Author: Jahanvi Garg is an advocate, practicing at the Delhi High Court, and has completed Law in 2022 from Law Centre-1, Faculty of Law, University of Delhi.
The present article illuminates the often-overlooked aspect of the gig economy with specific examples from Uber, that forms the gig workforce. The paper argues that app-based platforms employ people who are then termed as freelancers or independent contractors in an attempt to shed off their responsibility towards these workers. What makes matters worse is these app-based companies continue to levy constraints on these workers and exercise control over them. It also provides the jurisprudence around the platform workers’ rights and provides a detailed analysis of the judgments that have shaped the evolution of the same. The role played by international frameworks and precedents supporting their rights has also been incorporated while pointing out the lacunas in the current Indian system which requires urgent attention for protecting these workers’ labour and human rights.
INTRODUCTION:
Times nowadays cannot be conceptualised without online platforms like Uber, and Zomato. The economic landscape has seen a revolution through these platforms but it calls for an important consideration. Any economic revolution must bring with itself an alteration in the lives of the people. However, the present paper illuminates the often-overlooked aspect of the gig economy, that forms the gig workforce. The paper argues that app-based platforms employ people who are then termed as freelancers or independent contractors in an attempt to shed off their responsibility towards these workers. What makes matters worse is these app-based companies continue to levy constraints on these workers and exercise control over them.
THE NEW AGE OF PLATFORM WORKERS AND THE UNDERLYING ISSUES:
With the rise of the gig economy and the use of algorithms, app-based platforms that provide on-demand services have arisen. Due to its big youth population, rapid urbanisation, and extensive smartphone penetration, India will lead this revolution. India is not new to the concept of gig workers owing to its massive informal sector and a large pool of ‘casual workers’. Their labour-intensive business strategy relies on many freelance drivers and delivery workers. As alleged entrepreneurs, these workers bear the business risk and labour costs. The platforms convince workers that their labour is an investment that will pay off and protect their autonomy and independence. The platforms charge a fee for their services and pay workers for each delivery or ride. Uber’s service agreements define “Customer” as an independent transportation firm, yet most customers are individual drivers. Uber creates a legal connection between users and customers by claiming to offer technological services but not transportation services.
CONTROL EXERCISED BY PLATFORM AGGREGATORS:
Platform aggregators exercise a high degree of control over their workers. For example, Uber determines the compensation received for the work performed by drivers. It also dictates the terms of the contract. Once a driver logs into the app, Uber limits drivers’ ride request acceptance. The driver doesn’t know the passenger’s destination until they’re picked up, so they can’t decline a booking if they don’t like it. The company keeps track of the driver’s acceptance and refusal rates for trip requests and after a particular number of cancellations, Uber software incontrovertibly logs out the driver. The platform actively prevents drivers from forming any personal relationship with the client so that they cannot get bookings outside the app. Additionally, the app also uses a rating system wherein the drivers are rated on a scale of 1 to 5 for assessing the performance of drivers.
THE ABYSMAL STATE OF PLATFORM WORKERS:
Platform employees labour long hours for low pay. With diminishing minimum guaranteed business, platforms’ commission prices have increased, leaving workers with unaffordable vehicle loans. Drivers borrowed money for huge earnings, but they’re stuck working long hours for minimal pay to pay off the platform’s debt. Through clever service agreements, platforms have avoided delivering social security such as occupational health and safety, insurance, cost of labour, pension, etc. However, the State cannot aid the workers because these workers do not fit under any of the government’s social protection legislations and are in worse condition than other workers.
VOICE OF CHANGE IN THE LEGAL REGIME:
The California Supreme Court in its landmark judgement in Dynamex Operations West, Inc. v. Superior Court observed that there is a considerable benefit for the businesses in not acknowledging platform workers as employees. They bypass the obligation of paying federal Social Security, payroll, unemployment insurance, and state employment taxes or even complying with legislations regulating the conditions of work of the workers. This also gives an unfair competitive advantage to the businesses over those platforms that recognise its workers as employees.
While considering the test laid down by Borello standard in determining whether a worker is an independent contractor or employee, the Court used ABC test to hold that delivery drivers were workers and the employing firm was the employer. The worker shall be considered an employee even if any one of the requirements of the test is not met. As per the test, all workers are presumed to be employees and onus of proof is on the businesses to prove otherwise.
