This article is written by Kartikeya Kaul, a first-year student pursuing BA.LLB. from Symbiosis Law School, Noida and Oishika Banerji of Amity Law School, Kolkata. This is an exhaustive article dealing with The Maternity Benefit Act, 1961 and Maternity Benefit (Amendment) Act, 2017 and creche facility.
It has been published by Rachit Garg.
Table of Contents
The Maternity Benefit Act, 1961 is a legislation that protects the employment of women at the time of her maternity. It entitles women employees of ‘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, 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 crèche facility (Section 111 A) came into effect with effect from July 1, 2017.
The advantages that women receive during pregnancy and to encourage child care are known as maternity benefits. India is on the level with international conventions, according to the latest study in this area in India. This article summarises the benefits suggested by international standards and provides a summary of maternity benefits available in the nation. It also strives to compile all recent studies on the subject that are pertinent to India and offers a limited comparison with other nations on the same. Maternity benefits are an essential component of a woman’s employment since they give her the support she needs to think about establishing a family. The laws are in place to help parents after childbirth and during their recuperation period before returning to work. As they guarantee benefits in addition to the mother’s job security and compensation, they also provide peace of mind during this period. The article also aims to give country residents a fundamental grasp of the legislation.
An overview of the Maternity Benefit Act, 1961
The Maternity Benefits Act of 1961 was passed by the Union of India on December 12, 1961, following the country’s independence. The statute included conditional benefits for pregnancy, childbirth, and complications related to those, in conformity with the then-current international standards. The Act covered a lot of areas with meticulous precision and care was paid to many dimensions of considerations influencing maternity benefits, despite the fact that India was still a developing nation and in its 14th year of independence.
The Maternity Benefit Act, 1961 governs maternity benefits in India. Every organisation with ten (10) or more employees is subject to the Act. According to the Act, maternity benefits are available to any woman who has worked for an organisation for at least eighty (80) days.
The Maternity Benefit Act, 1961 aims to provide all the facilities to a working woman in a dignified manner, so that she may overcome the “state of motherhood honourably, peacefully, undeterred by the fear of being victimised for forced absence during the pre or postnatal period”, as was observed by the Supreme Court in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000).
According to the Maternity Benefit Act of 1961, the employer must pay the beneficiary a medical bonus of up to 1,000 rupees if there is no prenatal confinement and no paid postpartum care. The Central Government has raised the medical bonus to 25,000 rupees. If the woman experiences a miscarriage or any other pregnancy-related complications, she is entitled to paid leave. A 30-day extra leave with pay is offered to the beneficiary upon verification of any ailment related to pregnancy. After reporting back to work, the mother is entitled to a break and is allowed two breaks to feed the child until they are 15 months old. The “facility of a crèche” has also been mandated to be available in convenient locations in every firm with fifty or more female employees. Women will be allowed to leave with pay for their tubectomy operation based on the proof provided.
According to the Act, it is against the law for an employer to fire or dismiss a pregnant woman while she is away or on account of her pregnancy, or to give notice of a termination on a day when the notice will expire while she is away, or to change any of the terms of her employment to their detriment. According to the law, light work allotted to pregnant women and breaks for child feeding are not grounds for wage deductions.
The statute is applicable to all businesses, including those that belonged to the government and those that employed people to do equestrian, acrobatic, and other acts for display in factories, mines, and plantations. Additionally, it applied to any store or business with ten or more employees. The inclusion of provisions for industrial, agricultural, and commercial establishments marked the act as a significant improvement over the rudimentary one from 1928. The Act covers all maternity benefits in the following sections:
- Section 4: Employment of, or work of, women prohibited during certain periods.
- Section 5: Right to payment of maternity benefits.
- Section 7: Payment of Maternity Benefits in case of death of a woman.
- Section 8: Payment of Medical Bonus.
- Section 9: Leave for miscarriage, etc.
- Section 10: Leave for illness arising out of pregnancy, delivery, premature birth of a child, miscarriage, medical termination of pregnancy or tubectomy operation.
- Section 11: Nursing Breaks.
- Section 12: Dismissal during absence of pregnancy.
- Section 13: No deduction of wages in certain cases.
- Section 18: Forfeiture of maternity benefits.
The Act was revised by the Indian Government in 2017 to give women more inclusive maternity benefits. Among other amendments, a new clause, Section 5(5), was added to the Act, under which women who requested maternity leave might benefit from working from home. According to Section 5(5) of the Act, an employer may authorise nursing mothers to work from home if the nature of the work that is given to them permits it, under mutually agreed-upon terms.
