Maternity Benefit Amendment ACT, 2017

Author: Ashima Puri & Associate: Surbhi Sawaria

Abstract

The Act regulates the women employment for certain period pre and post the child-birth. The object of the act was to provide full and healthy maintenance of women and her child by safeguarding the dignity of motherhood. The Act was enacted taking into account the various recommendation of certain conventions and Committees like International Labour Organisation (ILO) Maternity Protection Convention, Law Commission of India and the Indian Labour Conference etc. For Eg. The World Health Organisation recommended that “the children must be exclusively breastfed by the mother for the first 24 weeks to improve their survival rates and for the healthy development of both mother and child”.

INTRODUCTION

Through the introduction of the Maternity Benefit (Amendment) Billan attempt was made in Rajya Sabha by Mr.the Minister of Labour and Employment, Mr. BandaruDattatreya on August 11, 2016 to amend shortcomings the Maternity Benefit Act, 1961. Bill was passed byRajya Sabha on August 11, 2016 and then byLok Sabha on March 09, 2017 and received Presidential assent on March 27, 2017 and was enforced from April 1, 2017 and the provisions on creche facility (section 11 A) shall be effective from July 01, 2017. Through this Act amendment was made to provisions related to duration and applicability of maternity leave and other facilities.

Under section 2 of the Act , the Act is applicable to every establishment being a factory, mine or plantations, government establishments, shops and establishments under the relevantapplicable legislation, or any other establishments as may be notified by the Central Government.

In order to be eligible for maternity benefit, a woman must work for a minimum period of 80 days in 12 months prior to her date of delivery and the payment made during the maternity leave is based on average daily wage.

KEY FEATURES OF THE ACT

1. Paid Maternity Leave:

• The period of paid maternity leave that can be claimed has been increased to 26 (twenty) weeks from that of 12 (twelve) weeks. Further, the period of maternity leave that a woman is entitled to prior to the expected delivery date has been increased to 8 (eight) weeks from that of 6 (six) weeks.

• However, the women with two or more surviving childrenare entitled to maternity leave for a duration of 12 (twelve) weeks of which 6 (six) weeks leave can be claimed prior to the expected date of delivery. (Six weeks pre and six weeks post expected date of delivery).

2. For Adopting Mothers and “Commissioning Mothers”

• Any woman who legally adopts a child below the age of 3 (three) years and the Commissioning mothers is entitled to 12 (twelve) weeks of Maternity Leave from the date of the child is handed over to such mothers.

• This provision was not present in the 1961 Act.

3. Creche Facility

• Sec 11A of the Act states that “for every establishment having fifty or more employees shall provide with the facility of crèche within such distance as may be prescribed”. The women shall also be allowed four visits a day to the crèche, including her rest interval.

• This provision is also not present in the 1961 Act.

4. Option to work from home

• The woman may be allowed to work from home after availing the maternity benefit for such period and such conditions as mutually agreed between the employer and the woman. This option can only be made available if the nature of the work is such where the work can be assigned to and done from home.

• The provision was not present in the previous Act of 1961.

5. Employers obligation to inform the woman of her maternity benefit

• Under section 11A of the Act, it is the statutory obligation of the employer “to intimate in writing and electronically to every woman at the time her appointment regarding every benefit available under the Act”.

• The provision was not present in the previous Act of 1961.

DOWNSIDES OF THE ACT.

1. Adverse impact on the job opportunities for women as the increased maternity period has also increased the employment expenses which has to be borne by the employers. Therefore, they will be reluctant to hire women employees.

2. As per the Act, the expenses on maternity leave is to be borne by the employers which are a huge expense for them. It has been stated by the International Labour Organisation (ILO) Maternity Protection Convention that employers should not be solely liable for the cost of providing maternity benefits to their women employees and it has recommended that the benefits should be provided through compulsory social insurance or public funds.

3. The Act provides for 26 weeks maternity leave for 2 children but the period of leave will be 12 weeks for the third child.

4. The Act will be applicable only for the women employed in establishments with 10 or more employees and other notified establishments and is not clear for the women employed in unorganized sectors.

5. There is no clarity about the time period for which the crèche facility will be made available to the employees and also regarding the aspect of availability, frequency and extent of nursing breaks.

6. Lack of uniform leave scheme as there are several labour laws that provide maternity benefits to women in different sectors.These laws differ in their coverage, benefit and financing of such benefits.

7. The Act fails to give due consideration to thefather's contribution toward the woman and the child by not recognizing Paternity Leave. As the wife needs the physical and emotional support of her husband at that time.

CONCLUSION

Though the Maternity Benefit (Amendment) Act, 2017 is a welcome and positive initiative made by the Government towards the improvement of the health and quality of life of the mother and her child. However, the Government needs to come up with the solution of the above stated downsides of the Act.



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