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  1. 1. Maternity Benefit Act
  2. 2. INTRODUCTION In India women constitute a significant population of workforce i.e. 23.6%.In our country Women with infants and children are working in both informal and formal sectors of economy. Maternity and family leaves are for parents of newborn and newly adopted child which helps the worker to balance their career and family. Maternity leaves are very crucial to provide support for a women's career and also allow for peace of mind as they ensure benefits along with security of work and pay, many employers consider it to be a baseline and may extend the benefits in terms of duration or payment. As the topic is extensive we have Focused on bare act and concerning studies. Here we have also reviewed similar laws governing maternity benefits in selected developing countries .Its main focus on difference in approach towards the Act and possible changes. Limited comparitative review includes Singapore, Malaysia, Thailand, Indonesia and Philippine...the parameters for comparison is also kept limited. Rest of this paper unfolds as follows. Section 1 being the introduction. Section 2 discusses the global landscape of maternity benefits and policies. It also provides more details on the history of maternity policy and the act in India. Section 3 covers the criticisms faced by the act in India and suggestions for the same. Section 4 compares the act in India with the aforementioned countries. Section 5 provides concluding thoughts and scope for further research.
  3. 3. History of Maternity Benefit Act in India Introduction of Bill • The Bombay maternity Benefit Bill was first introduced in 1929 in the Bombay legislative council. • It was the first law established for working women in India. The legislation for working women has always remained a double- edged sword. • The bill was first introduced in Bombay as it was a textile hub for India with more number of textile Industries with more female worker population. • Since, after the introduction of the bill, the number of women workers was retrenched for two reasons, i.e., Due to the introduction of the Maternity Benefit bill and Restriction for engaging women workers in the night shift. • In Pre–Independence era passing of labour legislation was significantly determined by colonial perspective as it had to cater to diverse interests, interests of the colonial state, metropolitan capital, the interests of Indian Business, nationalists Trade unionists and Philanthropists in Britain and India. • A study on the high rate of infant mortality by Lady doctor Barnes, who was appointed by the British Government and she supported the maternity benefit scheme by quoting few reasons which included lack of medical care and nursing, defective sanitation, industrial employment of married women, delivery at the work premise in a poor unhygienic environment. • Mill owners refused as they have to strive for the competition with the rest of the other countries like Britain and Japan, also considered any social welfare legislation as interests of the British Industry and to deliberately bring down the Indian textile Industry. They felt it as an additional burden to paying cotton cess and would destroy the textile industry • Dr. Babasaheb Ambedkar, N.M Joshi and M.K Dixit drafted the bill, and thereafter, defended it in the assembly.
  4. 4. Whose responsibility for providing benefit to women– State, Capital or husband? N.M. Joshi (Trade unionist): Maternity Benefit Fund should be created through a tax on the whole of the industry and should be administered by the local Government. M.K.Dixit: The husband and not the employer should be responsible. BR Ambedkar: The burden of this ought to be largely borne by the Government because the conservation of the people’s welfare is primarily the concern of the Government. • With the above opinions shared, the bill was revised with the onus of responsibility of payment of maternity benefit on to the employers alone. • As Employers felt it is extremely unfair it was amended by changing general tax on all factories to tax only those factories which engage women workers and the bill was passed. • As per the recommendation of Royal Commission on labour in 1929, similar such bills were enacted in other provinces, based on that central Government brought the first central enactment Mines Maternity Benefit Act 1941 and other central legislations like ESI Act 1948 and Plantations Labour Act 1951, Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 which had limited application. Delayed enactment of the Maternity Benefit (post-Independence) The Maternity Benefit Act, 1961 was enacted as per Article 42 of the constitution which states a humane working condition for pregnant women and keeping in view all the pre-constitution legislations and the revised ILO Maternity Protection Convention, 1952. History of Maternity Benefit Act in India
  5. 5. Amendments in MBA
  6. 6.  Commissioning mother included  The maternity leave increased from 12 weeks to 26 weeks  12 weeks for women having more than two or more surviving children  Commissioning mother and a woman who legally adopts a child below the age of three months shall be entitled for a period of twelve weeks from the date the child is handed Over to commissioning mother or adopting mother  Work from home with mutual agreement between the employer and woman  Every establishment having fifty or more employees shall have the facility of crèche  Four visits to crèche in a day which includes the interval for rest allowed  Intimation of maternity benefit in writing and electronically to every woman at the time of appointment Amendments in MBA • The Ministry of Women and Child Development has formulated the National Minimum Guidelines for setting up and running crèches under the Maternity Benefit Act 2017 • The latest amendments increased the employer’s liability in providing maternity benefit to the manifold. • Initially, the benefit was provided to organized sectors now with the latest amendments, women in unorganized sectors are also covered. About 1.8 million women, in the organized sectors, are benefitted. With enhanced benefits, India is now ranking in 10th position with rest of the other countries. It is quite a long struggle for fifty-six years to have the basic rights of health and safety of women. • Maternity benefit bill which was intended to provide protection to the women and to exercise their rights during the maternity period now remains a deterrent to the employment of women in various industries.