The ABC test requires the employing firm to prove that a worker is an independent contractor by showing that the hirer does not supervise or manage the worker either contractually or in practice. Secondly, the court laid that the worker must engage in work that does not form a part of the employing business. Thirdly, the worker must be independently engaged in occupation or business as the services provided to the hiring business. It was further observed that it is not sufficient to prove that workers are independent contractors if the business allows these workers to work for other businesses.
Similarly, in Uber BV case, the Uber drivers claimed various labour rights. The court while holding that the drivers were employees of Uber London under ‘worker’s contract’ observed, that the relative bargaining power is an important determinative factor in determining the terms of the work agreement. The true agreement must frequently be ascertained from all of the relevant circumstances, of which the written agreement is only one.
Workers are subordinate and dependent on platforms, and the employer frequently sets contract conditions with little or no negotiating leverage. The court also ruled that terms that categorise the parties’ legal relationship, reduce or abolish statutory safeguards, or prohibit the contract from being understood as an employment or other worker’s contract are worthless and should be disregarded. The putative employer’s control is crucial, since “the higher the scope of such control, the stronger the argument for designating the person as a ‘worker’.
LEGAL STATE OF AFFAIRS IN INDIA:
The condition of workers in India is even worse for the platform workers with deteriorating working conditions and negligible or no safety provided by the hiring businesses. The IFAT has filed a PIL before the Supreme Court of India challenging violation of various fundamental rights by the state and the platforms under Articles 14, 21, and 23 of the Constitution. The workers before the court have contended violation of their right to equality in comparison to other workers who are subjected to the same subordination but are granted the status of employees.
In Dharangadhra case, the Supreme Court devised a twin test for determining the relationship of master and servant in the form of ‘supervision’ and ‘control’ exercised by the master which is not only limited to what work is to be done but the manner in which it is to be done. The Supreme Court went a step further in Ram Singh case by propounding that ‘control’ cannot be the sole test in determining the employer-employee relationship and introduced ‘integration test’ as a means of determining whether a worker is completely integrated into the employer’s business.
The increasing health issues due to long working hours and hostile work environment along with precarity of work is violative of Article 21 of the Constitution. Right to life brings in its ambit the right to livelihood and decent working conditions. Without the recognition of platform workers as employees, they are deprived of social security. This is in consonance with decent work as championed by Article 23 of the Universal Declaration of Human Rights and the ILO.
The Constitution also provides protection from any form of forced labour and while widening its scope. Justice Bhagwati in PUDR case observed that due to threat of starvation and destitution, people may be desperate to take any form of work, this also amounts to forced labour if they are not paid minimum wages. But in the case of platform workers, even though they are paid more than minimum wages most of it is used as expenditure in meeting the cost of providing the services which include fuel prices, taxes, etc. and what is left is just enough to meet their basic sustenance.
The legislature introduced a number of labour codes among which The Code on Social Security 2020 defines gig workers in Section 2(35) as a different class of workers which is beyond the traditional employer-employee relationship which directly condones the claims of the platforms of not recognising workers as employees. The protection extended under the Code is also given by the government under its various schemes as provided under Section 45 and Chapter IV of the Code. The State in the garb of encouraging economic development and large-scale employment opportunities that these corporations bring has left the platform workers in a more vulnerable state with precarious working conditions.
CONCLUSION:
It is the duty of the State to ensure that the benefits under labour laws that have an impact on fundamental rights are not violated by anyone. It is the bounden duty of the State to provide ‘adequate means of livelihood’ to all, also ensuring decent working conditions, endeavour to secure living wages to all workers and also take steps for increasing representation of workers in the management. The State together with the judiciary needs to take active steps in protecting the rights of the gig workers. This could be done by extending the benefit of the Motor Vehicles Aggregators Guidelines 2020 to encompass platform workers which provides for minimum fares and maximum working hours along with that the Act also makes provision for health and term insurance by aggregators. There shall also be a penalty imposed on the aggregators on misclassifying the workers. Technology has greatly changed the nature of work, but the labour and fundamental rights of the workers still stay intact and the state along with the court must take all steps in protecting their rights. The Indian Constitution covers the right to work, right to bargain and right to strike of the workers along with that a social order must be recognised that would equalise the bargaining power.
Leave a Reply