21 Sep 2021 11:57 AM GMT
Raising questions of great public and constitutional importance as to whether "Right to Social Security" is a guaranteed fundamental right for all working people, whether employed in formal or informal sectors, "Gig Workers" have approached Supreme Court seeking social security benefits from food delivery apps such as Zomato and Swiggy and taxi aggregator apps Ola and Uber. The...
Raising questions of great public and constitutional importance as to whether "Right to Social Security" is a guaranteed fundamental right for all working people, whether employed in formal or informal sectors, "Gig Workers" have approached Supreme Court seeking social security benefits from food delivery apps such as Zomato and Swiggy and taxi aggregator apps Ola and Uber.
The petition has been filed on behalf of 'Gig Workers" by The Indian Federation Of App Based Transport Workers (IFAT), which is a registered union and federation of Trade Union representing App-based transport and delivery workers. It is argued that "gig workers" and "platform workers" are covered by the definition of "workman" within the meaning of all the social security legislations since they are in an employment relationship with the aggregators.
The petitioners have sought for declaring "gig workers" and "app based workers" as "unorganized workers" and/or "wage workers" within the meaning of Section 2(m) and 2(n) of the Unorganised Workers Social Welfare Security Act, 2008.
"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 ("CoI") 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 inasmuch as they are similarly situated with all other workers under the applicable social security laws including the Act of 2008 thereby violating Article 14 of the Constitution of India," petition states.
Averring that denial of social security to "gig workers" and "platform workers" has resulted in their exploitation through forced labour within the meaning of Article 23 of the Constitution, the petitioners in their petition have submitted that,
"Gig workers" or "app workers" or "platform workers" work in what has come to be known as workers who work in the "informal economy". The informal economy accounts for 1/3rd the Gross Domestic Product ("GDP") and 70% of employment in an average developing country. A substantial number of workers including the wageworkers and unorganized workers work and generate value in the said economy."
In this context, petitioners have also sought for formulation of specific schemes such as health insurance, maternity benefits, pension, old age assistance, disability allowance and completion of vaccination at Aggergator's cost on priority basis.
Gig workers in their petition have also relied on Chapter IX of "The Code on Social Security, 2020" which deals with "Social Security for Unorganized Workers, Gig Workers and Platform Workers" and seeks to provide for framing schemes for unorganized workers to aver that recognition of Gig Workers and Platform Workers as unorganised workers in a legislation is an indication of Centre's policy for providing them social security.
Contending that the "Code on Social Security, 2020" is yet to be given effect, the petitioners have also argued that at present these workers are not being provided the benefit of social security under any of the labour legislations-organized or unorganised.
Emphasising on the claims by Respondent's companies (OlaCabs, Uber, Swiggy, Zomato) that there exists no contract of employment between them and the petitioners and that their relationship with the petitioners is in the nature of a partnership, the gig workers have contended that acceptance of such claims would be inconsistent with the purpose of social welfare legislation.
Furthermore, it has been averred that the respondent companies who own the Apps exercise complete supervision and control over the manner and method of work with those who are allowed to register on the said Apps.
To substantiate their contention, the gig workers have also stated that,
"The mere fact that their employers call themselves "Aggregators" and enter into the so-called "partnership agreements" does not take away the fact that there exists a jural relationship of employer and employee; master and servant and worker within the meaning of all applicable laws. The said contracts are a mere device to disguise the nature of relationship, which is de-jure, and de-facto relationship of employer and worker being a contract of employment."
To argue that the contract by Respondent Companies is against public policy, petitioners have contended that the said contracts are fixed-term employment contracts in the nature of "take it or leave it" and the workmen offering their services have no choice but to sign the same for their livelihood.
Relying on the observations made by the UK Supreme Court while rejecting Uber BV's appeal against the order of an Employment Tribunal, the gig workers have further averred that the observations apply mutatis mutandis to the "gig workers" too as Uber is a multinational entity which functions through companies incorporated in different parts of the world but on the same conditions with its employees worldwide.
"The terms of conditions by Uber, Ola, Zomato and Swiggy with their drivers or delivery staff are almost the same," petition further states.
In light of the above-mentioned facts, petitioners have sought for issuance of directions to the aggregator companies to provide economic relief to app-based workers in the nature of cash transfers of Rs 1175/- per day for app-based drivers and Rs 675/- per day until December 31, 2021, or till the time pandemic subsides.
Relief for extension of distribution of food grains under the PM Garib Kalyan Ann Yojana to all App Based Workers irrespective of whether the App Based workers hold ration cards or not has also been prayed for.
Petitioners have also sought for issuance of directions to financial institution, banks or NBFC to not seize and/or auction vehicles of App-Based Workers on their failure to pay EMI's of their loans till the pandemic continues and subjecting financial institution, banks or NBFC to penalties on their failure to comply with the directions issued in RBI Circulars and Top Court's judgement titled, Small Scale Industrial Manufacturers Association v Union of India, LL 2021 SC 175.
Case Title: The Indian Federation Of App Based Transport Workers (IFAT) v. Union of India