Introduction
The Maternity Benefit Act, 1961 (‘the Act’) protects the employment of women for a statutory period prior to and post child birth and entitles them to a fully paid leave from work to take care of herself and the child.
Need for the Legislation
For too long now, woman have, across nations, societies and religions, been subjugated to the norms of a male dominant narrative, resulting in both overt and covert discrimination in all spheres in life. While the women’s rights movement was bolstered with inclusion many workplaces, the hardships of being a woman in a primarily place space did not cease to exist. The biggest of them came when women were forced to make the choice between having a career or raising a family, since the task of caring for children was still mostly assigned to the women in the family.
Efforts were made in this regard by the International Labour Organisation (‘ILO’) for the protection of working women during their pregnancy period. Several Indian states provided for this benefit in their legislation, and recognising the need to harmonise these benefits and provide a comprehensive framework, the Parliaments passed the Maternity Benefit Act, 1961 as a measure of social justice.
Scope of the Legislation
The objective of the Act is to —
provide maternity benefits to women workers in certain establishments
regulate the employment of women worker in such establishments for a certain period before and after child birth.
The Act covers all establishments (industrial, commercial or others), except an establishment covered under the Employees’ State Insurance Act, 1948.
Analysis of Important Provisions
Period of Benefit
As per Section 3(h) and Section 5(1) ‘maternity benefit’ is the right of a woman and a duty of her employer wherein the woman is entitled for the payment of maternity benefit at the rate of the average daily wage for a specific period before and after the delivery of the child.
As per Section 5 of the Act, the maximum period for which the benefit under this Act can be availed is a period of twelve weeks. The Maternity Benefit (Amendment) Act, 2017 (‘Amendment’) has increased the duration of paid maternity leave available for women employees from the existing 12 weeks to 26 weeks. This benefit can be availed by women for a period extending up to 8 weeks before the expected delivery date and remaining 18 weeks can be availed post childbirth. For women who are expecting after having 2 children, the duration of paid maternity leave shall be 12 weeks (i.e., 6 weeks pre and 6 weeks post expected date of delivery).
The Amendment extends certain benefits to adoptive mothers as well and provides that every woman who adopts a child shall be entitled to 12 weeks of maternity leave, from the date of adoption.
Conditions
The woman must have been working in the establishment for a minimum period of 160 days in the 12 months immediately preceding the date of her expected delivery.
The woman will have to give notice in writing to the employer under Section 6 of the Act stating a nominee and the date from which she will be absent, which can’t be a date earlier than six weeks of the expected delivery date.
The payment of the benefit for the period preceding the delivery date will be paid in advance by the employer on the production of proof showing that the woman is pregnant and the amount for the subsequent period will be paid within 48 hours of production of such proof showing that the woman has delivered the child. In case the woman has failed to notify about the pregnancy she won’t be disentitled for the benefit.
Medical Bonus
Under Section 8 of the Act, the woman will also be entitled to a medical bonus of Rs. 2500 in case the employer is not providing any pre-natal confinement or post-natal care.
Section 10 of the Act gives an additional leave of one month in case the woman suffers from any illness arising out of pregnancy, delivery, premature birth of child or miscarriage. She will be entitled to this leave after providing proof for the same.
Section 11 of the Act; also provide two breaks during the course of her daily work for nursing the child for a period of fifteen months.
Protection from being dismissed
Section 12 of the Act, protects the woman entitled of benefit under this Act from being discharged or dismissed, in case she is absent from the work in accordance with the provisions of the Act. The only condition in which a woman entitled to benefit can be dismissed or discharged from the work is if she does an act of gross misconduct.
Complaint & Punishment
As per Section 17 of the Act, any woman can complain about withholding of maternity benefit to the Inspector who will be a public servant under Section 21 of Indian Penal Code, 1860. As per Section 23, the limitation period for filing such complaint is one year.
After receiving complain or on his own motion, the Inspector can conduct the enquiry and if satisfied that the payment has not been made or has been wrongfully withheld, can direct the payment to be made. In case a person is aggrieved by the decision of the Inspector the appeal can be made within thirty days to the prescribed authority and the decision of the authority will be final.
The punishment for the contravention of the provisions of the Act is provided under section 21 and the punishment for obstructing the inspector is mentioned in Section 22. The punishment for both these offences are same which can be imprisonment which may extend to three months or fine which may extend to five hundred rupees or both.
2017 Amendment
The Amendment introduces certain new provision —
Work from Home option: The MB Amendment Act has also introduced an enabling provision relating to "work from home" for women, which may be exercised after the expiry of the 26 weeks' leave period. Depending upon the nature of work, women employees may be able to avail this benefit on terms that are mutually agreed with the employer.
