MATERNITY BENEFIT UNDER LABOUR LAW

MATERNITY BENEFIT UNDER LABOUR LAW

Author: Affra Mohamed Mubarak, Student, Government Law College – Tiruchirappalli.

Edited by: Madhumita Saha, Student, Lajpat Rai Law College, Sambalpur University, Odisha.

INTRODUCTION

In India, nowadays women have been playing a crucial role as labour/working women. They have become financially independent and supportive of their family responsibility. They can work for both the house and the place they have engaged. Marriage is part of human life women have a major part in building a family. Many jobs don’t provide safety measures for pregnant women. So, women shall be given certain benefits in the workplace. India has worked on the benefits for pregnant women through legal provisions. The Maternity Benefits Act, of 1961 granted maternity leave to all women employees for 26 weeks in the workplace and made sure not to harm them during their pregnancy this also includes post-pregnancy the Act provides eligibility, requirements and benefits for women.

“An act to regulate the employment of women in certain establishment for certain period before and after child-birth and to provide for maternity benefit and certain other benefit”[1]

Maternity benefits are important for women’s careers the law provides benefits for women during pregnancy and after childbirth. “In 2015, 80 countries across the globe were giving Paternity leave along with maternity leave”[2]. The Maternity Benefit Act of 1961 was introduced by the Union of India on 12th December 1961 which aims to protect women employees during their pregnancy but was revised by the Indian Government in 2017 The Maternity Benefits Act, of 1961 has been amended through the Maternity (Amendment) Bill 2017.

The Act also specifies taking maternity leave for 6 weeks after miscarriage unless the miscarriage is a result of medical termination of pregnancy and 12 weeks maternity leave for a surrogate mother and the mother who has adopted a child below three months of age. These benefits help the women to recover from childbirth and have good relations with the newborn and also to take good care of their health. These Benefits can apply to women working in factories defined under the Factories Act, of 1948, mines as defined in the Mines Act, of 1952 and plantations as defined in the plantation labour Act, of 1951. The maternity benefits also apply to women working in government establishments and employed under the Employees State Insurance Act, of 1948.

This Act appoints an inspector by appropriate government through way of notification in the official gazette their duties and power are prescribed under section 15 of the 1961 Act the inspector is considered to be a public servant under section 16 of the Act and in addition to it the appropriate government by way of notification may make rules for carrying out the purpose of this Act. The employer must not force any women to perform work during maternity leave and the employer should pay the women employees as prescribed in the Act. If a woman dies during childbirth or if the child dies and the mother survives the payment for maternity benefit shall be paid to the nominees as said in section 6(1) of the 1961 Act[3] if no such nominees were mentioned then her legal representatives can claim the payment. No deduction of wages in certain cases under section 13 of the Act. The ILO guidelines have addressed the duration of leave for women during maternity leave till the date of delivery.

In Satakshi Mishra v. State of UP[4], the High Court held that the Maternity Benefits Act, 1961 does not contain any such stipulation regarding the time difference between the first and second child for the grant of Maternity Benefits. However, the maternity benefit doesn’t apply to women who are self-employed or less than 10 employees.

keywords: Maternity Benefit Act 1961, Labour Law, Maternity Leave, Article 42 of Indian Constitution, Maternity Benefit (Amendment) Bill Act,2017.

Maternity Benefits

The term Maternity Benefit defines the payment made to women during their pregnancy and after childbirth in addition, women need to be granted medical leave which is maternity leave during and after pregnancy. Every organization with 10 or more employees is subject to the Act and the women must have worked for not less than 80 days in the 12 months preceding childbirth. This act mainly aims to provide all women with a healthy and dignified Motherhood before and after pregnancy “state of motherhood honourably, peacefully, undeterred by the fear of being victimised for forced absence during the pre or postnatal period”[5]. Maternity leave is nothing but leave with wages to the women during and after pregnancy, which is a full salary paid leave for the woman during her pregnancy. The women are only eligible after fulfilling the conditions provided under the Maternity Benefit Act. The employer should pay the women employees if they are fit to receive the maternity benefit payment, the employer cannot deduct the employee’s wage. The employer can allow the nursing women to work from home if the nature of work needs no physical presence[6] the employer cannot dismiss the employee during her maternity leave pointing out the pregnancy and asking her to work more than she can bear.

“Article 4 of ILO states that a woman who have provided medical a certificate as prescribed by national law stating the presumed date of childbirth, women to whom this Convention applies shall be entitled to maternity leave for not less than 14 weeks”[7]

Who can seek benefit?