Features of the Maternity Benefit Act, 1961
- Duration of leave: A woman is entitled to twelve weeks of maternity leave under the terms of the Act, not more than six weeks of which may come before the due date. The ILO guideline at the time took this into account.
- Job protection: According to the guidelines of the 1961 Act, it has been ruled unlawful for an employer to fire or let go of a woman at any time during or because of her absence. However, the employer may notify the employee in writing if the dismissal or discharge is the result of serious wrongdoing.
- Remuneration during leave: Women who meet the requirements for maternity leave outlined in the legislation are entitled to maternity benefits at the rate of the average daily salary for the time that they are really absent from work.
- Financial benefits: According to this law, every woman is entitled to maternity benefits and the option of receiving a medical bonus from her employer in the event that neither prenatal nor postpartum care is provided by the latter at no cost to the employee. The employer is responsible for paying all debts, including maternity benefits, to the woman’s nominee or legal representative in the event of her death.
Benefits covered under the Maternity Benefit Act of 1961
The Act requires the employee to refrain from hiring any known women in any place for the six weeks immediately following the day of the employee’s delivery, miscarriage, or medical termination of pregnancy. During the six weeks immediately following the day of delivery or miscarriage, no woman shall work in any company. The employer shall not require such women to perform any work unless requested to do so by the employed lady.
- Which negatively affects her pregnancy or the foetus’s development normally,
- Any work that could result in her miscarrying or otherwise have a negative impact on her health.
Every woman has the right to maternity benefits, and her employer is responsible for paying them at the amount of the average daily income for the time she was actually away from work, i.e.,:
- The time leading up to the day of her delivery.
- On the day she gave birth and for the period immediately afterwards.
Period of granting maternity benefit
The maximum time a woman may get maternity benefits is twenty-six weeks, not including the eight weeks prior to the due date of her anticipated delivery, as per Section 5 (3), as amended by the Maternity Benefit (Amendment) Act 2017. Furthermore, in the event that a woman passes away within this time, the maternity benefit will only be paid for the days leading up to and including the day of her passing.
According to subsection (4) of Section 5, a woman who legally adopts a child under the age of three months or a mother who commissions an adoption will be eligible for maternity benefits for a period of twelve weeks starting on the day the child is given to the adopting mother or the commissioning mother, as applicable.
In accordance with subsection (5) of Section 5, if a woman’s job requires her to work from home, the employer may permit her to do so after she has claimed the maternity benefit for the time period and on the conditions that they may mutually agree upon.
Conditions for claiming maternity benefit
Only when a woman has really worked for the employer from whom she claims maternity benefits for a period of not less than eighty days in the twelve months immediately preceding the date of her anticipated delivery is she eligible to receive maternity benefits.
Methods of claiming maternity benefit
Any woman wishing to exercise the right to maternity benefit must submit a notice to her employer in the manner and on the form required by the business she is employed with in order to be eligible to claim the maternity benefit as provided for by the 1961 Act. This information should be included in the notice along with:
- The maternity benefit and any additional funds to which she may be entitled in accordance with this Act.
- The name of the individual who should receive such payments.
- A statement stating that she will not work at the company while collecting these maternity benefits.
- The day her absence from work officially started.
Following the woman’s provision of documentation proving her pregnancy, the employer is required to pay the woman’s maternity benefit in advance.
What happens if a woman dies in the duration of the period of maternity leave
The maternity benefit that applies to a woman only lasts up to the date of her death if she passes away within the above-mentioned term of maternity leave. The complete maternity benefit would be payable if the mother passes away soon after giving birth, resulting in the child’s survival. The employer is required to pay the maternity benefit that was in effect as of the date of the child’s death if the child passes away while the mother is still eligible for it. When a woman passes away, these payments must be made to the person she specified in the notification she gave under Section 6 (1) of the Act, or if she did not nominate anybody, to her legal representative.
Filing of a complaint under the Maternity Benefit Act of 1961
A woman has sixty days to appeal the decision if she is denied maternity benefits or medical benefits, released from her job, or expelled while on maternity leave. She may do this by approaching an inspector designated by the Maternity Benefit Act, 1961. In the unlikely event that she disagrees with the inspector’s requests, she has thirty days to make a counteroffer to the suggested expert. If she disagrees with the inspector’s requests or if a more significant legal issue is raised, she may also file a lawsuit within a year.
Advantages and disadvantages of the Maternity Benefit Act, 1961
The existence of a maternity benefit law is crucial for women’s rights and financial stability. This section of the article will draw attention to a few key advantages and shortcomings that specifically relate to Indian law.