  7. 7. Maternity Benefit Act 1961 Maternity Benefit Act 1961 is a law that provides maternity benefits to working women. It also prohibits the employment of women in unhealthy conditions or during night shifts or overtime. Maternity Benefit Act, 1961 is a social welfare legislation enacted by the Parliament of India. It ensures that the women who have been employed for at least 6 months prior to their pregnancy and are employed till the time when they cease to work due to child bearing shall be eligible for maternity benefit. The act extends to the whole of India and applies to all factories, workshops and other premises wherein ten or more persons are employed. It applies not only to female workers but also to male workers in case where a woman is employed during her pregnancy or within six months after childbirth for lactation purposes. One of the main disadvantages of Maternity Benefit Act 1961 is that it does not protect women from being fired for taking maternity leave. The disadvantages of Maternity Benefit Act 1961 are that it does not cover female employees in case of miscarriage or abortion, which are common occurrences during the pregnancy. This exclusion is discriminatory against female employees and should be removed by making suitable changes in the act Lastly, this act does not provide for maternity leave for adoptive mothers or for foster parents taking care of children in need of special care because these people do not qualify as 'employees' under the provisions of this law.
  8. 8. The Maternity Benefits (Amendment) Bill was passed & received assent from the President of India on March 27, 2017. The MB Amendment Act is a welcome move towards protection for women to exercise her right to carry profession guaranteed under Indian Constitution. Applicability: The Act is applicable to all establishments which are factories, mines, plantations, Government establishments, shops and establishments under the relevant applicable legislations, or any other establishment as may be notified by the Central Government. Eligibility: As per the Act, to be eligible for maternity benefit, a woman must have been working as an employee in an establishment for a period of at least 80 days in the past 12 months. MATERNITY BENEFIT ACT 2017.
  9. 9. Increase in Maternity Benefit The period of Maternity Benefit that a woman employee is entitled to has been increased to 26 (twenty-six) weeks. Also , the Act previously allowed pregnant women to avail Maternity Benefit for only 6 weeks prior to the date of expected delivery. Now, this period is increased to 8 weeks. Adoption/Surrogacy: A woman who adopts a child below the age of 3 months, or a commissioning mother will be entitled to Maternity Benefit for a period of 12 (twelve) weeks from the date the child is handed over to the adopting mother or the commissioning mother. No increased benefit for third child. The increased Maternity Benefit is only available for the first two children. The Amendment provides that a woman having two or more surviving children shall only be entitled to 12 (twelve) weeks of Maternity Benefit . Creche Facility: Every establishment having 50 or more employees are required to have a mandatory creche facility. The woman is also to be allowed 4 visits a day to the creche. Work from home- If the nature of work assigned to a woman is such that she can work from home, an employer may allow her to work from home post the period of Maternity Benefit. The conditions for working from home may be mutually agreed between the employer and the woman. Prior Intimation: Every establishment will be required to provide woman at the time of her initial appointment, information about every benefit available under the Act.
  10. 10. Comparison of Maternity Benefit Act of India with some other Countries
  12. 12. ■ When we observe we can clearly understand that the maternity benefits and leave period offered by government in India is high while comparing with the other four countries given above. If we convert that into percentage then India is offering 30% out of 100%, Singapore is offering 18% out of 100%, Australia is offering 20% out of 100%, China is offering 15% out of 100% and Belgium is offering 17% out of 100%. Therefore, INDIA is giving a reasonable and fair level of maternity leave for women employees. ■ In comparison of the above given countries, the act currently in effect in India is beyond par than almost all other countries in some manner or the other. India provides almost 85% more duration of maternity leave than the international convention, whereas, all of these countries provide leave for twelve to fourteen weeks on average. India has a better structure and process of remuneration than these countries. The biggest drawback of the act implemented in India is that the maximum liability falls on the employer and almost nothing on the Government. E.g. Thailand has a social welfare fund, which provides 45 days of maternity leave payment. Moreover, India is the only country amongst the considered, which makes a crèche facility mandatory. Prior to the 2017 amendment of the act, the benefits available in India were comparable to those available in the aforementioned countries. In the past couple of years, India has taken major steps in transitioning from a developing economy to a developed one, by providing multiple benefits to employees to boost the workforce. This includes an increase in facilities of the existing labour laws. This has put India in the 3rd position globally for the maternity facilities it provides.