Crèche facility: The MB Amendment Act makes crèche facility mandatory for every establishment employing 50 or more employees. Women employees would be permitted to visit the crèche 4 times during the day.
Employee awareness: The Amendment makes it mandatory for employers to educate women about the maternity benefits available to them at the time of their appointment.
Judicial Interpretation
As with many social welfare legislations, entities who have to bear the burden of providing the benefit, in this case the employers, try to find loopholes. In such instances, the Courts have come to the rescue of women workers by interpreting provisions of the Act in their favour, against governments as well as private employers —
Ad hoc employees are entitled to the same maternity benefits as other employees. The failure to renew an ad hoc rolling contract solely based on exercising maternity rights and no other ground, is not permitted.
Women are entitled to receive the payment under the Act in addition to the customary payment under the National & Festival Holidays Act, without any adjustments.
A consolidated salary on a contractual basis is not a ground for denial of maternity rights.
Termination of employment without reason, that coincided with the first day of maternity leave, would be deemed to be termination on account of pregnancy and thus illegal and unjustifiable, despite the contract of employment stating that termination could occur without the provision of reasons.
Unfortunately though, there have been instances where even the Judiciary has been unfavourable towards granting maternity benefits —
A state order exempting certain establishments e.g. hospitals from the provision of the Act was not illegal and consequently the hospital was not obliged to pay maternity benefits to its staff.
Maternity Benefit is not wages within the meaning of the Payment of Wages Act and therefore the Authority constituted under the Payment of Wages Act has no power to direct the payment of these benefits.
Impact on Labour
The Act was intended to protect the employability of women during maternity and to ensure that women are not discriminated against in the workplace for the fact that they would be unable to work for certain periods due to pregnancy. The policy however, has unintentionally ended up disincentivising organisations from hiring women in the first place, to avoid having to bear the burden of providing maternity benefits — resulting in the further decline of the labour force participation of women in India.
A report by TeamLease Services, compiled after surveying 350 start-ups and SMEs, across ten key sectors, published groundbreaking statistics in this regard, revealing that a total of 66% of the respondents would discriminate against female candidates because of the Maternity Benefits Act. Of this —
26% of the respondents explicitly admitted to preferring male candidates as employees, instead of hiring women
40% of respondents expressly stated that they would vet the additional cost of paid maternity leave while hiring female candidates
Moreover, 35% of these respondents stated that they anticipated a negative impact of the Act, and believed that it will impact both cost and profitability of their business.
International Comparison
The reason India suffers is not only due to the gender stereotypes, but due to a model which reinforces these pre-assigned roles. Most countries offer either mandatory paternity leave as well, or provide a shared family leave, to be divided amongst the two parents, with certain safeguards.
In Italy, maternity leave lasts for five months, paid at 80 per cent of a mother’s usual salary. Women must take two months prior to and three months post birth. Both mothers and fathers may access parental leave. Each parent can have six months of parental leave upto a maximum of 11 months per child.
German law allows for 14 weeks maternity leave, of which 8 must be taken after childbirth. German parents have the right to parental leave until their child is three years old. Parents taking parental leave receive parental allowance for 12 month of parental leave per family at a rate of 67 per cent of their usual salary. Two additional months of benefit are available exclusively for the father’s use.
British family leave consists of 52 weeks of maternity leave, 39 which are paid. Women may begin maternity leave up to 11 weeks before expected delivery. Once their leave has begun, they must take all of the leave continuously. There is two weeks of paid paternity leave. In addition, each parent has the right to 13 weeks of unpaid parental leave.
Most countries also do not impose the cost of maternity benefits on the employer, but instead on the government or the social security net. This ensures that the employers are not disincentivised from hiring women due to the cost of maternity.
Conclusion
Although well intended, the provisions of the Maternity Benefits Act have ended up backfiring, defeating the very object for which the legislation was enacted. A report of the International Labour Organisation states that India’s female labour force participation rate (‘LFPR’) has fallen from 34.1% in 1990-00s to about 27.2% in 2011-12. According to the TeamLease report, the amendment has supported the retention of women in the work force — the retention rate of women has increased from 33% to 56%, but the negative impact has been that new women are being turned away from joining the work force, thereby, contributing to the decline of the female LFPR.
The international models help ensure that the woman’s health is protected during maternity, but she is not solely burdened with the task of child care, and the fathers also take responsibility.
India needs to be quick to act on this and adopt this model if it is to bring a change in the social mindset, as well as to improve its female LFPR.