- First and foremost, it is certain that every female employee in every store, factory, mine, or on the other hand, manor, is covered by the Maternity Benefit Act, 1961. This means there are no standards to evaluate the type of work women do in these work contexts in order to determine if they are qualified. It is also important to keep in mind that the Act of 1961 permits the state governments to extend the Act to another foundation. For instance, the Keralan government has expanded all of the Maternity Benefit Act, 1961 provisions so that they now embrace foundations classified as business foundations under the Kerala Shops and Commercial Establishments Act, 1960. A business foundation is defined in this example as “a business, modern, exchanging, managing, or protecting foundation, a foundation or authoritative administration in which the people utilised are primarily engaged in office work, lodging, eatery, boarding or eating house, bistro or any other refreshment house, theatre or some other place of open beguilement or entertainment.”
- The Act of 1961 provides full pay (100 percent of salary) for women on maternity leave since it states that female representatives may be paid at the amount of their typical daily remuneration. The maternity legislation, therefore, is more dynamic than the corresponding component in the legislation of several European and other formed nations. The provisions on payment of the Act of 1961 also comply with ILO Convention No. 183, which states that maternity benefits must be based on past earnings and cannot be less than 66% of the woman’s prior earnings.
- Because of the financial independence that salaried work gives women, it also gives them options when faced with violent behaviour at home. Although it might be a result of financial stress, imbalances, or neediness, work drive investment is considered as not being fundamentally positive because it can place a double burden of labour on women who are responsible for all domestic duties in the family. In this sense, corporate perks, especially maternity benefits, are important additions to women’s salaried labour. Maternity leave can create a space that improves a woman worker’s capacity to balance work and family obligations.
Upon reading Section 2 along with Section 3 (e) of Maternity Benefits Act, 1961 (“Act”), 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 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 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 5A and 5B, 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 benefit under the provisions of the Maternity Benefit Act.
Main Highlights of the Amendment in Material Benefit
The Maternity Benefits (Amendment) Bill, 2017 was approved by the Rajya Sabha and Lok Sabha on August 11, 2016, and the President of India gave his assent on March 27, 2017. The Maternity Benefits (Amendment) Act 2017’s provisions become operative in India on April 1, 2017. However, the clauses relating to the childcare facility (Section 11) came into force on July 1, 2017. The Act after the change still adheres to its fundamental principles but offers better benefits and promotes better child care. According to our investigation, the four levels of this statute have undergone the following changes:
- Duration of leave: The amendment offers 26 weeks of maternity leave, not to exceed 8 weeks prior to the anticipated due date unless they have two or more living children. The overall period of maternity leave is shown to have increased by 117% since the previous Act. Additionally, it complies with the ILO’s suggestion of 18 weeks or more. This amendment was passed in order to provide mothers enough time for self-healing and to improve child care, both of which would lower the rate of infant mortality. Adoption is an exception to this rule. A commissioning mother or a woman who adopts a child under three months old is eligible for twelve weeks of maternity leave.
- Job protection: The original Act’s discharge and dismissal clause remain unchanged.
- Financial benefits: No immediate financial benefits have been put into practice. However, the amendment stipulates that a woman has the right to work from home provided both her employer and she mutually agrees to this. Every business with 50 or more employees should include a crèche facility, either independently or as part of the common areas. This is another benefit. The employer will permit the woman four visits to the childcare provider.
The most important modification extends maternity leave from 12 to 26 weeks. According to the WHO, a child should be nursed for 24 weeks after birth to lower the death risk. Additionally, it ought to lower the number of women quitting their jobs as a result of insufficient maternity leave. Additionally, the longer leave period is in accordance with the Maternity Benefits Convention’s suggestion (no. 183). The addition of maternity leave for commissioning and adopting women is an important one that allows them to take care of themselves and their children while also honouring their parenthood. Due to these changes, India now ranks third globally in terms of the number of maternity benefits available to women, behind Canada and Norway.
Impact of the Maternity Benefit (Amendment) Act, 2017 on employability
The effects of the Maternity Benefit (Amendment) Act, 2017 on employability have been listed hereunder:
- Many employers in private companies may refrain from hiring such women who may be about to become pregnant because they are required to give them maternity leave and compensation for that time (up to 26 weeks). Since the amendment, many firms view hiring women as a hardship. The exclusive obligation of the employer to pay all wages in full during the allotted time increases production costs for employers.
- A rise in production cost occurs as the exclusive obligation of the employer to pay all wages in full during the allotted time increases costs for employers.
- The provision makes employers worry about their financial stability, which can lead to a predilection for hiring men over women.
- Losses brought on by extended maternity leave, which helps businesses that generally hire female employees.
- Reduces the employment chances for women employees since businesses are either reluctant to hire them or ask them to quit right before giving birth in order to avoid further liability.
