Written by Aarya Singh, B.A. LL.B. (Hons.) Student at Chanakya National Law University, Patna
Labour Law emerged as a mechanism to address the deep structural inequalities created by industrial capitalism. Unlike the traditional private law, which assumes equality and consensus between contracting parties, labour law recognises the inherent inequality and power imbalances (unequal bargaining power) between parties, i.e., the employer and worker. It is a protectionist law: to regulate working conditions, to ensure compliance with minimum and fair wages, to safeguard the dignity of labour, and to promote social justice through welfare measures, collective bargaining, and state intervention where needed. By virtue of these functions, it’s not merely a branch of contract law, but a specialized field in itself with the objective of correcting market irregularities and the vulnerable position of labour.
Going by legal theory, “Abstraction” as a methodology refers to the whole process of law to formulate general rules, principles, and categories that apply uniformly over cases. The complex social realties is turned into standardized legal concepts like “contract”, “employee”, “employer”, “freedom of agreement”. It brings in legal certainty, coherence, and predictability. However, at times, it detaches itself from lived and material aspects of life. The process of turning concrete human relationships into formal legal constructs through law is abstraction.
Abstraction in labour law is particularly important, especially in the context of the deep social and economic inequalities it suffers from. The relationship of employment simply doesn’t refer to the exchange of labour power for wages, but rather a structured relationship of dependence and control. The reliance of labour law on abstract categories, such as presuming a contract of employment between formally “equal parties” out of consent, could lead to structural inequalities and power imbalances. Also, the rigid definitions of ‘worker’ or ‘employee’ ought to exclude gig and platform workers or precarious workers whose realities do not fit traditional models.
Thus, in labour law, on one hand, abstraction ensures uniform application and doctrinal clarity, and on the other, it weakens the protective and redistributive objectives that justify labour regulation in the first place. The growing diversification of labour markets, particularly with the rise of platform work and informalization, further intensifies this tension.
- Conceptual Framework: Understanding Abstraction
Abstraction, in simple terms, means “generality” or “deduction”. Abstraction of any doctrine creates a new identity. In India, prior to the enactment of the Constitution, there were group rights that transformed into individual rights through abstraction in the Constitution. Abstraction can be for good or bad. The abstraction of Sharia law in a manner to legitimise authoritative control by the Taliban is an apt example of abstraction for bad. Abstraction to be defined in a jurisprudential manner refers to the whole process of processing legal concepts, categories, and judgments from specific to general contexts, the universal principles applicable across cases, treating individuals not as concrete individuals, but as abstract equals, often shaped by contemporary social realities. The process of elevating rules and rights to higher levels of generality, not focusing on normative details or individual circumstances. This contributes to principled judicial lawmaking but restricts consideration to outcomes from idealized scenarios only and is not subjective. It is condemned for lacking contextual analysis and dubbed “groundless” for applying objective standards to abstract beings.
The formal legal category, the “procedure established”, imposes standardized models, as in the case of the employer-employee relationship, that quietly overlooks factors like exploitation, vulnerable positions, and intersectional factors (gender in work). The lived realities as witnessed in the Indian beedi workers case[1]reveal the loophole or gap between promised welfare by law and failure to implement it due to deductions, subcontracting, and the real factor is that these people possessed formal ID cards. Thus, abstraction prioritizes transferability and efficiency over socio- contextual justice.
In formal or abstract equality, everyone is subjected to the same treatment despite the disadvantages they face within their social framework. On the other hand, substantive equality is asymmetric and aims to cure structural inefficiencies through affirmative actions. While the former reflects strict neutrality, the latter reflects synthesis. The case of IndraSawhney vs.Union of India[2] is an apt example of this, where reservations and ceilings were balanced to achieve real opportunity, not mere identical treatment.
The theories of Legal Liberalism, Marxist Critique, and Critical Legal Studies (CLS) offer contrasting lenses on abstraction in labour law, particularly in the background of equality. The core given importance in Legal Liberalism is formal rules, coherence, and neutral interpretation of texts subjectives individuals as abstract subjects governed by dubious “impartial law”. The critical Marxist views abstraction as masquerading the commodification of labour, where the labour power is traded off to give shape to contractual obligations, creating class power imbalance and an environment of exploitation. Otto Kahn-Freund advocated for the collective power of workers against individual abstractions in labour law. The CLS dubs it a political affair perpetuating hierarchies by ignoring real-life conditions. It perceives law as a tool for maintaining labour dynamics and not as a means of securing justice, thereby abruptly rejecting liberal neutrality.
