Can a Freelancer doing a food delivery claim permanency with the Ecommerce Company?
From India, Pune
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1From India, Pune
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Who is a freelancer? A freelancer is an independent contractor or a self-employed person. A freelancer accomplishes a task within a framework which is not dependent on the service conditions applicable to other workers of the company. As such, there does not exist any master-servant relationship between the employer and the freelancer. Therefore, he will not have any lien on employment.
Under employment laws in India, however, you cannot find a term like freelancer. If the freelancer is only a designation given to an employee who does work similar to the other workers with a normal eight-hour duty, reporting at a specified time, completing the task in a given time, reporting his absence to a reporting officer, and giving explanations to the blames that are put on him, etc., then the situation will change. Simply put, the term freelancing should not be used as a means to avoid payment of statutory contributions like PF, ESI, Bonus, or Gratuity. If the freelancer has been working as if he is hired on a time scale with a fixed remuneration (which can even be variable depending upon the units delivered) with all responsibilities like reporting, taking leave, discipline, etc., then he can seek regularization as an employee.
From India, Kannur
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Under employment laws in India, however, you cannot find a term like freelancer. If the freelancer is only a designation given to an employee who does work similar to the other workers with a normal eight-hour duty, reporting at a specified time, completing the task in a given time, reporting his absence to a reporting officer, and giving explanations to the blames that are put on him, etc., then the situation will change. Simply put, the term freelancing should not be used as a means to avoid payment of statutory contributions like PF, ESI, Bonus, or Gratuity. If the freelancer has been working as if he is hired on a time scale with a fixed remuneration (which can even be variable depending upon the units delivered) with all responsibilities like reporting, taking leave, discipline, etc., then he can seek regularization as an employee.
From India, Kannur
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Dear Guidance-Seeker,
Your Query: Can a freelancer doing food delivery claim permanency with the E-commerce Company?
Clarification/Guidance: You may please refer to our Supreme Court's ruling in the matter of laborers working on contract, claiming permanency in the job. I remember the ruling was in a case against Air India. The ruling highlighted factors i) whether CL's work performance was directly supervised by the principal employer, and ii) whether the work allotted to CL was of "permanent and perennial nature."
When you collect the facts of the SC's said ruling, please post them on CiteHR for knowledge-sharing.
Harsh K Sharan, Kritarth Team
19 June 2020
From India, Delhi
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Your Query: Can a freelancer doing food delivery claim permanency with the E-commerce Company?
Clarification/Guidance: You may please refer to our Supreme Court's ruling in the matter of laborers working on contract, claiming permanency in the job. I remember the ruling was in a case against Air India. The ruling highlighted factors i) whether CL's work performance was directly supervised by the principal employer, and ii) whether the work allotted to CL was of "permanent and perennial nature."
When you collect the facts of the SC's said ruling, please post them on CiteHR for knowledge-sharing.
Harsh K Sharan, Kritarth Team
19 June 2020
From India, Delhi
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Dear Mr. Harsh Saran,
Our learned friend, Mr. Madhu, has clearly explained the employment status of a freelancer. It is a practice widely followed in online model businesses. Even in other fields, a freelancer or gig worker, notwithstanding the nomenclature, is an independent contractor under a contract for service only. When they work under another contractor, for example, companies like Zomato in the food delivery business on a commission basis, they become a subcontractor to the client. Thus, whether it is a core or incidental activity carried out perennially or intermittently, when a person knowingly and willingly offers their services to another under an explicit contract for service, they are certainly a gig worker or freelancer and are therefore precluded from staking a claim for permanency or conversion of the same to that of a contract of service by the passage of time.
From India, Salem
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Our learned friend, Mr. Madhu, has clearly explained the employment status of a freelancer. It is a practice widely followed in online model businesses. Even in other fields, a freelancer or gig worker, notwithstanding the nomenclature, is an independent contractor under a contract for service only. When they work under another contractor, for example, companies like Zomato in the food delivery business on a commission basis, they become a subcontractor to the client. Thus, whether it is a core or incidental activity carried out perennially or intermittently, when a person knowingly and willingly offers their services to another under an explicit contract for service, they are certainly a gig worker or freelancer and are therefore precluded from staking a claim for permanency or conversion of the same to that of a contract of service by the passage of time.
From India, Salem
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Dear colleague,
"Gig worker" is a recent addition to the workforce. E-commerce or IT companies engage these workers on a part-time or full-time basis, or they can even work from home. They are essentially engaged for a fixed tenure on a contractual basis, and their services automatically cease on the last day of the contract. If a permanency issue is raised, everything will hinge on the wording of the contract, whether it is a contract of service or a contract for service, as rightly mentioned by Mr. Umakanthan. Nothing stops the so-called gig worker from raising the issue of permanency, but it has to pass the legal test.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
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"Gig worker" is a recent addition to the workforce. E-commerce or IT companies engage these workers on a part-time or full-time basis, or they can even work from home. They are essentially engaged for a fixed tenure on a contractual basis, and their services automatically cease on the last day of the contract. If a permanency issue is raised, everything will hinge on the wording of the contract, whether it is a contract of service or a contract for service, as rightly mentioned by Mr. Umakanthan. Nothing stops the so-called gig worker from raising the issue of permanency, but it has to pass the legal test.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
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