Creche Facility Introduced by Maternity Benefit (Amendment) Act, 2017
In terms of Section 11A of the Maternity Benefit Act, every establishment to which the Act applies and have 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(l), “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.
The center should be near/at the workplace site or in the beneficiaries’ neighborhood, within 500 meters.
The crèche preferably should 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, drinking water and with no unsafe places such as open drains, pits, 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, 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, 1932 or Companies Act, 2013.
A look into National Maternity Benefit Schemes (NMBS) under the Indian government
Under the NMBS, women of households below the poverty line who are 19 years of age or older are given cash help of Rs. 500/- up to their first two live births. This assistance includes both pre-delivery payment and post-delivery payment. The plan has been in operation since 1995. The programme attempts to guarantee financial assistance to underprivileged women during their pregnancies, and in the event that the baby dies, the women can still get the benefit of the programme. The NBMS was replaced by a new programme called “Janani Suraksha Yojana” (JSY) to increase its effectiveness and coverage.
Janani Suraksha Yojana
The National Rural Health Mission launched the Janani Suraksha Yojana in 2005 with the primary goal of reducing maternal and newborn mortality by encouraging institutional delivery among women who belong to vulnerable groups in society. Depending on the pre-programme level of institutional deliveries, the Yojana classifies states as low-performing (LPS) or high-performing (HPS). Frontline healthcare providers known as Accredited Social Health Activists were introduced by the Janani Suraksha Program (ASHAs). The targeted recipients are given financial aid for delivery and postpartum care.
Vande Mataram Scheme
Any obstetric and gynaecological association in India as well as private clinics are welcome to participate in this voluntary programme to provide safe motherhood services. The program’s goal is to decrease maternal mortality and morbidity among expectant and pregnant women by harnessing the extensive pool of skilled workers and specialists that the private sector has to offer. The programme aims to offer free prenatal and postnatal checks, dietary counselling, breastfeeding support through public-private partnerships, etc.
Pradhan Mantri Matru Vandana Yojana
With effect from 2017, the Indian Government launched the Pradhan Mantri Matru Vandana Yojana, a maternity benefit scheme that offers monetary incentives of Rs. 5000 to expectant mothers and nursing mothers. The Yojana intends to offer financial support as partial compensation for wage loss so that the woman can have enough rest before and after giving birth to the first living child. Women who hold regular employment with the federal, state, or public sector undertakings (PSUs), or who get benefits of a similar nature under any other law, are not eligible for the benefit under the scheme.
Pradhan Mantri Surakshit Matritva Abhiyan
To ensure that pregnant women in the country receive high-quality antenatal care, a sort of preventative healthcare, the Indian Government launched the Pradhan Mantri Surakshit Matritva Abhiyan. In order to encourage healthy lifestyles that benefit both mother and child, the Abhiyan provides the beneficiaries with a minimal package of preventive healthcare services on the ninth day of every month at the Pradhan Mantri Surakshit Matritva Clinics.
Maternity benefits in India vis-a-vis foreign nations
The Maternity Benefit Act, 2017, was put in place to help and protect female employees who were expecting by providing them with maternity benefits like pay while they were expecting and bonuses. However, it is only applicable to businesses with 10 or more employees. A woman who has worked as an employee in one of the aforementioned areas for at least 80 days in the previous 12 months is eligible for maternity benefits under the Maternity Benefit Act, 1961. They will get a salary based on their actual absence and the average daily wage base. Since the first of April 2017, this Act has been governing the subject matter of maternity benefits. Some specific advantages of this law include:
- The amount of time that pregnant women can take maternity leave has been expanded by the government from 12 weeks to 26 weeks; the leave can be taken in two parts, namely, 8 weeks before delivery and the remaining time after delivery. After delivery, the leave is used to care for the newborn. Only 12 weeks of leave may be taken for the delivery of a third child; the time is divided between 6 weeks prior to delivery and 6 weeks following delivery. If the child is under three months old, the biological mother of the child who was adopted is also qualified to receive 12 weeks of leave, as is the woman who used her egg to develop an embryo that was implanted in another woman.
- Women who have postpartum illnesses have the option of working from home. Women may be permitted to work from home if they are unable to extend their leave, depending on the nature of their job and their level of comfort. Actually, it takes place as agreed upon by both employers and employees.
- This law enables moms to periodically visit the nursery to care for their children. Women who work in a place of business are permitted to visit their children four times a day, including breaks.
Maternity benefits in China
A summarised version of the maternity benefits in China has been listed hereunder:
- According to the Labour Law of the People’s Republic of China Act, 1995, which was created and enforced to protect workers, pregnant women who are Chinese citizens are entitled to 90 days of leave following the birth of their child. Although there are numerous programmes for female employees in different Chinese cities, this study focuses on the leave and benefits practises in Shanghai as the same has been in discussion on grounds of maternity benefits.
- Pregnant women in Shanghai are granted 98 days of leave, of which they may use up to 15 days before giving birth. In the event that there are any delivery problems, an additional 15 days of leave may be granted. Additionally, if the lady has twins, she will receive an additional 15 days of leave.
- If a woman naturally miscarried during the first four months of pregnancy, she is entitled to 15 days of leave to rest. She can take 42 days off if the pregnancy is terminated after the first four months. With mutual consent between the employer and the employee, several perks may be granted. Depending on the nature and circumstances of the job, women may request lactation leave if her pregnancy proves challenging with the employer’s approval. 6.5 months of leave will be given with the flexibility of work.
- One hour of break time during work hours is an extra benefit of postpartum. Depending on the distance to the parking area and the schedule of the car trip, two pauses for feeding the newborn can be taken after birth, each lasting 30 minutes. A 15-day leave of absence for the new baby’s father is possible. The 98 days of leave permitted are not extended to include any national holidays; the rejoining date will be moved back in accordance with the national holidays that fall during the pregnancy leave term. The woman’s basic wage is determined by her employer or if she asked for insurance, the insurance company.
Every woman in India is entitled to 12-26 weeks of leave, which is converted into days (182 days), but in China, the maternity term lasts 90 days. When expressed as a percentage, China offers 33% of 100%, while India offers 67% of 100%. Thus, it is clear why India offers longer leave periods in contrast to China.
Maternity benefits in Australia
In Australia, a pregnant woman can take up to 18 paid weeks off to take care of herself and her unborn child. Among the requirements for receiving maternity leave are:
- It is open to both expectant mothers and mothers of adopted children.
- Her individual income should be less than $150,000, according to the most recent financial year (2021-2022). Following her request for leave, she is not permitted to work during her pregnancy.
- She needs a permanent special category visa and to be an Australian citizen in order to live there.
- With rare exceptions, a woman who has just arrived in Australia or who is a new resident is not eligible to receive maternity benefits until two years have passed since she has been living there.
- Even so, she is still eligible for maternity benefits if the child dies soon after birth or is stillborn.
- Additionally, the baby’s father can obtain 2 weeks of paid leave, making a total of 20 weeks of leave for the parents to care for the child. She must take a work test within 13 months of the child’s birth.
- A job keeper is someone who works full- or part-time at an establishment. If a person meets the requirements and is eligible, she may receive job keeper compensation.
- She needed to have been employed by the company for at least two years without holding a permanent employment position.
- The family should not be expecting to get any other payments at the same time, such as government paternity leave, partner pay, dad pay, or Australian compensation law.
- One cannot receive both parental and job keeper payments simultaneously.
- The mother has the option of transferring her remaining leave to someone else who is caring for her child, and the father’s and partner’s leave may also be used for the same infant.
- It is only possible if you stay in touch with your company and depend on the environment at work.
Australia provides less maternity leave for female employees than India does. In India, maternity leave for women is granted for 26 weeks, while in Australia it is only 18 weeks. When expressed as a percentage, Australia offers 40% of 100%, while India offers 60% of 100%. So it makes sense that India grants more leave time and Australia grants less when compared to India.
Maternity benefits in Singapore
A working woman in Singapore who wants to receive maternity benefits from her employer and the government must meet the following requirements:
- If the child is a Singaporean citizen, the working mother must have worked continuously for at least three months before becoming pregnant or for three months prior to giving birth if she was self-employed.
- She needs to be officially married to the child’s father.
- The employee was required to provide notification of the employee’s level of maternity leave to the employer prior to one week.
Working women who fall into these categories are entitled to 16 weeks of paid maternity leave. The company will cover the salary for the first eight weeks of leave. After paying the employee for the upcoming 8 weeks of leave, the government will refund the employer that same amount. Only 12 weeks of leave may be taken if the infant is not a Singaporean citizen. For the first eight weeks of leave in this category, the employee will receive their actual income. Depending on the contract that the company and the employee sign, the second four weeks of leave may be granted as unpaid time off.
Some of the exceptions that apply to the above-discussed matter are listed hereunder:
- The mother is entitled to the entire amount of maternity leave if the child is stillborn or dies soon after birth, and it is not counted when she applies for leave for her subsequent child.
- The advantages for the mother of twins are the same as those for a single child.
