Gig delivery riders: Workers or independent contractors?
The Covid-19 pandemic saw the rise of digital platform workers who were mostly invisible in normal times. The new workers in the digital economic universe -- commonly called platform or gig economy -- became essential workers providing the needed services when the pandemic locked down people inside their homes.
“Gig” work has come to mean small, temporary, and time-bound service jobs based on digital software applications. With the increasing technological advances, platform-based labor emerged from the practice of outsourcing, in which businesses decreased in-house labor by assigning tasks to service providers.
Businesses operating within the gig economy manages three components:
(1) platform labor, termed as “independent contractors”,2 paid by the gig (i.e., tasks, services, projects);
(2) consumers who have specific service needs (a ride or delivery of items); and
(3) companies with app-based technology platforms connecting workers and consumers.1 Prominent platform-based companies include Food Panda (German), Uber (US), Grab (Singapore), and Lalamove (Malaysia), to name a few.
Unlike workers who are legally entitled to mandatory statutory benefits provided in the Philippine Labor Code and other labor regulations, platform-based workers are generally classified as “independent contractors”. The lack of employer-employee relationship is a bone of contention between platform workers and platform-based companies.
However, many gig workers have defied and resisted the non-recognition of employment relations and won battles for labor rights and benefits in other countries. The most celebrated was the UK Supreme Court ruling recognizing Uber drivers as “workers” of Uber entitled to employment rights including minimum wages and vacations.3
In the Philippines, Food Panda and Lalamove delivery riders have since 2020 organized gig riders’ protests, including “wildcat protest rides”, against inhumane work conditions, low wages, and lack of benefits, and protection particularly during the pandemic. Working at the frontlines, delivery riders are directly exposed to health risks, amplifying their vulnerabilities due to lack of social protection, job security, and labor rights.
The rising protests from delivery riders pressured the Department of Labor and Employment (DOLE) to issue the Labor Advisory No. 14 series of 2021, entitled “Working Conditions of Delivery Riders in Food Delivery and Courier Activities”. The advisory, however, was non-committal whether delivery riders and/or gig workers are employees or independent contractors.
DOLE instead advised the application of the “four-fold test”, a sort of economic reality check, to determine if an employer-employee relationship exists.4 The four-fold test are: (1) selection/hiring of worker; (2) payment of wages; (3) the power of dismissal; and (4) control test. Control test is the most crucial in determining employment relationship -- whether the employer/company has the power to control the result of the work, as well as the means and methods to accomplish the work.
More contentions around these issues are bound to emerge in the next years.
Gig workers seeking recognition as employees rather than independent contractors are thus advised to bring their demands to labor courts. The successful case of Food Panda delivery workers in Davao may become a positive precedent in establishing employment relations for delivery riders and gig workers.
In this case, the National Labor Relations Commission (NLRC) Regional Arbitration Branch in Davao ruled that Food Panda Philippines committed illegal dismissal and ordered the company to pay the dismissed workers Php 2.24 million. The amount covers back wages, including 13th-month pay, leave pays, and separation pays for the affected delivery riders.5 These are guaranteed labor benefits for workers under the Labor Code.
The next step is to push for a law that clarifies and regulates the terms and conditions of employment of delivery riders and gig workers. Ultimately, of course, this legislative pathway will still rely on how far platform workers can consistently collectively organize and mobilize.
Verna Dinah Q. Viajar is currently a Postdoctoral Doctoral Research Fellow of the Rosa Luxemburg Stiftung Berlin and Visiting Research Fellow at the School of Labor and Industrial Relations, University of the Philippines Diliman. She is also a research fellow at LEARN.
1See Istrate, E.& Hariss, J. (2017). The future of work the rise of the gig economy. Retrieved from https://www.naco.org/featured-resources/future-work-rise-gig-economy
2See Samson, M. (2021). “Workers’ Rights in the Philippine Gig Economy”. Asia Business Law Journal. Retrieved from Workers’ rights in the Philippine gig economy. Asia Business Law Journal.
3See Frantz, E. & Cuk, R. (2021). “Why Uber’s Loss is a Win for Labour Rights”. Open Society Foundations. Retrieved from Why Uber’s Loss Is a Win for Labor Rights - Open Society Foundations.
4See Samson, M. (2021). “Workers’ Rights in the Philippine Gig Economy”. Asia Business Law Journal. Retrieved from Workers’ rights in the Philippine gig economy. Asia Business Law Journal.
5See Cantal-Albasin, G. (2022). “NLRC orders foodpanda to pay 7 dismissed delivery riders in Davao”. Rappler. Retrieved from NLRC orders foodpanda to pay 7 dismissed delivery riders in Davao (rappler.com).
