This article is written by Kartikeya Kaul, a first-year student pursuing BA.LLB. from Symbiosis Law School, Noida. This is an exhaustive article dealing with The Maternity Benefit Act, 1961 and Maternity Benefit (Amendment) Act, 2017 and creche facility.
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.
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 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 Maternity Benefit 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 be profited for 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 underneath 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.
Prior Intimation: 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 “telecommute 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 the maternity leave can help in expanding endurance paces of youngsters and solid improvement of a kid.
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.
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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