Sonakshi DasWith a view to reduce disparities relating to maternity protection in different states in India, the Maternity Benefit Act, 1961 (“Act”) was passed to provide for maternity benefits to working women while regulating their employment in certain establishments for certain periods before and after child-birth. The Act is applicable to every establishment (including a factory, mine or plantation) and to every shop or establishment employing ten or more persons in the preceding twelve months. Indian labor regulations, especially in relation to maternity benefits, have often been panned as insufficient to suit the cause. The Act, which is in itself a product of beneficial legislation, has often been criticized for having loopholes including the lack of provision for small time workers, women working from home, construction workers, lack of benefits for women in case of adoption, etc.
Having said that, with the recent Maternity Benefit (Amendment) Bill, 2016 (“Bill”) being passed at the Rajya Sabha, working women across different sectors in India seem to exhibit relief for some landmark changes that the Bill proposes to implement. However, various sections of the society have also expressed their displeasure over the Bill being a flawed piece of legislation that needed to be more unambiguous and provide benefits such as paternity leaves, provisions affecting the unorganized sectors, among various other issues that shall be dealt with in this piece.
To begin with, while the Act provisions for a maximum of twelve weeks that a pregnant women could avail of as her maternity leave (“Maternity Period”), not more than six weeks could be availed of as leave prior to child-birth, while also outlining corresponding payment to such pregnant women while on their maternity leave. In contrast, the Bill seeks to increase the Maternity Period to a period of twenty-six weeks, of which, the earlier provision of six weeks preceding the date of delivery is proposed to be extended to eight weeks. This proposed amendment, in particular, has received a great amount of positivity from workforce all around for the fact that it is driven towards a more women-friendly work-environment. Ensuring a longer break will also enable women employees to effect a smooth transition, making it easier for them to be reabsorbed by their employers and the company once they return to work.
Having said that, the Bill, however, still remains silent on the applicability and scope of Maternity Period for women employees working on a temporary or seasonal basis, including wage earners. Especially in a country where rate of women work participation in urban area is considerably lower than that in the rural area, such discrimination is seen as a major drawback. There is no doubt that women in the unorganized sector are majorly subjected to exploitive work conditions, in terms of wages as well as leaves, inter alia. Given the nature and dimension of work involved for seasonal/temporary workers like those engaged in cultivation, dairy farming, or plantation workers etc., maternity benefits for such a class of workers is the need of the hour for the very fact that their time-frame/duration of work, income per month, etc., are widely different as opposed to the system of work in the organised sector. Evidently, there are two major concerns which have been left open in the loop: firstly, to what extent does maternity benefits for such class of women are available; and second, does the non-inclusion of any sector specific benefit imply an absolute dis—entitlement to any of the benefits under the Act; if the answer to which is in affirmative, then what is the possible recourse or alternate source of maternity benefit that could be availed of. An amendment of this nature should not have been blind to the need for recognizing the sensitivity of women in the unorganized sector.
Add to that, the Bill limits the Maternity Period for women having two or more than two living children to a maximum of twelve weeks, of which not more than six weeks preceding the date of delivery can be availed of as maternity leave. With this fresh bout, new provisions for ‘adopting’ and ‘commissioning’ mothers have been proposed, where such commissioning women or women legally adopting a child below three months of age, would be granted a Maternity Period of twelve weeks from the date of handing over of the child to such adopting or commissioning mother, as the case maybe. This proposed change for the aforementioned mothers, however, has fallen short of being a complete bolstering element for integrating the adopted or commissioned children into the new environment through its limitation of the children being up to three months old. In case of an adoption specifically, there exists a requirement of a more mental acclimatizing element for the older child to establish familial ties and it cannot be overlooked by providing a limitation age of only three months. The entire base of providing maternal benefits to women lies in the facilitation of unhampered health of the mother and of the child’s initial growth in presence of the parent. However, in case of an adoption of an older child specifically, the mental element is much more profound for the child’s development and calls for the unhindered support from a parent, making a provision for leave for such situations quite necessary as well.
Also, another burning question that arises from an understanding of this Bill is that of the lack of its applicability on the massive unorganized sector in India where the majority of women work today. In these sectors, pregnancy becomes a core reason for the women to lose their jobs and without any legislation to provide for their protection from such unfair treatment and exploitative conditions, their impediments continue.
On the brighter side, however, a welcome change by way of providing compulsory crèche facilities at every such establishment with fifty or more employees is proposed. A total of four times visit, including the woman’s interval for rest, will be allowed per day. More on the practical side, labor forces in India are seldom aware of their rights and privileges applicable onto them within the system that exists and operates. Despite mandates on employers to keep employees informed of their rightful benefits, varying degrees of communication mismatch often results in tweaking outcomes. The Bill also introduces a provision which requires every establishment to intimate a woman at the time of her appointment of the maternity benefits available to her, both in writing as well as electronically.
Moving further, given the limited flexibility of work involved in the corporates, probably the most imperative yet ambiguous of the amendments under the Bill could be the introduction of the ‘work-from-home’ option. Such an option can be availed of after completion of the applicable Maternity Period, subject to the nature or conditions of work and mutual acceptance between the employer and the employee. The language of this provision in particular, however, is broad and invites more scope for discrepancy, especially in a country like India where the employer mind-set has often been regressive when it concerns women and pregnancy. The Bill does not detail specific circumstances under which work-from-home option could be availed of. Even though it is subject to satisfaction of both employer and employee, it is quite possible that in certain cases employer discretion may take the forefront and eventually defeat the purpose for which this additional option has been cushioned in. On similar lines, given the limited clarity of the provision, whether women employees can claim the benefit as a regular entitlement as opposed to it being a subjective addition to the Maternity Period, is left to question.
In light of these proposed amendments, industries have come up with varying responses from perspectives of both the employer and the employee. No doubt that implementation of certain provisions will result in higher costs for the employers and the organization as a whole. What might draw up as a challenge is to stabilise the costs as well as efficacy in case of medium and small enterprises, and in particular, smaller organizations or teams within an organization which are majorly women-driven; or for that matter, where the top-level management of a team within an organization is women-centric.
While compulsion on employers to provide for crèche facilities close to the establishment may result in financial as well as infrastructural burden on them, this mandate might open up fresh rings of gender equality within the organisation. At present, a lot of companies have already gone beyond the ordinary and have come up with provisions and facilities that may suit the needs of women. However, at this rate, what may be of consequence is the possible underlying apprehension in minds of employers to recruit new women employees, what with the added structural and monetary benefits which otherwise could be done away with.
That apart, the Bill might also bring about questions from within the organisations in relation to renewing their existing maternity benefit policies in view of the proposed amendments. While under law there is no mandate as of date to put in place revised policies with the proposed changes, however, certain Indian companies have already taken a leap ahead and have in place an extension of maternity period up to twenty-six weeks.
As of now, Indian laws do not have any provision for paternal leaves available to employees in private sector. Having been over talks for a while, the Bill, however, is silent in this regard. While organisations are at liberty to draft respective policies and/or include provisions for paternity leaves therein, there is still a long way to go for the law to provide for paternal specific benefits. While in entirety the proposed amendments may be seen as a welcoming change, there is no doubt that the Bill still lacks on a series of pressing concerns. Till such time the Bill is passed and becomes enforceable, deliberations on the applicability of the amendments and drawbacks along-side is plausible. What may be focused is the real structure in which these changes will be implemented within organizations and how far the same meets the intention behind the proposed amendments.(Sonakshi Das, Associate, J Sagar Associates)
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