  13. 13. CASE-1 ON MATERNITY BENEFIT ACT Prachi Sen v. Ministry of Defence (2021)
  14. 14. Background of the case- In India, maternity benefits are governed under the Maternity Benefit Act, 1961 (the “Act”). The Act is applicable to every organization having ten or more employees. As per the Act, every woman who is employed in an organization for eighty days or more is eligible for maternity benefits. In 2017, the Government of India amended the Act and provided for more inclusive maternity benefits to women. Among other changes, a new provision, i.e., Section 5(5), was inserted in the Act, under which the work from home benefit was provided to women availing maternity leave. As per Section 5(5) of the Act, an employer may allow nursing mothers to work from home if the nature of work assigned to them so permits, on mutually agreed conditions between the employer and woman employee. In furtherance of the amendment and due to the Covid-19 pandemic, in June 2021, the Government of India issued an advisory encouraging employers to provide the work from home benefit to nursing mothers wherever the nature of work so permits for at least one year from the date of childbirth. The advisory further directed the employers to spread awareness about the benefits provided under Section 5(5) of the Act
  15. 15. Case Summary- The Karnataka High Court reaffirmed that the work-from- home advantage under Section 5(5) of the revised 2017 Act may only be granted in circumstances where the nature of the task provided to the woman permits her to do so in the case of Prachi Sen v. Ministry of Defence (2021) who held the position of executive engineer At the Semiconductor Technology and Applied Research Centre (STARC), a division of the Indian Ministry of Defence. Following her maternity leave , she had not gone back to work and asked STARC for childcare leave. After she had been out of the office for two months without authorization, STARC sent her a communication asking her to return. A petitioner who was seeking benefits under the Act and contesting the communication, therefore, appeared before the Court who emphasised that she was engaged in sensitive and challenging scientific work., which was private and was not allowed to be made public. As a result, her work was of a type that prevented work from home from being feasible The Court’s ruling specifies the circumstances under which female employees may use the work-from-home benefit . It can be said that the ruling was a good first step toward comprehending the restrictions placed on some companies ability to offer benefits under the Act. Employers should take the initiative to accommodate nursing moms and make sure that there are sufficient childcare services on- site or nearby. As a result, the court determined that the work-from-home benefit under Section 5(5) of the Act would not be available in this particular instance. However, the Court ordered STARC to show compassion for working moms of new borns while taking the pandemic situation into.
  16. 16. CASE-2 ON MATERNITY BENEFIT ACT Dr. Mandeep Kaur v. Union of India
  17. 17. In the case of Dr. Mandeep Kaur v. Union of India (2020), the Himachal Pradesh High Court ruled that contractual employees are also entitled to maternity benefits in addition to all consequential benefits, such as a continuation of service. Facts of the case The Respondents hired the Petitioner on a temporary basis to serve as a medical officer. She requested maternity leave for 180 days, and she received all related perks, such as continued employment. The Respondents, on the other hand, disputed her claim by pointing to the parties’ employment contract, which lacked the clause that would have given her the right to maternity leave. The Himachal Pradesh High Court determined in its ruling on July 15, 2020, that the Petitioner was entitled to maternity leave benefits notwithstanding the fact that the contract did not contain a covenant with respect to the claim. Even though she was employed contractually, the Court ruled that denying her the benefit of maternity leave would be a breach of Article 21 of the Indian Constitution’s intentions. The Municipal Corporation of Delhi v. Female Workers & Anr (2000), which gave a “clear mandate” about the access to maternity leave for women employees who are employed on a daily pay, was one of many rulings on which the Court relied. Additionally, the Court cited two rulings, namely, Rasitha C. H. v. State of Kerala (2018) and Rakhi v. State of Kerala (2017), both of which upheld the right of contractual workers to benefits under the Maternity Benefit Act of 1961.