- If the pregnancy ends in abortion or a baby is lost after 20 weeks, the working woman may be eligible for a solo sick day. It is not covered by the programme for maternity benefits.
Indian companies provide female employees with more maternity leave than Singapore does. In Singapore, the maximum leave period is 16 weeks, compared to 12 to 26 weeks in India. When converted to a percentage, India offers 62% of the total. Singapore is providing 38% of the total. Thus, it seems to make sense that India offers a longer leave duration.
An overview of maternity benefits of contractual workers
Employees recruited under a contract are individuals that are employed for a specific period of time until the project or work is finished. Maternity benefits are those that are provided to female workers in order to safeguard their rights throughout pregnancy and after childbirth. Only organisations with 10 or more workers and women who worked at least 80 days in the 12 months prior to the projected date of delivery are subject to the Act’s rules. Women who were employed under a contract did not have protection under the 1961 Act and were therefore not eligible for maternity leave benefits. In the case of Dr. Mandeep Kaur v. Union of India (2020), the Himachal Pradesh High Court ruled that contractual employees are also entitled to maternity benefits in addition to all consequential benefits, such as a continuation of service.
Facts of the case
The Respondents hired the Petitioner on a temporary basis to serve as a medical officer. She requested maternity leave for 180 days, and she received all related perks, such as continued employment. The Respondents, on the other hand, disputed her claim by pointing to the parties’ employment contract, which lacked the clause that would have given her the right to maternity leave.
The Himachal Pradesh High Court determined in its ruling on July 15, 2020, that the Petitioner was entitled to maternity leave benefits notwithstanding the fact that the contract did not contain a covenant with respect to the claim. Even though she was employed contractually, the Court ruled that denying her the benefit of maternity leave would be a breach of Article 21 of the Indian Constitution’s intentions. The Municipal Corporation of Delhi v. Female Workers & Anr (2000), which gave a “clear mandate” about the access to maternity leave for women employees who are employed on a daily pay, was one of many rulings on which the Court relied. Additionally, the Court cited two rulings, namely, Rasitha C. H. v. State of Kerala (2018) and Rakhi v. State of Kerala (2017), both of which upheld the right of contractual workers to benefits under the Maternity Benefit Act of 1961.
Provisions discussed in the case
The Maternity Benefits Act of 1961 contains the pertinent sections in this case. Section 2 of the Act lists all the circumstances in which it is applicable. The Act is mentioned as being applicable to industries, mines, or plantations, as well as government-owned facilities where workers are engaged for equestrian, acrobatic, and other performance exhibitions. It also applies to any other store or business with ten or more employees that fall under the purview of any currently in effect statute. Another clause that applies in this situation is Article 21 of the Indian Constitution, which stipulates that no one may be deprived of their life or personal freedom unless they are doing so in accordance with a legal process.
Judgement delivered by the Himachal Pradesh High Court
- The Court ruled that every establishment with 10 or more employees has the right to receive maternity benefits under Section 2 of the Maternity Benefit Act of 1961.
- The Court ruled that although she worked at the ECHS clinic, she was still entitled to maternity benefits under Section 2 of the Maternity Benefit Act of 1961.
- The Court also ruled that even though she was a contractual employee, she was still eligible for benefits under this statute because all women employees, regardless of whether they had a permanent or contract position, are entitled to maternity leave.
Critical analysis of the judgement
In relation to India, this judgement is the appropriate step in securing and advancing working women’s rights. The nation had approved the Maternity (Amendment) Bill, 2017, which expanded the amount of time that working women were entitled to paid maternity leave from 12 weeks to 26 weeks, the third-highest amount in the world. Although the government took this laudable action for working women, it was regrettable that just 1% of all working women were able to take advantage of this “phantom legislation”. Only those who work for companies with at least 10 workers were covered by the rule, which represents a minuscule part of the small number of working women in India.
According to estimates, 84% of women work for businesses with fewer than 10 employees, meaning they are not covered by the Act as it is now written. Prior to the verdict, women who were working under a contract were likewise not eligible for maternity leave benefits. This suggests that the bulk of the Act’s beneficiaries would not be able to take advantage of its provisions. However, a lot more working women in India would be able to take maternity leave as a result of the Himachal Pradesh High Court’s ruling.
Additionally, the decision is a breath of fresh air for working pregnant women because it guarantees them not only maternity leave till delivery but also other perks, such as keeping their jobs. Even after giving birth, women can still benefit from this. The Court correctly held that denying maternity leave to someone who is employed under a contract would constitute a violation of the right guaranteed by Article 21 of the Constitution. Regardless of the nature of their profession, all working women have the right to be treated with respect and dignity at the workplace, and as such, they must be given all the resources necessary to uphold that standard.
