Introduction
Gig-workers though a fancy term, carries an inverse life. Gig-worker means any person performing an income-earning activity outside the employee-employer relationship. For example, the guy wearing the swiggy t-shirt, isn’t technically a swiggy employee, the same goes for Uber Drivers. Therefore, by critiquing how gig workers are defined in Indian and Californian Jurisdiction, we employ a thought experiment to imagine the Californian law in the Indian jurisdiction.
Indian Jurisdiction
Industrial Relations Code and The Qualifying Test
The Industrial Relations Code,2020 Section.2(ZR) offers a qualifying test for a worker:
Employment In an Industry: ‘Employment’ requires one to have an ‘Employee-Employer’ relationship, i.e., Employer must have control over the employees, this can take many forms, for example, Execution of Work Given[1] or Economic Control[2] or Right to Reject(Therefore, is non-Exhaustive). Industry[S.2(j)I.D.A[3]] requires[4] an entity to satisfy Systematic Activity Test (Commercial ‘type’ Operations) 2) Co-operation b/w employee and employer 3) Production of G/S for Human Needs)
Hire/Reward: There must remain compensation for work executed
Classification of Work: Must be Manual, Skilled, Technical, Operational, or supervisory (Compensation not exceeding Rs.18,000/Per-Month)
Exceptions: Not being in the Armed Services.
Does Uber driver determine whether he wants a passenger or not? Or if he ought to take a certain route guided by Uber Inc.? Yes and no respectively, hence there isn’t a conventional employee-employer relationship. Now for Hire/Reward, it is very inclusive, hence even ‘a per ride commission’ would be embraced. Moreover, driving a car is prima facie manual, skilled and a technical task. Therefore, Uber Driver isn’t a worker under I.D.A.[5] (except for trade union purposes),
Are uber-drivers free enough to be considered an independent contractor? Nope. Since the workers aren’t ‘free’ and we note strict compliances and directives to be followed by drivers, and how there are at mercy of Uber with no redressal forum, compensation, or protection mechanism[6]. Therefore gig-workers only get Trade Union Benefit (Ch.3) since they are engaged in an industry; and are left out namely on: Retrenchment-Benefit(Ch.9,10), Lay-off(Ch.8), Re-Skilling Fund(Ch.11), and protection from Unfair Labor Practices(Ch.12). Code on Wages derives the I.R.C. definition of worker hence gig-workers miss out on minimum wages(Ch-2) and bonus(Ch.3).
Request for Inclusion.
I.F.A.T[7] filed[8] a P.I.L. on September 20,2021; requesting to include Gig-Workers u/S.2(m)&(n) of the U.W.S.W.S.A[9]. The reason behind such request is:
S.2(m):“unorganized worker …includes a worker in the organized sector who is not covered by any of the acts mentioned in Schedule II to this Act”
S.2(n): “wage worker” means a person…irrespective of place of work, whether exclusively for one employer or one or more employers…or as a temporary or casual worker…”
Now, utilizing legal interpretation we realize that gig-workers aren’t employees, but are employed in organized sectors(Clause-m) and intermittently for more than one-employer(Clause-n), and importantly aren’t included in Schedule II of this Act. The purpose these gig-workers want this application is Chapter II of the Act, which mandates the centre to formulate schemes covering insurance, maternity benefits, or “other benefit as determined” and the states to devise, regarding P.F, employment injury, housing etc. Presently Schedule I contain schemes targeting specific un-organized sector, and such personalized scheme is demanded by gig-workers
Formalizing Ignorance.
The Social Security Code[10] which legalized (formally-accepted) “gig-worker” under S.2(35) as “a person who performs work…outside of a traditional employer-employee relationship”. S.2(61) defines platform worker same as S.2(35) + online platform. The S.2(78) asserts social security as “protection afforded to employees, unorganized workers, gig workers and platform workers …health care, income security… utilizing rights conferred on them and schemes framed, under this Code”.