- Historical development of Abstraction in Labour Law
Abstraction in labour law occurred in three basic stages: Guild Employment, Settlement Laws, and Master Servant Laws.
In the 1500s, there was guild employment where traders formed a community to protect the interests of their trade. There was no porousity- there were strict rules of entering and exiting guilds. People working in the guild were known as ‘journey men’. The word ‘journey’ in French means someone who is in employment for training. Guilds permitted people to form a part of their group once they acquired the requisite skill sets within 6 to 7 years of experience. The systematic deindustrialization of Indian society, tactically by the Britishers, made people go back to primary sources of occupation, and hence the guild system prevailed. The Statute of Artificers,[3] passed by the British Parliament in 1563, gave statutory protection to the guild system, wherein a person who produced a commodity outside a guild could be legally prosecuted. In the case of Hobbs vs. Young[4], an employer was successfully prosecuted for hiring apprentices who lacked the requisite skillset for the guild. This reflected the view of the economy when it didn’t want a change in the system of guilds. There was a shift in this ideology in the case of Reynad vs. Chase[5], where an exemption was created wherein if you need external aid in working of the guild, that wouldn’t amount to a violation of the law.
In the 18th century, the state intervened to amend the poor laws. The first among them were settlement laws. In those times, people maintaining a parish were responsible for taking care of it. People migrated into the urban parish illegally to gain opportunities for work. Birth was no longer needed to be a member of the parish, but rather a year of service or apprenticeship. The protectionist measure shaped into an opportunity to fetch work only. Protectionism extended to a duration of one year. People managing the parish wanted to let go of these people afore one year period due to a lack of required skillsets. So they loopholed the concept of ‘Exceptive Hiring’ wherein an exception was created in the protectionist mechanism to hire people for a term of less than a year or to fire them within the same. Thus, people were pressurized to work skilfully.
Then emerged the Master Servant Laws, the first of them being enacted in 1747, lacking elements of protectionism and social welfare. It focused on the general responsibility of the employer, discipline, contract of wage and hierarchy. The hierarchy created in settlement laws was solidified in this. Unionism came as an insurance in a less protected schema. By the end of the 19th century, Master Servant Laws were replaced by Employment Laws. Employers were still not happy with the levy they got. Now they focused on proving they were not even in the place of employers. The Integration Test and Economic Reality test affirmed the relationship. In the integration test, the employer wanted to absolve themselves of the responsibility of being employers. If it were a contract of employment, liability arose, not for a contract for employment. The Economic Reality Test stated whether the major part of the revenue you need for establishment comes from the person working for you; if affirmative, he would be the employee.
Thus, the shift from guild employment (protectionist mechanism) to Master Servant Laws completed the process of commodification of labour.
- Manifestations of Abstraction in Labour Law
Manifestations of Abstraction in labour law prioritize formal structures over relational power dynamics and diverse work forms.
4.1 Contractual Model
Labour law frames the contract of employment as a voluntary choice between worker and employer, but fails to consider the economic reality and grossly superior position of one person in this obligation. It assumes equal bargaining between the two parties, but in reality, economic coercion exists to agree to the terms of an unfair contract.
4.2 Worker Category
The essential requirements include subordination to the employer, mutual obligation, and the employer’s control. These tactically exempt informal sector – the self- employed gig and platform workers who exclude themselves despite economic dependence. The Social Security Code of 2020[6] provides recognition to gig workers but not the status of employee and related benefits, such as minimum or gratuity.
4.3 Standard Employment Relationship (SER)
SER- The indefinite, full time employee with benefits serves as the norm of the day for entitlements, systematically categorising out temporary, part – time or zero-hour works. Abstraction in such a scenario normalizes these precarious work situations by flexibilizing SER edges (eg, Equal treatment directives) without addressing their erosion.
