Gig Workers’ Access to Social Security: Writ Petition Summary (The Indian Federation of App-based Transport Workers)Gig Workers’ Access to Social Security
The Indian Federation of App-based Transport Workers, Tulasi Jagdish Babu (a taxi driver at Ola) and Kaushar Khan (former driver for Ola and Uber) filed a petition before the Supreme Court arguing that the agreements between service aggregator companies and gig workers violate Articles 14, 21 and 23 of the Constitution of India, 1950.
The Indian Federation of App-based Transport Workers (IFAT) is a trade union formed in 2019, that represents workers of service aggregators such as Ola, Uber, Swiggy and Zomato. During the COVID-19 lockdown in 2020, IFAT organised peaceful protests demanding safety gear and revised payment structures.
What do the petitioners seek?
The petitioners seek the following reliefs from the Court:
a) Declare that the Ministry of Commerce and Industry; Ministry of Labour and Employment; Ministry of Consumer Affairs, Food and Public Distribution; Ministry of Electronics and Information Technology; Ministry of Road Transport and Highways has violated Article 23 by not recognising gig workers as ‘workers’ under social security laws.
b) Direct the government to recognise all gig workers as ‘unorganised workers’ under Section 2(m) of the Unorganised Workers’ Social Welfare Security Act, 2008.
c) Direct the government to facilitate the registration of gig workers on the E-SHRAM portal.
d) Recognise gig-workers as ‘front-line workers’ and extend all associated benefits.
e) Direct the government to extend PM Garib Kalyan Ann Yojana to all gig-workers and provide food grains, regardless of whether the workers have ration cards.
f) Direct the government to ensure that all financial institutions are complying with the RBI circulars that provide relaxation to loan repayments; and ensure that the gig workers’ vehicles are not seized and/or auctioned due to failure of loan repayment.
h) Direct the service aggregators to deposit a percentage of their annual turnover, with government contribution as cess for the operation of social security schemes.
i) Direct the service aggregators to comply with the insurance, fixed working hours, minimum payment and grievance redressal requirements of the Motor Vehicle Aggregator Guidelines, 2020.
j) Direct the service aggregators to provide the gig workers economic relief in the form of cash until December 31st 2021, or until COVID-19 subsides.
Not Recognising Gig Workers as ‘Employees’ is a Violation of Right to Equality under Article 14
The contracts between gig workers and the service aggregators refer to the former as ‘partners’. The petitioners argue that the nature of the relationship between the two is akin to that of an employer and employee. The petitioner invokes Dhrangadhara Chemical Works Ltd. v State of Saurashtra where the Court held that control over the execution of the work indicates an employer-employee relationship. In Ram Singh v Union Territory of Chandigarh, the Court stated that the test to ascertain employer-employee relationship must look at who has the power to select and dismiss workers, pay remuneration, organise work, and deduct insurance contributions.
The petitioners argue that the service aggregators have total supervision and control over the gig workers, indicating an employer-employee relationship. This implies that gig workers would fall under the definition of ‘workers’ making them eligible for social security benefits. They refer to decisions of the United Kingdom Supreme Court and the Court of Cassation (highest Court of appeal in France) where Uber drivers were considered ‘workers’ and the relationship was recognised as employer-employee relationship.
Further, the Unorganised Workers’ Social Security Act, 2008 directs the Central Government to provide social security schemes for unorganised workers. The character of work and the contracts with service aggregators will place gig workers under the definition of ‘workers’ under social security laws. However, by not recognising them as workers, they are disadvantaged compared to similarly situated workers who are recognised as ‘workers’. This violates their right to equality.
Gig Workers’ Right to Life under Article 21
In Olga Tellis v Bombay Municipal Corporation, the Court had held that the right to livelihood is a part of the right to life. The petitioners point out that the right to livelihood includes the right to work in decent conditions of work. As gig workers do not qualify as workers, they are unable to enforce ‘fair and decent conditions of work’ thereby depriving gig workers of social security and violating the right to life.
Denial of Social Security Amounts to Exploitation Through Forced Labour under Article 23
Service aggregators impose rules such as minimum hours of work and a code of conduct for the workers. Workers are not allowed to refuse jobs, or negotiate prices for each job. Although the agreement indicates that workers are free agents, the petitioners argue that the default approach is for workers to ‘take it or leave it.’ As the contracts do not allow negotiation of terms and conditions, the petitioners argue that this amounts to forced labour under Article 23.