  18. 18. Provisions discussed in the case The Maternity Benefits Act of 1961 contains the pertinent sections in this case. Section 2 of the Act lists all the circumstances in which it is applicable. The Act is mentioned as being applicable to industries, mines, or plantations, as well as government-owned facilities where workers are engaged for equestrian, acrobatic, and other performance exhibitions. It also applies to any other store or business with ten or more employees that fall under the purview of any currently in effect statute. Another clause that applies in this situation is Article 21 of the Indian Constitution, which stipulates that no one may be deprived of their life or personal freedom unless they are doing so in accordance with a legal process. Judgement delivered by the Himachal Pradesh High Court 1. The Court ruled that every establishment with 10 or more employees has the right to receive maternity benefits under Section 2 of the Maternity Benefit Act of 1961. 2. The Court ruled that although she worked at the ECHS clinic, she was still entitled to maternity benefits under Section 2 of the Maternity Benefit Act of 1961. 3. The Court also ruled that even though she was a contractual employee, she was still eligible for benefits under this statute because all women employees, regardless of whether they had a permanent or contract position, are entitled to maternity leave.
  19. 19. Critical analysis of the judgement In relation to India, this judgement is the appropriate step in securing and advancing working women’s rights. The nation had approved the Maternity (Amendment) Bill, 2017, which expanded the amount of time that working women were entitled to paid maternity leave from 12 weeks to 26 weeks, the third-highest amount in the world. Although the government took this laudable action for working women, it was regrettable that just 1% of all working women were able to take advantage of this “phantom legislation”. Only those who work for companies with at least 10 workers were covered by the rule, which represents a minuscule part of the small number of working women in India. According to estimates, 84% of women work for businesses with fewer than 10 employees, meaning they are not covered by the Act as it is now written. Prior to the verdict, women who were working under a contract were likewise not eligible for maternity leave benefits. This suggests that the bulk of the Act’s beneficiaries would not be able to take advantage of its provisions. However, a lot more working women in India would be able to take maternity leave as a result of the Himachal Pradesh High Court’s ruling. Additionally, the decision is apt for working pregnant women because it guarantees them not only maternity leave till delivery but also other perks, such as keeping their jobs.. The Court correctly held that denying maternity leave to someone who is employed under a contract would constitute a violation of the right guaranteed by Article 21 of the Constitution. Regardless of the nature of their profession, all working women have the right to be treated with respect and dignity at the workplace, and as such, they must be given all the resources necessary to uphold that standard. In order to safeguard their fundamental right to life, women must take maternity leave. Additionally, if she is forced to work while pregnant, the health of the unborn child may also be harmed, which would again be a breach of the mother’s and the foetus’s rights to life. As a result, it’s imperative that all working women receive the benefits of maternity leave.
  20. 20. CASE STUDY : ENERCON(INDIA) Ltd V. ENERCON GmbH (2014)
  21. 21. THE PARTIES Enercon (India) Limited Enercon GmbH This was an Indian company with its registered office in Daman, India, incorporated in 1994 with the collabo-ration of Enercon GmbH. The company was formed to conduct business in alternative sources of energy, specially wind energy, using the patented technology of Enercon GmbH made accessible through patent licensing. The company had planned to manufacture and sell wind turbine generators in India. This was a German company founded in 1984 with its registered office in Aurich, Germany. The company was involved in the business of alternate energy, particularly wind energy. The company held several patents for technology related to wind turbine generators. GmbH (Gesellschaft mit beschränkter Haf-tung) is German for ‘company with limited liability’. A B
  22. 22. FACTS • A dispute between the parties related to non-delivery of certain supplies in accordance to the Intellectual Property License Agreement(IPLA). The important aspects are highlighted here: i. IPLA is governed by the Indian Law ii. The venue for arbitration proceedings was London iii. The applicable law for arbitration proceedings was Indian Arbitration Act
  23. 23. JUDGEMENT • Both the substantive law and the law governing arbitration agreement was Indian Law.The ‘venue’ was London, but there was no mention of ‘seat’ of arbitration. On the facts, the SC held that despite London being chosen as ‘venue’ of arbitration, the ‘seat’ of arbitration was India as parties had specifically chosen Indian Laws to govern different aspects of the dispute. Moreover, they had not designated another forum to be the ‘seat’ using express words to that effect and that besides being designated as the ‘venue’ there was no other factor connecting the dispute to London. Hence India had a closer and more intimate connection with the contract. The court could not find any connecting factors which indicated that London is the seat of arbitration.
