The Maternity Benefit (Amendment) Act, 2016: An Analysis

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The Maternity Benefit (Amendment) Act, 2016: An Analysis

Dr. Harleen Kaur | April 2017

Maternal care to the Child during early childhood is considered to be very essential for growth and sound development of the child. The Universal Declaration of Human Rights, 1948 (UDHR) dealing with the rights of the children under Article 25(2) states: “motherhood and childhood are entitled to special care and assistances and all children whether born in or out of wedlock shall enjoy the same social protection”. Though, UDHR 1948 is not a binding resolution for India but it has helped in laying down certain common standards for children worldwide. Similarly the United Nations Convention on Child Rights (UNCRC) which is “the most complete statement of child rights ever made.” It incorporates ten principles of the 1959 Declaration of the Rights of the Child, and expands them to 54 articles, 41 of which specifically relate to rights of children covering every aspect of a child’s life. It is indeed an innovative document which aspires to balance the rights of children with those of parents/adults who are responsible for their survival, development and protection. Since this international initiative does not have any time limit nor an expiry date therefore, the obligation on the part of the countries which are party to it will never cease, and will continue to require action and attention of the Government, in protecting and respecting the rights of children.

The Constitution of India, 1950 in its Fundamental Rights and Directive Principles of State Policy, also incorporates almost all child rights as contained in the UNCRC. Also in taking forward its commitments and obligations under the Constitution of India, the UNCRC and various other instruments for the protection and enhancement of child rights, the Indian Government, in recent years, has also made a number of policies regarding the overall development of children of the country and has also enacted various legislations which provide for the protection of children from a variety of forms of exploitation and for the enhancement of their rights.

The Constitution of India, in Article 39(e) & (f), also provides that the State shall, in particular, direct its policy towards securing the health of children and giving children the opportunity and facilities to develop in a healthy manner and in condition of freedom and dignity and to be protected against exploitation and against moral and material abandonment.

It needs no stating that a few days old child depends completely on others for every small need, his first and basic need being the need of ‘food’. It is a widely advertised fact world over that at least till a child is one year old he gets his nutrition from the mother’s milk. This need is of sheer survival. Not only does the mother’s milk provide the baby with the nutrition but also forms a bond between a mother and a baby. Therefore, both at national and international level there has been continuous demand to enhance the maternity benefits to the female employees as to ensure and strengthen the natural bonding between the child and the mother. The World Health Organisation (WHO) recommends that infants be exclusively breastfed by the mother for the first 24 weeks to improve their survival rates and for the healthy development of both mother and child. With a vision to improve and safeguarding pre-natal and post-natal healthcare of both mother and child The Indian Labour Conference (“ILC”) in its 46th Session recommended enhancing the maternity leave under the Maternity Benefit Act 1961 from existing 12 weeks to 24 weeks.

The primary legislation in India regulating the provision of maternity benefits for female employees is the Maternity Benefit Act, 1961 which is applicable to all establishments which are factories, mines, the circus industry, plantations, and shops or government establishments employing ten or more persons, except the employees who are covered under the Employees’ State Insurance Act, 1948. The eligibility criteria for receiving maternity benefit under the MB Act 1961 is a woman who has worked for at least 80 days in the 12 months immediately preceding her expected date of delivery and is entitled to maternity leave of 12 weeks, six weeks’ leave in case of miscarriage or medical termination of pregnancy; two weeks’ leave in case of tubectomy; and one month’s leave in case of illness during pregnancy.

However, with a view to ensure pre/post natal healthcare of the mother as well as the child, amendments in the Maternity Benefit Act have been introduced vide the Maternity Benefit (Amendment) Act, 2016 which has come into force w.e.f. April 1, 2017.

