- ABSTRACT
The redefinition of the labour law structure of India formerly under the Industrial Disputes Act, 1947 (IDA), Trade Unions Act, 1926 and the Industrial Employment (Standing Orders) Act, 1946to the Industrial Relations Code, 2020 (IRC) is a huge consolidation of industrial jurisprudence. Section 2(s) of the IDA defined workman in narrow terms, excluding any managerial and supervisory position and as the foundation of collective bargaining rights and resolution of disputes. Section 2(zf) IRC, worker and Section 2(l) employee are broadening definitions to cover those who work in industry to be hired or rewarded. This change modernises the industrial relation with the establishment of an organized union recognition (Section 14, IRC) and increases the costs of standing order and retrenchment (Section 77, IRC) balancing the rights of the workers and the flexibility of the employers. Although this has been modernized, gig and platform workers are not included in collective bargaining by IRC. Conversely, they are specifically acknowledged in the Code on Social Security, 2020 as Section 2(35) is known as gig worker and Section 2(61) is known as platform worker, which gives them the right to welfare benefits but not the rights to industry. This has an effect: gig workers receive social security but are not covered by unionization and dispute resolution.
Judicial interpretations within the IDA have been quite insistent to focus on functional designations than contractual ones, as the main source of bargaining power, that is, the employer-employee relationship. Applying this principle to the gig workers would be consistent with the constitutional provisions applicable to Articles 14, 21, and 23 of the Constitution. Indian Federation of App-Based Transport Workers (IFAT) v. the Supreme Court (Case in Proceedings) (PIL). Union of India (W.P. (C) No. 1068/2021) proposes that the gig workers be recognised as unorganised workers pursuant to Unorganised Workers Social Security Act, 2008 and social security code and, therefore, the statutory protections would be availed to them. The case presents the constitutional aspects of the regulation of gig work and the necessity to reconcile the rights to welfare and the rights to industrial relations.
This trend is supported by foreign precedents. In the United Kingdom, Uber BV v. the Supreme Court. According to Aslam (2021), Uber drivers received minimum wage and paid leave, which was characterized as workers. The Dynamex case, and California AB5 law, in the US, use the “ABC test,” which assumes that gig workers are employees unless this can be proven to be incorrect. These comparative experiences prove that it is not only possible but also needed to statutorily recognize the right of bargaining by the gig workers. The gap between welfare claims and industrial rights would be bridged by either extending collective bargaining rights to gig and platform workers, through the inclusion of them under the definition of workers or employees in the IRC, or by providing them with specific statutory protection. This kind of reform would enhance labour democracy, minimize litigation and improve industrial harmony, so that the collective bargaining strength stays abreast with the Indian realities of a changed workforce.
- INTRODUCTION
The process of changing the Indian system of labour law in the Industrial Disputes Act, 1947 (IDA)[1] to the more recent Industrial Relations Code, 2020 (IRC)[2] is a serious move towards consolidating industrial jurisprudence. This legislative revision is one of the most far-reaching changes to the relationship between capital and labour in since independence since it brings together three landmark acts; the IDA, the Trade Unions Act, 1926,[3] and the Industrial Employment (Standing Orders) Act, 1946.[4] The mentioned purpose of this consolidation is to make industrial relations more modern through streamlining a complex legal regime and aligning it with the requirements of an increasingly liberalizing economy. Section 2(s) of the IDA limited the definition of workman to a very small group of employees that did not work in the managerial, administrative, or supervisory category and earned a certain amount of salary exceeding a stipulated limit. This definition was the foundation of the collective bargaining rights and the right to access the industrial dispute resolution system in the pre-existing system. Section 2(zf) of the IRC titled worker and Section 2(l) titled employee expand these definitions to cover persons engaged in industry, to work and receive remuneration over an expanded range of occupations.
This change purportedly modernizes the industrial relations by bringing the organized union recognition with respect to the Section 14, which gives a mechanism to identify the sole negotiating union in an establishment, as well as an increase to thresholds in standing orders and retrenchment with respect to the Section 77, therefore, attempting to create a balance between the rights of workers and the flexibility of the employers. Nevertheless, the shift is happening in the context of a new crisis in the domain of work: the so-called gig economy that is going through the roof. Online applications such as Uber, Ola, Swiggy and Zomato have rearranged the nature of employment in itself forming millions of livelihoods that are not within the frame of employer-employee dyad.
The new model is a mediated work, where algorithm, not a human manager, dictates how work is distributed, rated, priced and even punished through deactivation. This change of structure has made the primary question of labour classification extremely important. The legal status given to these workers is what dictates whether or not they have the full range of labour rights including collective bargaining and minimum wage and social security.
The gig and platform employees have no right to collective bargaining according to the pledges of the modernization the IRC offers. Conversely, the Code on Social Security, 2020 (SS Code)[5] provides them with welfare benefits like life and disability insurance, health and maternity benefits, and old age protection explicitly and in Section 2(35) of the Code under the definition gig worker and in Section 2(61) of the Code under the definition platform worker. This builds a structural gap in this project: gig workers are not only the beneficiaries of social security but also do not belong to the sphere of unionization and the possibility to resolve industrial disputes. They are recognized sufficiently to be able to get welfare, but are systematically excluded due to the transformative potential of the industrial relations law.
Central Thesis: This project argues that while the Industrial Relations Code, 2020, expands the definitions of “worker” and “employee” on paper, it fundamentally weakens the bargaining power of gig workers by denying them the industrial status granted to their traditional counterparts. The Code establishes an expansion without inclusion whereby the most rapidly expanding category of the workforce resides in legal limbo that it has rights to welfare in the absence of the collective voice to influence the terms of their work.
Central Research Question: the current study aims to answer the following question: Does the Industrial Relations Code, 2020 weaken workers’ bargaining power by excluding gig workers from the industrial relations framework despite expanding labour definitions?
[1]Industrial Disputes Act 1947.
[2]Industrial Relations Code2020.
[3]Trade Unions Act 1926.
[4]Industrial Employment(StandingOrders )Act 1946.
[5]Code on Social Security2020.