Fortifying the margins

The current debate relating to the social security of gig and platform employees can be answered by looking into principles laid down by courts. The nomenclatures "gig worker" and "platform worker" are new, but concepts of contingent, casual, part-time, work-from-home-based, etc. employments are age-old. The major points of discussion are the roles of Provident Fund, Employee State Insurance, and social security benefits.

The Supreme Court, in the case of Royal Talkies, Hyderabad & Ors vs. Employees State Insurance Corp, 1978, which was a case related to the Employees State Insurance Act, 1948, held that the term ESI is applicable to every person employed "in connection with" an establishment. According to the judgment, the term "in connection with" encompasses a wide variety of workers who may not be directly employed in the establishment but may be engaged only in connection with the work of the establishment. The dictum stated that some nexus must exist between the establishment and the work of the employee, though it may be a loose connection. It elaborated that “in connection with the work of an establishment” only postulates some connection between what the employee does and the work of the establishment. In fact, the court also elucidated that an employee may not do anything directly for the establishment, he may not do anything statutorily obligatory in the establishment, he may not even do anything which is primary or necessary for the survival or smooth running of the establishment; it is enough if the employee does some work which is ancillary, incidental, or has relevance to or a link with the object of the establishment. In such cases, there was a categorical decision that the employee would be covered by the establishment for the purposes of ESI.

Furthermore, in the dictum of Jaggi and Co. Vs. Presiding Officer, Employees Provident Fund Appellate Tribunal and Anr., 2007, the Delhi High Court held that even casual workers employed through contractors are to be covered under the provisions of the Employees Provident Fund and Miscellaneous Provision Act, 1952. The court said the definition of "employee" does not distinguish between a casual employee or a regularly engaged employee. In Katari Colouring Factory Vs. Regional Provident Fund Commissioner and Anr., Delhi High Court said the whole goal of the statute is to make the principal employer primarily liable for the insurance of kindred kinds of employees on the premises, whether they are engaged in the work or are merely engaged in connection with the work of the establishment.

Then there are another set of decisions which clarify that in jobs that are contingent, minor, temporary, or on a need basis, the responsibility of PF and ESI will not be of the employer. For instance, in The Regional Provident Fund Commissioner, Andhra Pradesh Vs. Sri. T.S. Hariharan, 1971, the Supreme Court held, considering the language of the statute, that employment of a few persons on account of some emergency or for a very short period necessitated by some abnormal contingency which is not a regular feature of the business of the establishment, would not be covered for the purposes of the PF Act. In the judgment of Boc India Ltd. vs Assistant Regional Director, 2004, Andhra Pradesh High Court held that the principal employer would not be responsible regarding the liability of ESI for workers engaged in transportation, loading, unloading through contractors, since such people come for very casual purposes, etc. It has been categorically held in the judgment that if mere entry for such purposes alone is to be treated as the yardstick, every person who enters the factory for whatever purpose deserves to be covered. The Andhra Pradesh High Court in the dicta of Hindustan Petroleum Corporation vs. Employees State Insurance Appeal, 2007, has also given a similar finding. In The Regional Director vs. The Management of M/S Albuquerque & Sons, Karnataka High Court, 2014, held that repairs and maintenance done by outside contractors would not be covered.

In light of the above catena of judgments, some pertinent deciding factors would be every day time spent by the employee and the nature of work performed as a gig worker or platform worker or any other nomenclature. In case the concerned employee is spending the majority of time working for one establishment, needless to say, he/she should be covered for social security schemes by the establishment. On the other hand, if the concerned employee at a given point of time is working for multiple entities, or is working for a few hours, and the work is not daily, one entity should not be saddled and in such cases, there is a need for creating provisions, such as specific funds, contributions from aggregators, etc., catering to such workers' social security.

Making provisions for gig and platform employees can be based on existing principles. Only terminologies and concepts of some companies are new; however, models of casual, remote, work from home-based employment, part-time, etc., are ancient. Judgments clearly indicating the intent of such provisions of statutes exist, based on which some grey areas can be specifically covered, either in existing provisions or new Labour Codes, which are yet to be implemented. Inculcating such provisions will cater to masses across the country.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal