Written by: Shivani Reddy
The Maternity Benefit Act, of 1961 is a legislation that protects the employment of women at the time of their maternity. It entitles women employees to ‘maternity benefit’ which is fully paid wages during the absence from work and to take care of her child. The Act is applicable to the establishments employing 10 or more employees.
The Maternity Benefit Act, of 1961 has been amended through the Maternity (Amendment) Bill 2017 which was passed in the Lok Sabha on March 09, 2017. Thereafter, the said Bill was passed in Rajya Sabha on August 11, 2016. Further, it received assent from the President of India on March 27, 2017. The provisions of the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”) came into effect on April 1, 2017, and the provision with regard to the crèche facility (Section 111A)came into effect with effect on July 1, 2017.
Applicability Upon reading Section 2 along with Section 3(e)of the Maternity Benefits Act, 1961 it can be safely concluded that the Act is applicable to establishments such as factories, (“factory” as defined in the Factories Act, 1948), mines (“mine” as defined in the Mines Act, 1952)and plantations (“plantation” means a plantation as defined in the Plantations Labour Act,1951).
The Maternity Benefit Act also applies to establishments belonging to the Government and establishments wherein persons are employed for the exhibition of equestrian, acrobatic and other performances as per section 2(b).
The said Act is also applicable to every shop or establishment defined under law, wherein ten or more persons are employed on a day during the preceding twelve months and which is applicable in relation to shops and establishments in a particular state.
Thus, considering the above, in Delhi, the Act applies to all “establishments” and “commercial establishments” which are covered under the ambit of Section 2(9) and 2(5) respectively of the Delhi Shops and Establishments Act, 1954. Further, as per the proviso of Section 2 of the Maternity Benefit Act, the State Government may, subject to obtaining approval from the Central Government, declare that the provisions of the Act be applicable to any other establishment or class of establishments which are either carrying out industrial, commercial or agricultural activities or otherwise any other activity.
It may be noted that the provisions contained in this Act, save as otherwise provided in sections 5(A) and 5(B), shall not be attracted to any factory or other establishments to which the provisions of the Employees State Insurance Act, 1948, as per Section 2(2) of the Act.
Further, as per Section 26 of the Act, the appropriate Government has the power to exempt through a notification, an establishment, from the ambit of the Act subject to the conditions laid down in Section 26.
A woman must be working as an employee in an establishment for a period of at least 80 days in the past 12 months to be entitled to maternity benefits under the provisions of the Maternity Benefit Act. Main Highlights of the Amendment in Material Benefit The time of maternity leave which a lady worker is qualified for has been expanded from 12 weeks to 26 (twenty) weeks.
The Act once in the past enabled pregnant ladies to profit from Maternity benefits for just 6 a month and a half before the date of anticipated conveyance and a month and a half after the date of conveyance. Presently, this period has been expanded to 8 months.
The time of maternity advantage of 26 weeks can be stretched out to ladies who are as of now under maternity leave at the hour of usage of this revision in the Act. The improved Maternity Benefit can profit the initial two kids.
According to the revision, a lady having at least two enduring kids will be qualified for 12 (twelve) weeks of Maternity Benefit of which not more than 6 (six) will be taken preceding the date of the normal conveyance.
A lady who embraces a kid under the age of 3 (a quarter of a year, or an appointing mother (that is an organic mother, who utilizes her egg to make an undeveloped organism embedded in some other lady), will be qualified for Maternity Benefit for a time of 12 (twelve).
Each foundation having 50 (fifty) or more representatives will be required to have an obligatory creche office (inside the recommended good ways from the foundation), either independently or alongside other normal offices.
The lady is likewise to be permitted 4 (four) visits per day to the creche, which will incorporate the interim for rest permitted to her.
Work from home
If the idea of work allocated to a lady is with the end goal that she can telecommute, a business may enable her to telecommute post the time of Maternity Benefit. The conditions for telecommuting might have commonly concurred between the business and the lady.
Every foundation will be required to give the lady at the hour of her underlying arrangement, data about each advantage accessible under the Act. The arrangement identifying with “telecommuting has been presented through the Act and can be practiced after the expiry of 26 weeks' leave period. In light of the idea of work, a lady can profit advantage of this arrangement on such terms that are commonly concurred with the business.
