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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.

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Making the law speak: Empowering workers through legal engagement

[By Siddharth de Souza]

One of the most telling images of the past few months since the Government of India announced a lockdown has been the exodus of people on the move, from cities where they had made a home, through work, through children’s schools, and through social relationships, back to the home that they had left in search of economic and social opportunities. It has not been uncommon to see such images, of hundreds and thousands of people, men, women, young families with small children, many elderly; walking, cycling, and trying to avail of any mode of transport to cover great distances to reach their villages where they would have food, shelter and above all a sense of community and dignity. That so many people decided to go back home, despite the obvious difficulties, exposed the grave sense of vulnerability, and precarity that a majority of workers in India’s informal economy have faced in recent times.

In a survey carried out by the Stranded Workers Action Network (SWAN) 21 days into the lockdown, it was found that 50 % of the workers surveyed had rations for less than a day. While 72 % said their rations would run out in 2 days, 96 % had not received rations from government, and 70 % had not had cooked food since the lockdown had begun. This data was from a total of 11,159 workers of which around 1643 were women and children. More recently, another report by the same group found that a majority of workers who they had previously been in touch with were still waiting to go home and only 33 % had managed to leave.

What has precipitated this crisis is the poor implementation of legal and social protections for migrant workers across the country. In a recent intervention by the National Human Rights Commission at the Supreme Court of India, attention was drawn to a forty-year old legislation, the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. This legislation provided for a series of measures to ensure that contractors would have to apply for licenses to employ migrant workers which would also ensure that they upheld certain requirements in terms of remuneration, hours of work and other basic amenities. Further, the law required a database of migrant workers to ensure that these workers were not employed illegally, and without the basic statutory protections in the law. That this legislation has been largely forgotten has been symptomatic of the challenges of implementation but also of the information asymmetries that hamper the workers from accessing their rights and entitlements. It emphasizes the urgency of strengthening legal literacy and awareness across the country so that citizens can engage actively in obtaining their rights.

At the FemLab.Co project, one of our objectives is to think creatively about how to build legal content that can empower the user as an individual and as a group. The idea of legal empowerment is to give people the tools and the abilities to be able to understand and make use of the law. As a concept it can be understood as one that is concerned with both the outcome as well as the processes through which laws are realized. While legal empowerment can include a whole array of strategies (including citizen participation, community mobilization, legal aid initiatives), our project focuses on one aspect, to think deeply about legal literacy and ways in which this can be reimagined to make it more engaging—particularly in the context of informal labour groups.

In thinking about the distinctions between law in books and law in action, one of the critical challenges is the question of the translation of laws into the realities in which they are applied and used. A particular aspect of this is in terms of how the law is communicated. While the design of the substantive legal content must take into account the contexts in which they are used in order for them to have meaningful impact, they must also be communicated in a manner in which the intended audience – which is largely the general public – can engage and take action. This includes not only the content itself but also the mode of delivery.

The use of plain language, where key elements of the law can be communicated without unnecessary legal jargon in a precise and clear manner, is an important step in this direction. It does not mean that we need to dumb down the law. Instead, it is about acknowledging that the law is meant to be consumed beyond the corridors of power where it is developed, and that, for it to have any impact, it must empower citizens with agency to use it. In the case of the migrant workers act, many of the provisions of ensuring basic amenities, fair remuneration, and allowances for displacement are protections in abstraction because those who are to be protected simply do not know about these provisions. In order to give these legal protections a material basis, communicating them effectively becomes crucial.

The approach to developing legal content must take into account the lived experiences of users and to ensure that such content is engaging, accessible and meaningful. Such approaches are an integral part of the FemLab.Co project and Justice Adda, a legal storytelling social venture in India which is a partner on the project. We have attempted to do this, by using illustrations, data visualization, animation to demystify the density and obtuseness of legal content.

Figure: Illustrated Cases of the Supreme Court of India by Justice Adda and Manupatra

With this in mind, we recognize that we need to shift thinking that often ends with the production of legal information (laws, judgments, policies), to instead engage actively with how it is consumed (through WhatsApp forwards, TV shows, rumors and gossip, social media). Doing so, will necessitate moving to an understanding of what works in the specific contexts of the workers we are engaging with. For this project, we ask ourselves four questions when designing legal content and will draw from principles of design justice:

  • How can we communicate legal content that can empower and enable the communities in which we work?
  • How can we center voices of the community in the design of the legal information, such that we are building content with rather than for the community?
  • How can we make our content creation collaborative by design, such that we work to facilitate the development of the content as co-creators, but not from top down?
  • How can we build an ecosystem where there is support for legal content to have value and sanction beyond its textual format?

Through these processes, and reflecting on how legal knowledge is constructed and consumed, we will develop content such as visual contracts, toolkits, and explainers that aim to provide actionable, inclusive and useful tools to empower workers by making the law speak through different mediums.