GIG WORKERS AND THE PANDEMIC: WORKER’S RIGHTS AND THE ‘DELIVERY’ OF JUSTICE
Abstract: The Gig-economy constitutes one of the fastest growing job-creating market, with its development even being dubbed as the “Fourth Industrial Revolution.” The platform “functions as a multi-sided market” as ordinary individuals constitute both the demand and supply of these services. The gig-market comes with several encouraging facets: some of them include swift creation of jobs and an expanding role of technology in the transformation of workplaces that brings a wave of increasing “savings, productivity and flexibility.” The nature of gig-work, however, does pose some concerns with the likes of techno-geographical inequalities, massive insecurities in terms of work and pay, and ‘deskilling’ that could lead to irregular employment. Over the course of the Covid-19 Pandemic, there has been a growing reliance on gig-workers in jobs that include Food-delivery and maintenance and repair services. Such work warrants for a) a surplus of labour to perform flexible duties within a platform-based infrastructure and b) augmenting mobile and digital technology that is accessible to the average consumer. While gig-workers or delivery ‘agents’ charge or receive commission per service upon completion of the assigned duty by the platform, the transition from the epoch of full-time stable jobs comes with its own set of concerns. Amidst the fluid and autonomous workforce and the transition from traditional “organizational hierarchy and bureaucracy” comes great ambiguity in terms of job and social security, health and medical benefits, and legal recourse. Employees are often subject to workplace casualization, arbitrary logout times and inadequate compensation. This article will attempt to tackle conflicts regarding uncertainty of employment arrangements within the gig-economy, regulations in place by the employing corporations locating the responsibility of the ‘employers’ such Amazon and Swiggy by comparing labour standards of foreign jurisdictions and their treatment of gig-work. This article will then lay a centred focus on delivery companies in India such as Swiggy and their adopted policy in terms of the Pandemic coupled with a critique and possible solutions and improvements to enhance the rights and protections of these employees.
Keywords: Gig-workers, Employees, Social Security, Pandemic, Swiggy, Labour Laws, Unions
GIG-WORK IN INDIA: SITUATING GIGWORKERS UNDER INDIAN LABOUR LAW
In early 2021, A Zomato delivery executive was subject to grave assault by a customer upon requesting her for payment for the food delivery. The employee was immediately suspended without appropriate adjudication of his wrong-doing by any competent authority. Other instances of mistreatment include caps on how much a worker can earn daily and a lack of incentives such as fuel reimbursement and “first-mile pay”. Such examples pose several questions onto the nature of gig-work and its consequent undermining of existing labour standards. The gig economy relies primarily on the “lower-skilled sections” of the labour market, those employed generally do not have formal qualifications. Due to this, most of the bargaining power that influences the pay employees receive is reserved by these businesses. Digital platforms rely on ‘independent contractors’ to perform specific tasks, that generally falls outside the traditional employer-employee relationship. In many jurisdictions, gig-work is categorized as contractual labour that is governed by commercial law rather than standard labour regulations. Furthermore, companies that engage in the dispensation of gig-work do not define themselves as ‘employers’ but rather intermediaries or ‘technology providers.’ Such determination absolves these businesses of responsibility or liability in the actions of its gig-work. While assessing the rights of gig-work within the realm of Indian labour laws, this article restricts its analysis to Section 2(s) of the Industrial Disputes Act, 1947 (referred to as “IDA” hereon) and interpreting “continuous service” as defined under Chapters 5A and 5B. An understanding of these provisions will further enable this article to analyse and identify lacunae in gig-work rights.