The party-list system in the Philippines: Mangled and twisted beyond recognition
In the recently held Philippine national elections on 9 May 2022, a total of 55 party-list groups1 filled up 62 seats in the House of Representatives. Joining the party-list representatives are 253 district representatives elected in the same elections. The ACT-CIS or the Anti-Crime and Terrorism Community Involvement and Support Group is the only party-list group to have garnered three seats while five party-list groups (1-Rider Party-list, Tingog, 4PS, Ako Bicol, and Sagip) got two seats each and the rest obtained a seat each. This is a clear upset for the 11 incumbent party-list groups such as Bayan Muna, Anak Mindanao, Magdalo, Buhay, and others that failed to win seats.2
Most of the winning party-list groups relied on and derived their votes from bailiwick regions through the support of political families who were former district representatives.3 The results have become a far-cry from the original intention of the party-list system which is to deepen democratization through representation of marginalized and vulnerable groups and sectors in the House of Representatives.
But not all good intentions lead to good results. The 1987 Philippine Constitution provided for the enactment of a party-list system to broaden democratic representation of marginalized sectors in the highest policy-making body in the country, the Philippine Congress. The ‘marginalized’ sectors were defined as under-represented communities or groups such as “labor, peasant, and urban poor, indigenous cultural, women, youth, and other such sectors as may be defined by law (with the exception of the religious sector).”4
Crafted with the intention to facilitate the inclusion of disadvantaged sectors to have a voice and access to the resources of the parliament, the party-list system was supposed to deepen democratization after the era of Marcos dictatorship. However, after almost thirty years, the party-list system today is beyond recognition. Majority of the party-list parties contending in the elections are either controlled by big political parties, wealthy political clans, and famous political personalities. Instead of dramatically democratizing the Philippine electoral terrain, the party-list system has been captured by elite politics dominated by the wealthy and powerful traditional politicians.
The party-list system replaced the sectoral representation of 50 underrepresented sectors in the Philippine parliament which are appointment by the president during the Marcos regime. After the Republic Act 7941 or the Party-List System Act was enacted in 1995, the first party-list system elections were held during the 1998 national elections. Party-list representatives comprise one-fifth of the 250 seats allotted for district representatives. Participating party-list groups must secure two percent of the total votes cast for party-list elections to earn one seat.
The two percent threshold increases as the votes cast for party-list increases. Based on the 2019 national elections, more than 27 million votes were cast for the party-list system. This requires party-list groups to get about 500,000 votes to pass the two percent threshold or obtain a seat in the parliament.
An innovation from the proportional representation system,5 the party-list system is unique in the Philippines due to the 3-seat limit. For those party-list groups that exceeded the two percent threshold and could have more seats due to the number of votes achieved, the solution is to spin-off their organizations, which later resulted in the fragmentation of these party-list groups to maximize the seats that can be obtain. The classic example would be the Bayan Muna party-list who obtained 11 percent (or 17 million) of the party-list votes but can only have three seats in the 2001 Philippine Congress.6 They then formed separate party-list groups representing sectors for labor, women, youth, and peasants, and secured a maximum of seven seats in the 2016 national elections. There are about 63 party-list representatives currently sitting in the Philippine Congress today.
In the 2019 party-list elections, 177 party-list groups registered in the Commission of Elections, but only 134 party-list groups were accredited. The top party-list that garnered the most votes was the ACT-CIS. The name itself suggests that it does not represent any marginalized sector but possibly from the security sector. Bordering on the absurd, many party-list groups run for elections based on popular names such as the “Ang Probinsyano,” in reference to a popular TV show; 1Pacman, in reference to the boxing champ and supported by Manny Pacquiao; and the “Duterte Youth” party-list lifted from the current president’s name.
Likewise, during the 2019 party-list elections, poll-watchdog Kontra-Daya reported that of the 177 party-list groups, 62 groups have links to powerful interest groups, 44 groups are controlled by political clans, 21 groups were connected with big business, 32 groups connected to the military or government, and 34 groups have unclear advocacies or representations.7
For the progressive and leftist groups, the party-list system promised an alternative and more democratic electoral system to provide equal representation for the poor and the disadvantaged. The party-list system is an experiment towards proportional representation that would in time challenge the dynastic and elitist multi-party electoral system in the country. However, the elite political structures in the country instead captured and twisted the democratic possibilities of the party-list electoral system.
To conclude, there is a need to revisit, review and reform the party-list system to bring it closer to its original intent in deepening democratic elections in the country. It will take the united resolve of progressive groups and peoples’ movements, including the trade union movement, who put their hopes on the party-list system to broaden and include the vulnerable and disadvantaged sectors in the Philippine society.
Verna Dinah Q. Viajar is currently a Postdoctoral Doctoral Research Fellow of the Rosa Luxemburg Stiftung Berlin and Visiting Research Fellow at the School of Labor and Industrial Relations, University of the Philippines Diliman. She is also a research fellow at LEARN.
1See Comelec proclaims party-list winners. The Manila Times.
2See Bayan Muna, Buhay, 9 others lose reelection bids in 2022 party-list race. Rappler.
3See 20 winning party-list groups in 2022 got majority of votes from bailiwick regions. Rappler.
4See the 1987 Philippine Constitution, Article 6, Section 5.
5The proportional representation system is a voting system wherein the number of seats of representation is based on the proportion of votes received for the political party.
6See The party-list system in the Philippines: Is it better or worse for democracy? Asia Dialogue.
7See ‘Party list system stolen from poor. Inquirer.