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Workers’ rights in the gig economy

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The gig economy involves work done in digital labor platforms which includes both web-based platforms, where work is outsourced through an open call to a geographically dispersed crowd (crowdwork), and through location-based apps (work on-demand via apps) which allocate work to individuals in a specific geographic area. (https://nwpc.dole.gov.ph/publications/gig-economy/) Simply put, it concerns temporary technology-based work involving independent contractors or freelancers. This includes individuals who work as computer programmers, social media managers, graphic designers, virtual assistants, and other similar jobs where individuals offer their services to foreign clients. This also includes ridesharing drivers and delivery riders who offer their services through apps.

Even prior to the pandemic, the Philippines already had a thriving gig economy. For some, this was an opportunity to work with increased flexibility, the opportunity to determine their hours of work, preferred rates, and not having any bosses constantly supervising them. When the pandemic forced employers to downsize and retrench employees, some of the displaced workers turned to the gig economy for their means of livelihood.

While flexibility may be a key characteristic of the gig economy, some gig workers would still prefer the stability and benefits usually associated with traditional employment. This is especially true for those who were constrained to turn to the gig economy and perform services that are more physical in nature such as delivery riders. Unfortunately for them, most gig workers are engaged as independent contractors and are not legally entitled to the mandatory statutory benefits to which employees are entitled. Instead, they are compensated based on the contract between the independent contractor and the principal or hiring party.

Ideally, an independent contractor and the hiring party would negotiate the compensation for the work performed. However, this is not true for all gig workers. Some hiring parties have their own fee structures which they impose on their independent contractors and can adjust at their own discretion. In fact, a disagreement in the fee structure was the cause of a rift between some food delivery riders in Davao City and a food delivery platform. This caused the Department of Labor and Employment (DoLE) to examine the practices implemented by the food delivery platform, and eventually issue Labor Advisory No. 14 Series of 2021, entitled “Working Conditions of Delivery Riders in Food Delivery and Courier Activities” (LA 14-21).

In LA 14-21, the DoLE did not determine whether the delivery riders are employees of the hiring party or digital platform company. Instead, the DoLE declared that the Four-fold test, Economic Reality test, and Independent Contractor test must be applied to determine whether the gig worker is truly an independent contractor or an employee in the eyes of the law.

The “control test” is common to the three tests since it is the most important index of the existence of the employer-employee relationship, that is, whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. (Pacific Consultants International Asia, Inc. v. Schonfeld, G.R. No. 166920, Feb. 19, 2007) Stated differently, there is no employer-employee relationship between the parties if the power to control the worker with respect to the means and methods of accomplishing his work is absent.

Understandably, the DoLE did not declare that all delivery riders and/or gig workers are employees since their status must be determined on a case-to-case basis. Nevertheless, some gig workers do not feel like they have control over anything. They feel like the course of their day is totally determined by the hiring party through the digital application.

Since the DoLE can only carry out and enforce laws, it cannot interfere in situations where there is no employer-employee relationship, which is the case with most gig workers who are considered independent contractors. To be treated as employees, the gig workers must seek the intervention of labor tribunals which may evaluate their circumstances and declare the existence of an employee relationship. This will give them the right to be entitled to all mandatory benefits provided by law.

Another possible recourse would be to lobby Congress to pass a law which is favorable to gig workers. In this regard, the House of Representatives recently passed House Bill No. 8817 or the “Freelance Workers Protection Act.” If passed into law, a written contract between the freelancers and the hiring party will be required and the freelancers shall be entitled to a night shift differential and hazard pay. A counterpart bill is pending at the Senate for approval.

Of course, any regulation and/or legislation may have a necessary effect on the opportunities offered by hiring parties to the workers in the country. It must be considered that some of them outsource work because of the low costs involved. We would not want to kill the goose that lays the golden eggs.

While the world continues to address the health and economic effects of COVID-19, our government continues to strive for means to address unemployment. While the gig economy may be one of the solutions, this needs to be examined and regulated for it to be a viable solution for all parties and the government.

The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion.

 

Martin Luigi Samson is a Senior Associate of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), Davao Branch.

(6382) 224-0996

mgsamson@accralaw.com

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Workers

Need for greater clarity in Labour Codes to accommodate gig workers: Industry

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While the pandemic and onset of technology has created new opportunities of employment such as work from home, part time employment, contract workers, and gig workers, it has also provided opportunities to women and students to reap the benefits of the digital wave. However, as we find new job opportunities on the rise, the traditional avenues have been severely affected by the pandemic. In this regard, it will be critical to have a coherent and well thought out Labour Code.

The new Labour Codes have a unique opportunity to foster recovery. It is imperative to find balance and provide accommodative support to the new forms of employment. The labour codes need to recognize small contract labourers and businesses and make provisions for them.

Lack of uniformity and varied regulations at the state level have had an impact on other aspects of employment as well. These variations are disruptive to businesses with operations across various states and may result in workload disparity and deterioration in quality of the production. The rules skirt over the realities of the digital economy and seek to transpose legacy regulation and limitation on growth. In line with this, Mr. Kazim Rizvi, Founding Director, The Dialogue, was of the opinion that, “Businesses, especially small organisations and startups, are still coming out of the repercussions of the COVID-19 pandemic. The labour laws, if implemented in the current form, will not only increase the pressure and compliance burden on the companies but also affect their financial output. The role of gig workers is vital in this new economy, and provisions must be made towards giving them adequate compensation and recognition.”