4.4 Formal Equality
It grants equal and identical legal rights to all, ignoring unequal bargaining powers and the vulnerable social strata of poor workers. On the ground level, these power plays perpetuate exploitation and discrimination. “Equal power” assumptions just limit the protectionist regime.
- Abstraction in Contemporary Context
Contemporary labour law codes amplify abstraction by formalizing individualized, flexible work arrangements that undermine subordination and collective bargaining power. In the context of the gig and platform economy, the process of abstraction is epitomized, wherein Zomato andSwiggy workers are legally labelled as “independent contractors” despite economic dependence on employers. The Uberization Economic Model that replaced long-term contracts with short- term contract. It doesn’t invest in human resource rather downgrades skill sets and makes labour law dead. They are denied basic protections like minimum wages, dismissal safeguards, and union rights. The Social Security Code of 2020 gave them partial status but not welfare. The algorithms created an abstract control by allocating tasks, dictating fares, and creating a surveillance mechanism through tracking GPS or ratings. This “black box” management schema enforces compliance by way of penalties and incentives. This is much more than human oversight,but they are still not in the position of an employer.
The Contract Labour Act[7] abstracts responsibility under the contract. Outsourcing of “non-core” tasks is done with the involvement of intermediaries to evade liability for working conditions or wages. The outsourcing of manpower blurs control through loopholes.
The Indian Labour Codes 2020 aggravate this abstraction by excluding gig and platform workers from this definition of ‘worker’ in the Industrial Relations Code[8]. They expand rights of employers through fixed- term contracts, an increase in layoff thresholds (300+) workers, and standing order exemptions, making “hire and fire” more convenient. The trade unions’ collective bargaining power is reduced as they need 51% support for negotiation. Thus, gig unions with unclear employers suffer the most through this amended legislation.
- Consequences of Abstraction
Abstraction in this specialized field leads to normative and practical difficulties that prioritize formal categories over lived realities. It tactically reduces the workforce and power of unions to individualized contractors, affecting diverse worker sets like gig and platform workers. The law’s concept of “standard employment relationship” severely undermines collective bargaining. This does not provide attention to personal claims of workers, such as wage theft or unfair dismissal. This results in the isolation of worker preventing strikes or class actions, like in the case of the platform economy, wherein algorithmic decisions evade collective scrutiny. The application of formal protection is very narrow, sidelining 90% of workers into informal jobs like the gig economy, outsourcing, and self- employment. It normalizes precarious work by excluding protection mechanisms for “non-standard” work. It expands the unregulated sector amid economic flexibility demands.
These abstract rule demands proof of subordination or control, which becomes elusive in subcontracting or apps, making inspections ineffective. The regulators face no liability compounding resource shortages and corruption in enforcement. The de-emphasis on power imbalances evades the emancipatory role of labour law, reverting to market individualism over de-commodification. The substantive rights falls shorts as formal rights ignore social vulnerabilities, creating an atmosphere of inequality in wealth distribution and social protections.
- Comparative Perspective
The welfare states minimize abstraction through relational protections, the neo-liberal economies maximize it through individualism, and developing models amalgamate these two amid informality.
The welfare model that prevails in Europe facilitates collective bargaining over different sectors. The European Union directive on pay transparency and platform work prioritizes social rights over flexibility. It reclassifies gig workers as “employees” and does upward convergence to counter power imbalances. The neo-liberal economies like the Unites States promotes at-will employment with minimal federal regulation. The National Labour Relations Board protects the rights of unions, whereas state legislation varies. In this model, individual rights dominate as all are treated as independent contractors supressing collective powers. The Labour Codes of 2020 in India consolidate varied laws for promoting so-called “ease of doing business”, fixed- term contracts, and gig welfare without status. It abstracts via diluted worker definitions and flexibility, retaining some protections, thus blending neo-liberal reforms and welfare rhetoric.
- Is Abstraction Inevitable?
