Gig & Platform workers:

Legal Analysis

Submitted by Group 1
(e-MDP, LLM-6)
 India & fast pacing gig/platform economy:
Reasons of a fast growth

Involve various
Platforms proved sections of
748 million their resilience society:
(74.8 cr) during Covid 19 Women,
smart phone pandemic in Physically
users With such a
keeping disabled,
vast growth
communities migrants etc
potential, it has
connected
become
No big infra imperative to
India is amongst required. have a legal
More than 62%
the top five Only data framework to
population in
countries in enabled protect the
working age
terms of average smartphone rights of those
group (15-59
cheapest mobile who fall under
yrs) & 54%
data ($0.17/GB) this segment of
under 25 yrs
advance
economy
 Traditional business vs Gig business

• Physical/Virtual presence
• Physical presence/WFH • Non standard working hours
• defined working hours • Beyond traditional
• Employee-employer r/ship employer/employee r/ship
• Interests protected by PE • No concept of PE
Traditional • Exclusive (only one)
Gig & Platform
• Multiple (one to many)
Business employment contract workers employment contracts

environment

• Protection under social security • No protection under existing

schemes laws
• Dispute resolution • No dispute resolution
mechanism/grievance redressal mechanism
• Standing orders • No authorised Unions
• Labour Acts
• Labour Unions
Enormous growth in no. of gig Technology brings new ways of
workers business

Advent of
Technology
2019-20-
6.8 million

2020-21
7.7 million

Flexible jobs New business New work

By 2029-30 models arrangements
23.5 million
 Sneak peak of
Major Sectors India’s growth
that will support Story
gig economy

Construction

This growth pattern in

the no. of gig workers
Transportation Potential of also gives an indication
& 70 million Manufacturing of how Indian economy
Logistics gig able jobs will grow in the coming
times & what sectors
will be playing a key
role in this journey

Retail
 Gig workers
Section 2(35) of Social Security Code
2020 defines gig worker as a person
who performs work or participates in
a work arrangement and earns from
such activities outside of traditional
employer-employee relationship e.g.
Freelancers, contingent workers
Platform workers
Section 2(61) of Social Security Code
2020 defines platform worker as a
person engaged in or undertaking
platform work e.g. Ola, Uber drivers
or Swiggy delivery agents

Platform work

As per Section 2(60) "platform work" means a work arrangement outside of a traditional
employer employee relationship in which organisations or individuals use an online
platform to access other organisations 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
 Gig workers: Employees OR Independent
Contractors ?

Control exerted by the platform at gig

worker The factors that support Independent
Contractor classification include:

1. Work to be highly Skilled

2. Workers providing their own
Nature of control over the conditions of equipment
work
3. Deciding their own schedules
4. Getting paid per project

Legal minds, world

The higher the degree of control over, have different
exerted by the businesses, the more interpretations
likely the workers be classified as basis on these
employees. factors
 Control over Can work with
resources competing
organizations

Interpretation of SC Have
of California (2019) independence of
on the basis of following
schedule &
control & location of
Independence operations
enjoyed by Uber
drivers

Uber drivers are not employees. They are

independent contractors
 Control by Control brings
platform responsibility
Interpretation of SC over workers for well being
of United Kingdom on
the basis of control
by the platform over Takes the view of
workers & welfare of
responsibilities for employees &
better work
well being conditions

This judgement
is called Uber
BV & Ors. VS
Aslam & Ors.
Uber drivers deserve treatment of
employees. They are not contractors
 Collaboration, length of Functional coordination at
relationship with the business execution level
 In countries like Canada,
Italy & Spain a new
Legislature in Canada, intermediate category is
Germany, Italy, Spain
being defined known as
consider the following
factors to recognise ‘dependent contractors”.
dependent contractor
 Canada & Germany have
Entrepreneurial risk & having started recognising a
Providing direct services
ownership of the tools of dependent contractor
without subcontractors
operations status for some
“Independent
Contractors “ if they
have an exclusive r/ship
with only one business
 At present , in India, there is no
existing law that recognises gig or platform
workers.
 A PIL has been filed in SC, seeking
social security benefits for food delivery
agents & drivers of taxi aggregator apps
 BRICS Labour &
1. Promoting Social Security
Employment arrangements amongst BRICS
Ministers’ nations
declaration 2. Formalization of Labour markets
Online work 3. Participation of Women in Labour
arrangements go Robust regulatory
beyond caste, framework for Force
geography & platforms 4. Gig & Platform workers’ role in
Societal boundary Labour market

Enablers of
gig
economy
in India

 BRICS: Brazil, Russia, India, China, South

Africa
 This declaration was done in July 2021 in
New Delhi
Code on Wages 2019

Occupation al Safety,
Health & Working The four new labour codes enacted by Parliament in
conditions code 2020 2019 & 2020 have amalgamated 29 laws governing min.
wages, industrial relations, collective bargaining,
Code on Social Security
2020
occupational safe & Social security etc.

