Interpretation of the Maternity Benefit Act, 1961 and 2017

This article interprets the provision of the Maternity Benefit Act, 1961 and the amendment of 2017. This work has been done by Pooja Ganesh student of SASTRA Deemed University

Introduction

The Maternity Benefit Act, 1961 is the legislation enacted to protect; the rights of women in the maternity period. It regulates the employment of pregnant women before, during, and after the birth of a child. Certain monetary benefits are given to the working women during the maternity period through this Act. The act has extended to the whole of India except the state of Jammu and Kashmir. The main intention of this act is to bring social justice to working women.

The provisions of the Act have an application to all forms of establishment, for example, factory, mine, or any type of plantation. But it applies only to those establishments where 10 or more employees are working. The provisions of the Act do not apply to an establishment in which the provisions of the Employees State Insurance Act, 1948 applies. A new bill for amending the Maternity benefit Act was passed in 2017. It received the President’s assent and came into effect in April 2017. The author in this article interprets the provisions of the Maternity Benefit Act, 1961, and the Maternity Benefit (Amendment) Act, 2017.

Prohibition of work for a certain period

Before the delivery of pregnancy, no pregnant women should be allowed to do work involving:

• Arduous nature
• Any work involving long hours of standing.
• A work that may affect the growth of the fetus
• Any work which may lead to miscarriage
• Any work which adversely affects the health of the pregnant women. 

The women under this act are protected under the circumstance of delivery and miscarriage or medical termination of pregnancy. As per section 4 of the act, the employer should not knowingly employ any women employee during the 6 weeks immediately following the day of her pregnancy or miscarriage.

It was held that a woman can avail leave for 6 weeks following her pregnancy or miscarriage, and if she makes a request about that leave, then she cannot be asked to work by the employer as per Section 4 of the Maternity Benefit Act, 1961.[1]

Payment of Maternity benefit

Right to maternity benefit

Section 5 ensures that every woman shall be entitled to maternity benefit. The employer is liable to pay average daily wages for the actual absence of the woman worker. The period of absence includes both before and after delivery. She is entitled to the average rate of her income of the last 3 preceding months before the date of absence or 1 rupee per day or the minimum wages fixed by the Minimum Wages Act, 1948, whichever is higher.

The employee can demand the benefit from the employer only if she has worked under the employer in that establishment. The claim can be made only if she has worked for a period of not less than 80 days preceding her expected delivery date. The employee can demand for the period when she was laid off by the employer.[2] The maternity benefit can be given for only a period of twelve weeks. Further, if she dies during this period, then the maternity benefit will be given only for the days up to and including her date of death. In B. Shah v. Labour Court[3], it was held that Sundays are also included in calculating the period of work preceding the delivery date. As per section 5 of the act, the word period includes the recurrence of the cycle of seven days in a week and it also includes Sunday and other wage-less holidays.

Notice

Section 6 brings a rule that an employee claiming maternity benefit should give notice in writing to the employer. In that notice, she has to mention the maternity benefit and another amount she is entitled to. She can also nominate any other person for receiving the amount. The time-period of the maternity leave and date of delivery should be clearly mentioned in the notice. If the employee has not given the notice in advance, then she has to submit it as soon as possible after the delivery.

Death of a women

The question arises that if a woman dies in the period when she is entitled to maternity benefit, then what will happen to the payment of maternity benefit?

Section 7 of the Act answers that question. If an employee is entitled to maternity benefit, dies before receiving it, then such amount will be received by the person nominated by the employee in the notice given under section 6. If there is no nominee mentioned in the notice, then the legal representative has the right to receive the benefit.

Medical Bonus

Section 8 provides that every women employee entitled to maternity benefit under the Act is also entitled to receive a medical bonus of Rs.1000. The exceptional case is when the employer gives pre-natal or post-natal care to her. The Central Government may increase this bonus amount every 3 years. But it can be maximumly extended only to a limit of Rs.20,000.

