Issues Arising Between GIG, Platform & Unorganised Workers Definition in Social Security Code, 2020
INTRODUCTION
Social security is offered to gig and platform employees as well as those employed in the unorganized sector under the Code on Social Security 2020, which was approved by Parliament in September and has already obtained presidential assent. The definition of the inclusion of gig and platform employees under the purview of labor regulations occurred for the first time in this case. Although the government has taken a wonderful step, there are still questions over how to make the registration as broad as feasible and concerns with categories that overlap.
A gig worker is someone who participates in a work arrangement and receives payment for it outside of a traditional employer-employee relationship, a platform worker is someone who performs platform work, and an unorganized worker is someone who works from home, is self-employed or is paid in the unorganized sector according to section 2(86) of the new bill. This includes a worker in the organized sector who is not protected by Chapters III to VII of this Code or the Industrial Disputes Act, of 1947. Part of these three definitions overlaps with one another.
One of the four labor codes that the Parliament passed in 2020 is the Code on Social Security. A rule must be created by both the Central Government and the State Governments under the Labour Codes, which are included in the Concurrent List of the Constitution. The Central Government has pre-published the Code on Social Security (Central) Rules, 2020, and the Code on Social Security (Employee’s Compensation) (Central) Rules, 2021 for public discussions as a step towards implementation of the Code on Social Security, 2020. 21 States/UTs have pre-published the Rules under the aforementioned Code. The Code is still in its infancy.
In the Code on Social Security, 2020, the laws about gig and platform employees have been incorporated for the first time. The Employees’ Provident Fund Organisation (EPFO) and Employees’ State Insurance Corporation (ESIC), which up until now provided social security benefits to employees in the organized sector, can implement the social security benefits that are envisioned by the Code through the creation of schemes for gig and platform workers. A Social Security Fund has also been established under the Code, and one of the sources of funding is a contribution by aggregators between 1 and 2% of aggregators’ yearly sales, subject to a cap of 5% of the amount paid or due by aggregators to such workers.
INTERCONNECTED DEFINITIONS
Unorganized workers comprise the entire set, whereas gig and platform workers are subsets, even if these terms have been defined individually under the new law. Platform and gig workers are covered by the extensive definition of unorganized labor. An app-based taxi driver is a good illustration of a gig and platform worker. He or she is also eligible to work in the unorganized sector. There is no employer-employee connection, as this paper notes. There are no appointment letters, no social security benefits, and no employer-mandated work hours, and the app-based taxi driver will likely opt to work concurrently for a rival taxi aggregator. As a result, “the nature of the work involved may fall outside the scope of a traditional ’employer-employee relationship,'” so designating him or her as a ‘gig worker. However, due to the nature of the work, the driver may only apply for this position online. As a result, since they may be self-employed, they would also fit the description of a “platform worker” and be considered an “unorganized worker.”
With such definitional overlap, it is unclear how policies tailored to various groups of employees would function. Similar provisions in the 2019 Bill were evaluated by the Standing Committee on Labour, which proposed extending the term of “unorganized workers” to include gig and platform workers. It appears that both gig and platform employees are covered by the phrase “unorganized sector workers.”
Because of the murky nature of employer-employee relationships, gig, and platform employees can alternatively be viewed as independent contractors. Self-employed individuals are already categorized as unorganized employees. By doing so, the need for separate programs for the three different worker groups would have been avoided. Social security has been made available for employees in the unorganized sector in section 109 of the law. Social security has been made available for gig and platform employees in section 114. There is no need for this repetition.
CONCURRENT LIST
The employees in the unorganized sector have up till now been well-served by state governments. There is a body for the welfare of employees in the unorganized sector in every state. The different state governments were in charge of the unorganized sector.
Now, if the central government steps up, there shouldn’t be an issue, but the Code on Social Security 2020 contains two sets of social security instruments that must be delivered. The provision of distinct sets of social security measures by the federal and state governments, as required by sections 109(1) and 109(2), respectively, creates complications. Such divides are illogical, and from an operational standpoint, they are awkward. The easier course of action would have been to ensure that state governments continue to be in charge of implementation, with the federal government contributing to the expense of social security in some form.
