Inputs to the public consultation on the draft Code on Social Security (Central) Rules, 2020 - Joint submission by an alliance of trade unions and civil society organisations

Cross-posted from IT for Change.

Full text of submitted inputs: Download (PDF)

Overview

A legal framework that addresses workers’ rights in the digital economy from all angles is imperative to address labour concerns in the 21st century. We welcome the inclusion of platform workers and gig workers in the Code on Social Security, 2020. However, we have some concerns regarding the draft Code on Social Security (Central) Rules, 2020 (hereinafter the “Draft Rules”), vis-à-vis the implementation of platform workers’ rights. In this document, we first list down our overall concerns before proceeding to a section specific critique in the format required by the consultation.

1. Failure to universalise social security for platform workers: In their current form, the Draft Rules do not provide a social security framework for platform workers founded on the cardinal principles of universal social security. A basic social protection floor for all platform workers, including benefits such as universal maternal care and accident insurance, has not been guaranteed. Instead, the Draft Rules impose an age limit for platform workers to be eligible for social security [Rule 50(2)(d)], and also confer on the government the power to prescribe additional eligibility criteria [Rule 50(2)(f)]. These provisions are likely to narrow the pool of workers who can avail the benefits under this law. Also, facilitation centres and toll-free helplines to onboard platform and gig workers into any future social security schemes have not been provided for in the Draft Rules, even though these were mentioned in the Code on Social Security, 2020.

2. Lack of clarity on aggregator contributions: The Draft Rules also indicate that aggregators will have to contribute towards any social security scheme that may be framed by the government. This is appreciated. However, further clarity on how these contributions will be assessed in the context of the reality of platform work arrangements is needed. Platform workers may work for several aggregators simultaneously, and be engaged as workers for intermittent and irregular periods of time. As it stands, the Draft Rules do not address how the minimum period of 90 days of being engaged as a platform worker is to be calculated — a mandatory eligibility criteria for registration under Rule 50(2)(d). It also does not outline how the number of days worked impacts the nature and extent of social protection that platform workers are eligible for. Additionally, under Guideline 6 of the Motor Vehicles Aggregators Guidelines, 2020 issued in November 2020, certain compliances are imposed on aggregators towards their drivers, such as health insurance and term insurance. It is unclear how obligations under the Motor Vehicles Aggregators Guidelines, 2020 will apply in consonance with aggregators’ contributions under the Draft Rules on the Code on Social Security, 2020.

3. Absence of clear criteria to determine exemption of aggregators from contributions to social security: Section 114(7)(ii) of the Code on Social Security, 2020 permits the central government to use its discretionary powers to exempt aggregators from contributions to platform workers’ social security. It would have been important for the Draft Rules to clearly spell out the conditions under which aggregators could be exempted to ensure that aggregators do not evade their responsibilities towards their platform workers and gig workers. This has not been done, and aggregator exemption is now possible solely at the discretion of the central government.

4. Flaws in the mechanisms outlined for constituting the National Social Security Board for Gig Workers and Platform Workers: There is currently no timeline for its constitution, leaving its existence to be determined as per the whims of the government. Furthermore, there is no transparency in the Draft Rules around the procedure by which the central government will nominate platform workers’ representatives to this Board. In this regard, the lack of a clearly spelt out role for trade unions and workers’ associations is also a major flaw, as workers’ organisations must have effective representation concerning social security schemes intended for their benefit.

5. No guarantees for workers’ data rights: We are also concerned that the Draft Rules attempt to create a centralised database of platform workers and gig workers, to be enabled by the sharing of data by aggregators with the state. This data will include workers’ personal data, and in the absence of personal data protection legislation, this has serious implications for workers’ data rights and privacy. It is imperative that the draft Personal Data Protection Bill, 2019 be passed at the earliest to safeguard against state and/or aggregator excesses in this regard. We also recommend the inclusion of clear purpose and use limitation safeguards in these Draft Rules itself, as part of enshrining the right to privacy. Additionally, workers must have the right to edit, correct and dispute the records of aggregators, and a mechanism for such an audit must be established by the government. Workers must also have the right to retain a certified, machine-readable copy of their data.

6. Shortcomings of a centralised database: We also urge the central government to rethink the vision of a centralised database, and instead, explore the possibility of a federated architecture, with room for democratic and decentralised data management by workers themselves with involvement from state and local government agencies (building on labour welfare models). We are firmly of the view that the concentration of power and authority in the Central Government is unlikely to enable access to every last worker in a country of our complexity and size.

7. Inadequacies of the foundational legislation: We would also like to highlight how the foundational flaws of the Code on Social Security, 2020 mar the efficacy and effectiveness of the Draft Rules in being able to provide social security entitlements to platform and gig workers. Firstly, in Chapter 1, Section 2 of the Code, there is no clarification on what to do about platform aggregators repeatedly referring to their “platform workers” as “contractors” or “agents” in their legal contracts/documents. The definitions clause assumes that “agent”, “contractor” and “platform worker” are all separate and unique, unambiguous terms. It would have been important for the Draft Rules to clarify that if “agent” or “contractor” is being used to refer to a person performing platform work in any legal document or contract by an aggregator, the person should nonetheless be treated as a “platform worker”. Also, the Draft Rules should have specified that all workers associated with any of the nine classes of aggregators mentioned in the Seventh Schedule of the Code on Social Security, 2020 [ride sharing, food and grocery delivery, logistics, e-marketplace, professional services provider, healthcare, travel and hospitality, content and media services, and any other goods and services provider platforms] are to be treated as platform workers. Secondly, there should be clarity on the jurisdiction, i.e. under which ministry and legislative act, will “aggregators” function and operate, especially considering that a range of sectoral legislation in addition to labour laws are implicated in aggregator governance. Thirdly, the Code on Social Security, 2020 could have specified how the agency in charge of collection and management of aggregator contributions was to have been constituted. For example, it could have been conceived as a statutory and autonomous body, along the lines of the Employee State Insurance Corporation (ESIC) and Employee Provident Fund Organisation (EPFO). But this opportunity has been missed.

The following trade unions, civil society organisations and members of academia have endorsed this submission and its proposals:

Trade unions

All India Gig Workers Union

All India IT and ITeS Employees’ Union

All India Port & Dock Workers Federation

All India Railwaymens' Federation

Hind Mazdoor Sabha

Indian Federation of App-based Transport Workers

National Federation of Indian Railwaymen

National Union of Seafarers of India

Civil society organisations

Aapti Institute

Gender at Work

GenDev Centre for Research and Innovation LLP

IT for Change

Kamgar va Majur Sangh

The Centre for Internet & Society

Tandem Research

TWN Trust

Paigam Network

Praxis - Institute for Participatory Practices

Partners in Change

Working People’s Charter, India

Members of academia

Divya K., Assistant Professor, Indira Gandhi National Tribal University

Dr. Rahul Sakpal, Assistant Professor, Tata Institute of Social Sciences

Vibhuti Patel, Retired Professor of Tata Institute of Social Sciences and SNDT Women's University, Mumbai