Author: Rupakshi Sharma & Enaakshi Majumdar are recent graduates of Symbiosis Law School,Pune
The Present Article is an attempt to scrutinize the feasibility of Amazon India’s “Project Ashray” (an initiative to build resting points for delivery agents) which is at the precipice of becoming a scapegoat of whitewashing by the e-commerce giant to conceal its grotesque labour-law violations in India. Since initiatives like Project Ashray are interim measures to address the absence of a regulatory framework for gig-workers, this article highlights the need for a comprehensive law both at the centre and states, acting as a panacea for the labour-law violations of the gig-workers.
Introduction
The contemporary era of quick consumption is characterised by e-commerce giants such as Amazon, Zomato, and Swiggy condoning the basic rights of their workers for profit maximisation. However, Amazon India is currently at the eye of controversy for rampant labour-law violations. Myriad exploitative incidents including but not limited to inadequate restrooms & water breaks, unavailability of basic amenities, immense work pressure and scanty compensation have been reported in India, causing public mayhem. But the Manesar Warehouse Incident, where the workers were made to pledge to not take toilet or water breaks until completion of their tasks, acted as the last straw to the camel’s back.
As the e-commerce company has come under the lens of the National Human Rights Commission and the Union Ministry for Labour and Employment for its alleged labour-law violations, “Project Ashray” has been launched by Amazon to reinstate its commitment towards workers’ welfare. It is an initiative set up under the vertical of Corporate Social Responsibility (“CSR”) in collaboration with Udyasa Foundation which aims to build an all-India network of resting points for delivery executives, with the first centre being inaugurated in Gurugram, Haryana on August 23, 2024. Since it is imperative that the gig workers in the unorganized sector are guaranteed their occupational safety and health-related rights through this project, this article while applauding Amazon’s move, scrutinizes the feasibility of this project by identifying the plausible impediments which can reduce it to a mere scapegoat of “whitewashing.” This project must not be the company’s gimmick to brush dirt under the carpet but rather a compelling factor for the formulation and enforcement of a comprehensive code for regulation of the unorganized workers. Thus, the article, in its concluding remarks, makes a key recommendation for a robust regulatory framework for gig-workers and its amalgam with CSR-related initiatives by the e-commerce companies which will prove to be a trail-blazing move.
Project Ashray: Weighing the Pros & Cons
The ‘Ashray resting points’ established by Amazon ensure free of cost accommodation for 15 delivery executives at a time for a period of 30 minutes per visit. These centres are operational for 12 hours from 9 a.m. to 9 p.m. and provide basic amenities like parking space for vehicles, comfortable seating, drinking water, restroom facilities and phone charging stations. Moreover, to foster inclusivity, these resting pit-stops are accessible to all delivery agents across the e-commerce system and not merely limited to Amazon’s delivery agents. A similar initiative has also been undertaken by Zomato called ‘The Shelter Project’ for the welfare of the gig workers.
Although these altruistic initiatives look promising on the face, this bid to build public infrastructure for delivery executives needs to stand the test of feasibility and overcome the potential hurdles that may stall its progress.
The limitations which may affect the scalability of the project include
- Securing spaces for setting up resting points in high footfall areas;
- Strategic alignment of Ashray centres and delivery routes in areas with heavy traffic and limited parking;
- High Operation and Maintenance Cost, requiring a regular earmarked investment;
- Ease in Accessibility of these centres to delivery associates, requiring increased awareness among them;
- Community Acceptance of these centres established in the vicinity of residential areas;
- Continuous enhancement in facilities provided by these centres based on stakeholders’ feedback.
Due to the above-mentioned shortcomings against the backdrop of relentless scalability, Amazon’s Project Ashray can be a ‘potential scapegoat of whitewashing’ by the e-commerce giant to dilute the grotesque labour law allegations made against it.
Whitewashing: A Diversionary Tactic
The concept of “whitewashing” in the context of labour and employment practices was first examined by Professor Lesley Wexler in 2013 against the backdrop of gender discrimination lawsuits against Walmart. In literal terms, “whitewashing” involves the use of inexpensive calcium paint to superficially mask or obscure structural or substantive defects, where the perpetrator is aware of the underlying issues but the whitewashed surface appears flawless to those without expertise. Similarly, in the context of labour and employment practices, whitewashing is an attempt to obscure an inherent defect by diverting attention due to the failure to address an underlying issue.
Thus, the specific characteristics of whitewashing can be outlined as follows: (i) the actions of a wrongdoer, (ii) the implementation and promotion of policies or practices, (iii) in response to a legal grievance, (iv) which fail to address the root issue, and (v) are intended to enhance, maintain, or restore the institution’s reputation. Summarily, the term can be defined as “a diversionary tactic designed to distract from the real, underlying harm being perpetrated.”
In the present scenario, Amazon’s bid to build resting points for delivery executives under its CSR initiative “Project Ashray” can be a potential diversionary tactic to divert attention from its controversial labour law violations in India which is the key underlying issue troubling the gig-workers. The initiative’s long-term success is highly dependent on its scalability and wide-reach. Thus, any inadequacy on Amazon’s part for its effective implementation and expansion might be viewed as an attempt at ‘whitewashing.’
