We missed this earlier.
In a joint submission to the Labour Ministry, a group of 23 trade unions, civil society organisations and members of academia have raised concerns with the Draft Rules for the Code on Social Security, 2020. In particular, they have raised concerns surrounding the burden of registration of workers, workers’ data privacy, and overall ease of accessibility to benefits, among other things. The submission lays down concerns as well as recommendations on the Draft Rules that seek to govern social security benefits for gig workers and platform workers, for which the Ministry had begun consultations in November.
The submission, made on December 21, has been endorsed by unions such as the Indian Federation of App-based Transport Workers (IFAT), All India IT and ITeS Employees’ Union (AIITEU), and All India Gig Workers Union; and civil society organisations such as the Centre for Internet & Society, IT For Change, and Tandem Research.
The Code’s “foundational flaws” “mar the efficacy and effectiveness of the Draft Rules in being able to provide social security entitlements to platform and gig workers”, the submission said. For instance, the Code failed to address how the fact that aggregators refer to “platform workers” as contractors and agents in their legal documents. Further, the joint submission recommended that the Code should have:
- Specified that all workers associated with any of the nine aggregator categories are to be treated as platform workers.
- Provided clarity on which ministry and legislation will aggregators function and operation, and, also
- How contributions of aggregators would be collected and managed.
Key concerns with Draft Rules
Cardinal failures: The Draft Rules do not provide a social security framework founded on “cardinal principles of universal social security”, but narrows the pool of workers who can benefit from the law by imposing an age limit and giving the government the power to add additional eligibility criteria.
No timeline for board formation: The Draft Rules envision the formation of a National Social Security Board for Gig Workers and Platform Workers, but there is no timeline by which it needs to be formed, and no transparency around the procedure that the central government will follow to nominate platform workers’ representatives to the board. “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,” the submission said.
Central database: The Draft Rules lay down the creation of a central database with data of the workers, pulled via self-registration as well as through aggregators, with the stated purpose of being able to dispense the benefits. The submission urges the government to rethink the vision of the database itself, and explore “the possibility of a federated architecture”, that brings in workers themselves through a democratic and decentralised data management process, with involvement from state and local government agencies.
“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.”—Joint Submission to Ministry of Labour
Additionally, the joint submission recommended that the Personal Data Protection Bill, 2019, be passed at the earliest since the centralised database will have implications for data privacy and rights of the workers, particularly in absence of a data protection law yet.
According to the submission, further clarity is needed on the following:
- How contributions of aggregators towards social security schemes will be assessed “in the context of reality of platform work arrangements.” For instance, platform workers may work for “several aggregators simultaneously, and be engaged as workers for intermittent and irregular periods of time.”
- How the 90-day minimum period (after which workers would qualify for benefits) will be calculated, and how the number of days of work impacts “the nature and extent of social protection that platform workers are eligible for.”
- How the Draft Rules will apply alongside the Motor Vehicles Aggregators Guidelines, 2020, which requires relevant aggregators to provide drivers with health and term insurance.
- The conditions under which an aggregator can be exempted: The Draft Rules need to clearly spell out the conditions under which the central government can exempt aggregators to ensure that aggregators “do not evade their responsibilities” towards their platform workers and gig workers.
Recommendations for changes
1. Board must be formed within 6 months in consultation with civil society: The joint submission recommended that the central government form the board within six months of the Draft Rules being notified. It must nominate five members representing workers in consultation with existing unions and associations of gig workers and platform workers, as well as civil society. The same stakeholders should also be consulted to decide the process and operational details of the nominees.
2. Changes around registration: helplines, wrongful deletion, charges
For registration of workers, which is mandatory to avail benefits, the central government should provide support by establishing facilitation centres and toll-free helplines, a requirement laid down in the Code itself. The submission says the government must bear the “responsibility of registering workers, updating their particulars and enrolling them in schemes.”
- These government must also provide a mechanism for grievance redressal for possible deletion of eligible beneficiaries as a result of Aadhaar-based deduplication exercise laid down in the Draft Rules. There should be provisions to address wrongful deletion, and to correct and update personal data.
