SC notice to Centre on social security cover for gig workers

The Supreme Court on Monday decided to examine whether gig workers and those working for app-based services can be treated as “unorganized workers” and thus be entitled to social security benefits such as insurance, provident fund, gratuity, maternity benefits and other welfare schemes that are denied them.

The case was brought to the court by the Indian Federation of App-based Transport Workers (IFAT) along with two individuals, one of whom is a driver with a cab aggregator.

Issuing notices on the petition to the Centre, along with four app-based operators—Ola, Uber, Swiggy, and Zomato—a bench of justices L. Nageswara Rao and B.R. Gavai posted the matter after four weeks.

Appearing for the petitioners, senior advocate Indira Jaising said, “We seek a declaration from the court that these drivers and delivery workers working for the app-based services are ‘workman’. These organizations claim they are independent contractors that cannot be accepted.”

The petition said, “It is the case of the petitioners who are commonly known as ‘gig workers’ and ‘platform workers’ that they are in an employment relationship with the aggregators and hence covered by the definition of ‘workman’ within the meaning of all the applicable social security legislations.” These legislation include The Workmen’s Compensation Act, 1923; The Industrial Disputes Act, 1947; The Employee’s State Insurance Act, 1948; Employee’s Provident Funds and Miscellaneous Provisions Act, 1952; The Maternity Benefit Act, 1961; The Payment of Gratuity Act, 1972 and ‘Unorganized Workers’ Social Welfare Security Act, 2008.

Jaising referred to a recent judgment by the UK Supreme Court, which held that contracts entered into by these app-based services were a “subterfuge” as essentially there exists an employer-employee relationship between these organizations and those working for them.

“The terms of contracts of Uber, Ola, Zomato and Swiggy with their drivers or delivery staff are almost the same. In any event the said contracts are fixed-term employment contract in the nature of ‘take it or leave it’. And the workmen offering their services have no choice but to sign the said contracts for their livelihood,” said the petition filed by advocate Nupur Kumar.

The petition pointed out that Parliament had enacted the Code on Social Security, 2020 to amend and consolidate all laws relating to social security and extend the benefits under the said laws to all employees and workers of organized and unorganized sectors.

This code contained a separate chapter “social security for unorganized workers, gig workers and platform workers” that received the Presidential nod in September 2020 but is yet to be implemented.

“The failure of the state to register them as ‘unorganized workers’ or to provide them social security under the existing law is violation of their rights under Article 21 of the Constitution of India, namely—the right to work, the right to livelihood; right to decent and fair conditions of work. It is also a denial of the right to equality before law and equal protection of laws,” the petition added.