Key clarifications by Govt on applicability of Maternity Benefit Act
Since the enactment of the law, there has been lot of doubts and concerns with regard to the applicability of the law. Provisions of the Amendment Act have come into force with effect from 1st April, 2017, except those relating to crèche facility, which will come into force on 01.07.2017.
Therefore, Ministry of Labour and Employment in consultation with Chief Labour Commissioner have come up with the circular addressing all queries on the provisions of The Maternity Benefit (amendment) Act.
Some of the major clarifications issued by the Ministry include:
• The women who are already under maternity leave at the time of enforcement of the act can avail the enhanced maternity benefits of the act. But those women who have already availed 12 weeks of maternity leave before enforcement of the Maternity Benefit (Amendment) Act, 2017 i.e. 1st April , 2017 , shall not be entitled to avail the extended benefit of the 26 weeks leave.
• The Act provides protection to women in case she is fired by the employer after learning about her pregnancy. The Section 12 of the Act emphasizes that any dismissal or discharge of women during the pregnancy is unlawful and such employer can be punished under 21 of the Act.
• The Act is applicable to all women who are employed in any capacity directly or through any agency i.e. either on contractual or as consultant. There was no amendment in section 2 of the act, hence the original provision prevails.
• The Maternity benefit Act is applicable to all women working in mines, plantations, shops and establishments and they can either be in organized sector or unorganized sector
Besides increase in the maternity leave from existing 12 to 26 weeks for working women, with less than two surviving children, some of the provisions were added to the act, which include- provisions for work from home for nursing mothers, mandatory provision of crèche for establishments having fifty or more employees , extension of twelve weeks maternity benefit to the ‘commissioning mother’ and the ‘adopting mother’ from the date the child is handed over .
As per the Amendment, the government is required to prescribe the distance of the crèche from the establishment. However, apart from the distance (and the cost factor discussed above), the government should also endeavour to provide other clarifications, such as the age till which a child can be kept in the crèche (the Factories Act, 1948 prescribes an age limit of 6 years), specific requirements around construction, facilities and staff of the crèche, etc.
India poses a unique challenge when it comes to recruiting, retaining women talent. While the statistics don’t really paint a nice picture, the Act surely gives a head-start to what needs to be done. Nearly 45% Indian women say their decision to leave their jobs was strongly influenced by the prevalent notion that women must take care of the household while men must work and provide for the family. The labour force participation rate for women is falling, from 37% in 2004-05 to 29% in 2009-10. In the rural areas, the percentage of women workers is 25%, while in the urban areas, it is just 15%. Out of 323 total executive directorship positions on the Bombay Stock Exchange, just eight are held by women.
Organisations which already provide 6-month paid maternity leave include HCL, Flipkart, Microsoft, P&G, Nestle, Infosys, RIL, Tata Group, among others. Now, India has reached the third position in terms of the number of weeks for maternity leave after Canada and Norway where it is 50 weeks and 44 weeks, respectively