The Maternity Benefits can be given to all women who are pregnant, adopting a child, or experiencing miscarriage are eligible for Maternity Benefit under the Maternity Benefit Act 1961 as they are considered to be mothers and fulfil the conditions provided in the Act commissioning or surrogate mothers are also eligible to seek benefits until the child is given to the adoptive parents. The woman must have worked for not less than 8 days in 12 months immediately preceding her anticipated delivery to be eligible for Maternity Benefits. Under the Maternity Benefit Act, 1961 the contractual worker can claim the maternity benefit as upheld in the ruling of Rakhi v. State of Kerala[8] and Rasitha C. H. V. State of Kerala[9]

Methods to claim Maternity Benefit

The woman willing to claim the maternity benefit must give notice to her employer as may be prescribed in the Act. The eligibility for Maternity Benefits is under section 6 of the 1961 Act. Following is the information to be in the notice;

  • Name of the women who claim the benefit
  • To attester that she will not work during this period
  • The day from which her leave period would start

The employer must pay the woman after serving notice if she is eligible under the Act 1961.

Advantages of maternity leave in India

 In India, women have set up their careers after years of independence, pregnancy and work should not overlap. Maternity Benefits have played an important role in building up their career. The maternity leave is given to the mother of the newborn to recover and take good care of the child. Heath benefits for the mother of the newborn are to take care of their physical body and be off from work, establish good relations with the newborn which is important for the growth of the newborn and provide job security for the women employee as they can continue to work after the work off. Overall, it helps women in India have secure jobs and build good relations between mother and child.

Maternity Benefit Act (Amendment) 2017

Before the 2017 Amendment, the act provided that women working at a company or factory could take maternity leave up to 6 months before and after they deliver the child and, during the leave period the employer must pay the women employee. Whereas, after the 2017 Amendment various aspects have been added like an increase in leave period, work from home and leave for mothers adopting children.

The Act provides that women can take 26 weeks of Maternity Leave divided as 8 weeks before childbirth and 18 weeks post pregnancy or delivery. While women have 2 children already then 12 weeks maternity leave. Maternity leave can be provided to the mother adopting a child lawfully below three months of age gets 12 weeks of maternity leave eventually the commissioning woman is also considered a biological mother as they use the egg of that woman and places it in another woman’s embryo the leave starts for 12 weeks from the date the child was given to adoptive mother or commissioning mother.

Crèche

The crèche facilities must be provided in an establishment or factory with 50 or more employees. The crèche is to take care of the children while mothers work. There must be one crèche for every 30 children age group of 6 years[10]. The mother should be allowed to meet the children four times a day and must include the resting period to her. National guidelines for setting up crèches after the 2017 Amendment mandates under section 11A to establish crèches at a prescribed distance.

As said in section 28 the state government or central government may prescribe the rules some of the rules are as follows;

  • Crèches are for the children age group of 6 months to 6 years of all categorised employees.
  • The Crèches should be within 500 meters of or at the workplace.
  • The crèches shall be opened from 8 to 10 hours but if the work is based on shift then the crèches must also be shift based.
  • There must be a crèche committee constituted for representatives of the parent or administration.

The crèches should be provided with good ventilation, drinking water and lighting. The crèches must have one supervisor to take good care of the crèches and a trained worker to take care of the children. In the case of Bahra University vs. Pooja Bhardwaj and Ors, the Himachal Pradesh High Court ruled in favour of a female employee who chose not to work in that place as there were no crèches in the workplace[11].

Rights of women employee payment in maternity Benefit

The right to payment in maternity benefits under labour law has been protected and considered a legal right for women to claim. According to Section 5(1) of the Act 1961, every woman is entitled to the payment immediately during her maternity leave for three calendar months. Women must receive an average daily wage of rs.1 whichever is higher the employer makes sure to pay the women during her absence.

The calculation for such payment is based on the woman who worked in the workplace, and the days she was laid off during the 12 weeks immediately preceding her delivery date. Further, if the woman after delivering the child dies or during 6 weeks the employer is liable to pay the entire six weeks, if the child also dies the employer shall pay till the survival of the child including the day of death.

In case both the mother and child die, if the woman is eligible for payment then such payment shall be paid to the nominees mentioned in the notice under section 6 of the Act and if no nominees are mentioned payment to her legal representative by the employer.

National Maternity Benefit Schemes under the Indian government

Under the National Maternity Benefit Schemes (NMBS) women during pregnancy would get rs.500 per pregnancy the eligible person must be a poor household woman for pre-natal and post-natal. This is applicable for women under 19 years and above on two pregnancies.

