Guest post – Pallavi Mohan
Why is this topic relevant now?
Recently, a writ petition was filed before the Supreme Court by the Indian Federation of App Based Transport Workers (IFAT) along with two persons employed as drivers by the app-based aggregator Ola. It contended that all workers employed by app-based aggregators (Gig Workers) were eligible for social security benefits conferred on “workmen”, and that denial of such social security benefits violated their fundamental rights.
On 13th December 2021, the Supreme Court agreed to hear the case and asked various Central ministries and aggregators such as Ola, Uber, Swiggy and Zomato to respond to arguments raised in the writ petition.
What are social security benefits?
Social security benefits refers to welfare schemes for life and disability cover, health and maternity benefits, old age protection, housing, provident funds, educational schemes, skill up-gradation, old age homes, etc. The Unorganised Workers’ Social Welfare Security Act, 2008 empowers the Central and State governments to formulate welfare schemes for different sections of unorganised sector workers.
What is the legal foundation for the claim made in the writ petition?
The main argument in the writ petition is that Gig Workers employed by app-based aggregators (like the writ petitioners) should be considered “unorganised workers” as defined under Section 2 (m) of the Unorganised Workers’ Social Welfare Security Act, 2008. If they are included in the category of “unorganised workers”, then they are entitled to all Government welfare schemes initiated under this Act. Currently, aggregators such as Ola and Uber enter contractual arrangements or ‘partnership agreements’ with them. They claim that this, keeps them out of the ambit of the Unorganised Workers’ Social Welfare Security Act, even though the aggregators fully control all aspects of the employment of Gig Workers. They contend that this shows that there is an employer-employee relationship between them and so they should be included in the category of “unorganised workers”.
The Government’s failure to include Gig Workers in the category of “unorganised worker” disadvantages them and treats them differently from similarly situated workers. This violates their fundamental right to equality (Article 14). Also, aggregators are not obliged to provide fair and decent work conditions to Gig Workers, who often have to work for long hours at low wages. This violates the fundamental rights of Gig Workers secured by Articles 21 (right to life, liberty and livelihood) and 23 (prohibition against traffic and forced labour) of the Constitution.
Does any other law confer social security benefits to ‘Gig workers’ in India?
On 28th September, 2020, the Code of Social Security, 2020 was enacted. The Code consolidates laws relating to social security. It extends social security to all employees and workers, either in the organized or unorganized sector. It specifically includes “Gig Workers” [Section 2 (35)] and “Platform Workers” [Section 2 (61)], either of which categories can include the workers employed by app-based aggregators.
In terms of Section 2 (78) of the Code, “social security” means the ‘measures of protection afforded to employees, unorganized workers, gig workers and platform workers to ensure access to health care and to provide income security, particularly in cases of old age, unemployment, sickness, invalidity, work injury, maternity or loss of a breadwinner’.
However, though this Code has been notified, it has not been made enforceable yet. Until then, the Unorganised Workers’ Social Welfare Security Act, 2008 is the only statute on which “Gig Workers”, including the members of IFAT, can rely to ensure their social security benefits.