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SUBJECT : GIG WORKERS AND RECENT AMENDMENTS IN INDIAN LAW

WITH RESPECT TO GIG WORKERS .

Who is a GIG WORKER :

The Code on Social Security, 2020, defines a gig worker as “a person who participates in a work
arrangement and earns from such activities outside of a traditional employer–employee relationship.”
the Code also defines platform work as “a work arrangement outside of a traditional employer-
employee relationship in which organizations or individuals use an online platform to access other
organizations or individuals to solve specific problems or to provide specific services or any such other
activities which may be notified by the Central Government, in exchange for payment’. Not only do the
definitions of platform workers and gig workers overlap, but they are absolutely lacking in clarity of who
such a worker is. The only concrete action appears to exclude such workers from the ambit of
“employee”

Thus, a formal employment relationship is now replaced by placing gig/platform workers on par with
unorganised workers. Gig workers are to be registered under e-SHRAM [National Database of
Unorganised Workers], and schemes for their benefit may be framed by the Government. The only
responsibility of the management to the worker is contribution towards the fund, which will be between
1-2% of annual turnover, but shall not exceed 5% of the amount payable to gig workers / platform
workers.

Importantly, the term gig worker/platform worker finds no mention in any of the other three Labour
Codes. Effectively, these workers are placed outside the ambit of all protections, including maximum
work hours, safety measures, payment of wage regulations, working conditions, standing orders and
registered trade unions. They are also placed outside the ambit of industrial dispute resolution methods
under the Industrial Relations Code.

INDIAN LAWS FOR GIG WORKERS :

There wasn't a specific "gig workers law" in India. However, the issue of gig workers' rights and
protections has been gaining attention globally, including in India. The Indian government has been
considering various measures to address the concerns of gig workers, such as those working for
platforms like Uber, Ola, Swiggy, and Zomato.

One significant development was the introduction of the Social Security Code 2020 in India, which aims
to provide social security benefits to gig workers, including insurance, maternity benefits, and pensions.
Additionally, there have been discussions about the need for legislation to ensure fair wages, working
conditions, and dispute resolution mechanisms for gig workers.
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SOCIAL SECURITY CODE 2020 :

The main Objective of the code aims to regulate the organized/unorganized (or any other) sectors and
extend Social security benefits, during sickness, maternity, disability, etc. to all employees and workers
across different organizations.

The Code undertakes integrating the following 9 labour laws relating to social security into one
integrated Code:

The Employees Compensation Act, 1923.

The Employees State Insurance Act, 1948.
The Employees Provident Fund and Miscellaneous Provisions Act, 1952
The Employees Exchange (Compulsory Notification of Vacancies) Act, 1959
The Maternity Benefit Act, 1961
The Payment of Gratuity Act, 1972
The Cine Workers Welfare Fund Act, 1981
The Building and Other Construction Workers Cess Act, 1996
The Unorganized Workers’ Social Security Act, 2008

The Code has widened coverage by including the unorganized sector fixed term
employees and gig workers, platform workers, inter-state migrant workers in addition to contract
employees.The Code applies to everyone on wages in an establishment, irrespective of occupation.
The code also redefines gig workers as “ Freelancers, independent contractors, etc. who engage
in hourly or temporary work and share a non-traditional employer-employee relationship are grouped
as gig workers.” The Code enables the government to formulate social security schemes for gig workers
to provide for life and disability cover, accident insurance, health and maternity benefits, old age
protection and creche benefits.
Though the code has 164 sections with seven schedules there are manor concerns such as :

1. The code still has thresholds based on the size of the establishment for making certain
benefits mandatory.
2. This means that certain benefits like pension and medical insurance are only mandatory for
establishments with a certain minimum number of employees, thus leaving out a large number
of workers.
3. Additionally, the codes treat employees within the same establishment differently based on
their wages. Only employees earning above a certain threshold will receive mandatory benefits.
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4. The delivery of social security benefits is still fragmented and administered by multiple
bodies such as the Central Board of Trustees, Employees State Insurance Corporation, and Social
Security Boards. This can make it confusing and difficult for workers to access the benefits they
are entitled to.

