Tuesday, July 21, 2009

Women and Industrial Law : Maternity Benefit Act 1961

Women and Industrial Law : Maternity Benefit Act 1961

Economic dependence of women is what gives rise to their subordination in society today. Hence to remove such subordination and to lay the foundation of equality women too must be made economically independent and must take an active role in all sectors of business today. To support such initiative the Government must provide some conditions which are suitable for the needs of women.

Problems faced by women in the economic sphere of life are mostly relating to unequal wages and discrimination resulting from their biological role in nature of childbearing. To curb such problems and protect the economic rights of women the legislature introduced the Equal Remuneration Act 1976 and the Maternity Benefit Act of 1961.

Maternity benefits were first recognized when the Maternity Protection Conference was held by the International Labour Organization in 1919. In a case in 1977, B. Shah v. P.O. It was held that women need to be withdrawn from the workforce during pregnancy and after the birth also they need the steady income for medical expenses etc. and therefore to preserve her health law should make provisions for maternity benefit so women can ensure their productivity as well as reproductivity.

A maternity benefit is one that every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the rate of the average daily wage for the period of her actual absence. The Maternity Benefit Act aims to regulate of employment of women employees in certain establishments for certain periods before and after childbirth and provides for maternity and certain other benefits.

The Maternity Benefit Act is applicable all across the whole Union of India and is pertinent to every factory, mine or plantation including those belonging to Government, irrespective of the number of employees, and to every shop or establishment wherein 10 or more persons are employed or were employed on any day of the preceding 12 months. Women can claim benefits under the act everywhere except in factories and other establishments where the Employee’s State Insurance Act is applicable. Sec.2 of this Act lays down its applicability where it states that this act must be followed in all Governmental establishments such as factories, mines, and other plantations where people are employed for the exhibition of equestrian and acrobatic skills. Also it applies to shops or any state owned stores or markets where at least ten people are employed and the person must have been working for at least 12 months to avail of the maternity benefits.

Women are eligible to gain benefits under the act if the woman employee, whether employed directly or through a contractor, has actually worked in the establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery. The qualifying period of 80 days does not apply to a woman who may have immigrated into the State of Assam and was pregnant at the time of immigration. There is no wage ceiling for coverage under the Act nor there is any restriction as regards the type of work a woman is engaged in. The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery.

Section 4 of this act states when women are prohibited to work under certain circumstances- firstly, within six weeks that immediately follow the day of delivery, miscarriage or termination of pregnancy, secondly, no employer should knowingly employ them within the six weeks of above circumstances, thirdly, pregnant women on request by employer are not allowed to do any work which involves standing for long hours or any activity which may be harmful to the fetus. The time period for this will be one month preceding the expected delivery date or any period during the six weeks when she is not to be working but does not avail of this leave. In the B.Shah v. P.O. case it was held that 100% wages were to be provided for all days of leave as well as benefits such a Sundays and rest days as wages were being given for actual number of working days missed.

Section 5-A guarantees women the security of tenure during such period of leave. Their employer will continue to pay her wages even though she is unable to attend work.

In case a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death. In case the woman dies during the delivery or within a short period after it then the employer is liable for the entire period but if the child dies then for the days up to and including the date of death of the child. The loss of both wife and child can be very emotionally scarring and the husband will be paid the compensation of maternity benefit.

Women who work strenuous hours during the course of their employment can develop stressful tendencies. When they reach a certain age they are expected to start a family and due to their hectic schedules they develop complications while conceiving. Hence for a certain period of time women should be allowed their personal rights to give birth to healthy children and take care of the infants till a certain period of time while getting support from their employing establishment as medical expenses as well as costs of taking care of newborn children are expensive.

Maternity benefit is paid in certain cases:

a) to women who are employed in factories or other institutions where the provisions of the Employees’ State Insurance Act apply

b) whose wages for a month exceed the amount specified in sub clause (9) of sec.2 of the Act

c) who fulfills the conditions specified in sub section (2) of sec.5

shall be entitled to the payment of maternity benefit under this Act.

