, platforms differ in terms of conditions and the nature of tasks provided. Crowdsourced platforms differ widely from on-demand platforms, regarding the nature of work, skill of the workers and hourly earnings. Should social security benefits be covered for all in the same way? The nature of coverage could depend on the amount of income and the risk involved in the kind of work it entitles to. The ­difference between platform and gig workers brought through the definitions is also not clear. Section 2(61) of the code defines a platform ­worker ‘‘as someone engaged in or undertaking platform work,’’ which hardly provides any operational element in the definition. All platform workers are likely to be gig workers since platform workers are paid on task basis, whereas all gig workers may not be platform workers. Companies may hire gig workers through short-term contracts who are not sourced through digital platforms. Compiling data on gig workers who are not platform workers could be difficult and needs to be addressed. The code also creates provisions for unorganised workers and self-employed workers and mandates different schemes for all these categories of workers. There may be an overlap between these definitions when it comes to targeting the beneficiaries and distribution of the schemes, and therefore, they need to be clearly categorised.

The recent launching of the e-Shram portal by the labour ministry to enrol 300 million + people in the informal and unorganised sectors, like construction wor­kers, gig and platform workers, street vendors, domestic workers and migrant agriculture workers, is a good move tow­ards the identification of these workers to progress towards universalisation of social security schemes. However, not all platform and gig workers, as per their definition under the Code on Social ­Security, can be covered in this scheme.

Social security schemes for gig workers covered in the Code on Social ­Security, 2020: A recent report by the International Labour Organization (ILO) advocates three criteria for adapting ­social protection systems for gig workers: (i) insurance coverage to workers in all forms of employment, independent of the nature of contract; (ii) technology adoption for simplification of contribution and benefit payments; and (iii) institu­ting and strengthening universal, tax-­financed mechanisms of social protection (Berg et al 2018). As stated by Kondo and Singer (2020), there is need for better mechanisms for dealing with gig economy workers and other precarious workers who work for dominant companies, but who do not fit well into 20th century understanding of employment. An attempt to universalise social security code and the inclusion of gig and platform workers in the Social Security Code, 2020 seems to be a move in that direction.

The social security schemes for the gig, platform and unorganised workers are listed in Chapter 9, page 67 of the Code on Social Security, which is made through allocation of schemes from both the central and the state governments. Section 114(1) relates to the funding of central government schemes that may be wholly funded by the central government or along with state governments, aggregators or companies through the corporate social responsibility (CSR) fund. The code states that the central government shall frame and notify, from time to time, suitable welfare schemes for unorganised workers on matters rel­ating to life and disability cover, health and mat­ernity benefits, education, old age protection, or any other benefit as may be determined by the central gover­nment.

The code also details certain operational matters on raising of funds and the share of central government, state governments and aggregators. The contribution made by the aggregator to be not less than 1% and not exc­eeding 2% as may be notified by the central government of the annual turnover of every such aggregator, shows the transfer of some amount of cost of social security to the companies. A provision is also made for the formation of a Nati­onal Security Board under Section 6(1) with representation from the gig workers, the aggregators and the government bodies.

While the coverage of schemes to gig workers is quite broad, implementation issues would creep in due to lack of clarity in classification, problems in identification and registration of those workers and receiving of contributions from aggregators on a prompt and continuous basis. As per Section 113(2) of the code, every unorganised worker, gig wor­ker or platform worker shall apply for registration using their Aadhaar number. Colle­cting data of gig, platform and unor­gani­sed workers employed shall be beneficial for formalising this class of workers with the provision for their registrations.

Non-coverage of gig workers in other new labour codes: Another crucial point that arises here is the absence of coverage of gig workers in three other new codes. The Code on Industrial Relations, 2020 provides that all industrial establishments with 100 workers or more must prepare standing orders on matters listed in the schedule on the code. These matters relate to classification of workers, manner of informing workers about work hours, holidays, paydays, wage rates, termination of employment and grievance redressal mechanism for workers. At present, there is no mechanism to address the redressal of disputes for gig workers. Though attempts are made to create unions by app-based workers, lack of information, lack of knowledge and geographical dispersion of workers make it difficult for gig workers to bargain collectively.

