(Co-authored with Pulkit Kumar Sharma and R. Kavita Rao)

 

In the last few years the functioning of the economy in the physical space is increasingly being supplemented and complemented by a rising number of interactions facilitated in the virtual space through what could be conceived as exchanges (or platforms) for match-making of demand and supply across a range of products and services. The Code on Social Security (CoSS, 2020), distinctively recognises this arrangement as platform work,¹  and those seeking their livelihood in it as platform workers.²

  

The CoSS received president’s assent on September 28, 2020.  However, it is yet to be notified and implemented. This is one among the four codes brought forth by the Ministry of labour and that gained parliamentary approval, ostensibly to disentangle and streamline the working of 29 previously disparate central government laws concerning labour and industrial disputes.

 

The CoSS intends to 

 

“… amend and consolidate the laws relating to social security with the goal to extend social security to all employees and workers either in the organised or unorganised or any other sectors and for matters connected therewith or incidental thereto.” (emphasis added by the author with bold and italicised lettering)

 

The intent to cover all employees however appears to whittle down sharply when the CoSS introduces coverage for Provident Fund, State Insurance, and Compensation, only as exceptions under paragraph 26,³  These exceptions introduce a set of specific conditions for mandatory inclusion based on minimum size and strength of (enterprise or) establishment (paragraph 29).⁴  This yields in permissive exclusion of a major proportion of employees and workers engaged in establishments that fall below the minimum threshold. Indeed the prescription on thresholds and the prevalent (strong) perception on likelihood of excessive bureaucratic interference upon crossing these (thresholds), may have created (strong and perverse) incentive for entrepreneurial activity only to proliferate below the threshold level of labour employment and often function only as micro and small establishments. 

 

In the context of platform work, another definition included in the CoSS,

 

"(35) "gig worker" means a person who performs work or participates in a work arrangement and earns from such activities outside of traditional employer-employee relationship"; (emphasis added by the author with italicised lettering)

 

does not adequately bear out the distinction with a self-employed worker.⁵  In particular, it is not clear what is to be understood as traditional employer-employee relationship, and whether this pertains to the universe as may be covered under the umbrella of organised  and unorganised  sectors. Moreover, the definition of organised⁶ sector (as per the CoSS) in relation to the unorganised⁷ sector is merely tautological and appears to subterfuge.

 

As per NITI Aayog (2022),⁸  persons engaging in the gig economy in India, were estimated to number 6.8 million in 2019-20 of whom about 38 percent (up from little more than a quarter in 2011-2) were engaged in the organised sector with the remainder in the unorganised sector. The report further adds that, of all those gig workers in 2019-20 more than a third constitute of Shop Salespersons and Demonstrators & Stall and Market Salespersons (2.3 million) while another one-fifth constitute of Motor Vehicle Drivers (1.3 million). This nomenclature is drawn from the National Classification of Occupation-2004, and the numbers reported against the above descriptions appear contestable.

 

It is however intriguing that more than 98 percent of the gig workers are engaged in the activity as per their usual principal status,⁹  and this hints at the inappropriateness of the term ‘gig’ that carries a different connotation. A report prepared by ILO (2024) for the 113th session of International Labour Conference to be held in 2025,¹⁰  lists some definitions of platform workers and platforms / digital labour platforms in relevant national legislative instruments. While not known with certainty, apparently reference to gig workers in the similar vein as platform workers is noted only in the Indian case. Further, as per NITI Aayog (2022, pp 3, chapter 1, that in turn refers to CoSS and OECD, 2019),

  

“[A] gig worker is a person who engages in income-earning activities outside of a traditional employer-employee relationship, as well as in the informal sector (Ministry of Labour and Employment, 2020a). When gig workers use platforms – i.e., websites or apps like Ola, Uber, Dunzo, Zomato, Swiggy or Urban Company – to connect with customers, they are called platform workers (OECD, 2019).”¹¹

 

Thus, as per NITI Aayog’s description, platform workers constitute a proper subset of gig workers projected to grow to 23.5 million by 2029-30 (about 6.7 percent of non-agricultural employment). The CoSS however, carries no mention of the term informal sector, but NITI Aayog estimates that about 83 percent of the gig workers are engaged in the informal sector. The understanding on gig and platform workers apparently diverges even within the government.