It’s possible that a pregnant woman won’t even be able to do her job well if she is made to work while having the baby inside her. Even if that is a valid point, it is not the most crucial one in this situation. In order to safeguard their fundamental right to life, women must take maternity leave. Additionally, if she is forced to work while pregnant, the health of the unborn child may also be harmed, which would again be a breach of the mother’s and the foetus’s rights to life. As a result, it’s imperative that all working women receive the benefits of maternity leave.
Indian judiciary and its take on maternity benefit laws
The judiciary has been crucial in ensuring that women in India receive maternity benefits by interpreting the genuine intentions of laws and programmes. Some of the crucial judgments concerning maternity benefits have been discussed in summary hereunder.
B. Shah v. Presiding Officer, Labour Court Coimbatore (1978)
The Supreme Court noted in B. Shah v. Presiding Officer, Labour Court Coimbatore (1978) that it must be remembered when interpreting the terms of helpful laws like the Maternity Benefit Act, 1961, which is intended to achieve the goal of ensuring social justice to female employees employed in the plantation and which squarely falls under the purview of Article 42 of the Indian Constitution.
The question of whether Sundays, which are paid holidays, should be factored into the maternity benefit period computation came up in court. The Maternity Benefit Act, 1961, when taken into account with Article 42 of the Indian Constitution, was intended to assist women in protecting not just their maternity rights but also their ability to work effectively and maintain a stable level of efficiency, as was observed by the Supreme Court of India. She consequently requests any sum that may become due to her in place of paying for the child’s health and medical costs. To help women effectively manage their roles as mothers and workers, the law makes maternity benefits mandatory. Therefore, the Court declared that Sundays would be included in the indicated time in accordance with the rule of advantageous construction.
Municipal Corporation of Delhi v. Female Workers (Muster Roll) and another (2000)
The Supreme Court ruled in Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Others (2000) that there is nothing in the 1961 Act that restricts the right to maternity leave to only regular female employees and excludes other female employees who are employed on a casual basis or on the muster roll on a daily wage basis. This is because the most natural thing in a woman’s life is to have children.
Whatever is required to make it easier for a working woman to give birth to a child, the employer must be sympathetic and considerate of the same. They must also be aware of the physical challenges a working woman would face in carrying out her duties at the workplace while carrying a baby in the womb or while rearing the child after birth. The Maternity Benefit Act of 1961 intends to provide all these advantages to a working woman in a dignified manner so that she may successfully navigate motherhood without being deterred by the fear of being victimised for being absent for an extended period of time before or after childbirth.
Mrs. Savita Ahuja v. State of Haryana & others (1998)
In Mrs. Savita Ahuja v. State of Haryana & Others (1998), the Hon’ble Punjab and Haryana High Court ruled that the petitioner should not be denied the right to maternity leave just because her job was solely temporary or ad hoc in nature. She is entitled to maternity leave with full pay for the duration of her confinement, and it was illegal to fire her from her job due to her pregnancy. Therefore, these female government workers who were hired on an as-needed basis should also be eligible for maternity leave.
J. Sharmila v. The Secretary to Government, Edu. Deptt. Madras (2009)
In J. Sharmila v. The Secretary to Government, Education Dept. Madras (2009), the issue at hand was whether a married government employee was entitled to full payment for whatever maternity leave she took if she already had two living children. The petitioner had twins at her first birth and a single child at her second. Consequently, the maternity leave was limited to the delivery of the second child and was not dependent on the norm for the third child. According to the Court, it is sufficient to say that if the state government wants to provide protection for the woman at her second delivery, it shouldn’t be based on how many children she has had throughout those two pregnancies. The importance must only be viewed from the perspective of the health of the female government employee, not from the perspective of how many children are delivered during each delivery. The petitioner is entitled to receive her entire wage for the time she took maternity leave during her second pregnancy.
K.C Chandrika v. Indian Red Cross Society (2006)
The petitioner’s position as a clerk employed by the Red Cross Society in K.C. Chandrika v. Indian Red Cross Society (2006) is of a temporary nature but is likely to last indefinitely. The respondent granted the petitioner’s request for maternity leave after she made it. Three months were allotted for the leave. The petitioner was shocked to receive a notification from the respondents informing her that her services had been terminated while she was on leave. The issue to be decided was whether K. Chandrika’s service termination was valid or not. The Hon’ble Court determined that the respondent was required to restore the petitioner in service with continuity of service for the computation of service benefits after taking into account all pertinent facts. Therefore, the worker may be called up to make a sacrifice that would only be for the benefit of the public and deserves to be paid wages as far as the grant of back wages is concerned.