Abstraction is an inherent feature of any law to bring uniformity. In labour law, it can violate social justice, which could be solved through meticulous and calibrated flexibility. The law needs abstraction to consolidate general rules applicable across cases to ensure predictability and principled adjudication by avoiding giving discretion. Without it, subjectivity would overpower certainty, as rules should avoid over- or under-coverage. Abstraction promotes legal certainty through “reasonable care” standards but could also lead to detachment from facts, favouring equity- based adjustments. In labour law, the rigid categories exempt gig workers, and over- contextualization leads to systemic protections against exploitation. The labour law should allow flexibility through hybrid tools without detachment: it could provide presumptive employee status for gig and platform workers, allow sectoral bargaining, and permit “non-waivable” minimum protection.
- Reforms Proposed
Abstraction, as stated, is inevitable and necessary, but reforms should prioritize social and ground realities. The courts and regulators should interpret and legislate statutes based on lived realities (eg. Economic dependence in the case of gig workers). In the case of Steel Authority vs. National Union of Waterfront Workers[9], the court expanded the ambit of “employee” to include factors like control and integration. The definition of “worker” should be broadened to include factors beyond subordination, like economic vulnerability. The European Union’s model presumes employment until platform rebates in the case of platform workers, which should be a role model for India’s Social Security Code[10].
The functional test should be incorporated in place of a formal test, like protection should be provided if the nature of work mirrors employment (eg, Algorithmic decisions, continuous gigs). This is similar to ILO Recommendation 204[11] on the transition from formal to informal economy. The inclusion of sectoral unions should be mandated for fragmented sectors like platform workers to allow joint employer negotiations. The threshold set in the Industrial Relations Code 2020[12] should be reduced to include the gig workers’ collective despite lacking a single employer. The provision of affirmative benefits to precarious work reverses the blindness in the formal equality setup. The reservations in hiring or unions should align with the substantive equality given in the Constitution under Articles 14 and 16[13].
The historical formulation of labour law was based on the recognition of unequal bargaining power that rendered protection to precarious workers. The contemporary practice has relied on formal abstractions which ignored the ground realities of workers. The rigid definitions of ‘worker’, ‘employer’, have created an atmosphere of blindness, especially in the context of gig and platform workers through algorithmic controls. In this scenario, labour law should adopt a ‘functional test’ to be reflective of economic dependence and vulnerability of modern workers.
In such a situation, ideas could be drawn from the EU’s ‘presumption of employment’ which ensures substantive equality as envisioned by the Constitution. It is only through the reconciliation between the formal legal constructions and social facts that the law can make sure that labour is an object of dignity and not a simple abstract commodity.
Caveat: The views, analyses, and information presented in this article are provided in good faith and for general informational purposes only. No representation or warranty, express or implied, is made regarding the accuracy, adequacy, validity, reliability, or completeness of the information. Readers should conduct their own research and seek professional guidance where appropriate. Neither the author nor the publisher shall be held responsible for any loss, liability, or consequence arising from reliance on this content.
[1]Mangalore Ganesh Beedi Works etc. v. Union of India etc., (1974) 4 S.C.C. 43 (India)
[2]IndraSawhney&Ors. v. Union of India &Ors., AIR 1993 SC 477, (1992) Supp. 2 SCR 454 (India).
[3] Statute of Artificers 1563, 5 Eliz. 1 c. 4 (Eng.).
[4]Hobbs v. Young, (1689) 1 Show. K.B. 267, 89 Eng. Rep. 634 (K.B.).
[5]Reynard v. Chase, (1721) 1 P. Wms. 733, 24 Eng. Rep. 561 (Ch.).
[6] Code on Social Security, 2020, No. 36 of 2020, Acts of Parliament, 2020 (India).
[7] Contract Labour (Regulation and Abolition) Act, 1970, No. 37 of 1970, Acts of Parliament, 1970 (India).
[8]Industrial Relations Code, Act No. 35 of 2020 (India).
[9]Steel Authority of India Ltd. &Ors. v. National Union Waterfront Workers &Ors., (2001) 7 S.C.C. 1 (India).
[10]Code on Social Security, 2020, No. 36 of 2020, Acts of Parliament, 2020 (India).
[11]International Labour Organization, Recommendation No. 204 Concerning the Transition from the Informal to the Formal Economy, ILO Doc. R204 (June 12, 2015).
[12] Industrial Relations Code, 2020, No. 35 of 2020, India Code (2020).
[13] India Const. arts. 14, 16.
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