The raising of the maternity profits by 12 weeks to 26 weeks is in accordance with the proposal of the World Health Organization which gives that kids must be solely breastfed by the mother for the initial 24 weeks. The expansion in maternity leave can help in expanding the endurance paces of youngsters and solid improvement of a kid.
Creche Facility Introduced by Maternity Benefit (Amendment) Act, 2017 In terms of Section 11Aof the Maternity Benefit Act, every establishment to which the Act applies and has fifty or more employees must establish a Crèche facility within such distance as may be prescribed through notification. The Creche must be established either separately or along with common facilities. The employer must allow women at least four visits a day to the crèche and it shall also include the interval for rest allowed to her. Every establishment is required to intimate in writing and electronically to every woman at the time of appointing her initially regarding every benefit available under the Maternity Benefit Act.
National Guidelines for setting up and running creches under the Maternity Benefit (Amendment) Act, 2017 Section 11A mandates the establishment of crèches within such distance as may be prescribed, either separately or along with common facilities.
As per Section 2(1), “prescribed” means prescribed by rules made under this Act. Further, as per Section 28 of the Act, rules can be prescribed by the State or Central Government as the case may be for carrying out the purposes of the Act.
The following are some of the key guidelines published in the Gazette by the Ministry of Women and Child Development. Crèche For Whom The use of a crèche facility is proposed to be extended to children of the age group of 6 months to 6 years of all employees including temporary, daily wage, consultant, and contractual personnel.
Crèche Location The center should be near/at the workplace site or in the beneficiaries’ neighborhood, within 500 meters. Timings The crèche preferably should be open for 8 hours to 10 hours.
In this case, the workers can follow a shift system. In case the establishment has day and night shifts, then the crèche should also be run in shifts. Facilities to be provided Crèches should be concrete, with a min space of 10-12 sq. ft. per child, with ventilation, and drinking water, and with no unsafe places such as open drains, pits, or garbage bins near the center.
Further, other facilities to be provided include
A guard, who should have undergone police verification.
Ramps and handrails.
Every Creche should have one supervisor per crèche.
The Creche should have a minimum of one trained worker for every 10 children who are under three years of age.
For every 20 children above the age of three, the creche should have one trained worker along with a helper.
No plumbers, drivers, and electricians and other outside persons should be allowed inside the crèche when children are present.
A Crèche monitoring committee should be formed having representations from among crèche workers, parents, and administration.
Forming a grievance redressal committee for inquiring into instances of sexual abuse.
Maternity Benefit (Mines and Circus) Amendment Rules 2019 It is pertinent to note these rules do not apply to Crèches established in Mines and Circus establishments. Crèches in Mines are regulated by the Maternity Benefit (Mines and Circus) Amendment Rules 2019.
Some of the key provisions include
• Rule 2 (b) – The crèches are set up for children under 6 years of age.
• Rule 4- The crèches are divided into 4 Types (A, B, C, D) based on the number of women employed. • Rule 4- Basic Standard requirements to be provided.
• Rule 8- The crèches shall be open during the whole day and open at night if the women employees are at the office.
• Rule 9- Restriction of access to outsiders.
• Rule 10- Guidelines for medical arrangements.
Are creche facilities mandatory?
The language of Section 11A of the Amendment Act, 2017 is that Crèche facilities shall be established at “every establishment”. Thus, going by the rule of literal interpretation, it can be inferred that the section mandates to establish crèches only in those “establishments” covered under the definition of “establishment” under Section 3(e)of the Act.
Further, it can also be inferred that an “establishment” excluded under Section 2(2) or excluded by notification under Section 26 of the Act, is not obliged to set up a crèche as mandated. As mentioned above, Section 11A’s mandate to set crèches applies to “establishments” under the ambit of the Maternity Benefit Act, 1961.
Further, the clarification notification issued on behalf of The Maternity Benefit (Amendment) Act, 2017, clarified that as Section 2 has not undergone an amendment, there are no changes regarding the application of the Act of 1961.
As per Section 2(b), an “establishment” includes every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State. Consequently, crèches are mandatory in all establishments covered under Delhi Shops and Establishment Act, of 1954. As per Section 2(5) of the 1954 Act, “commercial establishment” means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto is carried on..”.