Smt. Archana Panedy v. State of M.P & others (2016)
The issue in Smt. Archana Panedy v. State of M.P. & others (2016) was about whether the petitioners, as contractual employees, were eligible for maternity leave benefits. After considering the various judgments, the Madhya Pradesh High Court concluded that the Constitution requires her employer to give her access to all the amenities she needs to give birth and that there is no reason why a woman who works as a contract employee should not receive the benefits of the Maternity Benefit Act. The petitioner is to be given maternity benefits by the respondents.
Dr. Rachna Chaurasiya v. State of U.P. and others passed (2017)
In the present case, the state government was ordered by a division bench of the High Court of Madras to provide 180 days of paid maternity leave to all women, regardless of the type of employment they hold, permanent, temporary/ad hoc, or on a contractual basis. All female employees who are hired regularly, contractually, ad hoc, or temporarily and who have minor children who must be 18 years of age or younger and must be granted a 730-day childcare leave, according to supplementary instructions given to the state response. Maternity leave shouldn’t be separated from or excluded from a woman employee’s employment term.
Prachi Sen v. Ministry of Defence (2021)
The Karnataka High Court reaffirmed that the work-from-home advantage under Section 5(5) of the revised 2017 Act may only be granted in circumstances where the nature of the task provided to the woman permits her to do so, in the case of Prachi Sen v. Ministry of Defence (2021).
At the Semiconductor Technology and Applied Research Centre (STARC), a division of the Indian Ministry of Defence, the petitioner held the position of executive engineer. Following her maternity leave, the petitioner had not gone back to work. She sought to work from home instead, in accordance with the Government of India’s advice and asked STARC for childcare leave. After the petitioner had been out of the office for two months without authorization, STARC sent her a communication asking her to return. A petitioner who was seeking benefits under the Act and contesting the communication, therefore, appeared before the Court.
The Court emphasised that the employee was engaged in sensitive and challenging scientific work. Sensitive in the sense that it involved defence research, which was private and was not allowed to be made public. As a result, the petitioner’s work was of a type that prevented work from home from being feasible.
The Karnataka High Court’s ruling specifies the circumstances under which female employees may use the work-from-home benefit provided by Section 5(5) of the Act. It can be said that the ruling was a good first step toward comprehending the restrictions placed on some companies’ ability to offer benefits under the Act. The ruling should not, however, be seen as giving employers the go-ahead to refuse the benefits under Section 5(5) of the Act whenever the nature of the work is enabled. Employers should take the initiative to accommodate nursing moms and make sure that there are sufficient childcare services on-site or nearby. As a result, the court determined that the work-from-home benefit under Section 5(5) of the Act would not be available in this particular instance. However, the Court ordered STARC to show compassion for working moms of newborns while taking the pandemic situation into consideration and to provide them with suitable childcare facilities.
General recommendations and suggestions
Maternity benefits are an important component of legislation or policy that offers a pregnant worker employment, health care, and financial stability. The government should develop a plan to provide an efficient process that strives to ensure the benefits of employers so that the competitiveness of the private sector is not damaged by burdening the entrepreneur. The Government of India recently proposed funding half of the paid leave amount that companies provide in the extended maternity leave benefit scheme in order to lessen the load placed solely on the employers. The plan is awaiting approval. According to the idea, the government is prepared to cover the wage for seven weeks of additional leave under the provisions for new mothers. Despite the benefits of the various maternity benefit laws and programmes, they can have some negatives, including:
- Only the majority of women employed in the organised sector were able to take advantage of the Maternity Benefit Act of 1961’s benefits. Of the total number of women working in India, only 4% are employed in the formal sector. When a woman gets pregnant, she is immediately viewed as a burden. The Act has a biassed nature in favour of those who work in the formal labour force.
- The Act does not include a provision for paternity leave and places the burden of raising the child solely on the mother. The addition of paternity leave is seen as crucial in order to develop a system that allows for a balance to be struck between obligations.
- The paid maternity leave term is unfair because it is only 12 weeks for mothers who adopt or commission children while it is 26 weeks for biological mothers. It is significant to notice that the amount of time and focus needed to get up and take care of the child is comparable in both scenarios.
- In the event of a third birth, the number of paid weeks is reduced to twelve; this has a negative effect on the child’s upbringing.
- Extended maternity leave puts a financial strain on companies.
- The amount paid under different programmes is insufficient to cover all of a pregnant woman’s needs.
- The Act/schemes should be made known to the public through a variety of channels at the local level to raise more awareness.
- A separate group should be established to examine how the Act is being used and how it is developing.
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 it 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 date for implementing “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 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.
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