In A First For India, PIL In SC Seeks To Classify Gig Workers As Registered Wage Workers

A legal petition challenging the ‘unorganised’ status of gig economy workers has been filed before the Indian Supreme Court on September 20. The public interest litigation (PIL) filed by the Indian Federation of App-based Transport Workers (IFAT) seeks to classify gig workers as ‘wage workers’ with better social security and employment benefits that white-collar workers enjoy.

The PIL in India comes on the back of a global movement to provide gig workers with social security benefits similar to full-time wage or salaried workers, including health insurance cover, and other employment benefits.

Global gig economy unicorns such as Uber and DoorDash have pushed back on such legislation in the US and Europe when the legal systems sought to classify the gig workers of those companies as full-time employees eligible for social security benefits. Uber and DoorDash consider their delivery workers and cab drivers as contractual, part-time employees. And the food aggregator-cum-delivery companies in India have taken the same stand. 

The PIL filed in India explicitly names food aggregators Swiggy, Zomato and cab aggregators Ola, Uber who are currently one of the largest employers of gig workers in the country.  It claims these companies do not make an employment contract with the workers at the time of recruitment but instead classify them as ‘partners’, which includes fewer benefits and little control over the wages. 

“If such a claim were to be accepted, this would be inconsistent with the purpose of social-welfare legislation (enacted in the country). It is submitted that the respondent companies (Swiggy, Zomato, Ola, and Uber), which owns the apps, exercises complete supervision and control over the manner and method of the work with those who are allowed to register on the said apps,” added the PIL.

The PIL further argues that by merely classifying themselves as “aggregators”, companies like Swiggy, and Uber enter into “partnership agreements” which takes away the “jural relationship of employer and employee”.

In 2008, the Indian parliament enacted the ‘Unorganised Workers Act’ to provide social security and welfare to unorganized workers with no employment contracts. The act provided recognition of workers through some sort of legal registration and hence making them eligible for various social security benefit schemes framed by the Central Government and the State Governments.

However, the term ‘gig worker’ or ‘partner’ wasn’t officially recognised by any Indian legislation and hence food delivery riders, and drivers on aggregator apps such as Ola and Uber aren’t eligible for government grants of welfare the PIL said.

The Indian parliament then enacted ‘The Code on Social Security, 2020 in order to amend existing legislations that addressed unorganised workers with no employment contracts. The new code also sought to replace the number of existing labour legislation including the Unorganised Workers Act, 2008.

And for the first time, The Social Security Code 2020 recognized “gig workers” and “platform workers” as unorganised workers. But this Code of 2020 is yet to be enacted in India. The PIL also challenges the central government over inaction to the code. And it further argued that gig economy workers fundamentally lack the legal right to livelihood due to the actions of aggregators, and sought urgent intervention from the Supreme court. 

“The inaction on part of the State in ensuring social security to the “gig workers” and “platform workers” notwithstanding the existence of the said laws, is the clearest violation of Article 21 apart from a violation of Article 14 and Article 23 of the Constitution,” the PIL said. 

This PIL also urges the Supreme Court to take into account various other current developments in terms of amending Motor Vehicle Aggregator Guidelines, for recognition of gig workers, and inclusion of food delivery and taxi drivers under the eShram portal that was recently launched by India. The eShram portal is a national database of unorganised workers which looks to address the 38 Cr unorganised workers in India with social welfare grants.

Inc42 recently pointed out that the gig economy model which usually guarantees a flexi-hour employment model is slowly changing. What was built as a lucrative opportunity to earn a ‘quick buck’ has now turned into a full-fledged primary job for a majority of the delivery workers in the country.

Time after time, both activists and delivery people have accused food delivery unicorns Swiggy and Zomato of unfair treatment. Now ‘delivery partners’ are also complaining about the fall in wages and the aggressive control these companies have over them. All these have led to a raging debate on whether the gig economy is as free and fair as it claims to be or whether gig workers have any actual control over the terms of work.

However, IFAT’s PIL also coincides with various other global lawsuits that saw some courts actually rejecting claims that workers of gig economy unicorns are partners and not full-time employees. Recently, courts in Spain, United Kingdom, and the Netherlands, ruled in favour of gig workers ensuring them government-sanctioned social welfare and employment protections grants. 

Fineprint Of The Demands Made In The PIL

This PIL has been put together by Megha Chandra, and Paras Nath Singh, Advocates and settled by Indira Jaising and Gayatri Singh, senior advocates. The advocate for the petitioners is Nupur Kumar representing IFAT in front of the Supreme Court. 

Including the need for social welfare and health cover, the petition makes a total of 14 demands in front of the Supreme Court. The main demand is for an order or direction to declare “gig workers” as “wage workers” within the meaning of the Sections of the Unorganised Workers’ Social Welfare Security Act, 2008. In connection with this, the PIL also demands issuing an order which declares that food delivery and taxi aggregators have violated the rights of the app workers under Articles 14, 21 and Article 23 of the Constitution of India by their failure to cover gig workers as their own emlployees.

There is also a demand for directing cab and food delivery aggregators to ensure compliance with the Motor Vehicle Aggregator Guidelines 2020 in all states with specific regard to minimum health insurance; fixation of working hours; setting up of a grievance redressal centre, and a minimum payment of fares.

For workers of Ola, and Uber the PIL demanded a court order to ensure that no financial institutions, banks and/or NBFCs seize and/or auction vehicles of app-based workers who are not able to pay EMIs of their loans till the pandemic continues.

Apart from this, PIL also sought an order to recognize app-based workers as “frontline workers” and issue guidelines to all states to extend all health and welfare benefits reserved for frontline workers. These benefits include the coverage of medical expenses, an insurance of Rs. 50 Lakhs in case of death due to COVID-19 and to ensure their vaccination is completed at the cost of the aggregators.

Another demand also mentioned that aggregators must provide economic relief to app-based workers in the nature of cash transfers of INR  1175 per day for app-based drivers; and INR 675 per day until 31st December 2021 or until such time as the pandemic has completely subsided to app-based workers.