  1. Janani Suraksha Yojana
  2. Vande Mataram scheme
  3. Pradhan Mantra Matru Vandana Yojana
  4. Pradhan Mantra Surakshit Matritva Abhiyan

 Indian Judiciary on Maternity Benefit

Many case laws deal with the Maternity Benefit. The courts have interpreted the intention of laws and benefits. The case laws are as follows;

Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Another  

The Supreme Court held that the women employed in muster roll on daily wage cannot be restricted to maternity leave under the Maternity Benefit Act, 1961 stating only to regular women employees. This is because every woman will have children and women in the workplace must make it easier for working by the employer. It is hard for women to work and spend time carrying the baby in the womb so the employer must make sure to give maternity leave to working women[12].

Smt. Archana Pandey v. State of Madhya Pradesh & others

In the case of the contractual employees on maternity leave, the Madhya Pradesh High Court has declared after interpretation of laws and other judgments that the constitution of India does want its women employees to get maternity leave and her employer to give all the amenities she needs while giving birth the petitioner is to be given maternity benefits by the respondent[13].

Prachi Sen v. Ministry of Defence (2021)

The Karnataka High Court has dealt with this case on work from home for the mother of a newborn under section 5(5) of the Act of 2017, at the Semiconductor Technology and Applied  Research Centre (STARC) a division of the Indian Ministry of defence the petitioner was working at that place as an executive engineer who has asked for work from home as she was enjoying the maternity benefit but the centre refused the court held that the petitioner in asking work from home is their right under section 5(5) of the 2017 Act but, there are some criteria to which work from home cannot be used as the petitioner’s job was sensitive it cannot be done at home so the court had instructed the institute to take proper measure to provide childcare and concern about the mothers.

Dr. Rachna Chaurasiya V. State of U.P. and others passed (2017)

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 irrespective of their work in nature whether permanent, temporary or contractual basis. The women employees must be granted with 730 days of childcare leave who have minor child or age group of 18 years. Maternity leave cannot be excluded from a woman employee’s employment term.

Maternity Benefit in other countries

More than 120 countries around the world provide paid maternity leave for their working women “In all parts of the world, working women who became pregnant are faced with the threat of jobs loss, suspended earnings and increased health risk due to inadequate safeguards for their employment”[14]

The most paid maternity leave countries are Hungary- 24 weeks, Italy- 5 Months, Canada- 7 weeks, and Spain and Romania-16 weeks for the birth of the child or to care for a newborn. In the US, the Family and Medical Leave Act (FMLA) of 1993 provided 12 weeks of unpaid leave during the 12 months for the birth of a child and the care of the newborn. There is some debate about days and weeks of maternity leave some have the standard of 12 weeks and others with 14 weeks also some countries have less than 12 weeks.

Moreover, some countries provide weeks based on the number of children. In Nepal, women may take just two maternity leave whereas, in the Bahamas and Tanzania, women are allowed to take only one maternity leave in three years. The ILO has given some special protection to women working as childbirth, pregnancy and postnatal periods are very important to women in their reproductive life women’s health is prioritized more than work.

CONCLUSION

The Maternity Benefit Act, of 1961 was introduced to protect and safeguard the women employees in society and their health.  No women shall be deprived of their work in the name of pregnancy and insecurity of their job. The 1961 Act provides eligibility for women to enjoy the benefits provided under the Act and maternity leave of 12 weeks during pregnancy and postnatal for women. The changes were brought in several maternity leave weeks through the 2017 Amendment. The crèches facilities for children 6 years and above mandate the employer to provide. The women shall be allowed to visit crèches four times a day with a resting period. The right to payment by the employer to the employee if both mother and child died then to her representative.   

REFERENCES

[1]Vinod, Maternity Benefit Act, 1961,(Dec. 21,2005)                                                                                                                                      

[2] Miranda Bryant, Paternity leave: US is least generous in the list of world’s richest countries, The Guardian (Jan. 29, 2020), https://www.theguardian.com/us-news/2020/jan/29/paternity-leave-us-policy.

[3] The Maternity Benefit Act, 1961

[4] (Sept.2, 2022),  https://www.livelaw.in/pdf_upload/satakshi-mishra-v-state-of-up-thru-prin-secy-secondary-edu-dept-lucknow-and-4-others-writ-a-no-5114-of-2022-allahabad-high-court-433306.pdf.  

[5] Municipal Corporation of Delhi v. Female Worker (Muster Roll) 2002

[6] Section 5 (5) of Maternity Benefit Act 1961

[7]C183 – Maternity Protection Convention, 2000 (No. 183)

[8] WP(C). No. 30561 of 2017

[9] WP(C). No. 5507 of 2018

[10] Tamil Nadu Government Gazette

[11] [CWC Number 2955 of 2019]

[12] 2000 INSC 129

[13] AIRONLINE 2017 MP 94

[14] F.J.Dy-Hammar, chief, ILO condition of work Branch, Maternity Protection at work.