 

NITI Aayog (2022) projects 570 million employees and workers in India in 2029-30, including 23.5 million (4.1 percent) gig workers. A large majority among them are only likely to remain trapped in the crevices created by the definitions and the exceptions to certain paragraphs contained in Section 2, Chapter 1 in the extant form of CoSS. The intent of CoSS may be effectively served, if only the appearance and likelihood of those crevices were minimised by re-working (a) definitions and (b) arbitrarily arrived at size and scale thresholds, for both workers and enterprises.

---

¹(60) "platform work" means a work arrangement outside of a traditional employer-employee relationship in which organisations or individuals use an online platform to access other organisations or individuals to solve specific problems or to provide specific services or any such other activities which may be notified by the Central Government, in exchange for payment;

²(61) "platform worker" means a person engaged in or undertaking platform work;

³(26) "employee" means any person (other than an apprentice engaged under the Apprentices Act, 1961) employed on wages by an establishment, either directly or through a contractor, to do any skilled, semi-skilled or unskilled, manual, operational, supervisory, managerial, administrative, technical, clerical or any other work, whether the terms of employment be express or implied, and also includes a person declared to be an employee by the appropriate Government, but does not include any member of the Armed Forces of the Union:Provided that for the purposes of Chapter III, except in case of the Employees’ Provident Fund Scheme and Chapter IV, the term "employee" shall mean such employee drawing wages less than or equal to the wage ceiling notified by the Central Government and includes such other persons or class of persons as the Central Government may by notification, specify to be employee, for the purposes of those Chapters:

Provided further that for the purposes of counting of employees for the coverage of an establishment under Chapter III and Chapter IV, as the case may be, the employees, whose wages are more than the wage ceiling so notified by the Central Government, shall also be taken into account:

Provided also that for the purposes of Chapter VII, the term "employee" shall mean only such persons as specified in the Second Schedule and such other persons or class of persons as the Central Government, or as the case may be, the State Government may add to the said Schedule, by notification, for the purposes of that Government;

⁴(29) "establishment" means—

(a) a place where any industry, trade, business, manufacture or occupation is carried on; or

(b) a factory, motor transport undertaking, newspaper establishment, audiovisual production, building and other construction work or plantation; or

(c) a mine, port or vicinity of port where dock work is carried out.

Explanation.—For the purposes of Chapter III, where an establishment consists of

different departments or has branches, whether situate in the same place or in different

places, all such departments or branches shall be treated as parts of the same establishment;

⁵(75) "self-employed worker" means any person who is not employed by an employer, but engages himself in any occupation in the unorganised sector subject to a monthly earning of an amount as may be notified by the Central Government or the State Government, as the case may be, from time to time or holds cultivable land subject to such ceiling as may be notified by the State Government;

⁶(54) "organised sector" means an enterprise which is not an unorganised sector;

⁷(85) "unorganised sector" means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten;

(86) "unorganised worker" means a home-based worker, self-employed worker or a wage worker in the  unorganised sector and 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;

⁸NITI Aayog. (2022). India’s Booming Gig and Platform Economy: Perspectives and Recommendations on the Future of Work. June, 2022.

⁹The dictionary meaning of gig in the context of work and labour relates to a job, particularly a temporary one. A distinction must therefore be made between a profession and the nature of engagement for livelihood. For example, a large majority among professional cine-artists, singers, and musicians may often all be engaged only intermittently and temporarily in movie-making or stage performances.

¹⁰International Labour Organisation (2024), Realizing decent work in the platform economy, Geneva:  International Labour Office, 2024.

¹¹OECD (2019). Measuring Digital Transformation: A Roadmap for the Future. OECD, Paris. https://www.oecdilibrary. org/science-and-technology/measuring-the-digital-transformation_f2873445-en