by Ishaan Mundeja, a 3rd year student at Symbiosis Law School
Introduction
Platform businesses have attracted popularity and grown over the years and this growth has been accompanied by several protests especially by those who are engaged with these platforms in ensuring delivery. In India, there have been protests by delivery personnel over remuneration and working conditions. Because of the poor remuneration in India, these delivery personnel report that they are often forced to work more than 8 hours a day and all seven days of the week. The platform-based model itself is to blame for the risks that delivery personnel are exposed to as these personnel sign up with these platforms as ‘partners’ rather than ‘employees’ or ‘workers’, providing these platforms with an escape from looking into social security benefits of these personnel. The present global scenario, as in the UK, where the GMB Trade Union represented 70,000 drivers to strike a deal with Uber, highlights the need to determine if the legal framework of our country entitles these delivery personnel to collectively fight for their rights in the form of Negotiating Councils/Unions.
What is a Negotiating Union/Council?
In simple terms, a Negotiating Council is a group, organised by mutual understanding between the employee and the employer, consisting of members of a registered Trade Union in an industrial establishment, who have grouped to preserve and advance their common interests, through collective actions, by negotiating with the employer. On the other hand, a Negotiating Union is a group of representatives of different registered trade unions in an industry where no one union has a clear majority of workers. In the earlier Trade Unions Act, 1926, a Trade Union was defined as any temporary or permanent combination that is entered into to regulate professional relationships between employees and employers, workmen and employers, employers and employers or even workmen and workmen.[1] Even under the latest Industrial Relations Code 2020, which still await its roll-out, a similar definition of a trade union has been adopted.[2] Ultimately it is the definition of the terms such as ‘employer‘, ‘worker/workman/employee/’ etc. that govern the scope of a labour-related legislations. Therefore, observing the definitions under the Code, it can be concluded that three major prerequisites of forming a Negotiating Union/Council are: a) It is created in an ‘industrial establishment’; b) It consists of workers and/or their representatives, and c) These employees/workers shall be members of a registered trade union.
Can Online-Platforms Be Referred as Industrial Establishments?
The Preamble of the new Industrial Relations Code provides that the Code is laid down to consolidate laws relating to Trade Unions in an ‘industrial establishment’. The new Code describes an ‘industry’ as any systematic activity between an employer and a worker to provide goods and/or services to customers.[3] Subsequently, an industrial establishment/undertaking is defined as an establishment/undertaking in which an industry is conducting its operations.[4] To understand, if platform-based businesses like Swiggy, Ola come under the definition of ‘industrial establishment’, it is essential to examine their business model. These platform-based businesses are tech-based and structure a common platform for connecting the producers and consumers of a product/service. Under the new Code of Social Security, platform work is defined as the practice in which individuals or organisations utilise an internet platform to connect with other organisations or individuals to solve specific problems or deliver specific services in exchange for remuneration.[5] Although these companies have a distinct model from conventional industrial setups, the definition of ‘industrial establishment’, as provided under Section 2(r), is broad enough to include platform-based companies under its ambit. Nevertheless, a drastic change in the definition of the term industrial establishment, from Industrial Disputes Act to Industrial Relations Code, has led to a sense of confusion in the tech industry about the applicability of new Codes upon it.
Are Delivery Partners Workers?
The online platform businesses do not enter into an employer-employee relationship with the delivery personnel and make a peculiar understanding with them by referring to them as ‘partners’. For Example – To register as a driver with Uber, you need to visit a Partner Seva Kender. Similarly, Zomato refers to its delivery personnel as ‘delivery partners’. Although these personnel are referred to as partners, their nature of work categorises them into ‘self-employed workers’. As per the Industrial Relations Code, the definition of the term ‘workers’, for the purpose of Chapter III (Negotiating Council), includes ‘unorganised workers’. Following the definition of the term ‘unorganised workers’ under the Unorganised Workers’ Social Security Act, 2008, even home-based workers, self-employed workers or wage workers in the unorganised sector should be recognised as ‘workers’ under the Industrial Relations Code.[6]. The Code leads to confusion as to the scope of the term ‘worker’ and ‘employee’ as it extensively uses the term ‘worker’ but also uses the term ‘employee’ in general context throughout the text of the new Code. Although, it can be concluded that a wide scope of the definition of the term ‘workers’ under the new provision, perfectly categorises gig-workers under the definition of the term ‘worker’.