ISSUES WITH THE REGISTRATION PROCESS
Every unorganized worker, gig worker and platform worker must register under section 113 of the code, and they must apply for registration with supporting documentation that includes their Aadhaar number. Since the Supreme Court of India has declined to make Aadhaar required in several circumstances, making Aadhaar essential for registration is not legally tenable. In these situations, it may be considered cruel, if not downright unlawful, to deny social security to a worthy worker because he or she does not have an Aadhaar card. Exclusion based on something that is still not legally required does not seem smart when the goal is to expand the net to include an increasing number of employees within the social security umbrella.
Overall, the government led by Narendra Modi has made a remarkable effort by recognizing gig and platform employees in the Code on Social Security, 2020, and including these kinds of workers under the social security purview. Unorganized workers, gig workers, and platform workers are three distinct groups, however, they can overlap, thus keeping them separate is not required. A broader group of employees in the unorganized economy include gig and platform workers.
In some situations, such as the provision of social security for workers in the unorganized sector, there shouldn’t be a conflict between the two competent governments. Additionally, the registration of workers in the unorganized sector shouldn’t require Aadhaar. At the same time, things may be made clearer, free of overlapping definitions and ambiguities, and more inclusive.
ANALYSIS AND CONCLUSION
In the global context, the gig/platform economy is a relatively new idea. It is important to note, however, that nations like the United States and the United Kingdom have made significant progress in simplifying and changing their laws through legal precedents to make them more accommodating for these categories of employees. India could take a page out of their books to adapt our law for such workers rather than drafting six straightforward instructions concealed as statutory provisions. To safeguard and offer welfare to employees in the organized sector, the Code already includes rules based on legislation and precedents that evolved. Instead of adding a distinct chapter for the unorganized/gig/platform sector, they could attempt to include gig/platform employees under the same requirements or should add equivalent provisions to Chapter IX of the Code. In Uber V/s. Aslam19, the Employment Tribunal (UK) and the Supreme Court of the U.K. made a comparable approach. Under Section 230(3)(b) of the (UK)Employment Rights Act, 1996, Uber drivers were included in the category of “workers. “The Court expanded the concept of “workers” to include those who are under the purview of current laws/legislation. As a result, individuals would be eligible for minimum pay and paid vacations starting from the moment they log into the app.
To avoid overcharging the aggregators (by making them contribute to a fund) in such circumstances, the Government should set up a welfare fund fuelled by its own taxed income (as has been suggested before in this paper), which is otherwise wasted on unfinished infrastructure projects or ends up in the pockets of corrupt politicians. Given that the Indian Government sets aside a large portion (7.3% in 2018-19) of the country’s GDP for funding the varying social welfare schemes21, a slight portion of this massive amount can be used to make a distinct fund for gig/platform workers as well. Such a fund must be brought to the realm of the Right to Information Act,2005, to ensure transparency and regular audits of the same.
The legislature will have to work very hard to eliminate the broad discretion given to the Government and aggregators, even if the Code is being promoted as a modernized and enhanced version of the previous labour rules. This is evident in both the organized and unorganized sectors, but especially for gig and platform workers. Gig workers will continue to suffer the consequences for choosing to work flexibly, which also allows them to work diligently as they choose their duties unless strict adjustments are made to enforce the supply of medical benefits, standardized life insurance, compensation, etc.
REFERENCES
1. Daily Rated Casual Labour V/s. Union of India, (1988) 1 SCC 122
2. Kingshuk Sarkar, “Under new labour code, and Uber driver can be both gig and platform worker. It’s a problem”, (The Print, 12th October 2020), https://theprint.in/opinion/under-new-labour-code-an-uber-driver-can-be-both-gig-and-platform-worker-its-a-problem/521628/ Accessed 10th May 2021
3. Swati Rao, “How the Social Security Code 2020 fails gig workers”, (Spontaneous Order, 23rd November, 2020), https://spontaneousorder.in/how-the-social-security-code-2020-fails-gig-workers/, Accessed on 15th May 2021
4. Justice KS Puttaswamy V/s. Union of India, (2019) 1 SCC 1
5. (Press Information Bureau, 4th July 2019), https://pib.gov.in/Pressreleaseshare.aspx?PRID=1577032>, Accessed on 2nd June 2021
6. Group 4 Securitas Guarding Ltd. V/s. Employees Provident Fund Appellate Tribunal and Ors, 184(2011) DLT591, Dhrangadhara Chemical Works V/s. State of Saurashtra, 1957 LLJ 478
7. Shikhar Verma, “Critical Analysis of the Social Security Code in Light of the Gig and Platform Economy”, (India Law Journal) https://www.indialawjournal.org/critical-analysis-of-the-social-security-code.php
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