- Gig workers and platform workers should not have to bear charges to register themselves. Workers cannot be made “to bear the cost of registration or updation on the platform, which would render them more economically vulnerable,” the submission said. Instead, registration should be free of charge for the workers, and the cost must be borne by the aggregators or by the government, per the submission.
3. Data privacy and protection of workers
The Draft Rules require the aggregators to share periodic details of their gig workers and platform workers (for registration purposes) and also require workers to carry out Aadhaar authentication. Highlighting the fundamental right to privacy, the submission recommends that the Rules lay down collection and purpose limitation practices around the information of the workers, among other things.
“The specific information relating to individual workers sought has not been outlined, with absolute discretion given to aggregators and the state. Aggregators simultaneously pursue a data extractivist approach towards collecting gig workers’ and platform workers’ data, accumulating millions of data points on worker activity. There is currently no personal data protection legislation in India and the draft Personal Data Protection Bill (2019) must be urgently enacted, as this provision seriously implicates workers’ right to personal data protection and privacy.”— Joint Submission to Ministry of Labour
The amount of workers’ information collected by the central government should be limited to “what may be reasonably required for welfare and social security purposes,” the submission says. Further, it added that the information should be used only for workers’ registration, help them access social protection, and disburse benefits.
Additionally, gig workers and platform workers should have the right to be informed about any personal data shared by the aggregators and the right to access such data on request. Further, the details collected by the government should be subject to the provisions of the Personal Data Protection Bill, 2019.
4. Rights of workers around their personal data: The Draft Rules also required aggregators to link their database with the URN (Unique Registration Numbers) to facilitate registration of workers. With respect to this requirement, the submission says that workers shall have the following rights:
- Right to access any and all personal data regarding them in aggregators’ databases
- Right to correction and completion of data
- Right to be informed about the specific purposes for which their personal data in such databases is proposed to be used
- Right to be notified in advance about the specific parties with whom the data will be shared and who will be able to access the data, and the right to refuse such sharing of data if not necessary for the provision of welfare and social security;
- Right to the erasure of any personal data that is no longer necessary for the facilitation of registration of gig workers and platform workers
5. Upper age limit of 60 years should be removed
The Draft Rules lays down gig workers and platform workers aged between 16 years and 60 years as eligible for benefits. However, the joint submission suggests removing the upper limit of 60 years since there is “no formal age of retirement” in the platform economy and people “may turn to gig work or platform work post-retirement employment opportunities”. Further, people beyond the age of 60 years may continue to work out of economic necessity, and should not be excluded from the protections. Further, since the Draft Rules empower the government to add further eligibility criteria as it sees fit, the submission says that this should be done away with, in line with International Labour Organisations’ calls for universal social protections in the future of work
“To allow the Central Government to notify other conditions for eligibility, at its discretion, will limit the coverage of any proposed scheme and leave several workers locked in precarious work arrangements with no access to a social protection floor.” —Joint Submission to Ministry of Labour
Under Section 112 of the Code, the government should also establish toll-free support and facilitation centres to ensure dissemination of information about benefits, support filing application forms for registration of workers. The government should also work with unions and associations to share “information on schemes and increase their capacity to facilitate grievance redressal among workers.”
“Worker conditions in gig work and platform work is constantly undergoing shifts. Workers may be engaged with several aggregators and platforms simultaneously, frequently migrate internally and change mobile numbers and addresses, and perform tasks that require several skills. While updating records is essential, gig workers and platform workers must not be penalised for failing to do so by way of withholding the benefits of social security schemes.”— Joint Submission to Ministry of Labour
6. Disclosure of aggregators’ contributions, and an agency for collection
Aggregators must make the assessment of their contributions (to the social security schemes) available to both the workers as well as the public. The Draft Rules currently required the central government to appoint an officer or an agency as the authority responsible to collect and expend contributions from aggregators. The joint submission recommends that an agency be formed, and that it consist of representatives from the government, workers, and aggregators.
List of organisations and academics that made the joint submission:
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