Further, as per Section 2(9) of the Act of 1954, “ ‘establishment’ means a shop, a commercial establishment…”.
Thus, Crèches are mandatory in companies, firms, and consultant companies even though they may be incorporated or registered under The Partnership Act, of 1932, or the Companies Act, of 2013. Maternity Benefit In Code On Social Security, 2020Code on Social Security, 2020 The persistent global gender gap in the workforce has necessitated the development of inclusive policies to increase women's labor force participation, and as a result, several countries around the world have formulated liberal maternity benefit provisions to ensure that motherhood does not become a reason for women to leave the workforce.
According to World Bank estimates, female workforce participation in India has decreased from 26% in 2005 to 20% in 2019, highlighting the stark reality that India's female workforce participation is one of the lowest in the world.
The Maternity Benefit Act, of 1961 is legislation that has been introduced to protect the employment of women at the time of her maternity. It enables women employees of an organization 'maternity benefit' which is fully paid wages during the absence from work and to take care of her child. The Act is applicable to the establishments employing 10 or more employees. This research work is an attempt to give detailed research on the changing landscapes of women's role in today's society from the purview of social justice which is comprehensibly reflected in the legislation and judicial pronouncements of modern-day India.
MAIN OBJECT BEHIND PROVIDING MATERNITY BENEFITS
The prime objective of giving maternity benefits is to maintain women's self-esteem, safeguard their health, and ensure the entire protection of their children. The goal of maternity benefits is to safeguard the dignity of "Motherhood" by providing comprehensive health care to women and their children when they are unable to execute their duties due to illness. Maternity benefits are required so that a mother can devote quality time to her kid without fear of losing her career and source of income.
Section 2 of the Maternity Benefit Act, 1961 applies to
1. every factory, mine, or plantation including factories, mines, and plantations belonging to the government
2. establishments where persons are employed for the exhibition of equestrian, acrobatic, and other performances, and
3. every shop and establishment employing ten or more employees on any day of the preceding twelve months
4. such other shops or establishments are notified by the appropriate government.
The state government can declare that the Act applies to any other type of establishment (industrial, commercial, or otherwise), after receiving approval from the central government and giving two months' notice, this declaration will be published in the official gazette. Further, the Act specifies that nothing in (save Section s 5A and 5B) applies to establishments that are subject to the Employees State Insurance Act of 1984. As per Schedule 1 of The Code on Social Security, 2020:
The maternity benefits set out in the code only apply to the above-mentioned points (1), (3), and (4), and not to places where people are hired to perform equestrian, acrobatic, or other activities. The Code also makes no provision for the state government to declare maternity benefits applicable to any establishment it considers appropriate.
WHO CAN AVAIL MATERNITY BENEFITS
Every woman who has worked in an establishment for at least 80 days (including days for which she was laid off or public holidays) in the twelve months immediately preceding the date of her expected delivery is eligible for maternity benefits, according to Section 5(2) of the Maternity Benefit Act, 1961 and SECTION 60(2) of the Code on Social Security 20201.
While the Maternity Benefits Act of 1961 (as amended in 2017) does not cover the ambit of unorganized workers (leaving 95 percent of India's female workforce out), the Code on Social Security does, stating in Chapter IX that the Central Government shall frame and notify laws and welfare schemes pertaining to unorganized workers on matters such as life and disability insurance, health and maternity benefits, old age protection, education, and other benefits as the government sees fit. The Code also makes provisions for providing maternity benefits to gig and platform workers under Section 114.
PAYMENTS DURING MATERNITY LEAVE
Every woman is entitled to and her employer is accountable for payment of maternity benefits at the rate of the average daily wage for the length of her actual absence under Section 5(1) of the Maternity Benefit Act1961, and Section 60(1) of the Code on Social Security, 2020. Furthermore, if the Employees State Insurance Act, of 1948 applies to an establishment, women employees are still entitled to maternity benefits until they become qualified to claim maternity benefits under Section 50 of that Act, as per Section 5A of the Maternity Benefit Act, 1961 and Section 61 of the Code on Social Security, 2020.