Under Section 2(s) of the IDA, a ‘workman’ requires to satisfy the presence of a Employer-employee relationship, as interpreted by the Supreme Court in Hussainbhai.. The judgement added an additional layer that included the criteria of “control and supervision” in the hands of the employer over the actions of the employee. A perusal of the facets of gig-work will reveal that determining control and supervision is a tricky test as several businesses including those of Uber and Ola have modelled their nature of business around the brand “convenience and flexibility.” What this means for gig-workers is as they fall under the ‘grey area’ of regulation between independent contracting and ordinary employment, as these businesses stand to gain from minimized labour costs coupled with no statutory requirements to ensure minimum pay, insurance protections and on-the-job safety assurances. Chapters 5A and 5B deals with the compensation a workman may claim in situations of retrenchment. The clause reads that a “continuous service” is required to claim compensation, that may be greatly disadvantageous in a working economy wherein jobs are highly unstable and demand-dependant. A lot of factors come into consideration into a gig-workers’ “continuous service” – service and product demand and consumer preferences being some of them. Interestingly, there has been no clarification as to the protocol to be adopted if a workman falls sick upon contracting the virus in the COVID-19 pandemic, with several employees being physically unable to perform deliveries and other tasks due to the nature of gig-work. Like traditional companies, these hirers retrieve and have continued access to the personal information of all “workers’ performance and location data” throughout the day. Since the outbreak of the virus, Food Delivery apps have begun to always display delivery agents’ body temperature, including their contact details and current location. Additionally, In April 2020 giants such as Zomato and Urban Company mandated that all employees are to install the Aarogya Setu App onto their mobile phones. The reason and application of this data accumulation of workers remains unknown. Such “collection, analysis and distribution” exposes and leaves these workers amenable to risk of invasion of privacy or electronic abuse.
While developments are being made into the assimilation of these gig-workers onto the organized sector via the Code on Social Security, 2019 (which is yet to be passed), that allows these workers to receive some selected benefits. Section 109 of the unpassed code would empower these workers to receive old-age protection and life cover. However, the continuance of acknowledgement of gig-workers as a part of the Unorganized Sector leaves them devoid of social security benefits such as Employees Provident Fund or State Insurance schemes. Such gaps demand greater regulation and ‘tailored legislation’ that encompass the dynamic nature of gig-work.
GIG-WORK FROM AN INTERNATIONAL LENS: A CASE STUDY OF LEGAL INTEGRATION
The insecurities that come along with the sharing economy is feared to “jeopardize welfare” in countries like Canada and The United States, where social security systems and worker protection measures like health coverage and “insurance against injuries” are limited to “stable employment contracts”. The gig economy has monumentally grown as a flexible employment alternative, especially those who look to engage themselves in part time work. Gig-worker rights are still under threat under various foreign jurisdictions, with companies like Uber and Lyft in the United States functioning as algorithmic managers by termination of contracts and tracking of performances retaining an “employer-like control”. Furthermore, Uber drivers are denied fuel, leasing and maintenance costs as companies continue to avoid providing Social Security and Medical care. The Fair Work Act, 2009 in Australian legislation established a set of ‘National Employment Standards’, which governs the constituted ‘Fair Work Commission’. Similar to the IDA, Independent Contractors are not ‘subject’ to these regulations to a large extent. In the Indian context, Hussainbhai was a landmark judgment in the determination of employment that used the ‘economic control’ test wherein an employer-employee relationship must be found substantively. Australian Jurisprudence adopts a similar view as reflected in Hollis v Vabu where the court held that employment must be viewed in totality factoring in “control over the worker” through the ‘multi-factor test’. The Fair Work Commission most recently passed a landmark judgment that recognized a ‘Deliveroo’ driver as an ‘employee’ of the company, further holding that his dismissal was “harsh, unjust and unreasonable”. The Commissioner reverberated the ‘reality test’ similar to that was envisioned in Hussainbhai by observing that the flexibility visualized by these companies are limited and illusory as they entirely control his availability of work and nature of tasks. This is an encouraging legal finding as it is a positive step towards the integration of gig-workers onto employment legislations.
