A draft bill for gig workers and the debate over a definition

The draft Karnataka Platform-based Gig Workers Bill, 2024, is currently being discussed in the public domain and rightly so. However, an unjustified criticism of the draft bill is that it has ‘misclassified’ platform-based gig workers.

The Rajasthan government’s law took the first step in not adhering to the weak definition of a ‘gig worker’ provided by the Social Security Code, 2020. Karnataka followed Rajasthan and has improvised on the definition and has laid down a definition that is innovative and comprehensive.

It categorically recognises that one has to source their work through a platform against a certain rate of payment akin to piece-rate work. To say that this classification is invalid and is leading to their ‘misclassification’ is a misnomer. 

Most auto drivers in Bengaluru, who source work through platforms, are on multiple apps these days and choose which platform to service based on their earnings. For example, subscription-based platforms are increasingly being preferred in Bengaluru as it takes no commission from auto drivers.

A simple conversation with an auto driver in the city also tells you that almost all of them have their metric to judge a platform and have different sets of criteria to decide which platform to be active on. 

By nature, the platform-based gig economy, which is on-demand and location-based, will continue to have multiple players that will have workers that work on different platforms.

The gig economy is riddled with a lack of transparency, volatile pay and a lack of security for workers. All of these are fair concerns that directly affect their livelihoods and standard of living and something that workers themselves have been raising their voices about.

To that end, the Rajasthan government passed a law in 2023 that focuses on welfare measures for the gig worker. Karnataka followed suit with a draft bill in the public domain. It is yet to be introduced in the Legislative Assembly.  

Labour laws and their legislative innovation

Every labour legislation in the history of labour laws in India has had varied legal definitions to mark the applicability of a law. Labour law has always responded to different types of working relationships that have emerged at different stages of development of the economy.

The legislature has itself understood the need to legislate differently for different types of working relationships and has done so accordingly. 

For example, the Mathadi Workers Act, 1969, in Maharashtra was a pioneering effort in making welfare contributions possible with piece-rate work. The same model has inspired gig worker legislations for welfare fee collection in Rajasthan and Karnataka because of its similarity in per-gig payment structure.

At the Union level, the government enacted the Sales Promotion Employees Act, 1976, in response to the Supreme Court, in the Burmah Shell Oil case, stating sales representatives cannot be workmen. The Act of 1976 made it possible for sales representatives to seek benefits under labour laws. Different welfare legislations have defined workers differently. 

The law has always reacted to the nature of the industry and to legally classify gig workers as a separate and new class of workers is a continuation of that process. The gig economy, by nature, is different from the economy that the current laws were made for.

The current labour law regime is rooted in industrialisation, with the relationship it triangulates between an employer, an employee and a workplace. Allowing the classification of gig workers to be subject to judicial interpretation by bringing them under the current gamut of labour goes against what the gig workers have been demanding.

The law needs to recognise that the per-gig basis nature of work is volatile and not permanent. The goal is to ensure workers are protected, and it can very well be done by legally recognising them as a category of workers who are free to work with any number of platforms while also ensuring that they receive social protection.

While the Rajasthan law and the Karnataka government’s effort needs improvement in realising all rights for gig workers and regulating conditions of service, the underlying problem is not that they have ‘misclassified’ gig workers.

By assuming that the solution to the problems gig workers face is to bring them under the current labour law regime, we are ignoring some primary considerations under the current labour law regime - those that assume that there will be one employer.

It also ignores the fact that ‘employee’ by itself is a legal category created for the sake of legislating for a class of workers and assumes that the law using the term ‘gig worker’ to legislate for another class of workers is somehow derogatory, when they are both legal categories created by different legislations. 

Even if only 10% of the gig workforce relies on the gig economy for supplementary income, a definition of a gig worker that makes them an ‘employee’ for legal purposes, invites legal battles for workers.

The demand should be for employee-like protections for gig workers and not to be legally classified as an employee itself. A separate legal definition for them is not a ‘misclassification’ but a necessary evolution of the law. 

(Varini is a Research Fellow, Vidhi Centre for Legal Policy and Alok is co-
founder, Vidhi Centre for Legal Policy)

(This is the first of a two-part series on The Karnataka Platform-Based Gig
Workers (Social Security and Welfare) Bill 2024)