Maternity Benefit Act, 1961

Maternity Benefits Act, 1961 Objective The Maternity Benefit Act, 1961 (Maternity Benefit Act) regulates the employment of women in certain establishments for a certain period before and after childbirth and provides for maternity benefits and certain other benefits including maternity leave, wages, bonus, nursing breaks, etc, to women employees. The object of the Maternity Benefit Act, 1961 is to protect the dignity of motherhood by providing for the full and healthy maintenance of a woman and her child when she is not working. Maternity leave is very important for the health of the new-born baby because it enables the working woman to exclusively breast-feed her child for six months after birth, which is also recommended by the World Health Organisation. This period also enables the working mother to recuperate herself before she returns to work as well as bond with the child,”, say Maneka Gandhi. Application of Act. -- The Act is applicable to Every establishment being a factory, mine or plantation Every shop in which 10 or more persons are employed on any day of the preceding 12 months. Provided that the State Government may, with the approval of the Central Government, after giving not less than two months notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. The Ministry has clarified that women employed in any capacity, directly or through any agency, both in organized and unorganized sectors are covered under the ambit of the Act. Condition for Eligibility of Benefits No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery For the purpose of calculating the days on which a woman has actually worked in the establishment, the days for which she has been laid-off during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account. Paid Leaves Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day. What constitutes wages here: n) "wages" means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes-- (1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to; (2) incentive bonus; and (3) the money value of the concessional supply of foodgrains and other articles, But does not include-- (i) any bonus other than incentive bonus; (ii) over-time earnings and any deduction or payment made on account of fines; (iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and (iv) any gratuity payable on the termination of service; The maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks of which not more than eight weeks shall precede the date of her expected delivery. Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery: Leave for commissioning mother A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be. Leave for miscarriage, etc.-- In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy. Question: Is this valid for women who are not married. Answer: No, that is for legal marriages only. Leave with wages for tubectomy operation In case of tubectomy operation, a woman shall, shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of her tubectomy operation. Question: If a lady takes leave for more than specified in the act then is the Employer liable to give benefits. Answer: No Question: Is a woman employee engaged through a contractor also eligible? Answer: Yes. Every woman employee, whether employed directly or through a contractor is entitled to receive the same benefits as a woman working in any agency or an establishment. Work from Home scenario Question: If the work can be done Work from Home and the woman still says no to the work then can the employer deduct leaves. Answer: No. In the case of B. Shah v, Labour Court, Coimbatore and Others (1978-1 LLJ 29), the Supreme Court held that the computation of maternity benefit in case of a female worker engaged on a daily wage basis has to be made for all the days, including Sundays and rest days which may be wageless holidays, upto six weeks preceding and excluding the day of delivery, as also for all the days falling within six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equalling 100 % of the wages which she was previously earning but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods. This being a beneficial piece of legislation, the interpretation of law is in tune with social justice. It is also in conformity with the Maternity Benefit Protection (Revised) Convention adopted, by the ILO in 1952. The court struck down the decision of the full bench of -the Kerala High Court in Malayalam Plantations Ltd. v. Inspector of Plantations (A.I.R. 1975 Ker. 86). The computation of maternity benefit in case of a female worker engaged on a daily wage basis has to be made for all the days including Sundays and rest days which may be wageless holidays upto six weeks preceding and excluding the day of delivery as also for all the days falling within six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equalling 100% of the wages which she was previously earning but also the benefit of the wages for all the Sundays and rest days falling within the aforesaid two periods (B. Shah vs. Labour Court, Coimbatore and Ors. 19'781 LLJ 29 SC). Work on half days and the period during which women worker was laid-off should be included in calculating the days of qualifying service (Ram Bahadur Thakur vs. Inspector of Plantations 1989 II'LLJ 20). Notice of claim Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit. Medical bonus. Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of thirty-five rupees, if employer does not provide free medical care to the woman. This Act has not increased the medical bonus amount payable which is currently low and does not match up to the current inflationary trends. Question: Is medical bonus paid over and above the maternity benefit? Answer : Yes, Medical bonus of Rs. 3500 is provided over and above the maternity benefit Nursing breaks. Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months. Crèche facility.-- Every establishment having fifty or more employees shall have the facility of créche within such distance as may be prescribed, either separately or along with common facilities. The employer shall allow four visits a day to the creche by the woman, which shall also include the interval for rest allowed to her. Dismissal because of Maternity is unlawful. However where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both. Chandrika v. Indian Red Cross Society- Here, the Petitioner was terminated while she was on maternity leave. The relief of reinstatement and consequential benefits were denied to her. Also, there was no evidence to show that the Petitioner had received the communication. The Court held that the Petitioner’s services had been terminated illegally and she should be reinstated with the service and avail the necessary benefits. Air India v. Nergesh Meerza- In this case, Air India Corporation (AIC) Act and Indian Airlines Corporation (IAC) Act formulated certain regulations between the conditions of retirement and termination of service pertaining to air hostesses (AH) and those of male pursers (MP) forming part of the same cabin crew and performing similar duties. These conditions were that an AH under AIC retired from service in case of ‘first pregnancy’. The Court held it to be “grossly unethical” and as smacking of “deep rooted sense of utter selfishness at the cost of all human values” as compelling to terminate services if a woman becomes pregnant would amount to forbidding her not to have any children. It has been stated that mere pregnancy should not be considered to be a disability but a natural outcome of marriage and any distinction made on the ground of pregnancy is extremely unreasonable and manifestly arbitrary. Abstract of Act to be displayed An abstract of the provisions of this Act and the rules made thereunder in the language or languages of the locality shall be exhibited in a conspicuous place by the employer in every part of the establishment in which women are employed. Employers obligation to inform the woman of her maternity benefit It is the statutory obligation of the employer “to intimate in writing and electronically to every woman at the time of her appointment regarding every benefit available under the Act”. Employees' State Insurance Act, 1948 The provisions of the Maternity Benefit Act shall not apply to the employees who are covered under the Employees' State Insurance Act, 1948 for certain periods before and after child-birth and for which the ESI Act provides for maternity and other benefits. The coverage under the ESI Act is, however, at present restricted to factories and certain other specified categories of establishments located in specified areas. The Maternity Benefit Act is, therefore, still applicable to women employees employed in establishments which are not covered by the ESI Act, as also to women employees, employed in establishments covered by the ESI Act, but who are out of its coverage because of the wage-limit. Practical aspects Gender discrimination against women having childbearing age: It is seen that many employers discriminate against women of childbearing age. Additional requirements like creche facilities require more capital and operating expenditure. Hence some companies in India shy away from hiring young women. Practically if an Employer needs to terminate then they might terminate these females first. In most countries with extensive child care benefits, the government shoulders at least some part of the financial responsibility. In Singapore, for example, the employer bears the cost for 8 weeks and public funds for 8 weeks. In Australia and Canada, public funds bear the full cost. A social insurance scheme bears the cost in France. In Brazil, it shared by the employer, employee and the government.In India, however, except for the fraction of employees covered under the Employee State Insurance Act (ESI Act) (i.e. employees earning not more than INR 21,000 per month), maternity benefits have to be financed by the employer. Therefore, there is an apprehension that the requirement of providing increased benefits under the Amendment has a negative impact on diversity ratios at the workplace. Question: Are Paternity leaves there Answer: Not mandatory by law, but companies can give. Question: What are the non-cash benefits or privileges? Answer: A women worker is also entitled to the following privileges: i) Light work before the date of her expected delivery, if she asks for it. ii) Two nursing breaks in the course of her daily work until the child is 15 months old. iii) No discharge or dismissal while she is on maternity leave. iv) No change to her advantage in any of the conditions of her employment while on maternity leave. v) Pregnant women discharged or dismissed may still claim maternity benefit from the employer. Exception : Women dismissed for gross misconduct lose their right under the Act for Maternity Benefit.