Under sec.6 a Notice of claim for maternity benefit must be provided. A woman employee entitled to maternity benefit may give a notice in writing (in the prescribed form) to her employer, stating as follows:

i. that her maternity benefit may be paid to her or to her nominee (to be specified in the notice);

ii. that she will not work in any establishment during the period for which she receives maternity benefit; and

iii. that she will be absent from work from such date (to be specified by her), which shall not be earlier than 6 weeks before the date of her expected delivery.

The notice may be given during the pregnancy or as soon as possible, after the delivery. On receipt of the notice, the employer shall permit such woman to absent herself from work after the day of her delivery. The failure to give notice, however, does not disentitle the woman to the benefit of the Act.

Discharge or dismissal during maternity leave is considered to be void. When a pregnant woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during, or on account of, such absence, or give notice of discharge or dismissal in such a day that the notice will expire during such absence or to vary to her disadvantage any of the conditions of her services. Dismissal or discharge of a pregnant woman shall not disentitle her to the maternity benefit or medical bonus allowable under the Act except if it was on some other ground.

Women are entitled to these benefits as the child bearing process is intensely painful and can cause bodily damage. This may severely affect the future work of the woman as an employee and decrease her productivity. Hence a certain amount of time, usually six weeks is given for recovery and nursing of the newborn child. Such leave may also be extended in special cases related to pregnancy such as miscarriage or termination of pregnancy. Special provisions are made for miscarriage –‘In case of miscarriage or medical termination of pregnancy, a woman shall, on production of the prescribed proof, be entitled to leave with wages at the rate of maternity benefit, for a period of 6 weeks immediately following the day of her miscarriage or medical termination of pregnancyas per sec.9 of the Maternity Benefits Act. For a Tubectomy operation as well prescribed proof must be provided and two weeks leave will be provided by the employer. Leave for a maximum period of one month with wages at the rate of maternity benefit are allowable in case of illness arising out of pregnancy, delivery, premature birth of child, miscarriage or medical termination of pregnancy or tubectomy operation. Every woman entitled to maternity benefit shall also be allowed a medical bonus of Rs. 250, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.

For women who return to their services with the employing agency after the leave provided a special provision for two breaks in the working day for a prescribed period of time for nursing the child till the age of fifteen months. This gives women a feeling of convenience as they do not have extra hassles of running home from time to time or the inconvenience of losing their status of employment.

The main authority on this Act is the Central Government which determines the extent of Act and makes rules to enforce it. Its main aims are to give directions to the State Government regarding execution of the act, and where the appropriate Government is the Central Government, to make rules for carrying out the provisions of this act, to exempt establishments from any or all provisions of the act. Where the appropriate government is the State Government, to make rules for the purpose of carrying out the provisions of this act, to exempt establishments from any or all provisions of the act. The duty of the Inspector appointed is to implement and enforce the provisions of the act and to hear complaints regarding payment of maternity benefit. He or she can enter at reasonable times with assistants, any premises where women are employed, examine any person, require the employer to give information regarding women employees, take copies of registers or records, order payments to be made.

Failure to pay maternity benefits or discharge or unemployment of woman due to maternity will result in imprisonment of the employer for not less than three months which may extend to one year and a fine of rupees two thousand which may extend to five thousand. For contravening the provisions of this Act and obstructing the Inspector from viewing registers and documents can also result in imprisonment of one year and fine of rupees five thousand.

It is seen that there are provisions for women who do undergo inconvenience at a stage when they are starting families and are given many benefits such as paid leave etc. This is however not enough as many employers do not hire married women or dismiss them before pregnancy. The Act provides some protection to women economically especially today in an age where single mothers are becoming more prevalent it gives them stability in their lives to have their wages and the security of returning to a steady job. My personal views are that this Act is not enough to guarantee women equality and economic security but it is definitely a starting step and though there are several bridges to cross, the first step has been initiated and in today’s progressing world the future for women’s equality shines brightly.


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