Provide more protection for gig workers, says lawyer

KUALA LUMPUR: Workers in the gig economy need ample protection from the government and platform providers who employ them in view that the sector is a growing contributor to Malaysia's revenue.

Litigation and trial lawyer Bhavanash Sharma, who specialises in industrial relations and employment, said gig economy workers have very limited rights although they played a vital role in keeping the food delivery and services sector going during the COVID-19 pandemic lockdown.

He said stakeholders, which include platform providers, need to be accountable, in at least offering a minimum wage, a good working environment, insurance policies, and also an avenue for gig workers for unlawful dismissal.

"Sadly, the Industrial Relations Act doesn't recognise them as workers or workmen," he said on Bernama TV's Midday Update programme hosted by Elane Noor Abdullah last week, where he was asked on the RM20 billion Pemerkasa economic stimulus package.

"I am not saying giving gig economy workers a status as that given to full time employees but to recognise them whereby they can enforce certain rights which are within the ambit of their employment," he said.

Acknowledging that workers in the gig economy or 'giggers' played a vital role as evident during the on-going COVID-19 pandemic, he said there should be a policy on the work relationships between all stakeholders of the gig economy.

Bhavanash, a partner with Messrs Bhavanash Sharma Advocates and Solicitors, welcomed the Pemerkasa package, which included a government initiative to expand its recruitment incentives to include temporary and gig workers with an allocation of RM300 million for some 60,000 workers.

Besides this, companies that are registered with the Social Security Organisation (Socso) and offering jobs to this group of workers will receive RM200 for each worker hired.

Rising digital platforms such as smartphones and the internet led to the growth of the gig economy whose workers include food delivery riders and e-hailing drivers of companies such as Grab, Food Panda and Lalamove.

"More protection needs to be put in place because as far as they stand right now, they come under contract for service, which means they are not workmen under the Industrial Relations Act."

As such, they cannot further claim for reinstatement in the courts in Malaysia.

"Neither can they run to the Industrial Court or the Labour office and plead for rights and benefits given to full-time workers," said Bhavanash.

He said there was a huge distinction between contract of service employees which refers to full-time employees and contract for service workers which include gig workers.

A contract of service usually refers to an employer-employee relationship where there is a full employment term, job scope and all employment terms agreed upon.

But for an independent contractor, they are known for a contract for service on an ad hoc basis.

They comprise, for instance, graphic designers, writers and workers hired to do certain jobs in just a short time of service like food delivery riders and e-hailing drivers.

In Malaysia, about 26 per cent of the workforce were involved in the gig economy even before the COVID-19 pandemic, according to figures provided by the World Bank.

In Malaysia, gig economy workers would be considered as independent contractors, he said.

"We must take heed from a Supreme Court decision in the United Kingdom last February which ruled in favour of 35 Uber drivers, recognising them as workers and the right to minimum wage and paid holidays.

"Now, this would have a huge impact on e-hailing services in Malaysia."

If gig economy workers are held to be in an employer-employee relationship, this will create a problem with the model used by platform providers such as Grab, Food Panda and Lalamove.

He said that if gig workers were recognised to have an employer-employee relationship, it would have "very serious repercussions or ripple effects on the gig economy", he said, adding that however, this was not being tested in Malaysia.

Malaysia was far back from recognising gig workers as employees compared with the UK, Canada and France which have recognised the services provided by gig economy workers as an employment contract.

Asked how the situation should be managed in Malaysia, he said: "We are trying to look at the welfare of both parties, i.e. the employer and employee (and) we need to be fair and consider the relationships of both parties."

-- BERNAMA