While labour law reform is an effective tool for integration of the gig-economy, another method would be that of the businesses adopting a hands-on approach in the strengthening of worker standards and protections via policy and regulation changes. An encouraging illustration of such an approach was reflected by Airtasker, a task-based service provider with over 2 million registered users, similar to the task model adopted by India’s ‘Urban Company’. A report published by Unions NSW challenged the ‘independent contractor’ tag attributed to Airtasker employees, relying on the fact that a majority of the control over the employees excluding the ultimate choice of accepting a task, was in the hands of the technology provider i.e. Airtasker. In an ode to recognize the risks involved with gig-work and the relevance of “legal standards, protections for workers, dispute settlement” in the nature of the market, Airtasker along with Unions NSW amended the business model to incorporate certain “minimum labour standards”. Some of the amendments included increased minimum wage, insurance coverage for third-party incurred injury, safety guidelines and an independent arbitration system in cases of inter-party dispute system. While Airtasker’s novel steps towards integration of gig-work is commendable, it must be noted that Airtasker is the exception as several services continue to leave their workers devoid of these rights and assistance.
GIG OF DELIVERIES IN THE PANDEMIC: ‘SWIGGYING’ FOOD HAS A PRICE
Over the course of the pandemic, India has moved in and out of several ‘lockdowns’ within a span of 16 months. It would be prudent to observe, however, that even in the most stringent ‘complete lockdowns’, the orders allowed ‘essential workers’ for unhindered movement to continue to perform the tasks of grocery delivering, packaging and restaurant delivery. The virus limited the movement of several individuals – the elderly and the immunocompromised being the most vulnerable groups to the vicious virus. This, however, has caused an upsurge for supply deliveries to the footsteps of their houses, necessitating the need for these gig-workers to put themselves at the risk of contracting the virus to fulfil these situational demands. With stay-at-home orders and nation-wide social distancing protocols, gig-workers find themselves conflicted between paid work and the health hazards the pandemic poses. Workers employed by food delivery sites such as Zomato and Swiggy have recurringly voiced out their dissent against the businesses’ incentive-structure, revised pay per delivery policies and heightened work volume due to the pandemic. In late 2019, Zomato revised its incentive structure to Rs. 18 per touchpoint from the previously offered Rs. 20, without consultation with the delivery executives. This ‘base pay’ has further dipped to Rs. 15 during the pandemic. Service Providers retain managerial control in the form of ‘ID Suspensions’. Subsequent to the outrage of several Swiggy employees over the pay-cuts, Swiggy via internal communication platforms threatened to suspend IDs of ‘delivery executives’ if they do not complete their minimum requirements of two shifts. It is difficult to deny the degree of control of these companies while it continues to claim ‘independent contracting.’ Delivery businesses have further failed to provide workers with PPEs, insurance against Covid-related concerns and on-the-job safety measures. While Swiggy and Zomato have continued to profit from the massive increase in demand for ‘contactless delivery’, gig workers are denied paid sick-leave measures or hospitalization reimbursements to a large extent. The blind-sidedness of the Government reflected by the lack of incentives for its ‘essential workers’ further undermines the gig-workers who have medical complications.
However, the vulnerabilities of the gig market have incentivized the need for a collective voice for the concerns of the 8 million individuals it houses. The pandemic has spurred workers to mobilize and collectively voice out their demands and issues with their ill-treatment by the corporations and the government. In August 2020, The All-India Gig Workers Union was established to fight for better wages and legal rights for gig-work in the country, with its larger goals being integration of Platform workers into the Code of Social Security and “universalized social security”. The objective of these unions continue to be challenging the traditional lens the law views “digitalization, automation and remote work” with, using the Covid-outbreak as an apt juncture to address pressing issues of the labour economy. In May 2021, Swiggy adopted a “4-day work week” in response to the second-wave in India by additionally setting up a Covid task force and an ‘Employee Support Hotline’ that helps Covid-affected employees find adequate hospitalization and medical care. Furthermore, Swiggy aimed to vaccinate all of its delivery executives and ensures it would cover the losses if an employee found themselves unable to work. It can be inferred that the gig-market by its mobilization is better equipped to voice out against the oppressive practices and policies of these service-providing businesses. While there are encouraging developments in labour reform, several critics have argued that the rise of the platform-economy in a hyper-capitalist economy as the final ‘nail in the coffin’ by the “commodification of labour”. For the purposes of this article, fifty Swiggy employees were surveyed on whether. The research period was within the period between 1st May to 25th June 2021. The Employees were interviewed from the food-delivery service ‘Swiggy’ alone after deliveries and were surveyed across four major cities. All data is verified by the author specifically for the purposes of this article:
1) Whether they had contracted the Corona Virus during the course of their Employment?
