Unpacking the Ambiguity: Does the PoSH Law Cover Gig Workers?

India’s growth story includes the rapid rise of gig workers and their significant role in the country’s gig economy. However, there is confusion surrounding whether the Indian PoSH Law applies to gig workers, and experts often present conflicting views on the matter. With numerous platform aggregator app companies making headlines for sexual harassment allegations against gig workers, it’s imperative to clear up this crucial yet unsettled issue and take a firm stance.

There has been a great deal of debate among various authors on whether gig workers fall under the purview of the PoSH Law, leading to a divided opinion on the internet. In this blog post, we will meticulously examine each argument and strive to provide a clear picture on this contentious issue.

Argument No 1: The PoSH Law in India does not explicitly cover the term “gig workers.”

According to Wikipedia, gig workers are individuals who work as independent contractors, online platform workers, contract firm workers, on-call workers, and temporary workers. These workers enter into formal agreements with companies to provide services to the company’s clients.

Since the PoSH Law was enacted in 2013, when the Indian gig economy was still in its nascent stages, the law did not explicitly use the term gig worker while defining the term “employee.” Instead, it defines an employee in Sec. 2(f) as “…. temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or without the knowledge of the principal employer……and includes a co-worker, a contract worker…. or called by any other such name.”

Gig workers are contract workers and hence are included in the definition of employee as per the PoSH Act. The phrase “…called by any other such name” clearly demonstrates the PoSH Act’s intention to include contract workers, regardless of whatever name they may be referred to as.

In the absence of any case law, and until an amendment is enforced, we ought to interpret the definition of an employee to include gig workers in its scope.

Argument 2: Gig workers are not employees of platform aggregator apps and delivery apps, but are referred to as “partners.”

Gig workers, who provide services through platform aggregator apps such as Uber, Ola, Zomato, Swiggy, etc. and delivery apps such as Dunzo, are often referred to as “partners.” These companies are technology platforms that connect service providers (i.e., the gig workers) with customers, and gig workers are seen as partners in the delivery of services, rather than employees of the company. As a result, the traditional employer-employee relationship does not exist.

It is important to note that referring to gig workers as “partners” is mainly a marketing strategy aimed at positioning these workers in the communication and marketing materials of the parent company. Another common term used is “independent contractors.” However, despite corporate jargon, most gig workers are employed by contractors who have a contract with the platform aggregator apps (the parent company). Referring to the definition of employees under the PoSH Act, it is crucial to understand that the phrase “…directly or through an agent…” must be taken into consideration to indicate that whether these are independent contractors (who are directly contracted) or working with an agent contractor, they fall under the scope of this definition.

In any case, gig workers are “contract workers” within the ambit of the PoSH Law. It is important to remember that gig workers often face low pay, lack of benefits, and little control over their working conditions, undermining the idea of a true partnership.

Argument No 3: The third argument against the applicability of the PoSH Law on gig workers is that they are not employed by the company and therefore the places where they work are not covered under the definition of “workplace” as defined by the law.

The PoSH Act defines the term “workplace” broadly in Section 2(o) with seven sub-sections, including places visited by employees during the course of employment, dwellings or houses, and transportation. Additionally, sub-section (p) states that the term “unorganized sector” in relation to a workplace means an enterprise owned by individuals or self-employed workers that employs less than ten workers.

However, the issue at hand is not whether the PoSH Law covers various types of workplaces but whether it applies to gig workers who are not considered employees of the parent company. This takes us back to the second argument regarding the classification of gig workers as employees. If they are considered employees, then the workplaces where they provide services should be included under the definition of the parent company’s workplace.

In conclusion, while gig workers may not fit the traditional definition of an employee, nor does their workplace fit the conventional definition of a workplace. Rather than getting bogged down in legal semantics, we must focus on these workers, particularly women workers, who are breaking free from traditional roles and venturing into people’s homes to provide services such as beauty and grooming, or driving cabs to support their families. For that matter, even women who order food through such platforms deserve a safe environment when a delivery partner arrives at their doorstep for a delivery and becomes aware of their address. While the PoSH Law may not explicitly cover gig workers, we should not wait for an amendment or case law to ensure their safety.

Instead, we should focus on creating safe working conditions and protecting the rights of all workers, regardless of their job type or workplace. After all, these workers are making important contributions to society and supporting themselves and their families. It’s time we prioritize their safety and well-being.

Author: Sumali Nagarajan, AVP – Content & Training Editor: Akanksha Arora, AVP – Legal & Training

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