Reference Link : chrome-chrome-https://labour.gov.in/search/node/code%20on%20social%20security

%202020

The recent amendment on code o social security link was embedded for the reference

THE CODE ON SOCIAL SECURITY (AMENDMENT) BILL, 2022

Reference link : chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://sansad.in/getFile/

BillsTexts/
LSBillTexts/Asintroduced/248%20of%202022%20as84202374106PM.pdf?
source=legislation#:~:text=Amendm
ent%20of%20section%2053.&text=The%20Social%20Security%20Code%2C%202020,unorganized
%20or%20any%20other%20sectors.

To add to the urgency of gig workers , in India, the passage of the Code on Social Security, 2020
(“Code”) has given way to questions on the status of gig workers, and the most appropriate mechanism
to provide gig workers with social security. The momentum of this has been further intensified by the
proposed Code on Social Security (Central) Rules, 2020 (“Rules”), as well as the announcement in the
Union Budget 2021-22 of the Government of India‟s intent to provide social security benefits to gig
workers.10 Though the Code has not been implemented as of date (barring the provision relating to
identification of workers and other beneficiaries through their Aadhaar number), it is undeniable that
the issue of how best to provide social security to gig workers will occupy public discourse, in a manner
perhaps exceeding the scale of discussion at the present. A recent writ petition filed before the
Supreme Court, Indian Federation of App-Based Transport Workers v. Union of India and Others(“IFAT
petition”), seeking social security for gig and platform workers precisely demonstrates this. The
petitioners have sought a declaration from the Supreme Court that gig and platform workers are
“unorganized workers” within the meaning of the Unorganized Workers‟ Social Security Act, 2008, and
therefore, entitled to be registered for social security under the said Act.
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Reference link for the above mentioned case law :

https://www.livelaw.in/pdf_upload/ifat-and-ors-v-uoi-13dec-405964.pdf

Social Security legislation meant for the unorganised sector too had limited success. The Unorganised
Workers‟ Social Security Act, 2008 was one of the first legislative attempts to provide social security to
unorganised workers in India. The The Unorganised Workers‟ Social Security Act, 2008, however, will
stand repealed when the Code comes into force.95 The UWSSA deals with providing social security
benefits to “unorganised workers”.

This is to be achieved by framing of welfare schemes, both by the Central and State Governments.It
further provides for registration of unorganised workers having completed fourteen years of age,
subject to a self-declaration process.Eligibility under the The Unorganised Workers‟ Social Security Act,
2008, however, depends upon workers themselves making social security contributions.98 Despite its
laudable objectives, the The Unorganised Workers‟ Social Security Act, 2008 has had a chequered
history. Commentators point out that despite its promise, the Unorganised Workers‟ Social Security Act,
2008 has a number of flaws. Foremost among these flaws is the absence of a universal or uniform social
security entitlements, continuation of existing schemes and policies without rationalising inter-se
differentials, no roadmap for implementation, as well as the lack of a
dedicated financing mechanism.Additionally, only a few states have enacted rules under the
Unorganised Workers‟ Social Security Act, 2008,hindering implementation and leaving open the
question of the legislation‟s overall success in achieving its objectives.

In India, gig workers have traditionally not been part of the formal workforce. Access to social security
benefits has also been intimately tied to employment status. However, the pandemic and the national
lockdown brought to fore benefits of the gig workforce, while at the same time demonstrating the
urgent need to secure them a measure of social security. This is perhaps why the Code, enacted in
September 2020, gives momentum to this by recognizing aspects associated with the gig economy,
legislatively. Parallelly, the outcome of the IFAT Petition, currently pending before the Supreme Court,
will be critical to any deliberations surrounding social security for gig workers, in India, in the near
future.

As discussed, while the intent behind the Code and Rules is laudable, there are certain gaps, which may
lead to implementational challenges. However, the Rules are awaiting finalisation and the Code has not
been implemented. This gives a critical window of opportunity to reflect on these challenges, which
should be seized. Doing so will ultimately help in creating a sustainable social security framework for
India‟s gig workforce in the long run, critical to the gig economy‟s sustainability in the long run.