2) Whether they received paid sick-leave, paid vaccination or any sort of monetary relief during their period of indisposition?
Out of the sample, 88% of the delivery executives admitted to have contracted the virus during the course of their employment, with several employees citing the large wait-times at restaurants, congested and inorganized waiting areas for delivery agents with negligible social distancing protocols employed by the restaurants as some of the reasons for their indisposition. With the heightened safety hazards, labourers argue that no steps have been taken either from the employer-businesses or the government to protect these ‘essential workers’ from the virus. In terms of the second research question, 38 workers out of the 50 claimed they received no monetary relief or medical support from the companies even after multiple requests. While Swiggy have promised to cover 100% vaccination costs for all its employees, with several employees being vaccinated in over 500 cities, several gig-workers continue to remain unsupported and devoid of any relief from these platforms. According to the employees surveyed, only 6 employees claimed to have received vaccinations under the nation-wide programme. Few workers also went on to claim that while Swiggy has a reasonable Insurance Policy in place, to cover physical injuries and accidents during on-going deliveries, the processing times and internal delays renders these reliefs largely ineffective. While Swiggy is taking positive steps towards heightening labour benefits, a lot of ambiguity continues to persist in their treatment of workers during this Health Emergency.
CONCLUSION: GIG-WORK IN THE FUTURE
The hardships platform workers are subject to can be largely attributed to the lack of regulation in domestic labour law, calling for urgent national and supranational reforms to repair and fill these empty spaces of law caused by the rise of self-employed workers. In lieu of this, this article will conclude itself with recommendations and ’protective provisions’ to enhance the rights and benefits of gig-workers:
a) To insert into the terms and conditions of gig-platforms that platforms cannot a) mandatorily burden labourers with specified exclusive obligation retaining the worker’s liberty to choose to work in multiple platforms, and b) assess the execution of performance by algorithmic software that leads to penalty of dismissal from employment.
b) Formulating restrictions on platforms from arbitrarily suspending and terminating workers from its service without notice, adding an increased security to gig-workers, protecting them from untimely and unwarranted terminations.
c) Adding a dispute resolution (Mediation-Arbitration) clause in the contracts of gig-work and the constitution of a Commission Such as Australia’s Fair Work Commission) to oversee gig-worker disputes as the ultimate arbitrator. Such an independent body would equalize worker rights and provide them a fair, unbiased forum to voice their concerns too. In the presence of such an Alternative Dispute Resolution Body, the suspended Zomato Employee would have had the right to be heard and received a fair trial instead of an arbitrary and immediate suspension.
d) Inclusion of provisions of anti-discrimination rights allowing for these contracted labourers to be able to publicly mention “dangerous company practices” practiced by platforms without retaliation. This would allow for labourers to freely mobilize as collective groups or unions and voice out against ill practices such as reduced pay, heightened control etc.
e) delinking the dependence on statutory employment law. This would ensure gig-workers are protected from on-work injuries or safety hazards with adequate social protections.
While the Code on Social Security brings with it tangible benefits to gig-workers such as Life and Accidental Insurance, its refusal to acknowledge platform workers as ‘employees’ creates a loop of the subversion of these workers. By incorporating these changes, the gig-market would transform into a marketplace where labourers are assured respectable pay and safe work conditions while lending their labour to these evolving platforms, coming together to create a mutually-beneficial marketplace where service providers and workers are at an equal footing without the over-exploitation of their labour.
This piece has been authored by Athman Khilji.
Athman Khilji is a third year law student at Jindal Global Law School pursuing BA LLB (Hons.).
Image Source: https://www.newslaundry.com/2020/09/02/swiggy-strike-is-a-reminder-that-service-aggregators-care-little-for-workers-rights