Industrial Relations Code

2020

To expend the definition of employees so, irrespective

of the category, all are covered under full time
employment Clearly India
In front of policy has chosen
makers, there were Allow market forces to run gig economy, however the the third
predominantly three disputes or problems to be addressed through option with
options to regulate gig litigation & statutory measures the trace of
economy second one
Providing a safety net to gig workers by reducing the
extent to which they are dependent
on their employer for security.
 Are gig
workers
employees ?
Section 2(26) of SS code definition of employee
which says employment by an establishment or
through contractor
This is very interesting to note
Section 2(35) of SS code definition of gig worker where that gig workers are different in
traditional employer-employee relationship doesn’t their nature and functioning
exist and don’t fall under the category
of either Employee or Self-
employed worker
Section 2(75) of SS code definition of self employed
worker where sector must be unorganised & total no of
workers in enterprise <10

Clearly safety net is

provided by govt. with
disputes being
 It is to be noted that apart from Social Security Code 2020,
resolved through
remaining other three codes namely IR Code, Code on wages &
prevailed litigation &
OSH & W Code don’t talk about gig or platform workers
statutory measures
 What’s there in SS Code for Gig & Platform workers

Section 112: setting up of a toll free number to

disseminate information, assist & facilitate about
availing the benefits of social security schemes These are some of the sections
Section 113: Mandatory for gig & platform workers to defined in Social Security code 2020
get registered on an online portal in order to avail that ensure Social security benefits
benefits & welfare measures for gig &
platform workers. It is evident to
Section 114: Power of central govt to frame schemes note that most of the
related to life/disability covers, accident insurance, responsibilities are taken by the
health/maternity benefits, crèche, old age etc central govt. itself & nothing has
been left on the mercy of employer
Section 141: Establishment of social security fund by or platform
central govt. for social security & welfare of
unorganised workers, gig & platform workers

Evidently SS Code is revolutionary in the

sense that for the first time Parliament
acknowledged new work arrangements &
new category of work force
 A case of Supreme Approach
through Public Interest Litigation
(PIL) 1/3

In Sept 2021, The

Indian Federation of
App Based Sr. Advocate Indira Jai Singh,
Transport Workers, appearing for litigants in front of The Supreme court
which is a registered division bench of justice L on 13th Dec 2021,
trade union Nageshwara Rao & BR Gavai, issued a notice to
federation, filed PIL referred to a judgement of UK centre asking it to
in SC seeking social Supreme Court (discussed in respond accordingly.
security benefits for previous slides) wherein it was The centre govt. is
delivery partners of ruled that relationship is actually of yet to respond over
food delivery apps & an employer & employee the notice issued by
drivers of taxi Supreme Court.
aggregator apps
Uber BV &
Ors. VS
Aslam &
Ors.
 A case of Supreme Approach
through Public Interest Litigation Relevant Provisions behind
the premise of the PIL
(PIL) 2/3

PIL says that app based workers or gig workers come under the meanings of “unorganised workers” &
“wage workers” under the UNORGANISED WORKERS’ SOCIAL SECURITY ACT 2008. Hence they need to
be registered under this Act to claim Social Security benefits.

Section 2(m): “Unorganized workers” covers a home-based worker, a self-employed worker, and a
wage worker, who is working in the unorganized sector

Section 2(n): “Wage Workers” means a worker who works for remuneration in the unorganized sector,
irrespective of the place of work

If the State does not register gig workers under the Act of 2008, it would be violative of the
fundamental rights of the gig workers and leave them open to exploitation.
Violation of Article 14: Equality before law & equal protection of the law
Violation of Article 21: right to livelihood, right to decent and fair working conditions, and right to
human dignity
Violation of Article 23: Right against exploitation is guaranteed
 A case of Supreme Approach
through Public Interest Litigation Relevant Provisions behind
the premise of the PIL
(PIL) 3/3

some of the Directive Principles of State

Policy are also made part of PIL

Article 39 (e): The State is mandated to direct its policy particularly towards ensuring that the health
and strength of workers are not abused and that citizens, because of economic necessity, are not forced
to take up work not suited to their age or strength

Article 41: The State is mandated to, as far as its economic capacity and development allow, make
effective provisions for securing the right to work, the right to education, and the right to public
assistance in case of unemployment, old age, sickness, disablement and in other cases of undeserved
want

Article 42: The State is mandated to make just and humane working conditions and for maternity relief

Article 43: The State is mandated to make every effort to secure work, a living wage, conditions of work
ensuring a decent standard of life, and full enjoyment of leisure and cultural opportunities to all
workers, industrial or otherwise, through legislation, economic organization, or any other means
 As we move towards a largely in formalized gig-based economy, it is
critical our labour laws evolve to adequately respond to it

 The SS Code, which is being paraded as a progressive move for

gig/platform workers, is one step in this direction

 With two major pillars of democracy i.e. judiciary & parliament

working over it, the future seems quite promising. After all right to
work, livelihood, and right to equality and opportunity are guaranteed
under the Constitution of India & are a pre -requisite of a welfare
state