OTHER BENEFITS OF THE ACT
1. According to Section 11 of the Maternity Benefit Act of 1961 and Section 66 of the Code on Social Security, 2020, every woman who returns to work after giving birth is entitled to two nursing breaks (duration to be determined by the Central government) for nursing the child until the child reaches the age of fifteen years.
2. Every establishment with fifty or more employees must provide a crèche facility, and women employees must be granted four visits per day to the crèche facility, according to Section 11A of the Maternity Benefit Act of 1961 and Section 67 of the Code on Social Security, 2020. (including the interval of rest allowed to her)
3. According to Section 12 of the Act and Section 68 of the Code, an employer cannot dismiss a woman for being absent during her maternity leave (Except when the dismissal is for gross misconduct as prescribed by the Central government, then the employer may deprive her of maternity benefit, bonus or both.) If a woman is dismissed or denied maternity benefits while on maternity leave, she has sixty days from the date of the order to appeal to a competent authority, and the competent authority's decision is final, as per Section 12(2b) of the Act and Section 68(2) of the Code.
4. Strenuous work allocated to her under Section 4(3) of the Act and Section 59 of the Code, as well as nursing breaks under Section 11 of the Act and Section 69 of the Code, cannot be deducted from a woman's normal and usual daily salary.
According to Section 11(2) and Section 67(2) of the Act and the Code, every employer is required to inform women employees about the benefits available to them under the Maternity Benefits Act at the time of their hiring, as well as to post an abstract of maternity benefit provisions in a conspicuous place in every part of the establishment where women are employed, as per Section 19 of the Act and Section 71 of the Code.
Under the Act, if an employer violates any provision of the Maternity Benefit Act, 1961, the employer can face a three-month jail sentence, which can be extended to one year, as well as a fine of INR 2000 to INR 5000. As to Section 23 of the Act, a Metropolitan Magistrate or a Magistrate of First-Class shall take cognizance of offenses under the Act. Section 24 of the Act also includes an indemnity clause for anything done in good faith in accordance with the Act.
Under the Code, According to Section 133 of Chapter XII, any employer who will fully ignore maternity benefits to a woman who is entitled to it under the Code is subject to a six-month jail sentence and/or a fine of up to INR 50000. According to Section 134 of the Code, a subsequent offense will result in imprisonment for a minimum of two years and a maximum of three years, as well as a fine of INR 300000. Conclusion The Amendment Act has come into force with effect from 1 April 2017. All establishments covered under the Amendment Act were supposed to amend their existing maternity benefit policies to bring them in line with the Amendment Act with effect from 1 April 2017.
The changes brought through the Amendment Act are applauded by everyone.
However, there are different aspects of the Amendment Act that require clarity. It is not clear whether increased maternity benefits will also be applicable to women who are currently undergoing maternity leave.
Furthermore, the justification for having separate effective dates for implementing the “work from home” option is not clear, for the reason that works from home is an enabling provision brought into force to inspire employers to provide such a choice to a woman depending upon the nature of work being handled by her and not a statutory requirement under the MB Amendment Act.
The requirements like creche facilities require more capital and operating expenditure on the part of the employer. The establishments will have to bear the whole cost of providing leave to employees. In most countries, the cost of maternity leave is shared by the government, employer, insurance agency, and other social security programs.
Throughout history, women have been subject to exploitation and unequal treatment and are struggling to maintain their status in this patriarchal society.
Hence, there is a need to provide some reasonable leverage to the disadvantaged group. There is little question that a lack of good child care is a crucial factor in women's decision not to return to work after having a child. The new change should be beneficial, but employers must be given precise instructions as soon as feasible.
Social Security legislation makes a huge difference toward proving this point. The lack of awareness of women's rights and the limited remedies available to them is one of the reasons for their declining employment rates. In true commitment to the lofty principles enshrined in the Constitution, the legislature has enlarged the breadth and applicability of the Maternity Benefit Act 1961 through many revisions.
The judiciary, for its part, has breathed additional life into the legal framework and has further expanded the entitlements and benefits to women employees, especially casual workers, through several proactive rulings.
http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-s in gl e-vi ew/ar ti cl e/cr ec he - facility-by-employers-in-india-rules-notified-forbangalore.html?no_cache=1&cHash=801899875fd32fe9619c8d79da9d721c