In order to pre-emptively address the issue of “whitewashing” by the e-commerce industry, the authors deem a responsive labour law regime, for recognition of the gig workers.
Present State of the Gig-Worker Ecosystem
This section scrutinizes the regulatory oversight stemming from the absence of substantial coverage of gig workers in the new Labour Codes of 2019.The reluctance of the State and corporations to incorporate “gig workers” within the purview of “employees” “workmen”, or even “unorganised workers” reflects a potential violation of the said workers’ rights, most prominently, Right to Social Security.
Hence, it is essential to strike a balance between equitable rights and countering the erosion of ethical standards in the pursuit of profit maximization by corporations. The objective is to achieve equal treatment for both online and offline workers.
The Labour Codes of 2019 which were touted as “reformative”, failed to recognize gig workers within the framework governing “traditional employees”. Among the four Labour Codes enacted in 2020, only Section 2(35) of Code on Social Security, 2020, defines a “gig worker” as an individual who operates beyond the bounds of traditional employer-employee arrangement, and engages in short-term or temporary work, often as an independent contractor. Although Chapter IX of the Code on Social Security, 2020 briefly addresses unorganized workers, including gig and platform workers, merely Sections 112, 113, and114 specifically pertain to gig and platform workers.
Further, the Contract Labour (Regulation and Abolition) Act, 1970, (“CLRA”) governs contractual labour, especially the third-party contractors, which begs the question of whether gig workers may be classified under the umbrella of “contractors”, thereby imposing obligations on employers that include health and welfare provisions. These obligations encompass the provision of canteens (Section 16 of CLRA), restrooms (Section 17 of CLRA), provision of drinking water (Section 18(a) of CLRA) and first aid (Section 19 of CLRA) etc. Yet the applicability of this law is yet to see the light of day with respect to platform gig-workers. The implementation of regulated compensation for occupational safety hazards lacks the bandwidth to support the meteoric rise of hyper-local (quick) delivery by the e-commerce platform markets. The Employment Compensation Act, 1923 governs employer liability for workplace accidents, yet its applicability to platform gig workers remains ambiguous.
Notably, a recent PIL by the Indian Federation of App-based Transport Workers (IFAT) at the Supreme Court has argued for the recognition of an employer-employee relationship for gig workers. This case highlights the critical issue of classifying gig workers as “unorganized workers,” which excludes them from protections against exploitation, inadequate earnings, maternity benefits, and access to essential amenities.
The Road Ahead: Recommending Plausible Corrective Measures
- Application of present labour-laws to gig-workers & formulation of a centralized regulatory framework:
In light of existing legislation such as the CLRA and the Employees’ Compensation Act of 1923, which lack clear applicability to platform gig workers, there is an urgent need for courts to recognize these laws and consider their relevance to unrecognized gig workers as contractual labour. Given the increasing economies of scale and the exponential growth of the gig economy into Tier 2 and Tier 3 cities, robust regulation is essential to ensure adequate social security while fostering economic growth. This necessitates immediate legislative action at both centre and state level to regulate gig workers and non-traditional employees, ensuring long-term effectiveness.
For instance, the Government of Rajasthan having passed the Platform-Based Gig Workers (Registration and Welfare) Act, 2023 becomes the first state in India to ensure labour rights, social security, and welfare programmes for platform workers. Moreover, Karnataka Platform-Based Gig Workers (Social Security Bill and Welfare) Bill 2024 introduces major reforms, most prominently an establishment of a welfare board with contributions from the aggregator company, and regular access to social security schemes as notified by the state government, inter alia.
However, the aforementioned bills unfortunately steer clear of defining the exact employment status of a “gig worker”. Given that the primary goal of the law is to ensure “aggregators” fulfill their obligations to gig workers. Hence, a horizontal expansion of definition of “gig worker” is necessary, to include subcontractors of aggregators and agents, in order to avoid ambiguities regarding employment relations.
Conclusively, the existing central and state legislation overlooks the integration of equitable gig workers’ rights by failing to address evolving contemporary vices hiding in the plain sight, such as, the algorithmic monitoring of gig workers, inhuman working hours, irregular schedules, and uncertainties such as dismissals.
- Amalgamation of Legislative Measures and CSR-initiatives:
Although the application of current labour laws to gig-workers and formulation of robust-centralized legislation will act as a panacea in curbing the exploitation of unorganized gig-workers, the amalgam of these legislative measures and CSR-driven initiatives will kill two birds with one stone for e-commerce companies i.e., (i) adherence to the legal obligations laid down under the Act; and (ii) fulfilment of CSR obligations u/s 135 of the Companies Act, 2013.
- Collaboration of E-commerce companies for protection gig-workers’ rights:
The e-commerce giants, Amazon, Zomato and others share a common objective of working towards the welfare of the unorganized gig workers through improved working conditions. Thus, a ‘synergy’ between these companies for initiatives like Project Ashray or Project Shelter will be a lucrative endeavour. Their collaboration will provide the added benefits of increased funding, enhanced manpower and diversity of ideas, required for effective face-lifting of these initiatives.
In conclusion, it can be said that India, having been the torchbearer of enforcing Corporate Social Responsibility obligations in the world, can also be a potential pioneer in recognizing the rights of “gig workers” or the non-traditional employees, who are devoid of their basic rights in lieu of the exclusion from the three labour codes.
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