Can A Registered Trade Union Be Formed by Gig-Workers?
Our Indian Constitution provides the right to its citizens, including the gig-workers, to form voluntary groups, associations, organisations to promote their collective interests.[7] Currently, in India, there are huge set-ups of large trade unions representing the interest of platform-based workers. Trade Unions like All India Gig Worker’s Union and the Indian Federation of App-Based Transport have been relentlessly working to represent the interests of the gig-workers during the pandemic. However, for the gig-workers to become part of a Negotiating Council under the new Code, they must be members of a Trade Union that is registered with the Government. Additionally, members of such registered Trade Union have to go through another hurdle of being recognised by their employer as a part of the Negotiating Council. Under the new Code, a Trade Union can be registered by a minimum of seven members of a Union having at least 10% or 100 workers of the concerned industrial establishment, by filing an application before the Registrar of Trade Union appointed by the Central or State Government.[8] The most essential criterion for registration of a Trade Union is that it has to be registered by the workers of the concerned industrial establishment. Therefore, as highlighted above, a legal interpretation of the term workers provides that even the gig-workers can be categorised as workers and hence register their Trade Unions with the Government. But their categorisation as ‘partners’ by their employers act as another major hurdle in the process of registering their trade union.
Conclusion As the above research presents, the gig-workers have a statutory right to form trade unions and be a part of Negotiating Councils/Unions to ensure the protection of their collective interest. However, there are several barriers that restrict the gig-workers from collectively bargaining their demands. The most primary barrier of all is, that their employers do not consider them as regular employees or workers of the company, but as mere partners. This categorisation acts as a loophole and enables the employers to dodge the necessary labour law compliance, as mandated under the law against workers and employees. Additionally, under the new Codes, even the Government has not mandated to recognise gig-workers as traditional workers/employees. The Code on Social Security defines a gig worker as someone who works or participates in a work arrangement outside of the usual employer-employee relationship and earns money from it. Although a ray of hope can be seen, as the government is now planning to roll out its new National Employment Policy, with an increased ambit of the term ‘employment’. The objective of this Policy is to take into consideration the International Labour Organisation’s Employment Relationship Recommendation to the countries that provides that the countries should define the term employee based on the nature of work and remuneration and not leave the categorisation of personnel as employees solely upon the discretion of the employers and their contracts with these personnel. Similarly, a Public Interest Litigation has also been filed by the Indian Federation of App-Based Transport Workers seeking the categorization of gig-workers as wage labourers with an aim to protect them with all the social security benefits that traditional employees/workers are entitled to. Now, although statutorily gig-workers and their employers can form Negotiating Council/Unions to bargain, but in practice the right of the gig-workers to register their Trade Unions and subsequently be part of Negotiation Councils/Unions, depends upon the future actions of the legislature, executive and judiciary of the country.
[1] The Trade Union Act, 1926, § 2(h), No. 16, Acts of Parliament, 1926
[2] The Industrial Relations Code, 2020, §2(zl), No. 35, Acts of Parliament, 2020
[3] The Industrial Relations Code, 2020, §2(p), No. 35, Acts of Parliament, 2020
[4] The Industrial Relations Code, 2020, §2(r), No. 35, Acts of Parliament, 2020
[5] The Code on Social Security, 2020, §2(xxxxvia), No. 36, Acts of Parliament, 2020
[6] The Industrial Relations Code, 2020, §2(zr)(iv)(b), No. 35, Acts of Parliament, 2020
[7] INDIA CONST. art. 19, § 1, cl. (c)
[8] The Industrial Relations Code, 2020, §6, No. 35, Acts of Parliament, 2020
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