Hence, legislature’s intent is obvious ‘Gig-workers are officially out of I.D.A/I.R.C/Code on Wages[11]/U.W.S.W.S.A.’ (Since, they are deliberately segregated in the Act). The benefits conferred to them are Ch.9[12] benefits which encompass a helpline, registration under S.113 and ‘Schemes’ such as Insurance, crèche and maternity benefits etc. under S.114. The Act cunningly creates a chapter restricted to benefits offered to gig-workers therefore leaving them out of benefits which matter the greatest such as E.P.F[13], E.S.I Corp[14]. and Gratuity etc. It remains a disgrace that even ‘employee’ compensation (Thoroughly-Procedural) is kept out for these gig-workers (by providing a hypothetical scheme in the future)
Californian Jurisdiction
Rights for All
N.L.R.A[15]u/S.2(35) progressively defines employee as someone working for an employer and doesn’t have “other regular and substantially equivalent employment” and isn’t agricultural-labor/independent-contractor. Since it is a federal structure, California has legislated AB5[16]; grants inspiration from the Dynamex Case[17] by assuming that every worker would be presumed employee unless the employer could prove:
1)The worker was free from authority of employer for the work given and conduct of execution
2)The worker achieved tasks that were distinct from employer’s enterprise
3)The worker was routinely performing work like, one provided by employer
Intriguingly now gig- workers via A.B.5 received benefits such as: Social Security (SSDI[18], SSI[19]), Medical Leaves (F.M.L.A [20], C.F.R.A [21]), Final Wage Payment(Lay-off/Retrenchment). Now the giants (Uber/Lyft) rebelled and, Proposition.22[22] was introduced as ‘California Ballot Initiative’ which exempted app-based delivery-and-transport (Majority) from the A.B.5 and provided: Stipend for health insurance, Reimbursement for vehicle expenses, Job injury coverage and Guaranteed Min.Earning. On August 20, Alameda Superior Court ruled Prop.22 unconstitutional, since it merely promoted the interests of corporations not workers, “defied logic and the law” and was incompetent in providing workplace security,flexibility and pay standards[23]. Presently A.B.5 benefits apply to all until such judgment’s appeal is granted.
Conclusion
Therefore, the disparity in methodology is very clear amongst both the jurisdictions. India carries a stringent interpretation of employees with the mandatory satisfaction of employee-employer relationship to claim the benefits that are ‘on-ground’. Along with, the ever-increasing legislative intent to bifurcate employee and gig-workers, is strengthening with time. Previously corporations utilized the grey area of law by exploiting gig-workers as independent contractors and not offering them any benefit. Now, corporations can do so formally, and the only protection these workers have are ‘hypothetical-schemes’ Applying the Californian definitions of an employee, we note the gleaming variation, i.e. The law is accommodating, the legislative intent is to ‘blur’ the discrepancies between both to say the least, rather than bifurcating them and creating future schemes. Such, bifurcation tends to trigger an up-roar, as noted in New York with the “New Draft Legislation”[24] which ‘intends to strengthen gig-workers by creating different guidelines/mechanisms for them’, and practically ends up violating their rights(Forming Trade Union Independently[25]). Governmental apparatus tends to have a master-slave association with corporation. This up-roar is brewing in India as-well, on account of increasing P.I.Ls filed and with escalating volume of gig-workers getting employed/exploited. Therefore, India must take a bitter-sip of inclusion than exclusion, moreover such be complemented by our judicial system by enforcing fundamental rights of these ‘Employees’.
[1] Dharangadhara Chemical Works Ltd Vs State Of Saurashtra (23 November, 1956)
[2] Hussainbhai, Calicut Vs Alath Factory Thozhilali (28 July 1978)
[3] The Industrial Disputes Act, 1947 (14 Of 1947)
[4] Bangalore Water-Supply & Vs R. Rajappa & Others (21 February 1978)
[5] The Industrial Disputes Act, 1947
[6] Delhi Commercial Driver Union v UOI (Delhi High Court, W.P.(C) 3933/2017)
[7] Indian Federation of App-based Transport Workers
[8] S.H., S., & Staff, I. (2021, September 23). In a first for India, PIL in SC seeks to classify gig workers as registered wage workers. Inc42 Media. Retrieved October 28, 2021, from https://inc42.com/buzz/in-a-first-for-india-pil-in-sc-seeks-to-classify-gig-workers-as-registered-wage-workers/.
[9] The Unorganized Workers’ Social Security Act, 2008 (33 Of 2008)
[10] The Code on Social Security, 2020 (36 Of 2020)
[11] The Code on Wages (19 Of 2019)
[12] The Code on Social Security
[13] Employee Provident Fund Act
[14] Employee State Insurance Corporation Act
[15] National Labor Relations Act Of 1935
[16] California Assembly Bill 5
[17] Dynamex Operations West Inc. V The Superior Court Of Los Angeles County Ct.
[18] Social Security And Disability Insurance
[19] Supplemental Security Income Act
[20] Family And Medical Leave Act
[21] California Family Rights Act
[22] 2020 California Proposition 22
[23] Afp. (2021, August 21). California ‘gig worker’ ballot Proposition 22 ruled unconstitutional. The Hindu. Retrieved October 28, 2021, from https://www.thehindu.com/news/international/california-gig-worker-ballot-proposition-22-ruled-unconstitutional/article36028895.ece.
[24] Senate Bill S6699a
[25] Breaking: Draft legislation in New York would put gig workers into toothless ‘unions’. Labor Notes (2021, May 21). Retrieved October 28, 2021, from https://www.labornotes.org/2021/05/breaking-draft-legislation-new-york-would-put-gig-workers-toothless-unions.
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