THE IMPORTANT AMENDMENTS

The duration of paid maternity leave has been enhanced from12 weeks (of which not more than 6 weeks shall precede the expected date of delivery) to 26 weeks (of which not more than 8 weeks shall precede the expected date of delivery). A provision has also been introduced which provides that a woman with two or more surviving children will receive only 12 weeks of paid maternity leave.
For the first time a provision has been introduced for adopting and commissioning mother/s. ie, a woman who legally adopts a child below the age of 3 months or a commissioning mother (who uses her egg to create an embryo to be implanted in another woman) will be entitled to maternity benefit for a period of 12 weeks which will be calculated from the date the child is handed over to the adopting or commissioning mother.
After availing the maternity leave benefit, an employer may allow a woman to work from home on such terms as may be mutually agreed to between the employer and the woman. However, the provisions relating to permission required to work from home (Section 3(5) of the Act), will come into effect from July 1, 2017.
The Act now imposes an obligation on the part of employers having 50 or more employees, to have the facility of crèche within such distance as may be prescribed, either separately or along with common facilities. The employer is required to allow four visits a day to the crèche by the woman, which will also include the interval for rest allowed to her. However, the amendment does not make it explicit whether the crèche facility can be provided on a chargeable basis to employees or whether the facility has to be provided free of charge.
Every establishment is required to intimate in writing and electronically to every woman at the time of her initial appointment about the benefit available under the Act.

THE AMENDMENTS AND THEIR IMPACT ON CORPORATE HOUSES

Possible effects of the above amendments may be examined as under:

With the increase in the duration of paid maternity leave, the Cost to Company shall rise;
Provision of crèche facility – The Amendment permits four visits per day to the crèche apart from the interval of rest to be allowed to the woman employee. The establishment would have to shoulder additional financial burden along with other incidental costs of maintaining the crèche. Ultimately, there could be a possibility that establishments may adopt a practice of hiring lesser number of female employees.

“The Amendment permits four visits per day to the crèche apart from the interval of rest to be allowed to the woman employee. The establishment would have to shoulder additional financial burden along with other incidental costs of maintaining the crèche. Ultimately, there could be a possibility that establishments may adopt a practice of hiring lesser number of female employees.”

SUGGESTIONS TO OVERCOME THE ABOVE IMPACT

Some of the amendments required to be made in the act in this direction are as follows:

In various developed Nations where child care benefits have been extended, the Government bears some part of the financial accountability. In India, however, except for the tiny proportion of employees covered under the Employee State Insurance Act 1948 (ESI) (i.e. employees earning not more than INR 21,000 per month), maternity benefits are required to be financed by the employer and therefore, there is a worry that the requirement of providing increased benefits under the Amendment may negatively impact the HR policies of Corporate Houses. The Government should work in this area in order to make the amendments more workable.
A beneficial provision for the employers in the form of unpaid leave could have also been provided in the Act in order to reduce the financial exposure on the employer.

SUGGESTIONS TO MAKE THE ACT MORE EFEECTIVE

No express provisions for maternity leave for surrogate mothers have been made.
It is still not clear as to whether visits to the crèche are additional to nursing breaks. The Act needs to make the provision more specific.
The Maternity Amendment Act has overlooked the recommendation of the Sixth Central Pay Commission and has left out a majority of the workforce that works in the unorganized sector in India.
The Act has missed out the opportunity to introduce paternity leave if both the parents receive the benefit of leaves at the time of child birth. This, to an extent, helps parents to strike a balance between their careers and personal life and also ensures that the child gets proper care and attention from both the parents especially in his/her initial years of development..
The amendments should have been extended to all establishments irrespective of the number of employees. Given the objective of the statute, there also does not seem to be a valid justification as to why the law should not apply to establishments having less than 10 employees.
The Maternity Amendment Act has not increased the medical bonus amount payable which is currently low and does not match up to the current inflationary trends.

CONCLUSION

The proposed changes to the Maternity Benefit Act are indeed ‘historic’ and make India as one of the most progressive countries in terms of providing maternity benefits thereby bringing it at par with international standards. The amendments recognize the importance of women participation at work place and its impact on the Indian economy. Though the changes significantly increase costs for employers and might affect the HR policies of corporate houses in hiring women employees, nevertheless the amendments were long due and are a welcome step.