New Labour Code: An Uber Driver Can Be Both Gig And Platform Worker

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The Code on Social Security 2020, which was passed in Parliament in September, and has already received presidential assent, has provided for social security for gig and platform workers along with unorganised sector workers. This is the first occasion that gig and platform workers have been defined and incorporated within the ambit of labour laws. While it is a great initiative by the Narendra Modi government, there are issues about overlapping definitions and how to make the registration as inclusive as possible.

Under this new bill, section 2(35) defines a gig worker as a person who participates in a work arrangement and earns from such activities outside of a traditional employer-employee relationship, section 2(61) defines a platform worker as someone engaged in or undertaking platform work, and section 2(86) defines an unorganised worker as a home-based, self-employed or wage worker in the unorganised sector. This includes a worker in the organised sector who is not covered by the Industrial Disputes Act, 1947, or Chapters III to VII of this Code. These three definitions have overlapping parts.

Avoidable overlaps and ambiguities

Although unorganised workers, gig workers and platform workers have been separately defined under the new code, unorganised workers are the whole set, and gig and platform workers are subsets. The definition of unorganised workers is exhaustive enough to include gig and platform workers. For example, an app-based taxi driver can be considered as both a gig and platform worker. He/she also qualifies as an unorganised sector worker. There is no employee-employer relationship.  Appointment letters are not issued, social security benefits are absent, work hours are not regulated by the employer, it is quite probable that the app-based taxi driver may choose to also simultaneously work for a competitor taxi aggregator.  Therefore, the nature of the work involved may lie outside the purview of a traditional ‘employer-employee relationship’, making him/her a ‘gig worker’. However, the driver is able to pursue this job only through an online platform. This would meet the definition of a ‘platform worker’ as well, making him/her an ‘unorganised worker’, as he/she may be self-employed.

With such overlap across definitions, it is unclear how schemes specific to these categories of workers will apply. The Standing Committee on Labour examined similar provisions in the 2019 Bill, and recommended expanding the definition of ‘unorganised workers’ to include gig and platform workers. It seems the term ‘unorganised sector workers’ takes care of both gig and platform workers.

As employer-employee relations are fudgy for gig and platform workers, they can be also considered as self-employed workers. Self-employed workers are already included within the unorganised workers fold. This would have avoided duplication of having separate schemes for three categories of workers. In section 109 of the bill, social security for unorganised sector’s workers has been provided. In section 114, social security for gig and platform workers has been provided. This is an unnecessary duplication.

State vs Central government

State governments have so far been the appropriate governments for the unorganised sector workers. In every state, there is an unorganised sector workers’ welfare board. The unorganised sector was the responsibility of respective state governments.

Now, there should not be a problem if the central government pitches in, but the Code On Social Security 2020 has got two sets of social security instruments to be provided. Complexities arise when both the central and state governments are supposed to be providing different sets of social security measures, as postulated under section 109(1) and 109(2) respectively. There is no rationale behind such divisions, and it is clumsy from an implementation perspective. The simpler way would have been to make sure that implementation remains with state governments, with the central government sharing a certain portion of the cost of providing social security measures.

Issues of inclusivity

As per section 113 of the code, every unorganised worker, gig worker, or platform worker shall be required to be registered, and has to apply for registration with documents including their Aadhaar number. Making Aadhaar compulsory for registration is legally not tenable, since the Supreme Court of India has not made Aadhaar mandatory in a number of instances. Under such circumstances, denying social security to a deserving worker on the ground that he/she does not have an Aadhaar card can be deemed harsh, if not outrightly illegal. When the objective is to widen the net to include more and more workers under the social security umbrella, exclusion on the basis of something that is still not legally mandatory does not seem prudent.

Overall, the recognition of gig and platform workers in the Code on Social Security, 2020 and inclusion of these categories of workers within the social security ambit is definitely an impressive effort on the part of the Narendra Modi-led government. However, keeping three separate categories — unorganised workers, gig and platform workers — is not necessary because there are overlapping categories. Gig and platform workers are a subset of a larger set of unorganised sector workers.

There should also not be duality of appropriate governments in certain cases like provision of social security for unorganised sector workers. Additionally, Aadhaar should not be made mandatory for registration of workers from the unorganised sector. Things can be simpler, devoid of overlapping definitions and ambiguities, and more inclusive at the same time.

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