  24. 24. • On the other hand irrespective of what the seat of arbitration is, the hearings, meetings and other proceedings of an arbitration can be held anywhere, as agreed to between the parties, and/or with the consultation of the arbitrators, and is commonly known as the ,’venue’ of arbitration. This is for the sake of convenience of the parties and the arbitrators, in saving time,money and labour. • Therefore, it was ruled by the hon’ble SC that London was the ‘venue’ chosen by the parties merely for the conduct of arbitration and India was the ‘seat’.
  25. 25. Understanding the concept of ‘seat’ & ‘venUe’ Every arbitration must have a “Locus arbitri” or the place of arbitration which governs the proceedings of the arbitration and have supervisory powers over the arbitration. The terms “seat” and “venue” often sounds mystifying for deciding the jurisdiction. In general, the “seat” is a place where the court have supervisory and governing powers over the arbitral proceedings. However, the “venue” is a place where the proceedings of arbitration such as hearing of witnesses, experts or the parties or the inspection of goods and properties are concluded. When the venue is designated without specifying the seat of the arbitration in the arbitration agreement then the stated venue is the juridical seat of arbitral proceedings. The courts puts emphasis on the language of the arbitral agreement. When the venue is designated for arbitral proceedings then it can be considered as seat but where the venue is designated for the purpose of hearing or inspections then it may signify that such place is only a venue.
  26. 26. Major Learnings  Article 15(3) of the Indian Constitution empowers the State to make special provisions for women. The main objective of Article 15 (3) is based on “protective discrimination” keeping in view the weak physical position of women.  Article 21 – Right to Life and Personal Liberty means the right to lead a meaningful, complete and dignified life. It does not have restricted meaning. Therefore, the State must guarantee to a pregnant working woman all the facilities and assistance that she requires while protecting her employment as well as her own and her child’s health.  The Directive Principles of State Policy contained in Part IV of the Constitution of India, under Article 41 requires the State to make effective provision for securing the right to work and to education.  Article 42 requires that the State shall make provision for securing just and humane conditions of work and for maternity relief. What are the key features of the Maternity Benefit Act 1961? The 1961 Act seeks to regulate the employment of women in some establishments for a particular period before and after childbirth and to provide for maternity benefit and certain other benefits.
  27. 27. Applicability: The act is applicable to all establishments employing 10 or more employees – factories, mines, plantations, Government establishments, shops and establishments under the relevant applicable legislation, or any other establishment as may be notified by the Central Government. Benefits under the Act:  Leave with average pay for 6 weeks before the delivery.  Leave with average pay for 6 weeks after the delivery.  A medical bonus if the employer does not provide free medical care to the woman.  An additional leave with pay up to 1 month if the woman shows proof of illness due to the pregnancy, delivery, miscarriage or premature birth.  In the case of miscarriage, six weeks leave with average pay from the date of miscarriage.  Light work for ten weeks (six weeks plus one month) before the date of her expected delivery, if she asks for it.  Two nursing breaks in the course of her daily work until the child is 15 months old.  No discharge or dismissal while she is on maternity leave.
  28. 28. CONCLUSION Today, it is a well-known fact that women also need a maternity leave for various reasons. In this regard, the Maternity Benefit Act will be beneficial for them as well as their child. This can be done by taking some precautions such as eating healthy foods, getting enough sleep and rest, etc., which will help them to recover soon. Maternity benefit act then and now is a great opportunity to look at how our laws have evolved over time and what the current state of affairs is. The Maternity Benefit Act has been amended in many ways. From providing a maximum period of 12 weeks leave (excluding the 4 weeks compulsory statutory leave), to providing 16 weeks maternity benefit, to allowing mothers to avail maternity leave both before and after childbirth and so on. The Maternity Benefit Act is a law in India that mandates the payment of maternity benefits for women employees working in private and public sector to enable them to take care of their child and themselves after childbirth. The act was passed by the Parliament of India on 2nd October 1961, and came into effect on 1st January 1962. The Maternity Benefit Act of 1961 was first passed to ensure that working women received adequate maternity benefits. However, a closer look at it reveals that it did not guarantee a minimum duration of paid leave, which could be taken by the woman in the form of cash or medical insurance. Since its inception, this law has been one of the most important laws protecting women's rights at work.
  29. 29. Team Members
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