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Proactive contracting for platform work: Making the design of terms and conditions more participatory

[By Siddharth de Souza]

As the COVID-19 pandemic has revealed, platform economy workers are increasingly vulnerable due to a lack of benefits such as minimum wages, health and security as well as the opportunity to organise collectively and build work-life communities. In India over the past few months, workers at companies such as Swiggy have been protesting a reduction in the minimum delivery charge per order as well as the reduction and change in terms of incentives.

With new labour law changes in India over the past month, understanding the material implications of how platforms work in practice has become even more urgent. Leading Civil Society Organizations and labour unions recently came together to issue a statement addressing the rights of platform workers. Among the key issues raised is the question of misclassification of workers and contractors, highlighting that the labour codes in India do not account for how platform companies exercise control in terms of how work is assigned, compensated and performed.

In this blog, I focus on one particular aspect of the relationship between platforms and workers by examining the terms and conditions that platform companies use to control their workers. I argue for the need to develop more participatory methods of contracting to involve workers in the decision-making process, drawing from research on ‘proactive law’.

Platform companies argue that their workers are independent contractors with flexibility to determine the nature of their engagement. But in reality, as a report from ILO discusses, the terms and conditions for their engagement on platforms are determined unilaterally by the companies, along with the methods for evaluation, payment and terms of grievance redressal. Over the past few years, platform companies such as Ola have reserved the right to change terms of service while also placing the responsibility on the user to be up to date with such changes.

Across many platforms, workers are first expected to agree to the terms before having access to potential work opportunities. As a result, there is little scope for dialogue or discussion on the terms of the contract. Some of the challenges of terms of service employed by platform companies include the use of complex and technical language, poor protections of basic contractual rights such as in terms of data protection, conflict resolution, and in matters of termination of the contract. As a result, it is difficult for workers to articulate their grievances.

Image credit: Sharon McCutcheon / Unsplash

Can these terms and conditions be constructed and developed in a manner that reflects independent contracting fairly, in a manner that accounts for rights of workers, and forces more accountability on platform companies? Can the process of contracting be made more participatory?

Terms and conditions, in the cases of platform companies, are designed to respond to potential disputes, problems or litigation, and seek to offer corrective measures to protect the company. These terms and conditions are determined with little or no involvement from the workers, and as a result there are consequences for both workers and platforms in terms of  future problems and disputes, precisely because they are designed for adversarial situations and in ways that protect the needs of one party (usually the company) at the expense of another (usually the worker).

I suggest that one way to rethink terms and conditions, is to draw from the work on a ‘proactive approach’ to law. This approach is based on the assumption that rather than seeing law as a constraint that parties need to comply with, or as a means to protect one’s interest at the cost of someone else, we use the law to create conditions that can foster value and successful relationships between parties. As Helena Haapio  (who has pioneered this approach) argues: “legal knowledge is at its best before things go wrong”. With proactive law there is a focus on examining and finding ways to eliminate causes of conflict through determining what the shared outcomes of the agreement could be. The European  Economic and Social Committee in 2009 in an opinion advanced that  “Proactive Law is about enabling and empowering — it is done by, with and for the users of the law, individuals and busi­nesses”. The approach is premised on the users knowing about their rights and duties, and using the law in a manner that helps them avoid disputes, or find resolutions to problems. This can be done by developing ways to co-create terms and conditions that meet the needs of all parties.

Building such an approach for platform companies would require that there is an acknowledgment of the legal needs and aspirations of both workers and companies. To do this, workers cannot be mere recipients in the process who simply accept terms and conditions, but effective participants in arriving at a common framework. The contracting will thus not be top down, but would be collaborative, taking into account how the law materialises in practice.

A proactive approach, as legal scholar Berger-Walliser advances, would use law in order to develop sustainable relationships, by moving beyond self-interest to accommodate different interests and build agreements that focus not on failures between parties but rather on how parties can collaboratively find satisfactory outcomes. Being outcome-oriented and proactive can also have economic value because it is built on trust and shared relationships between parties, centering on dispute pre-emption, instead of a reactive approach which is built on dispute resolution and management. Such user centric contracts would draw on the context of the use and practices of the contract, the social interactions around them and the ways in which the content is communicated. For instance,  Rob de Rooy, founder of Creative Contracts, has used illustrations and visual narratives  to make contracts accessible for workers who are not literate in South Africa. These graphic contracts are designed to faciliate communication between parties by translating complex, technical language into comicbook-like formats that can be understood and have been implemented for employment contracts, agreements between parents and schools and Non- Disclosure Agreements.

Video by Creative Contracts explaining “who are we and what do we do”

Visualization can be one way of building more accessible contracts for platform workers. However beyond that, there is a need to inculcate a spirit of co-creation in the development of terms and conditions. For both platform workers and companies, co-creation would involve bringing together different perspectives to identify and determine common goals; it would examine how to create value not just for one party as in an adversarial process, but rather concentrate on shared outcomes. It would involve focusing on the root causes of problems and eliminating them rather than expending effort on managing conflict. Further, in order to ensure the legitimacy of such participatory approaches, it would also be important to not be blind to matters related to representation and deliberation in the co-creation process, and ensure that matters such as gender perspectives or the distinctions between local and international contexts of workers are not treated lightly. Companies need to engage with workers in the spirit of them being partners; failing to do so will only solidify the case that workers in platform companies are self-employed in nothing but name.