SCO Explains: Gig Workers’ Claim for Social Security

Malavika Parthasarathy: Hello Listeners! Welcome to SCO Explains; where we bring the work of the Supreme Court to you. 

In this episode, we talk about the labour rights of gig workers. Gig workers earn incomes outside of traditional employer-employee relationships. India is home to over one point five crore gig workers, many of whom are affiliated to app-based aggregators such as Swiggy, Zomato, Dunzo, and Uber. We are joined today by Professor Babu Mathew, who teaches at the National Law School of India University and who has long been involved in the Indian trade union movement. A committed human rights activist and lawyer, Professor Mathew has worked extensively on issues such as bonded labour, child labour, displacement and the destruction of livelihoods of the marginalised.

The staggering growth of the platform economy in India has raised concerns about the labour conditions and welfare of the gig workers. The pandemic revealed the extent of their vulnerability. 

In September 2020, amidst the pandemic-induced lockdowns, the Indian Federation of App-Based Transport Workers filed a petition at the Supreme Court. They asked to be recognised as ‘unorganised workers’. Presently, the contract between gig workers and the companies hiring them identifies the workers as ‘partners’ and not ‘employees’. This deprives them of the benefits of social security legislations. In their petition at the Supreme Court, the Federation argues that the denial of social security benefits violates their Right to Equality, as they cannot avail of the benefits that other similarly situated workers or employees do. It urged the Court to recognise gig workers as unorganised workers so that they may be covered under social security laws.

Given the increased vulnerability of gig workers during the pandemic, it is crucial to understand how the legal recognition of gig workers impacts the welfare and benefits they are able to access. How do our current laws identify gig workers? What does this mean for their social security? And, how have Courts across the world recognised the rights of gig workers?

Before delving into the Court’s engagement with gig workers’ rights, perhaps we should begin with an understanding of the stakeholders in this case. Professor Mathew, who are gig workers and how are they recognised differently from organised and unorganised workers?

Professor Babu Mathew: Apart from the official jargon which those who employ them use, I think what is important for us is to look at the Social Security Code of 2020. That is a Code in which I would think there’s a pretension to give a gig and platform worker some marginal social security coverage. The reason I call it marginal is because the Social Security Code is a fairly elaborate Code but in that Code what happens is there is a clear discrimination between the formal organised sector and the informal unorganised sector. I think it is discriminatory because so far as proper social security measures are concerned— what I mean by proper social security measures is the Provident Fund , the Employees’ State Insurance,  maternity benefit, the gratuity and the equivalent of the Workman’s Compensation Act of 1923, now called the Employees’ Compensation Act. These are all statutory security benefits, which are assured by the new Code for those in the organised formal sector. Apart from this for the informal unorganised workers, there is a separate chapter, and that, according to that chapter, these workers will be entitled only to welfare schemes. Welfare schemes are not statutory.

They come into force when the government so desires and they can be taken off when the Government doesn’t so desire. That belongs to the category of rule-making by the concerned government. So under that category, uh, there are welfare measures which are earmarked  for unorganised workers, some by the Central Government and some by the State government. If you examine that even more carefully, then you find there is no assured resource in order to give those welfare schemes to the concerned beneficiary. Uh, and so for me it is like the pie in the sky, but that’s the fundamental discrimination between the organised and the unorganised. However, a new area is carved out, and that carved out area is for gig and platform workers.

I would think this is the mischief of the aggregator. I don’t believe it is a bonafide welfare measure at all. Even I say that in the name of doing this, you must look at the definition of gig worker and platform worker under the Social Security Code. The purpose of that definition in the Code is in order to deprive gig and platform workers from the coverage of labour law, so please look at these definitions. They specify that these are people who do not have an employer employee relationship. 

You must look at the definition of gig worker in the Social Security Code. And when you look at the definition there you will find that the purpose of the definition, the intention of the definition, the legal effect of that definition is to deprive gig and platform workers of the status of workers. It tells explicitly, you have people who do not enjoy an employer-employee relationship.

And so that’s another way of saying they will not be not be entitled to any of the labour laws. However, that is a text based social welfare scheme for the gig and platform workers that is also provided in the Social Security Code and that is somewhat similar to what the building and construction workers have. Somewhat similar, not entirely. They’ve also been given the option to have a separate board in order to regulate that part of it. That again is carved out from the Central Social Security Board. 

So that’s clever kind of game that has been worked out through the Social Security Code.. 

Malavika Parthasarathy: Professor Mathew, what are the differences between labour rights and the benefits that arise from social security codes?

Professor Babu Mathew: Rights is more than social security.  Social security is one part of labour rights. And if you want to look at what is comprehensive social security, then look at ILO Convention Number number 102. That gives you a  comprehensive list of what is social security. And if you look at that comprehensive list, then you’ll find that in India, it has been implemented for the organised sector. Just by looking at the process from back then the Employees State Insurance Act, you will notice that nine standards, which have been laid down by the ILO have been covered in these two enactments.  So if you make available these two enactments, that is like giving them good social security. And these are statutory benefits, not welfare schemes. 

Malavika Parthasarathy: The petitioner in this case, or the Indian Federation of App-Based Transport Workers, seeks relief under the 2008 Unorganised Workers Social Security Act. What are the differences in benefits that the 2008 Act provides and the benefits that the 2020 Social Security Code seeks to provide?

Professor Babu Mathew: Yeah. That’s quite similar to the same discrimination that the Code seeks to introduce. Social security schemes and unorganised workers social security does not guarantee you anything statutory. It again depends on the creation of boards and you will have to wait to see where the boards will get their money from . The bulk of the boards didn’t have money at all. Except building and construction workers because in the new logic of social security is to unnecessarily abolish, which is getting some partial relief to some sections of the unorganised workers. You should look at the OHS Code, it repeals 13 legislations, which are meant to give some benefit and welfare to workers in the unorganised sector.

Malavika Parthasarathy:If we shift focus to the Indian Supreme Court, what do you think the outcome of the present case seeking gig workers’ recognition as unorganised workers would be? Is there any existing jurisprudence on labour rights that could reveal the Court’s stance on the issue?

Professor Babu Mathew: I can say what is important to take note of is across the world. Look at California, you look above all at the decision of the Supreme Court of England, seven member, judge, unanimous decision that, you can’t you know, avoid labor law by calling them as partners. The Court has held that they are workers proper.

Therefore they are entitled to labour legislation. Same thing has happened in the Netherlands, it’s happened in Spain. The latest is in Belgium. Across the world, labour law jurisprudence has rejected the attempt of aggregators to try and deprive these workers of their labour law rights.

That is the important thing to pick up now. 

Malavika Parthasarathy: Has there been any attempt on the part of the Indian Supreme Court to hold the government to a labour rights framework and stop the platforms’ shift towards the dilution of rights and benefits?

Professor Babu Mathew: No, I don’t think any judgment has as yet come from the Supreme Court.

So that’s a premature thing. I am not even sure if the prayer in the present petition, you know, catches the root of the issue. The root of the issue is to declare them as workers look at and say, this partner business doesn’t hold good and the international labour jurisprudence, by the way, I must add that the European Union itself has gone overboard to say that, gig and platform workers must be recognised as workers.

Malavika Parthasarathy: Thank you, Professor Mathew, for joining in for this episode of SCO Explains.

As app-based aggregators continue to register billions of dollars in valuations, the Supreme Court’s decision could have wide ranging implications for crores of workers. The eventual ruling has the potential to shape labour rights jurisprudence and affect the lives of gig workers for decades to come.

Thank you for listening to this episode of SCO Explains. For more updates on the Supreme Court, visit scobserver.in.