Can a Freelancer doing a food delivery claim permanency with the Ecommerce Company?
From India, Pune
1From India, Pune
Who is a freelancer? A freelancer is an independent contractor or a self employed person. A freelancer accomplish a task within a frame work 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 employer and the freelancer. Therefore, he will get any 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 the work similar to the other workers with normal eight hours duty, reporting at a specified time, completing the task in a given time, reporting of his absence to a reporting officer and gives explanations to the blames that he put on him etc, then the situation will change. Very simply, 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, leave taking, discipline etc then he can seek regularisation as an employee.
From India, Kannur
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 the work similar to the other workers with normal eight hours duty, reporting at a specified time, completing the task in a given time, reporting of his absence to a reporting officer and gives explanations to the blames that he put on him etc, then the situation will change. Very simply, 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, leave taking, discipline etc then he can seek regularisation as an employee.
From India, Kannur
Dear Guidance-Seeker,
Your Query:-Can a Freelancer doing a food delivery claim permanency with the Ecommerce Company?
Clarification/Guidance:-- You may please refer to our Supreme Court's Ruling in the matter of Labours working on Contract, claiming for Permanencyin the Job. I remember the Ruling was in a the case against Air India. The Ruling Highlighted Factors i) Whetehr C L's Work Performance was directly Supervised by the Principal Employer & ii) wheyher the Work alloted to CL was of "Prmanent 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
Your Query:-Can a Freelancer doing a food delivery claim permanency with the Ecommerce Company?
Clarification/Guidance:-- You may please refer to our Supreme Court's Ruling in the matter of Labours working on Contract, claiming for Permanencyin the Job. I remember the Ruling was in a the case against Air India. The Ruling Highlighted Factors i) Whetehr C L's Work Performance was directly Supervised by the Principal Employer & ii) wheyher the Work alloted to CL was of "Prmanent 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
Dear Mr.Harsh Saran,
Our learned friend Mr.Madhu has clearly explained the employment status of a freelancer. It is the practice widely followed in on-line model businesses. Even in others, a Free lancer or gig worker, not withstanding the nomenclature whatever it be, is an independent contractor under a contract for service only. When he functions under another contractor for example companies like Zomato in food delivery business on commission basis, he becomes a sub-contractor to the client. Thus, whether it is a core or incidental activity carried on perennially or intermittently , when a person knowingly and willingly offers his services to another under an explicit contract for service, he is certainly a gig worker or freelancer and therefore is precluded from staking a claim for permanency or conversion of the same to that of contract of service by the passage of time.
From India, Salem
Our learned friend Mr.Madhu has clearly explained the employment status of a freelancer. It is the practice widely followed in on-line model businesses. Even in others, a Free lancer or gig worker, not withstanding the nomenclature whatever it be, is an independent contractor under a contract for service only. When he functions under another contractor for example companies like Zomato in food delivery business on commission basis, he becomes a sub-contractor to the client. Thus, whether it is a core or incidental activity carried on perennially or intermittently , when a person knowingly and willingly offers his services to another under an explicit contract for service, he is certainly a gig worker or freelancer and therefore is precluded from staking a claim for permanency or conversion of the same to that of contract of service by the passage of time.
From India, Salem
Dear colleague,
Gig worker is recent addition to the workforce. E commerce or IT companies engage these workers on part/full time basis or they even work from home.
They are essentially engaged for fixed tenure on contractual basis and their services automatically cease on the last day of the contract.
If permanacy issue is raised, everything will hinge on the wording of the contract whether it is contract of service or contract for service as rightly mentioned by Mr Umakanthan.
Nothing stops so called gig worker to raise the issue of permanency but it has to pass the legal test.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
Gig worker is recent addition to the workforce. E commerce or IT companies engage these workers on part/full time basis or they even work from home.
They are essentially engaged for fixed tenure on contractual basis and their services automatically cease on the last day of the contract.
If permanacy issue is raised, everything will hinge on the wording of the contract whether it is contract of service or contract for service as rightly mentioned by Mr Umakanthan.
Nothing stops so called gig worker to raise 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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