Devise a new labour law regime for gig economy workers
The Covid-19 pandemic has revealed multiple fault-lines in India’s economy and labour market. One prominent fault-line is visible in the domain of what is popularly known as the “gig economy”, or — more accurately — the platform economy. Earlier this summer, there were reports of a significant number of Ola drivers finding themselves unable to make ends meet because of the fall in revenue during the lockdown. More recently, there have been nationwide protests by Swiggy delivery workers, against their wage and working conditions.
The root of the problem lies in an outdated labour law regime. Traditional labour law draws a distinction between employees or workmen, and independent contractors. The former enter into a defined relationship with their employer, characterised by features such as pre-set working hours, fixed wages, employer supervision, and so on. The latter, on the other hand, are deemed to negotiate their own terms with anyone willing to hire them. Under labour law, only the first category of workers is entitled to access the entire range of labour rights — from the right to a minimum wage, health and safety conditions and the right to collective bargaining.
The employee/contractor binary, however, is based upon an outdated vision of work, where the factory or the shop floor was the predominant site of “work”. The platform economy is nothing of the sort. Thus, platform giants such as Uber, Ola and Swiggy invoke the fact that there are no fixed hours of work, that workers can log in and log out as they please, and there is no physical workplace. These platforms then claim an effective exemption from having to adhere to labour laws.
This account, however, is a flawed account of the platform economy. In particular, it occludes how forms of physical control in the workplace have shifted to forms of digital control in the modern economy. Central to this is the app through which platforms function. In the case of Uber, for example, the app plays a central role: It serves as a gateway into the labour market; it is used to set prices over which drivers have no control; it is also used to award “ratings”, and the consequences of having one’s “rating” downgraded below a certain point can result in less lucrative work, or losing access to the app. It is clear that platforms retain significant amounts of control over workers (in some cases, through digital surveillance, even more control than traditional workspaces), and are in positions of power and dominance. From this perspective, there appears to be no justification in granting them immunity from following basic labour laws.
However, for all these reasons, platform work remains very different from older forms of mainstream employment. Traditional tests of employment, therefore, are no longer enough. This has been recognised by courts all over the world, that have — while adjudicating “misclassification lawsuits” (ie, cases brought by platform workers arguing that the platform has wrongly classified them as independent contractors), found it difficult to employ traditional labour law frameworks, and have exhorted legislatures to develop new laws to deal with new forms of digital work.
India’s draft labour codes do not yet address this issue, other than a few isolated provisions. This must change. It is vital that the law recognise platform workers as workers who are entitled to the full panoply of rights that labour laws accord to all workers, in the traditional sense. Efforts to this end are on in various jurisdictions — most notably in California. This endeavour is particularly urgent, as in its absence, platforms continue to take advantage of the regulatory vacuum, and exploit their workers. Carefully-drafted laws that recognise the reality of platform work, and guarantee to platform workers both procedural rights (such as collective bargaining) and substantive rights (such as minimum wages and safe working conditions) are the only solution to this problem.
Gautam Bhatia is a Delhi-based advocate
The views expressed are personal