The New Industrial Relations Code, 2020, which replaced the Industrial Disputes Act, 1947, Trade Unions Act, 1926 and Industrial Employment Standing Orders Act, 1946, reduces the power of collective bargaining for labour. With the recognition of fixed-term contracts and individual settlements, granting of negotiating power only to statutorily recognised union or negotiating council, all­owing only one trade union or the ­union with 51% membership to act, req­uirement of 14 days’ notice period before going on strike, all have gone against the very concept of collective bargaining (Cox and Singhvi 2020). The code that speaks of new rules on collective barg­ai­ning and introduction of new fixed-term contracts is silent on contracts and coll­ective bargaining for gig workers as the code is limited to the standard employer–employee relationship. The age limit of the workers, classification of aggregators, coverage of period of work for eligibility to draw social security benefits, status of agents or contractors involved in platform work, conditions for exemptions for aggregators for contributions to the fund, timeline for the constitution of the National Social Security Board, trans­parency in the worker representation in the board are the areas in which clarity is sought by the industry bodies and uni­ons (Newsclick.in 2020). Instead of a centralised database of workers that is proposed, the trade uni­ons have requested a federated data arc­hitecture, which they feel can help in democratic and decentralised data management involving local agencies. While covering the gig workers in the Code on Social Security, 2020 is a welcome move, the Code on Industrial Relations, 2020 could have dealt with defining the nat­ure of contracts between the gig workers and the platforms. This, however, needs the ambit of the employment in other codes to be widened to include the platform and gig workers (Sharma 2021). Also, in many cases, gig workers do not have an upper limit on the number of hours of work. The incentive-driven earnings make them work for very long hours, not realising the cost of ill health in the long run. Fixing maximum working hours, adequate work conditions and safety measures in the workplace for gig workers could have been covered in the Occupational Safety, Health and Working Conditions Code. The Employment Relationship Recommendation, 2006 of the ILO states that

to protect the workers in an employment relationship, the existence of the relationship should be guided primarily by facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed bet­ween the parties. (ILO 2006)

In Conclusion

The recently drafted labour codes in ­India, with the passing of the new lab­our bills in Parliament, brings the gig workers into the ambit of the labour laws for the first time, providing for some clauses intended to enhance their welfare. We explore in this article as to who the gig workers are, under what types can they be classified, and what is the ­nature of contract of work in gig economy that differentiates gig workers from employees and other categories of workers. While the precarious nature of gig work has posed the dark side of the gig economy, one cannot, however, ignore the advantages the gig economy brings in. Of the four new consolidated labour codes, ­labour laws pertaining to gig workers are covered only under the Code on ­Social ­Security. While there is a lack of clarity on the definition of the gig worker used in the code, it differentiates gig workers from employees. No attempt has been made in the labour codes to classify gig workers as employees. Supporting emp­loyment status would also mean loss of incentives for businesses, loss of employment and stifling of innovation in the newly emerged platform economies.

The viability of the platform model would also depend on the efficiency the fragmented and piecework labour would bring in, allowing for large economies of scale. While welcoming the inclusion of platform and gig workers in the Code on Social Security, 2020, concerns are raised in certain areas like classification of aggregators, coverage of period of work for eligibility to draw ­social security benefits, status of agents and contractors involved in platform work, conditions for exemptions for aggregators for contributions to the fund, timeline for the constitution of the Nati­onal Social Security Board and transparency in the worker representation in the board.

In addition to the inclusion of laws for gig workers in the Code on ­Social Security, the Code on Industrial Relations, 2020 could have dealt with defining the nature of the relationship and the contract between the gig workers and the platforms by widening the scope of the ambit of employment relationships. When gig workers in many platforms are incentivised to work heavily ignoring the long-term health impacts, fixing maximum working hours and workplace safety measures could be covered in the Occupational Safety, Health and Working Conditions Code.

Notes

1 The unorganised sector consists of all unincorporated private enterprises owned by individuals or households engaged in the sale and production of goods and services operated on a proprietary or partnership basis with less than 10 total workers.

2 Organised sector typically refers to licensed ­organisations, those who are registered and come under the ambit of goods and services tax.

References

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Barnhizer, D (2005): “Inequality of Bargaining Power,” University of Colorado Law Review, 76.

Berg, J, M Furrer, E Harmon, U Rani and M S Silberman (2018): Digital Labour Platforms and the Future of Work: Towards Decent Work in the Online World, ILO, https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_645337.pdf.

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Updated On : 26th Jul, 2022
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