The Panelists highlighted some key focus areas such as flexibility in work hours, need for clarity in the definition of core activity, social security for the gig workers and taking into account emerging job models that need consideration to help guide the discourse towards an enabling framework. Centre, state and other stakeholders have to work together in order to ensure that maximum benefits are accrued to the gig workers while being mindful that businesses are not overburdened. Given the subject matter these codes regulate, there is a constant need of dialogue among the stakeholders to improve the legislation while securing the workforce.

Speaking on this, Mr. Ram Rastogi, Digital Payments Strategist, stressed that, “The e-commerce platforms have revenue-sharing arrangements with the people on their platforms. Thus, there needs to be a differentiation for people working full-time and people working in flexible models. Labour codes shouldn’t deter industries that are performing well and consider a performance-based pay model.”

He further stated, “Gig workers do the most hard work and make only a small fraction of what permanent workers make. Policymakers should think about them before coming out with the codes and should encourage state governments to work on policies for them.”

Suchita Dutta, Executive Director, India Staffing Federation, “Formal Contract work and employment is growing in India. It is helping people pick up new skills and become more industry relevant. While Formal contract labour is well protected for social security and all applicable labour laws including wages, the Gig workers still find the similar format of protection. To realise the full potential of the labour codes, there needs to be continuous dialogue across the sectors to tap the maximum impact for the benefit of gig workers.”

Avik Biswas, Partner, Indus Law, “The gig economy workers, for the first time, has been statutorily recognized in India. While the objective of the Codes vis-à-vis the gig economy can be predicted given the way several international regulations on this subject has been structured, we are however still at a stage where a lot more clarity is required on the operative parts of the regulations and how they would substantively affect both companies and workers alike. The obvious way forward appears to be the necessity of a constant dialogue and consultation between the government, employers and other relevant stakeholders.”

There is a need for the government to acknowledge the various types of workforces across different sectors. The one-size-fits-all approach may not work since the codes haven’t taken into account rising digital industries such as e-commerce. Additionally, this code might be exclusionary in nature to the small businesses and gig workers in the country especially in states like Maharashtra where people receive work on contractual basis. Hence, it is essential to examine the grey areas in the codes and rework the same.

Published on: Wednesday, September 22, 2021, 08:26 PM IST

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Singapore looks into more protection for gig workers

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An advisory committee expects to provide recommendations that require legislative change by the second half of next year.

A newly formed committee in Singapore will be looking into more protection for gig workers, in the areas of retirement and housing adequacy, work injury financial protection and bargaining power.

The advisory committee expects to be done with the work by the second half of 2022, with a possible end goal of putting out recommendations that require legislative change, said Senior Minister of State for Manpower Koh Poh Koon. 

“It could well be a set of tripartite guidelines, for example, to guide either workers or platform operators on what is the expected behaviour… It may well be other things that require legislative changes to bring into effect; some of the measures that need to be secured and guarded by law to give adequate legal protection,” he said, reports the Business Times. 

“Or it could well be something that we leave to the union, for example, to have the flexibility to negotiate with the platform operators, because the situation can evolve; platform business models can change as well, so we do not want everything to be a one-size-fits-all.”

READ: Singapore urges SMEs to adapt, build workforce for post-pandemic

The committee is focused on three groups of gig workers: delivery workers, private-hire car drivers and taxi drivers. It comprises industry experts, academics and government representatives, and is headed by Goh Swee Chen, chairperson of the Institute for Human Resource Professionals.

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Help gig workers get social security benefits: Plea in SC | India News

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NEW DELHI: A petition has been filed seeking intervention of the Supreme Court in helping secure social security benefits for gig workers engaged by Uber, Ola Cabs, Swiggy, Zomato and other app based service providers.
The petition, jointly filed by a registered union and a federation of trade unions representing app-based transport and delivery workers, and two individual drivers who have worked with Ola Cabs and Uber, alleged that denial of social security like pension and health insurance to them is violation of their right to life and right against forced labour. “The present petition is being filed raising questions of the great public and constitutional importance namely whether the ‘Right to Social Security’ is a guaranteed fundamental right for all working people- whether employed in the formal or informal sectors,” the petition, settled by senior advocate Indira Jaising, said.
“It is the case of the Petitioners herein who are known as gig workers and platform workers that they are in an employment relationship with the aggregators and hence covered by the definition of ‘workman’ within the meaning of all the applicable social security legislations including: The Workmen’s Compensation Act, 1923; The Industrial Disputes Act, 1947; The Employee’s State Insurance Act, 1948; Employee’s Provident Funds and Miscellaneous Provisions Act, 1952; The Maternity Benefit Act, 1961; The Payment of Gratuity Act, 1972 and ‘Unorganised Workers’ Social Welfare Security Act, 2008’,” it said.
The petition seeking SC’s direction to Centre said the mere fact that their employers call themselves “aggregators” and enter into so-called “partnership agreements” does not take away from the fact that there exists a relationship of employer and employee between them “At present these workers are not being provided the benefit of social security under any of the labour legislations. This defeats the very purpose of the social- welfare legislations, which seek to ensure social security-a facet the right to work and livelihood on decent conditions of work under Article 21 of the Constitution,” it said.
“These legislations have been enacted pursuant to the Directive Principles of State Policy with a view to ensuring basic human dignity to the workers. The inaction on part of the State in ensuring social security to the “gig workers” and “platform workers” notwithstanding the existence of the said laws, is the clearest violation of Article 21 apart from a violation of Article 14 and Article 23 of the Constitution.



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