Maternity Leave

Every woman through the maternity benefit is entitled to leave with wages. Section 9 of the Act is about to leave for miscarriage. If termination of pregnancy happens to a women employee, then she has to show proof of the same as prescribed by the employer. On fulfilling this condition, she will be entitled to leave with wages. Section 9A says that if a woman is undergoing a tubectomy operation, then on production of proof, she will be entitled to leave with wages.

Under section 10, the other leaves like illness due to pregnancy, miscarriage, or premature birth and tubectomy operation are covered. The employee should produce proof for receiving other leaves. These “other leaves” are added to the benefits provided under Section 6 or 9 of the act. The proof produced should comply with the procedure given by the employer.

Until the age of 15 months, the child needs extra care and attention. So, the act also provides nursing breaks under Section 11. It allows every woman to take two nursing breaks after the delivery of the child, this is additional to the leave or interval already allowed.

The employer cannot do two things under this Act:

• Dismissing the woman from her job for not being present due to pregnancy. (Section 12)
• Deduction of wages to the women employee who is entitled to maternity benefit under this act. Even the employer cannot deduct wages for the nursing breaks. (Section 13)

Section 21 of the Act provides that if an employer contravenes the provisions of the Act, then he shall be punishable with imprisonment for a period of 3 months or a fine of Rs.500 or with both. Also, if the employer has not paid the maternity benefit to the aggrieved party, then the court may direct him to pay such an amount with the fine amount.

Key amendments of the Maternity Benefit Act, 2017

1. The Maternity Benefit Act increased the paid maternity leave period. Before the amendment, the women employees were given 12 weeks of paid maternity leave. After the amendment, this was extended to 26 weeks. Before the expected date of delivery, the women can avail a period of 8 weeks and the remaining period can be availed after the birth of the child. If the woman is surviving with two or more children then she can avail a period of 12 weeks of maternity leave.
2. The commissioning mothers and mothers adopting a child below 3 years are given a period of 12 weeks of maternity leave.
3. The amendment act also introduced the provision of “work from home”. After the expiry of 26 weeks of maternity leave already provided, the women employees can avail the benefit of work from home. This can be availed only from the benefit of terms agreed between the employer and employee mutually.
4. This amendment act also makes it compulsory for the establishments to provide the crèche facility. This is mandatory for an establishment with 50 or more employees. They can visit the crèche 4 times a day, including the breaks given to them.
5. At the time of employment, the employer should make the employee clear about the maternity benefits available. They have the responsibility to educate and guide them.

Drawbacks of the Maternity Benefit Act

Introducing the crèche facility in the establishment will cost more expenditure. Many firms will not have the financial stability to provide such a facility. This may also be a reason for companies to avoid the appointment of young women. Then it will lead to gender discrimination in the recruitment process. The efficiency of work is lost during the period of maternity leave.

The entire cost is borne by the employer. The employer pays the women employee who is on break and also compensates the work which is left undone. On behalf of the absent employee, another person works, who may not be fit for the job. This increases the burden on the employer. Many women lose their jobs because of their demand for maternity leave and benefits.

The cost of maternity leave is not shared by any social security programs or agencies, or any government scheme or agencies. It places a full burden on the employer to pay for maternity benefits. “Work from home” system will not be an effective system. The employer cannot supervise the employee full day to check if the employee is genuinely working or not.

Conclusion

“The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimized for forced absence during the pre or post-natal period.”[4]

This has been proved by the act over these years. Even though they are few drawbacks, the maternity benefit act has over shined the other acts in the sector of labour law by protecting the rights of the employees especially women employees. A woman cannot be made to choose between motherhood and employment.[5]

The maternity benefit act balances the two aspects without bias. This acts bring social justice to women and raises the efficiency of women as a mother and labour.

[1] Punjab National Bank v. Astamija Dash, (2008) 14 S.C.C. 370.

[2] Ram bahadur Thakur v. Chief Inspector of Plantations, (1989) 1 L.L.N. 906.

[3] B. Shah v. Labour Court, A.I.R. 1978 S.C. 12.

[4] Municipal Corporation of Delhi v. Female Workers, 2000 (3) S.C.C. 224.

[5] Rakhi P.V. v. State of Kerala, 2018 (2) K.H.C. 251.