Authors: Vedant Choudhary currently reads law at Symbiosis Law School, Pune and Piyush Gupta is a student at NLSIU, Bangalore.
This article argues that with the advent/growth of the Gig Economy in India, it is required that the Trade Unions Act is amended accordingly to make space for Trade Unions in the Gig Economy.
INTRODUCTION
Globalisation has led to disruption of traditional employer-employee set up across the world. The norms of business and erstwhile paradigm of exerting pressure to increase the bandwidth of rights by workers on employers and vice-versa has undergone a rapid transition with the emergence of gig and platform-based economy where there is close to none interaction between the employer and workers resulting in a situation of ‘anonymity’ vis-à-vis workers and workplace. This piece would argue how this situation has seriously handicapped the platform-based workers from forming the trade unions which were till now used to act as stalwarts of their rights in traditional set up. The first part of article would analyse the shortcomings in the Trade Union Act 1926 and how its outdated provisions do not meet the evolving needs of platform-based economy. The second part of article would attempt to find out the changes which can be done to remedy the problems and the way forward.
SHORT COMINGS IN THE TRADE UNION ACT 1926
At the very outset, it becomes important to understand that the Trade Union Act hereinafter referred as Act) was enacted in the year 1926 at the time when there was probably no concept of gig economy and the market didn’t have the presence of platform-based workers. Though the Act was amended in the year 1947, the provisions of the Act were enacted keeping in mind the then exiting conditions of traditional economy that consisted more or less of factory-based employers and employees. This approach is discernible in its provisions which shows limitations vis-à-vis the present gig and platform-based workers.
Consider for matter, the section 2(h) of the Act which mentions the definition of a trade union while highlighting that one of the important conditions for it is the presence of both employers and workers in a trade union. While this condition was plausible in erstwhile traditional work set up, it is not practically possible to have both employer and employee in a union in the case of platform-based workers because of two reasons. Firstly, it remains a disputable point whether the gig and platform-based workers are considered to be the workers or independent contractors for the purposes of forming a trade union. While the Uber BV and Ors. v. Aslam and Ors case in United Kingdom recognized the drivers as workers, there still lies a grey area in this regard when it comes to India. Secondly, in the case of platforms such as Swiggy, Zomato, Ola, Uber et cetera, there is the absence of clear employer vis-à-vis the workers and hence, the condition to engage them while forming a trade union becomes frustrated.
It is important to understand that in the case of platform-based workers, it is not only the workers who do not have an opportunity to meet their employers but more often than not, the workers do not get to meet each other as well. This restricts the opportunity for workers to form trade union, decides its headquarters, rules, form regulations and executive committee which are a mandatory condition under the section 5 and 6 of the Act. These technical conditions must be met in order to register a trade union as per the case of Re-Indian Steam Navigation Workers Union case.
Although it must be noted that the Act of 1926 only mentions conditions for a registering a trade union which are not mandatory to follow in nature, registration is a preferred option because the members of a registered trade union are given exclusive rights and privileges in the form of immunity, protection et cetera from civil and criminal matters.
SUGGESTIONS AND WAY FORWARD
As explained above, fundamentally, two obstacles prevent platform workers from associating in trade unions. These are, first, uncertainty over whether an employer and employee relationship exist. And second, the nature of work, which prevents worker-worker interaction and worker-aggregator (employer) interaction.
Section 2(h) of the TU Act defines a trade union as a body formed to regulate relations between employers and employees. As explained earlier, it is unclear whether platforms such as Ola, Uber, Zomato, Swiggy etc., fall within the category of employers and whether workers who are also referred by the name agents or partners fall within the category of employees. Presented such a problem, there are two ways to move ahead. First, either the relationship between such platforms (i.e., Ola, Uber etc.) and workers are brought under the traditional employer-employee relationship. Or second, the scope of the TU Act is expanded to include relationships beyond (only) traditional employer-employee relationships.
It is unnecessary and unreasonable to provide gig workers with the social security benefits that are ordinarily provided to employees. This is because there is a significant difference between the nature of work in traditional employment and platform work, ranging from dedicated time flexibility.
Therefore, the most pragmatic option moving forward is to create a work relationship beyond the existing one of employment, requiring an employer and employee. The government has taken the first steps towards this by passing the Code on Social Security, 2020. Section 2(2) and section 2(61) of the act define aggregators and platform workers, respectively. The Act also confers onto the central and state government powers to create funds for the well-being of such workers and to frame programs and schemes for the social security of such workers. With such a stage set, India is moving towards creating a framework for the inclusion and recognition of gig workers in the economy.
Further, a frequently argued point within the platform economy is that of a “digital cage”. Put succinctly, although all workers work for one aggregator, there is absolute disconnect among the workers with no cohesion. This phenomenon is termed a “digital cage.” Studies have found that the limited network and contacts that a worker may have within the platform economy are limited to relatives, blood relations, and close friends. It is worth noting that in all such connections, the notion of “working under a common employer is missing,” which is necessary for the formation of a union.
In light of such circumstances, it is necessary to “break” the cage. There are two routes for this. The first would be to encourage platforms to provide forums and venue to increase worker interactions. Secondly, schemes and programs must be launched for the betterment of workers in the platform economy; doing so would allow the workers to get together and interact. As argued here, it is important that mental health modules and workshops should be prepared for workers. Once again, such initiatives would allow workers to interact and discuss their problems.
Finally, having outlined certain measures to remedy the gaps in the existing TU act, the authors would like to point out that platform workers have been voicing their grievances. However, such protests and demonstrations have been localised and scattered. (Thanks to the digital cage). Some examples include protests by ride-hailing drivers in Bangalore, first in 2019 and then later in February 2021. Similar protests were seen in Hyderabad in 2021. It is here that a need for an organised trade union is seen. Further, multiple organisations have been made along the lines of unions and associations to voice the opinion of workers. Some of these include the All-India Gig Workers Union (AIGWU) and Karnataka State App-Based Drivers’ Association (KSABDA). However, it is worth noting that none of these bodies enjoys the powers of a trade union since it is still uncertain whether such workers are employees and whether aggregators can be classified as employers. Such bodies are formed on the lines of a trade union and are informal associations resembling a trade union while not being registered under the act.
Leave a Reply