Maternity Benefit (Amendment) Act 2017: Significant Provisions and Issues
The Maternity Benefit (Amendment) Act 2017 had received Presidential assent on 27 March 2017 after being passed by the Parliament. The Act has made amendments to the Maternity Benefits Act, 1961.The majority of the provisions of the Maternity Benefit (Amendment) Act has come into force with effect from 1st April, 2017.
The main aim of the Act is to regulate the employment of women during the period of child birth. It has amended the provisions related to the duration and applicability of maternity leave, and other facilities.
- The Maternity Benefit (Amendment) Act 2017 has increased the duration of paid maternity leave available for women employees to 26 weeks from 12 weeks. However for those women who are expecting after having 2 children, the duration of the leave remains unaltered at 12 weeks.
- The paid maternity leave can be availed 8 weeks before the expected date of delivery. Before the amendment, it was 6 weeks.
- The Maternity Benefit (Amendment) Act 2017 has extended the benefits applicable to the adoptive and commissioning mothers and provides that woman who adopts a child will be given 12 weeks of maternity leave from the date of adoption.
- The Act has introduced an enabling provision relating to “work from home” that can be exercised after the expiry of 26 weeks’ leave period. Depending upon the nature of work, a woman can avail of this provision on such terms that are mutually agreed with the employer.
- The amended Act has mandated crèche facility for every establishment employing 50 or more employees. The women employees should be permitted to visit the facility 4 times during the day.
- The amended act makes it compulsory for the employers to educate women about the maternity benefits available to them at the time of their appointment.
The act is applicable to all those women employed in factories, mines and shops or commercial establishments employing 10 or more employees.
The amended act has raised the maternity benefits from 12 weeks to 26 weeks. This is significant and is in line with the recommendation of the World Health Organisation which says that children must be exclusively breastfed by the mother for the first 24 weeks. The extension in the maternity leave will help in improving survival rates of children and healthy development of both mother and child.
This will also reduce the instances of women dropping out of the labour force due to absence of adequate maternity leave.
The amended act also falls in line with international best practices such as the Maternity Protection Convention, 2000 (No 183) which calls for at least 14 weeks of mandatory maternity benefit.
Another significant feature is the introduction of 12 weeks of maternity benefits to the adopting and commissioned mothers.
The amended provisions have placed India third worldwide only behind Canada and Norway globally in the amount of maternity benefits being made available to the women workers.
The increase in the maternity leave could also have adverse impact on the job opportunities for women. The requirement of full payment of wages during maternity leave could increase costs for employers. It could result in increased preference for hiring male workers. The provision could also impact the competitiveness of industries that predominantly employs women workers
Secondly, various provisions of the amended act lack clarity. For instance, there is no clarity in the act regarding the time period up to which the crèche facility could be extended to the employee and also regarding the aspect of availability, frequency and extent of nursing breaks.
The provisions regarding the applicability of the Act to the unorganised sector also remain unclear. Though, on one hand, the act states that it covers all women working in mines, plantations, shops, and establishments as well as factories in both organised and unorganised sectors. But on the other hand, the Unorganised Workers’ Social Security Act, 2008 defines unorganised sector workers as those who are home based, self-employed, or wage workers working in an entity having less than 10 employees. So the provisions did not clarify whether the act is applicable to the women employees in those enterprises having less than 10 employees. This is disturbing as over 90% of the working women are employed in unorganised sector in India.
Though the women working in unorganised sector can avail benefits from the schemes such as the Janani Suraksha Yojana and the Indira Gandhi Matritva Sahyog Yojana, they get their benefit only in terms of cash assistance and lack other institutional support provided in the maternity benefit act.
Increasing maternity benefit is a welcome step but the government should devise some mechanism to ensure that competitiveness of the private sector is not affected.
The government should try to bring about uniformity in labour laws about maternity benefits. The acts like Employees State Insurance Act, 1948, All India Services (Leave) Rules, 1955, Central Civil Services (Leave) Rules, 1972, Factories Act, 1948, and the Unorganized Workers Social Security Act, 2008 have differences in coverage, benefits and financing. All these laws must be amalgamated to uniformly disseminate the benefits across various sectors in India.
The present amendment has the potential to dissuade employers from employing women as they have to bear the financial burden of maternity benefits. So to stop this, the government should follow the advice of ILO. ILO has stated that the cost of providing maternity benefits must not be exclusively borne by the employer. In this regard, the government should come forward in addressing the maternity benefit financing issues. The government should opt for paying benefits through compulsory social insurance or public funds as recommended by the ILO. In this regard, the Pan-India expansion of Maternity Benefit Programme (MBP) of the Ministry of Women & Child Development is a welcome step. The scheme is applicable to all pregnant women and lactating mothers and excludes the pregnant women and lactating mothers in regular employment with the Central Government or State Governments and in Public Sector Undertakings.
Another issue is that the amendments are silent on provisions regarding paternity benefits. At present, paternity benefits are permitted in government jobs as a part of leave rules and in private organizations as a matter of internal policy. In this regard, ILO has recognised men’s right to parenthood. It wants to see men as active co-parent. In a country where gender stereotypes are predominant, a gender-balanced approach to parenthood is needed. The government should come up with a incentivised schemes regarding paternity benefits to achieve this objective.
Overall, the amendments are a welcome and positive move by the government. At the same time, the government should address the above shortcomings and should work towards ensuring that the law provides equal opportunities to women at the workplace.